Mr. Madison is called "the Father of the Constitution." A paper written by him was laid before his colleagues of Virginia, before the meeting of the Constitutional Convention at Philadelphia, and was made the basis of the "Virginia plan," as it was called, out of which the Constitution was evolved. In another way his name is so identified with it that one cannot be forgotten so long as the other is remembered. From that full and faithful report of the proceedings of the convention, in which his own part was so active and conspicuous, we know most that we do or ever can know of the perplexities and trials, the concessions and triumphs, the acts of wisdom and the acts of weakness, of that body of men whose coming together time has shown to have been one of the important events in the history of mankind.

Then it is also true that no man had worked harder, perhaps none had worked so hard, to bring the public mind to a serious consideration of affairs and a recognition of the necessity of reorganizing the government, if the States were to be held together. Never, it seemed, had men better reason to be satisfied with the result of their labors when, a few months later, the new Constitution was accepted by all the States. Yet the time was not far distant when even Madison would be in doubt as to the character of this new bond of union, and as to what sort of government had been secured by it. Nor till he had been dead near thirty years was it to be determined what union under the Constitution really meant; nor till three quarters of a century after the adoption of that instrument was the more perfect union formed, justice established, domestic tranquillity insured, the general welfare promoted, and the blessings of liberty secured to all the people, which by that great charter it was intended, in 1787, to ordain and establish. All the difficulties, which they who framed it escaped by their work, were as nothing to those which it entailed upon their descendants.

Two parties went into the convention. On one point, of course, they were agreed, else they would never have come together at all,—that a united government under the Articles of Confederation was a failure, and, unless some remedy should be speedily devised, States with common local interests would gravitate into separate and perhaps antagonistic nationalities. But the differences between these two parties were radical, and for a time seemed insurmountable. One proposed simply to repair the Articles of Confederation as they might overhaul a machine that was out of gear; the other proposed to form an altogether new Constitution. One wanted a merely federal government; not, however, meaning by that term what the other party—soon, nevertheless, to be known as Federalists—were striving for, but a confederation of States, each independent of all the rest and supreme in its own right, while consenting to unite with the rest in a limited government for the administration of certain common interests.[10]

This idea of the independence of the States was a survival of the old colonial system, when each colony under its distinct relation to the crown had attained a growth of its own with its separate interests. Each of these colonies had become a State. The Revolution had secured to each, it was maintained, a separate independence, achieved, it was true, by united efforts, but not therefore binding them together as a single nation. It was held as a legitimate result of that doctrine that each State, not the people of the State, whether many or few, should be represented by the same number of votes in a federal government as they were under the Articles of Confederation, because such a government was a union of States, not of a people.

All men, it was argued,—going back to a state of nature,—are equally free and independent; and when a government is formed every man has an equal share by natural right in its formation and in its subsequent conduct. While numbers are few, every member of the State exercises his individual right in person, and none can rightfully do more than this, however wise, or powerful, or rich he may be. But when government by the whole body of the people becomes cumbersome and inconvenient through increase of numbers, the individual citizen loses none of his rights by intrusting their exercise to representatives, in choosing and instructing whom all have an equal voice. So when States are united in a confederacy each State has the same relation to that government that individuals have to each other in a single State. They are free and equal, and none has a larger share of rights in the confederacy because its people are more numerous, or because it is richer or more powerful, than the rest. In such a confederacy it is not the individual citizen who is to be represented, but the individual State. In such a confederacy there would be the same representation for a State, say of ten thousand inhabitants, as for one of fifty thousand. This, it was maintained, preserved equality of suffrage in the equality of States; while the representation of the individual citizens of the States would be in reality inequality of suffrage, because the autonomy of the State would be lost sight of. If in such a case it were asked what had become of the rights which the majority of forty thousand had inherited from nature, the answer was that those rights were preserved and represented in the state government. The difficulty, nevertheless, remained: how to reconcile in practice this doctrine of the equal rights of States, where there might be a minority of persons, with the actual rights of the whole people where, according to the underlying democratic doctrine, the good of the whole must be decided by the larger number.

Those who proposed only to amend the old Articles of Confederation, and opposed a new Constitution, objected that a government formed under such a Constitution would be not a federal but a national government. Luther Martin said, when he returned to Maryland, that the delegates "appeared totally to have forgot the business for which we were sent.... We had not been sent to form a government over the inhabitants of America considered as individuals.... That the system of government we were intrusted to prepare was a government over these thirteen States, but that in our proceedings we adopted principles which would be right and proper only on the supposition that there were no state governments at all, but that all the inhabitants of this extensive continent were in their individual capacity, without government, and in a state of nature." He added that "in the whole system there was but one federal feature, the appointment of the senators by the States in their sovereign capacity, that is, by their legislatures, and the equality of suffrage in that branch; but it was said that this feature was only federal in appearance."

