In February, 1787, Madison again took a seat in Congress. It was an anxious period. Shays's rebellion in Massachusetts had assumed rather formidable possibilities, and seemed not unlikely to spread to other States. Till this storm should blow over, the important business of Congress was to raise money and troops; in reality, to go to the help of Massachusetts, if need should be, though the object ostensibly was to protect a handful of people on the frontier against the Indians. It was a striking instance of the imbecility of the government under the Articles of Confederation, that it could only undertake to suppress rebellion in a State under the pretense of doing something else which came within the law. Massachusetts, it is true, was quite able to deal with her insurgents; but when Congress convened it was not known in New York that Lincoln had dispersed the main body of them at Petersham. Nevertheless, a like difficulty might arise at any moment in any other of the States, where the strength to meet it might be quite inadequate.

Madison's ideal still was, the union before the[74] States, and for the sake of the States; the whole before the parts, to save the parts; the binding the fagot together that the sticks might not be lost. "Our situation," he wrote to Edmund Randolph in February, "is becoming every day more and more critical. No money comes into the federal treasury; no respect is paid to the federal authority; and people of reflection unanimously agree that the existing Confederacy is tottering to its foundation. Many individuals of weight, particularly in the eastern district, are suspected of leaning toward monarchy. Other individuals predict a partition of the States into two or more confederacies. It is pretty certain that if some radical amendment of the single one cannot be devised and introduced, one or the other of these revolutions, the latter no doubt, will take place."

It is not impossible that Madison himself may have had some faith in this suspicion that "individuals of weight in the eastern district" were inclined to a monarchy. For such suspicion, however there could be little real foundation. There were, doubtless, men of weight who thought and said that monarchy was better than anarchy. There were, doubtless, impatient men then who thought and said, as there are impatient men now who think and say, that the rule of a king is better than the rule of the people. But there was no disloyalty to government by the people among those who only maintained that the English in America must draw from the common heritage of English[75] institutions and English law the material wherewith to build up the foundations of a new nation. No intelligent and candid man doubts now that they were wise; nor would it have been long doubted then, had it not so speedily become manifest that, if the stigma of "British" was once affixed to a political party, any appeal from popular prejudice to reason and common sense was hopeless.

There were a few persons who would have done away with the divisions of States and establish in their place a central government. Those most earnest in maintaining the autonomy of States declared that such a government was, as Luther Martin of Maryland called it, of "a monarchical nature." What else could that be but a monarchy? An insinuation took on the form of a logical deduction and became a popular fallacy. Yet those most earnest for a central government only sought to establish a stable rule in place of no rule at all; or, worse still, of the tyranny of an ignorant and vicious mob under the outraged name of democracy, into which there was danger of drifting. Whether their plan was wise or foolish, it did not mean a monarchy. Even of Shays's misguided followers Jefferson said: "I believe you may be assured that an idea or desire of returning to anything like their ancient government never entered into their heads." As Madison knew and said, the real danger was that the States would divide into two confederacies, and only by a new[76] and wiser and stronger union could that calamity be averted.

To gain the assent of most of the States to a convention was surmounting only the least of the difficulties. Three weeks before the time of meeting Madison wrote: "The nearer the crisis approaches, the more I tremble for the issue. The necessity of gaining the concurrence of the convention in some system that will answer the purpose, the subsequent approbation of Congress, and the final sanction of the States, present a series of chances which would inspire despair in any case where the alternative was less formidable." He said, in the first month of the session of that body, that "the States were divided into different interests, not by their difference of size, but by other circumstances; the most material of which resulted partly from climate, but principally from the effects of their having or not having slaves. These two causes concurred in forming the great division of interests in the United States. It did not lie between the large and small States. It lay between the Northern and Southern."

