Chapter 1 From Subject to Citizen,1751–76
James Madison Jr. entered the world at midnight of the night of April 16–17, 1751.1 By chance, he was an American prince.
James Madison Sr., the master of Montpelier in Piedmont Virginia’s semifrontier Orange County, was the wealthiest man in the county. His lands were extensive, his slaveholdings were notable, and his family connections were impressive. In a society that privileged the wealthy to a notable degree, James Jr.’s world was his oyster.
Piedmont Virginia lay west of the Tidewater region that had been dominated by Virginia planters for well over a century. Life was cruder there, and tradition less powerful. Social status figured very strongly in a young man’s life, but not to the degree that it did in the coastal counties. If ever a common Virginian doffed his hat as young Madison passed, Madison was not quite so snobbish as a Byrd, Carter, or Harrison. Still, like them, Madison knew his place.
As the scion of a prominent planter family, Madison—unlike most Virginia boys—received an enviable education. First, he attended a small school for sons of the elite in King and Queen County run by Donald Robertson. Next, from 1767 to 1769, his father hired an Episcopal priest tutor to live at Montpelier as Madison’s, and possibly his siblings’, teacher.2 Finally, at age eighteen, Madison went on to the College of New Jersey (now Princeton University). Along the way, Madison read widely in Greek and Latin. He imbibed strong republican sentiments as well as a skeptical attitude toward officeholders.
Opting for Princeton was uncommon among Virginia bluebloods. Madison went there to avoid reputedly unhealthy Williamsburg.3 More commonly, boys of his class went to England’s Inns of Court or Scotland’s University of Edinborough for advanced professional training in law or medicine, or, like Thomas Jefferson, they spent a few years at the colonial college, William and Mary. At William and Mary, nominally Episcopalian, the students were not notably studious and the curriculum was far from rigorous.
Princeton, on the other hand, had a president unlike any in Virginia. The Reverend John Witherspoon was a Presbyterian, a recent immigrant from Scotland.4 As a matter of course, his attitudes about the relationship between church and state, government and religion, the conscience and society were different from those to which Madison would have been exposed at William and Mary. Witherspoon contributed substantially to the course of American philosophy through his devotion to the Scottish Enlightenment, then in full flower, and transmission of Scottish commonsense philosophy to America.
Witherspoon joined leading figures in Scotland’s philosophical establishment in promoting this philosophy. It downplayed the utility of “metaphysical” thought, preferring hardheaded realism, and held that everyone carried the ability to achieve insight into the true and the good by applying his mental faculties to the world around him. Not books, but experience was the best guide.5 In other words, Witherspoon was Aristotelian, not Platonic—with a vengeance, and he believed that the common man could participate in government along with the aristocrat.
Witherspoon taught, as a Presbyterian minister could be expected to do, that man was self-centered and not to be trusted. Among other sources for this teaching was the Scottish philosopher David Hume, with whom Witherspoon was not uniformly in tune. Famously, Madison would turn Hume’s teaching to good account in Federalist No. 10—and, indeed, throughout his career. We can find many points of similarity between Witherspoon’s beliefs and Madison’s, but Madison clearly was not an undiscriminating student. For example, Witherspoon held state support of Christianity to be essential to the health of society and of Christianity, while Madison ultimately rejected that idea, with world-historic significance, as we shall see.6
Although he would later win acclaim for his learnedness, Madison was never a cold, calculating scholar. Rather, he always demonstrated an active sense of humor. Proof of this from his college days is provided by some poetry Madison contributed to an intramural dispute.
Princeton students, it seems, had organized competing literary social clubs, the Whigs and the Cliosophians. Madison took the lead among Whigs in a doggerel war in 1771–1772, contributing several poems to the ongoing conflict.7 The editors of Madison’s papers infer that the Whigs were the socially elite group, while their rivals’ backgrounds often formed the grist for Whig mockery.8 Among the choicest bits was this:Keep up you[r] minds to humourous themesAnd verdant meads & flowing streamsUntill this tribe of dunces findThe baseness of their grovelling mindAnd skulk within their dens togetherWhere each ones stench will kill his brother.
