by Chris DeRose
Their committee report surprised no one. It stated, “The slow forms of Congressional discussion and recommendation, if indeed they should ever agree to any change, would we fear be less certain of success. Happily for their wishes, the Constitution has presented an alternative, by admitting the submission to a convention of the states. To this therefore, we resort, as the source from whence they are to derive relief from their present apprehensions.”15
As the Anti-Federalists began their offensive, Madison began to make his intentions for his own future clear. “I mean not to decline an agency in the new government,” Madison wrote Randolph on October 17, indicating his preference for the House of Representatives, “chiefly because if I can render any service there, it can only be to the public, and not even in imputation, to myself.”
In the modern era it is unthinkable that anyone with a realistic chance of serving in the House or Senate would prefer the former. Each election cycle brings with it hordes of representatives seeking membership to the upper chamber. No incumbent senator has vied for a place in the House of Representatives in modern memory, while even powerful members of the House have run for the Senate when the opportunity presented itself.
In 1789, however, the House of Representatives would enjoy a heightened legitimacy because its members were directly elected by the people. Members of the Senate were indebted to the state legislatures that chose them, and while the length of their terms offered a degree of independence, members who strayed too far from the instructions of their legislatures would find themselves ousted in favor of more complaisant candidates.g
The Senate was also initially less exclusive than it is today. The current House is over four times as large as the Senate, but during the First Congress the Senate was actually over twice the size of the House.
The House of Representatives also had the power to originate all revenue bills. Today this power exists in a more diminished form. The Senate simply writes its own bills dealing with revenue issues, waits for the House to deliver House revenue bills, and then amends them to conform to the Senate’s wishes. But in the First Congress, the House would have the first crack at creating a national revenue system and establishing the executive departments.
Though Madison preferred the House, his supporters would try to put him in the Senate. Carrington, no doubt speaking for many Federalists, believed that Madison was the only Federalist who had the remotest chance of winning one of the two seats. But Alexander White, a Federalist Delegate, believed a “strong party” existed “against Mr. Madison. It is a doubt notwithstanding his great abilities, his virtue, and his respectful polite behavior to all men of all parties whether he will be elected as one.”16 Richard Henry Lee and Richard Grayson would be the Anti-Federalist candidates.
On October 31 Madison was chosen by the legislature to serve in the final Congress of the Confederation. Their choice has been interpreted by some as a maneuver by Henry to keep his greatest adversary far from Virginia so that he could continue to work his mischief against the Constitution undisturbed. That explanation certainly cannot be ruled out. Similarly, it is possible that Madison had, years earlier, helped Henry become governor to remove him from the debate over religious freedom. But it is just as likely that Madison’s reelection was nearly automatic, so long as he wanted to serve in Congress. There is surprise among some historians that Madison accepted the seat, but his acceptance makes sense. It was too late for Madison to join the legislature, so his choice was between serving in Congress or sitting at home in Orange. During the few intervals in his public service after 1776, Madison had found himself bored and unsatisfied. In addition, there was always the possibility that Anti-Federalists in Congress might make decisions that would hamstring the new government. And the Mississippi issue, while it appeared settled, had the potential to flare up again. Plus, Madison was already in New York. He anticipated winning a seat in the new House of Representatives without returning to Virginia and was already where he needed to be when Congress reconvened.
On November 8, the day set for Senate elections, Patrick Henry took the floor and personally nominated Richard Grayson and Richard Henry Lee. Madison’s was the only name offered by the Federalists in the House.
Henry engaged in a “pointed attack” on Madison for his “attachment to the federal government.” 17 He called Madison “unworthy of the confidence of the people” and warned that his election “would terminate in producing rivulets of blood throughout the land.”18 One disappointed observer declared, “Hereafter, when a gentleman is nominated to a public office, it is not his virtue, his abilities, or his patriotism we are to regard, but whether he is a Federalist or Anti-Federalist.”19
Henry’s diatribe was not without effect. Lee and Grayson won with ninety-eight and eighty-six votes, respectively. Madison trailed at seventy-seven. Delegates had two votes each, and of the 162 legislators, sixty-two voted for Madison alone. Carrington encouragingly pointed out to Madison that many members had ignored their Anti-Federalist principles to support him, in a testament to his personal worth. The ballot was secret, so we do not know whether Monroe voted for his old friend and political ally or if Anti-Federalist partisanship prevented him from supporting Madison.
On November 14, the bill for the election of representatives pursuant to the Constitution came before the House for a vote. Monroe was one of fifteen members on the committee to draft the statute. The committee decided to choose Virginia’s ten members from districts rather than using the at-large system planned in some other states.20 Anyone eligible to vote for the legislature could vote for Congress.
In 1789, eligibility to vote for the legislature was limited to male freeholders older than twenty-five who owned either twenty-five acres with a house or fifty unimproved acres. In the cities of Williamsburg and Norfolk, the only towns represented in the assembly, freemen with six months residency could vote if they owned a “visible estate” worth fifty pounds or had served an apprenticeship to some trade within the town for five years.