During the earlier weeks of this session of Congress, and, indeed, for some months before, events had made so manifest this difference of interest, coincident with the difference in latitude, that there seemed little ground for hope that any good would come out of a constitutional convention. The old question of the navigation of the Mississippi was again agitated. The South held her[77] right to that river to be of much more value than anything she could gain by a closer union with the North, and she was quite ready to go to war with Spain in defense of it. On the other hand, the Northern States were quite indifferent to the navigation of the Mississippi, and not disposed apparently to make any exertion or sacrifice to secure it. Just now they were anxious to secure a commercial treaty with Spain; but Spain insisted, as a preliminary condition, that the United States should relinquish all claim to navigation upon a river whose mouths were within Spanish territory. In the Northern mind there was no doubt of the value of trade with Spain; and there was a good deal of doubt whether there was anything worth contending for in the right to sail upon a river running through a wilderness where, as yet, there were few inhabitants, and hardly any trade worth talking about. More than that, there was unquestionably a not uncommon belief at the North and East that the settlement and prosperity of the West would be at the expense of the Atlantic States. Perhaps that view of the matter was not loudly insisted upon; but many were none the less persuaded that, if population was attracted westward by the hope of acquiring rich and cheap lands, prosperity and power would go with it. At any rate, those of this way of thinking were not inclined to forego a certain good for that which would profit them nothing, and might do them lasting harm.

[78]For these reasons, spoken and unspoken, the Northern members of Congress were at first quite willing, for the sake of a commercial treaty, to concede to Spain the exclusive control of the Mississippi. But to pacify the South it was proposed that the concession to Spain should be for only five and twenty years. If at the end of that period the navigation of the Mississippi should be worth contending for, the question could be reopened. The South was, of course, rather exasperated than pacified by such a proposition. The navigation of the river had not only a certain value to them now, but it was theirs by right, and that was reason enough for not parting with it even for a limited period. Concessions now would make the reassertion of the right the more difficult by and by. If it must be fought for, it would lessen the chance of success to put off the fighting five and twenty years. Indeed, it could not be put off, for war was already begun in a small way. The Spaniards had seized American boats on trading voyages down the river, and the Americans had retaliated upon some petty Spanish settlements. Spain, moreover, seemed at first no more inclined to listen to compromise than the South was.

England watched this controversy with interest. She had no expectation of recovering for herself the Floridas, which she had lost in the war of the Revolution, and had finally ceded to Spain by the treaty of 1783; but she was quite willing to see that power get into trouble on the Mississippi[79] question, and more than willing that it should threaten the peace and union of the States. Her own boundary line west of the Alleghanies might possibly be extended far south of the Great Lakes, if the Northern and Southern States should divide into two confederacies; but, apart from any lust of territory, she rejoiced at anything that threatened to check the growth of her late colonies.

Fortunately, however, the question was disposed of, before the Constitutional Convention met at Philadelphia, by the failure to secure a treaty. The Spanish minister, Guardoqui, consented, at length, after long resistance, to accept as a compromise the navigation of the river for five and twenty years; but Mr. Jay, who was willing, could he have had his way, to concede anything, found at that stage of the negotiations he could not command votes enough in Congress to secure a treaty even in that modified form. Hitherto he had relied upon a resolution passed by Congress in August, 1786, by the vote of seven Northern States against five Southern. This, it was assumed, repealed a resolution of the year before, and authorized the secretary to make a treaty. The resolution of the year before, August, 1785, had been passed by the votes of nine States, and was in confirmation of a provision of the Articles of Confederation declaring that "no treaties with foreign powers should be entered into but by the assent of nine States." The minority contended that such a resolution could not be repealed by the vote of[80] only seven States, for that would be to violate a fundamental condition of the Articles of Confederation. It is easy to see now that there ought not to have been a difference among honorable men on such a point as that. Nevertheless Mr. Jay, supported by some of the strongest Northern men, held that the votes of seven States could be made, in a roundabout way, to authorize an act which the Constitution declared should never be lawful except with the assent of nine States. So the secretary went on with his negotiations and came to terms with the Spanish minister.