In light of which, you can only imagine how Homeric the quality of the rest must have been. But I will spare you.
While at Princeton, Madison decided to study law on the side. He bought the books he thought he needed for that purpose and, in the fashion of those days, began to read them.9 Very few American legal scholars took classes in law at the time. Instead, they commonly read leading texts and apprenticed to individual members of the bar. Madison’s course, then, was nothing unusual. Nor, I wager, was his experience. Madison’s first flush of tepid enthusiasm (in December 1773) soon gave way before the reality of legal study, which he described (in January 1774) as “coarse and dry.” Fortunately for him and for us, Madison seems to have abandoned his hobby almost instantly.
In 1772, Madison entered upon a very interesting correspondence with one of his Princeton classmates, Philadelphia’s William Bradford. Bradford, who one day would serve briefly as George Washington’s attorney general, broached subjects philosophical and religious with Madison, and the Virginian responded in kind.10
At this point, Madison was still prone, in the fashion of his Princeton instructors, to religious speculations and philosophical diversions. For example, Madison wrote Bradford at one point that, although of course young men would be ambitious, “Nevertheless a watchful eye must be kept on ourselves lest while we are building ideal monuments of Renown and Bliss here we neglect to have our names enrolled in the Annals of Heaven.”11 Warming to the subject, Madison went on to say that, “As to myself I am too dull and infirm now to look out for any extraordinary things in this world for I think my sensations for many months past have intimated to me not to expect a long or healthy life, yet it may be better with me after some time tho I hardly dare expect it and therefore have little spirit and alacrity to set about any thing that is difficult in acquiring and useless in possessing after one has exchanged Time for Eternity.” Madison, aged twenty-one, went on to advise his pal not to be swayed by the allure of “those impertinent fops that abound in every City to divert you,” but to stick to his resolution to study “History and the Science of Morals.” Fortunately, Madison said, his secluded perch in ultrarural Orange County insulated him from such temptations, which “breed in Towns and populous places, as naturally as flies do in the Shambles.”
Bradford replied with an expression of concern for Madison’s health.12 Little could he know that Madison would be fatigued and often on the verge of death for another sixty-four years. In their exchanges, Madison made clear that he respected the ministry and wished his friend would enter upon that profession; the editors of his papers infer that perhaps he would have liked to become a minister, if it were not for his health.13 The twenty-two-year-old Madison also noted that, “I do not meddle with Politicks.” Events would soon bring a change in that sentiment.
In his letter of December 1, 1773, Madison struck out on a new path.14 Since Bradford’s Pennsylvania was, along with New Jersey and Rhode Island, one of three colonies without established churches, Madison asked him to describe the Pennsylvania “fundamental principles of legislation” and “particularly the extent of your religious Toleration.” Bradford had finally decided to become an attorney, and Madison did not want to rush him. Rather, he asked him please to provide this information once he had “obtained sufficient insight.”
Displaying a systematic approach to political and philosophical topics that would soon be commented upon by his colleagues as characteristic of his statesmanship, Madison gave Bradford two specific questions to answer for him: (1) “Is an Ecclesiastical Establishment absolutely necessary to support civil society in a supream Government?” and (2) “How far is it hurtful to a dependant State?” Presumptuously, Madison suggested Bradford might attend to these issues “in the course of your reading and consulting experienced Lawyers & Politicians upon.” He awaited a report on “the Result of your reserches.”
Bradford’s next missive included an enclosure describing the Boston Tea Party of December 16, 1773.15 Madison responded by saying that, “I verily believe the frequent Assaults that have been made on America[,] Boston especially[,] will in the end prove of real advantage.”16
This led Madison directly back to the issue of state churches that he had raised with his friend before: “If the Church of England had been the established and general Religion in all the Northern Colonies as it has been among us here,” he erupted, “and uninterrupted tranquility had prevailed throughout the Continent, It is clear to me that slavery and Subjection might and would have been gradually insinuated among us.” Next came the young Madison’s historic insight, the one that would soon reshape his world: “Union of Religious Sentiments begets a surprising confidence and Ecclesiastical Establishments tend to great ignorance and Corruption[,] all of which facilitate the Execution of mischievous Projects.”