For the 1789 Virginia elections for Congress, boundaries followed county lines.h The 5th Congressional District created by the election bill included the counties of Albemarle, Amherst, Fluvanna, Goochland, Louisa, Spotsylvania, Orange, and Culpepper. This was a transparent act of what would later be known as “Gerrymandering.” The strategy is simple: create as many safe seats for your political party as possible and draw district lines that will make it as difficult as possible for your opponents to win. In this case, the 5th Congressional District was designed to exclude a single man: James Madison. The committee Monroe was serving on had squeezed Madison’s home county into a district with overwhelmingly Anti-Federalist counties.
One historian has noted Henry’s “rare bit of luck . . . that the wits of Virginia did not” think to describe “this trick as ‘Henrymandering;’ and that he thus narrowly escaped the ugly immortality of having his name handed down from age to age in the coinage of a base word which should designate a base thing—one of the favorite, shabby maneuvers of less scrupulous American politicians.”21 Today, the decennial redistricting process has become a million-dollar battle for both political parties, a bare-knuckled fight to create the most favorable playing field for elections over the next decade. Modern technology allows politicians to determine the effects of moving a boundary line a few feet in any direction.
Patrick Henry and his allies had only one tool at their disposal, but it was a powerful one. The elections to the Virginia Ratification Convention had been held less than a year before, and most candidates had been open about their positions on the Constitution. Thus it was fairly easy to gauge the predispositions of the voters of each county. In the 5th Congressional District, Anti-Federalist candidates had won both seats in Amherst, Fluvanna, Goochland, Spotsylvania, and Culpepper. In Louisa, the two delegates were split. Only in Madison’s home county of Orange and Albermarle were two Federalists elected. And if Henry’s forces could have figured out a way to keep Madison in the 5th D
istrict but exclude Orange, they might well have done so.
The 1790 census, conducted by the U.S. Marshals,22 broke down the county population of white men above the age of sixteen. Although the requirements for voting were more restrictive, a look at the population of each county will give a general sense of what Madison was up against. The margin of victory in the delegate elections was closer in some places than others. Still, it is clear that Madison had his work cut out for him.
Population for the counties voting for two Anti-Federalist delegates:
Amherst 2,056
Culpepper 3,372
Fluvanna 589
Goochland 1,028
Spotsylvania 1,361
Total 8,406
Population for the counties voting for two Federalist delegates:
Albemarle 1,703
Orange 1,317
Total 3,020
Louisa, where one Federalist and one Anti-Federalist delegate had been elected, had 957 white males older than sixteen. Madison would be facing an electorate nearly three times more Anti-Federalist than Federalist.
Madison’s supporters offered an amendment to the election bill to add Fauquier County, which had voted for two Federalist delegates, to the 5th District. This amendment has been held up by Henry apologists as proof that Federalists were playing the same game as the Anti-Federalists but were simply outvoted. Fauquier, according to the 1790 census, had 2,674 white males older than sixteen. Using the same formula as before, if Fauquier had been added to the 5th District, it would have meant an Anti-Federalist majority of 2,712, instead of 5,386. Rather than “Henrymander” the district in their favor, the Federalists were only trying to make it slightly more competitive. With Henry leading the charge against Madison, the amendment was defeated handily. “We wished to get Fauquier but the powers of the Antis were too strong for us,” Carrington lamented.
The election law of November 19 further required that voters would “assemble at their respective county courthouses on the second day of February next and then and there vote for some discrete and proper person being a freeholder and who shall have been a bona fide resident for twelve months within such a district.” This was an outrageous provision, designed for no other reason than to force Madison to run in the district the Anti-Federalists had created deliberately to defeat him.
Monroe, who helped draft this election statute, had gotten a seat in the Virginia Ratification Convention only by running in Spotsylvania after being defeated in King George. Other prominent Anti-Federalists including George Mason had done the same.
An amendment to strike out the residency provision was defeated eighty to thirty-two, by a margin that indicates some Federalists voted against it. Perhaps they were prevailed upon by their opponents to be “non-partisan” and “reasonable.” The Anti-Federalists definitely had the advantage in this battle. They were atop a hill, fortified, with the wind at their backs, while the Federalists were trudging upward, outnumbered, with the sun in their faces.
Patrick Henry had, “within four weeks from the opening of the session … succeeded in pressing through the legislature, in the exact form he wished, all these measures for giving effect to Virginia’s demand upon Congress for amendments.”23 He had won the election of two Anti-Federalist senators, an achievement that was probably less sweet to him than having excluded Madison. The latter would now have to fight in a most unfavorable district for a seat in the House of Representatives. Madison appeared to have been shut out of Congress altogether.