The Senate, the second house as it was called in the convention, was in part created, it is needless to say, to meet, or rather in obedience to, reasoning like this. There was almost nobody who would have been willing to abandon the state governments, as there was next to nobody who wanted a monarchy. "We were eternally troubled," Martin said, "with arguments and precedents from the British government." He could not get beyond the fixed notion that those whom he opposed were determined to establish "one general government over this extensive continent, of a monarchical nature." If he, and those who agreed with him, sincerely believed this to be true, it was natural enough that the frequent allusions to British precedents, as wise rules for American guidance in constructing a government, should be looked upon as an unmistakable hankering after lost flesh-pots. Should the state governments be swept away, it might be that, in time of danger from without or of peril from internal dissensions, the country, under "a government of a monarchical nature," might drift back to its old allegiance. If those who feared, or said they feared, this were not quite sincere, the temptation was almost irresistible to use such arguments to arouse popular prejudice against political opponents. It is curious that Madison seemed quite unconscious of how much the frequent allusions in his articles in "The Federalist" to the British Constitution might strengthen these accusations of the opposition; while he half believed that the same thing in others showed in them a leaning toward England, from which he knew that he himself was quite free.

The Luther Martin protestants were too radical to remain in the convention to the end, when they saw that such a confederacy as they wanted was impossible. But there were not many who went the length they did in believing that a strong central government was necessarily the destruction of the state governments. Still fewer were those who would have brought this about if they could. That the rights of the States must be preserved was the general opinion and determination, and it was not difficult to do this by limiting the powers of the higher government, or federal as it soon came to be called, and by the organization of the second house, the Senate, in which all the States had an equal representation. The smaller States were satisfied with this concession, and the larger were willing to make it, not only for the sake of the Union, but because of the just estimate in which they held the rights belonging to all the States alike. The real difficulty, as Madison said in the debate on that question, and as he repeated again and again after that question was settled, was not between the larger and smaller States, but between the North and the South; between those States that held slaves and those that had none.

Slavery in the Constitution, which has given so much trouble to the Abolitionists of this century, and indeed to everybody else, gave quite as much in the last century to those who put it there. Many of the wisest and best men of the time, Southerners as well as Northerners, and among them Madison, were opposed to slavery. They could see little good in it, hardly even any compensation for the existence of a system so full of evil. There was hardly a State in the Union at that time that had not its emancipation society; and there was hardly a man of any eminence in the country who was not an officer, or at least a member, of such a society. Everywhere north of South Carolina, slavery was looked upon as a misfortune which it was exceedingly desirable to be free from at the earliest possible moment; everywhere north of Mason and Dixon's line, measures had already been taken, or were certain soon to be taken, to put an end to it; and by the ordinance for the government of all the territory north of the Ohio River it was absolutely prohibited by Congress in the same year in which the Constitutional Congress met.

But it was, nevertheless, a thing to the continued existence of which the anti-slavery people of that time could consent without any violation of conscience. Bad as it was, unwise, wasteful, cruel, a mockery of every pretense of respect for the rights of man, they did not believe it to be absolutely wicked. If they had so believed, let us hope they would have washed their hands of it. As it was, it was only a question of expediency whether, for the sake of the Union, they should protect the system of slavery, and give to the slaveholders, as slaveholders, a certain degree of political power. To refuse to admit a slaveholding State into the Union did not occur, probably, to the most earnest opponent of the system; for that would have been simply to say that there should be no Union. That was what Madison meant in saying so repeatedly that the real difficulty in the way was, not the difference between the large and the small States, but the difference between the slaveholding and the non-slaveholding States. If there could be no conciliation on that point there could be no Union.

Some hoped, perhaps, rather than believed, that slavery was likely to disappear ere long at the South as it was disappearing at the North. It is an impeachment of their intelligence, however, to suppose that they relied much upon any such hope. The simple truth is that slavery was then, as it continued to be for three quarters of a century longer, the paramount interest of the South. To withstand or disregard it was not merely difficult, but was to brave immediate possible dangers and sufferings, which are never voluntarily encountered except in obedience to the highest sense of duty; or to meet a necessity, from which there was no manly way of escape. The sense of absolute duty was wanting; the necessity, it was hoped, might be avoided by concessions. It can only be said for those who made them that they did not see what fruitful seeds of future trouble they were sowing in the Constitution.