Madison told Bradford that he wished to visit Pennsylvania “to breathe your free Air. I expect it will mend my Constitution & confirm my principles.” His unhappiness with his own colony had arisen from the fact that, “The diabolical Hell conceived principle of persecution rages among some,” including the Episcopal clergy. “This,” he moaned, “vexes me the most of any thing whatever.”
Madison provided Bradford the sad details: “There are at this [time?] in the adjacent County not less than 5 or 6 well meaning men in close Goal [jail] for publishing their religious Sentiments which in the main are very orthodox.” Apparently Madison had raised this issue (“squabbled and scolded abused and ridiculed”) among his Virginia compatriots without any positive effect. He closed by asking Bradford to “pray for Liberty of Conscience [to revive among us].” This, as history would prove, was a radically more liberal position on church-state relations than the “religious Toleration” invoked by Madison in his December 1 letter to Bradford.17
Madison returned to this theme again when next he wrote Bradford.18 The May 1774 session of the Virginia General Assembly, he heard, was going to take up the matter of religious dissent. Baptist petitions and Presbyterian influence might well produce greater religious liberty. Madison doubted that any good would come of it, however, as discussion in the last session had thrown the enthusiasts (whom we would now call “Evangelicals”) in a bad light. Coming to the establishment’s defenders, he virtually spat upon the page, saying, “The Sentiments of our people of Fortune & fashion on this subject are vastly different from what you have been used to. That liberal catholic and equitable way of thinking as to the rights of Conscience, which is one of the Characteristics of a free people and so strongly marks the people of your province is but little known among the Zealous adherents to our [Episcopal] Hierarchy.” There were some legislators who were good men on this score, “but number not merit you know is necessary to carry points there.” Madison thought that the clergy, powerful thanks to its ties to English bishops and the king, would strenuously resist any relaxation of the established religion’s enforcement.
As he had before, Madison next contrasted Virginia’s establishment to the Pennsylvanian regime under which his friend lived. He envied Bradford, and that envy evoked from Madison an impassioned, youthful statement of his faith in religious freedom:
You are happy living in a land where those inestimable privileges are fully enjoyed and public has long felt the good effects of their religious as well as Civil Liberty. Foreigners have been encouraged to settle amg. you. Industry and Virtue have been promoted by mutual emulation and mutual Inspection, Commerce and the Arts have flourished and I can not help attributing those continual exertions of Gen[i]us which appear among you to the inspiration of Liberty and that love of Fame and Knowledge which always accompany it. Religious bondage shackles and debilitates the mind and unfits it for every noble enterprize every expanded prospect. How far this is the Case with Virginia will more clearly appear when the ensuing Trial is made.19
Beyond the question of the Virginia religious establishment and the treatment of dissenters, Madison in his correspondence with Bradford increasingly considered the growing imperial crisis.20 In addition, he described news of Lord Dunmore’s War, a Virginian conflict with the Indians to the Old Dominion’s west. Finally, Madison told Bradford that he favored Virginia’s more confrontational approach in mid-1774 to the conciliatory measures advocated by Pennsylvania. In light of his criticism of Virginia’s religion policy, one cannot ascribe this preference to budding Virginia patriotism. Instead, it reflected young Madison’s personal feeling: the colonies must stand up, and Congress was the mechanism. Since Bradford lived in Philadelphia, he was able to keep Madison abreast of the latest news from that body.21
When the Congress closed, Madison wrote that Virginians “universally approved” of its actions because “A spirit of Liberty & Patriotism animates all degrees and denominations of men.”22 Another way of putting this is that all ranks in society and all religious affiliations stood for American rights. Further, Madison hazarded that “Many publickly declare themselves ready to join the Bostonians as soon as violence is offered them or resistance thought expedient.” Virginians in some parts were organizing themselves into military units, and Madison wanted the entire colony on a war footing.