The November 19 Virginia Centinel published a letter from one of the Delegates, a cry for help: “You may expect every evil from this assembly which Anti-Federalism can produce.” The anonymous author bemoaned the recent U.S. Senate elections, the defeat of Madison, and the ad hominem attacks pushed by Henry.24
Madison’s supporters urged him not to take the bait. His cousin, the Reverend James Madison, encouraged him to run in a different district, as his “election appears certain in the lower part of the country. If a freehold be required in the district, lots in this town may be had at a very low rate.” Along with Madison’s other supporters, his cousin was pessimistic about his chances in the 5th District. “I should not have written you upon this subject had it not been reported that the views of some or of a party were to endeavor to exclude you altogether from a share in the new government.”
Randolph was of a similar mind and suggested that Madison move to Henrico County. It is a testament to Madison’s popularity and esteem that perhaps the only congressional district where he might lose was the one configured by his enemies for that very purpose.
As for the residency requirement created to anchor Madison in the district, many of his supporters believed it was unconstitutional. The measure blatantly defied Article I, Section 2 of the Constitution, which sets forth the requirements for members of the House. A member must be twenty-five years old, a citizen for seven years, and a resident of the state where he is running. Throughout history and in the present day, members of Congress have represented districts in which they are not residents. The Virginia legislature had acted in an area where they had no authority, and their residency requirement directly conflicted with the Constitution.
Some noted that the new representatives were judges of their own membership. It was unthinkable that the new House would expel Madison from Congress for violating the residency requirement. The vote to invalidate his election would take a two-thirds majority. But if the House failed to invalidate Madison’s election, the Virginia Anti-Federalists would certainly file complaints with Congress, and an embarrassing investigation would be sure to follow.
Not all of Madison’s supporters agreed with the carpetbagger approach. Alexander White poured cold water on the idea of running in a different district. He believed that flagrantly breaking the law for any reason would cause a public uproar and could endanger Madison’s chances in any district. The House of Delegates was still the most respected and powerful institution in Virginia, drawn from the ranks of the best-regarded members of every community. It enjoyed greater legitimacy among the voters than the new national government. Pointing out the unconstitutional nature of the residency requirement would do little to quiet the uproar. It would be also be a most unwelcome distraction from the issues in the election and Madison’s record of public service.
Madison’s position on adhering to the rules of the game, particularly residency rules, was already on record. In 1777 Madison had accepted defeat rather than bribe voters as his opponent and so many other Delegates had done. And in 1786 Madison had written to Washington about Benjamin Harrison, who had been defeated for the legislature—“baffled in his own county,” as Madison put it. Elections were held on different days in different counties, and it was rumored that Harrison would run in Surry, “and in case of a rebuff there to throw another die for the borough of Norfolk. I do not know how he construes the doctrine of residence.” Madison’s amusement and disapproval of Harrison’s wanderings reveal his scorn for this sort of gamesmanship.25 There had been a humiliating inquiry into Harrison’s election.26
Madison’s supporters did agree that he must return as soon as possible to campaign in person. Madison expected to stay in New York, preferring election by “the spontaneous suffrage of his constituents.” But his friends were telling him that his presence in the district was absolutely necessary.
Meanwhile, the Anti-Federalists were looking to field their most viable candidate. They seem to have considered a handful of men, including French Strother. But James Monroe, a youthful war hero with considerable experience, was the strongest possible candidate—if they could persuade him to run. There was little doubt, particularly after the Senate elections, that Madison would run for Congress from the district including Orange. Monroe was reluctant to run against his friend, and even with the built-in advantage of such a heavily Anti-Federalist district, Madison would be no pushover.
Joseph Jones discouraged Monroe from running. Jones consistently advised
Monroe to focus more on law and less on politics, but he had another reason for advising his nephew to stay out of this race. It seems that Jones, though he had opposed the Constitution, thought Madison would be the better congressman. While Monroe was the closest thing he’d ever had to a son, Jones took the extraordinary step of staying neutral in the race that followed.27
But Monroe was encouraged to run by people he respected—likely Mason, Strother, Joel Early, and even Patrick Henry himself. Monroe seems to have protested, citing his friendship with Madison and his reluctance to deny him a place in the House.28 The Anti-Federalists persisted—and prevailed by appealing to Monroe’s feeling that he had a duty to represent their shared beliefs in the upcoming election. The Anti-Federalists would have their preferred candidate.
On December 8, Madison informed Thomas Jefferson that he would return to Virginia and personally fight for the seat. Burgess Ball, an ally with a good understanding of the district and its important players, handicapped the race for Madison: “The counties annexed to ours are arranged so, as to render your election, I fear, extremely doubtful, the greater number being Anti-Federal.”29 Culpepper, the most populous county in the district, “you know is much at the disposal of one man, and it is pretty certain he means to exert himself in favor of your opponent, Colonel Monroe.” This was French Strother, the longtime Delegate for that county.
“This county,” Ball said of his home of Spotsylvania, “I’m in hopes, will be at least as much for you as against you, the principal men having declared themselves for you.” If Madison could post a respectable number in Monroe’s home county, it would go a long way toward his success. If Madison could meet voters in person, Ball had “no doubt that you would frustrate the designs of that great man [Henry].”