In April the secretary was called upon to report to Congress what was the position of these negotiations. Then it first publicly appeared that a treaty was actually agreed upon which gave up the right to the Mississippi for a quarter of a century. But it was also speedily made plain by various parliamentary motions that the seven votes, which the friends of such a treaty had relied upon, had fallen from seven—even could that number in the end have been of use—to, at best, four. The New Jersey delegates had been instructed not to consent to the surrender of the American right to the use of the Mississippi; a new delegate from Pennsylvania had changed the vote of that State; and Rhode Island had also gone over to the other side. "It was considered, on the whole," wrote Madison, "that the project for shutting the Mississippi was at an end."

These details are not unimportant. Forty-five[81] years afterward Madison wrote that "his main object, in returning to Congress at this time, was to bring about, if possible, the canceling of Mr. Jay's project for shutting the Mississippi." Probably it had occurred to nobody then that within less than twenty years the Province of Louisiana would belong to the United States, when their right to the navigation of the river could be no longer disputed. But so long as both its banks from the thirty-first degree of latitude southward to the Gulf remained foreign territory, it was of the last importance to the Southern States, whose territory extended to the Mississippi, that the right of way should not be surrendered. If a treaty with Spain could be carried that gave up this right, and the Southern States should be compelled to choose between the loss of the Mississippi and the loss of the union, there could be little doubt as to what their choice would be. It was not a question to be postponed till after the Philadelphia Convention had convened; if not disposed of before, the convention might as well not meet.

Madison's letters, while the question was pending, show great anxiety. He was glad to know that the South was of one mind on this subject and would not yield an inch. He was quite confident that his own State would take the lead, as she soon did, in the firm avowal of Southern opinion. But he rejoiced that the question did not come up in the Virginia legislature till after the act was passed to send delegates to the Philadelphia Convention.[82] That he looked upon as a point gained, and the delegates were presently appointed; but he still despaired of any good coming of the convention, unless "Mr. Jay's project for shutting the Mississippi" could be first got rid of.

In a recent work[9] Mr. Madison is represented as having "struck a bargain" with the Kentucky delegates to the Virginia Assembly, agreeing to speak on behalf of a petition relating to the Mississippi question, provided the delegates from Kentucky—then a part of Virginia—would vote for the representation of Virginia at Philadelphia. A "bargain" implies an exchange of one thing for another, and Madison had no convictions in favor of closing the Mississippi to exchange for a service rendered on behalf of a measure for which he wished to secure votes. Moreover, no bargain was necessary. It was not easy to find anybody in Virginia who needed to be persuaded that the right to the Mississippi must not be surrendered. Madison wrote to Monroe in October, 1786, that it would "be defended by the legislature with as much zeal as could be wished. Indeed, the only danger is that too much resentment may be indulged by many against the federal councils." His only apprehension was lest the Mississippi question should come up in the Assembly before the report from the Annapolis Convention should be disposed of, for if that were accepted the appointment [83]of delegates to Philadelphia was assured. "I hope," he wrote to Washington in November, "the report will be called for before the business of the Mississippi begins to ferment." It happened as he wished. "The recommendation from Annapolis," he wrote again a week later, "in favor of a general revision of the federal system was unanimously agreed to" (the emphasis is his own). He afterward reported to Jefferson "that the project for bartering the Mississippi to Spain was brought before the Assembly after the preceding measure had been adopted." There was neither delay nor difficulty in securing the unanimous consent of the Assembly to resolutions instructing the members of Congress to oppose any concession to Spain. But Madison's anxiety was not in the least relieved by the speedy appointment of delegates to the Philadelphia Convention; for, he wrote presently to Washington, "I am entirely convinced, from what I observe here (at Richmond), that, unless the project of Congress can be reversed, the hopes of carrying this State into a proper federal system will be demolished." He had already said, in the same letter, that the resolutions on the Mississippi question had been "agreed to unanimously in the House of Delegates," and three days before the letter was written the delegates to Philadelphia had been appointed.