Madison wrote to Bradford excitedly the following May 9 with a description of the recent colonial response to Lord Dunmore’s seizure of the colonial gunpowder.23 In the days before bullets, firearms required gunpowder, which was in short supply in the colonies, and so the Virginia governor’s action amounted to an attempt to disarm the colonial militia at a stroke. Madison was thrilled by the confrontation between the militia and the governor, and particularly by Patrick Henry’s forcing Dunmore to compensate Virginia for the powder. He also criticized the Tidewater planters who had urged moderation; as he lived in the Piedmont, Madison did not face the same military risks as did tobacco barons closer to the coast. They, not he, were close to the sea (hence the Royal Navy) and the governor.
When the leading men of Orange County decided to endorse Henry’s actions, they selected Madison to be their penman.24 In four resolutions and a summary, Madison, his father, and their most prominent neighbors strongly criticized the governor and heaped praise upon Henry. Dunmore’s seizure, they said, had been “fraudulent, unnecessary, and extremely provoking to the people of this colony,” while the Hanover County volunteers’ “resentment” and “reprisal … highly merit[ed] the approbation of the public.” In case the governor attempted to recoup the money, the Orange County resolutions called on their delegates to see that the money was “laid out in gunpowder.”
The fourth resolution, finally, addressed a message to Henry and his followers (and through them, to the world). The governor’s insistence that he intended to return the powder had been untruthful, they said, and so they thanked the Hanover men for “your zeal for the honour and interest of your country.” By “your country,” note, Madison meant Virginia. The Orange County men added that Parliament’s recent Coercive Acts, while directed at Massachusetts, were really “a hostile attack on this and every other colony, and a sufficient warrant to use violence and reprisal, in all cases where it may be expedient for our security and welfare
” (emphasis added). If Parliament could close the port of Boston and reorganize Massachusetts’s democratic government into a military dictatorship, it could do the same to any other colony—including Virginia. Madison, his father, and their neighbors endorsed the use of whatever means came to hand to resist this outcome.
Fighting between British and colonial forces began at Lexington and Concord on April 19, 1775. Through the rest of the year, Madison received several additional missives from Bradford passing along rumors about the war and events in Congress. In October 1775, Madison was selected by the Committee of Safety—Virginia’s executive branch in the days after Lord Dunmore fled the colony—as colonel of his county’s militia.25 That made him second in command to his father, the county lieutenant. However, as Madison recalled in his old age, he was both generally infirm and prone to “sudden attacks, somewhat resembling Epilepsy, and suspending the intellectual functions.” His constitution did not hold up under the rigors of military training, so, he never served in the American Revolution.26
The first office young Madison did
perform was that of delegate to the Virginia Convention, the legislative branch of revolutionary Virginia down to the implementation of its 1776 constitution. He won election for a one-year term on April 25, 1776.27 Soon thereafter, on May 15, the Convention adopted resolutions saying that a declaration of rights, a republican constitution, federation with other colonies, and alliances must be adopted. That night, Williamsburg celebrated Virginia’s independence “with a military display ‘of great exactness,’” as a continental Union flag replaced the Union Jack over the Virginia capitol.28 “The city was brilliantly illuminated,” and the citizens provided the soldiers a fabulous feast.29
It was the Convention’s decision to adopt a permanent republican constitution that made Virginia independent. Madison considered Virginia independent from May 15, 1776, as well.30
It seems that Madison prepared for the task before him, writing the constitution, by assembling materials on the other colonies’ constitutional systems.31 In time, his diligent application would win him a reputation as consistently the best prepared and most knowledgeable (if not always the most perspicuous) man in American politics. Princeton had prepared him well.
The Virginia Convention of 1776 is largely forgotten now. Yet it was, as John Adams might have said, an epochal event: it adopted the Virginia Declaration of Rights, the first American declaration of rights, and the Virginia Constitution of 1776, the first written constitution adopted by the people’s representatives in the history of the world. In Virginia’s legislative bodies, inexperienced members were expected to hang back and allow senior members to do the important work. Yet Madison, though a very junior member of this august assemblage, played a highly significant role. Arguably, his accomplishment in that body was the most significant of his entire storied career.
The Virginia Declaration of Rights served as the foundation of the Virginia Constitution. It laid out the principles on which Virginia’s elite agreed that republican government ought to be based. Madison served on the committee that drafted the Declaration and the Constitution, whose leading member was the widely respected senior statesman George Mason.
Mason, master of Gunston Hall on the Potomac River, was among the most learned men in a Virginia ruling class spangled with highly educated people. His political principles owed much to the English Whig tradition, which based claims to individual and communal rights on a particular reading of English legal and political history. Unsurprisingly, with men of that turn of mind at its head, the Convention established the Old Dominion’s new republican government on a firmly English foundation.
In the Glorious Revolution of 1688–1689, England first expelled its king, then adopted a bill of rights as the foundation of its government. Only when they had agreed to abide by the bill of rights were William III and Mary recognized as England’s new joint monarchs.
Mason, who called himself a man of 1688, had Virginia do the same thing. As Dunmore (and through him, King George III) had fled the colony, and as the king had declared that the colonies were in rebellion and beyond his protection, the first step—removal of the king—had been taken for them. Next came the task of drafting a declaration of rights.32 According to Madison, Mason drafted the committee version.33
The preamble began: “A DECLARATION OF RIGHTS made by the representatives of the good people of VIRGINIA, assembled in full and free Convention; which rights do pertain to us, and our posterity, as the basis and foundation of government.”34 With that Lockean foundation, the first section of the committee draft stated: “That all men are by nature equally free and independent, and have certain inherent rights, of which they cannot, by any compact, deprive or divest their posterity; namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety.” Robert Nicholas, the colonial treasurer, objected.
If Virginia went on record saying this, Nicholas declared, Virginians would instantly face a terrible choice: either they could ignore their most basic principles, or they could in the midst of a great war with the world’s foremost military power throw their society into convulsion. What he meant, of course, was that a claim that all men are equally free was inconsistent with slavery. Virginians could either ignore this inconsistency and keep slavery, which would make a mockery of their stated principles, or they could adopt this language and abolish slavery, which would throw Virginia into widespread upheaval.
In Madison’s day, quite a substantial share of Virginians believed that slavery needed to be at least reined in. Some wanted to see it ultimately eliminated. There had been repeated efforts in the General Assembly either to adopt a policy of gradual emancipation or at least to ban further imports of slaves. But those efforts had run aground, because elite Virginians wanted to keep slavery and because the king would not allow an import ban. A lot of Virginians feared that freeing the slaves would lead to economic doom and perhaps even race war, and so it seemed to men like Nicholas that May 1776 was a very bad time to take up the matter.
Nicholas proposed a slight change to Mason’s committee draft: insert the phrase “when they enter into a state of society.” So it would read: “That all men are by nature equally free and independent, and have certain inherent rights, of which, when they enter into a state of society, they cannot, by any compact, deprive or divest their posterity.…” Then it would not apply to slaves—who were not parties to this new social compact.
Nicholas’s proposal was accepted. At the birth of its republican government Virginia effectively stated that slaves were not part of Virginia political society.
Madison did not object.
Succeeding sections said that the people were sovereign (Section 2), that a majority could replace the government whenever it wanted (Section 3), that the separation of powers principle should be observed (Section 5), that the right to vote should be widely available (Section 6), and that the military should be subordinate to the civilians (Section 13). Besides making these general claims concerning political philosophy, the Declaration of Rights also enumerated several of the most important rights of individual Englishmen-cum-Virginians: the right to trial by jury in criminal (Section 8) and civil (Section 11) cases, the right to militia service (Section 13), the freedom of the press (Section 12), and the right to proportionate and humane punishment (Section 12), among others.
When the final section of the draft came up, Madison intervened. Here, Mason—following the English precedent—had penned language guaranteeing Virginians “the fullest toleration in the exercise of religion.”35 In a day when persecution was the lot of Protestants in Spain and France, Orthodox Christians in the Turkish Empire, and Catholics in many Protestant lands, toleration served as the benchmark of liberal attitudes toward dissenting minorities. Mason rightly considered this a forward-thinking formula.
But for James Madison, aged twenty-five, that was not enough. What, after all, was the implication of a government promise to “tolerate” someone’s opinion? Surely it was that government knew better, but it would put up with the individual’s divergent understanding for now. Madison’s proposed substitute said, “That religion, or the duty which we owe to our CREATOR, and the manner of discharging it, can be directed only by reason and conviction, not by force or violence; and therefore, that all men are equally entitled to enjoy the free exercise of religion, according to the dictates of conscience.”36 With the excision of the second “that” and the word “enjoy,” this was the final language of Section 16. The convention agreed to it unanimously.
Here, then, was the fruition of Madison’s anguished complaints to his Pennsylvanian friend from Princeton days about the tyrannical effects of Virginia’s religious establishment. Not only did Madison wish Virginia’s regime more closely to resemble Pennsylvania’s, but he did something about it. He led the way in enshrining full-throated religious libertarianism in the first American declaration of rights—where it still takes pride of place today.
While the Declaration of Rights closely followed the example of the Glorious Revolution, Virginia’s 1776 constitution represented the victory of the American Revolution. Although the convention’s leading members rejected Thomas Jefferson’s repeated pleas to be relieved of his seat in Congress, and thus freed to head to Williamsburg and join in writing the Constitution, the preamble to the Constitution was Jefferson’s handiwork.37 As his more famous Declaration of Independence would, Jefferson’s preamble founded constitutional government in Virginia on an argument concerning George III’s constructive abdication of his position.
Since George III’s appointed governors had stood between the indigenous elite and its policy preferences, the republican governorship would be extremely weak. The governor would be elected by the General Assembly, have no veto power, serve only a one-year term, and have to win majority support of his Council of State for any major initiative. In other words, he could not do much of anything without the support of the Council.
Besides the Council of State, republican Virginians would have a bicameral legislature: the House of Delegates, which was simply the colonial House of Burgesses under a new name; and the Senate, a less numerous body named for the Roman Senate. Accustomed as we are to having the upper houses of American legislatures called “senates,” we likely do not hear the Latin echo in that name as loudly as did the classically educated Virginians who first used it. The idea that it conveyed was of a select group of elite men calmly deciding important policy issues in insulation from the hoi polloi who dominated the House of Delegates. While the delegates served annual terms, the senators were to be insulated from popular pressure by four-year terms, and from then on, they were to be elected independently rather than appointed. They also had limited power regarding spending bills.
The suffrage requirements Virginians had long known, which required men to own substantial landed estates before they could vote, remained in effect. Judges of statewide courts would be elected by the legislature. County courts would continue, as in colonial days, to be selected by county elites from among their fellow members and to serve more or less for life.
Essentially, the Old Dominion’s new republican Constitution put on paper what Virginians had been contending for in the crisis with Britain over the previous decade: that the House of Burgesses/Delegates had virtually all the power to legislate for Virginians. The extreme subordination of the executive and judicial branches of the new government called to mind the relationship of the House of Commons to the House of Lords and the Crown in Britain. In fact, the Constitution went even further. Perhaps it reflected overreaction by Virginians to the problems they had recently encountered. Madison, who seems not to have objected at the time, would come to think so—or at least to say so.
The convention voted to adopt the Constitution on Saturday, June 29, 1776. Patrick Henry was sworn in as the state’s first republican governor on the same day. There was no looking back.
Copyright © 2012 by Kevin R. C. Gutzman
Kevin R. C. Gutzman is the author of the New York Times bestseller The Politically Incorrect Guide to the Constitution, of Virginia's American Revolution, and (with Thomas E. Woods, Jr.) of Who Killed the Constitution? The Fate of American Liberty from World War I to George W. Bush. He is Professor of History at Western Connecticut State University and lives in Bethel, Connecticut.