CHAPTER IV
           MADISON AND THE ACTIVITIES OF LAWYERS;
                   PORTENTS FOR THE FUTURE

     There is no evidence that Madison gave thought to the influence that lawyers
 would have on the operation of the system of government he helped to create in
 Philadelphia or the role that they would play in advancing the interests of
 factions, particularly the interests of the wealthy.  If he did not do so, it would
 be surprising since there were indications, of which he should have been aware,
 that lawyers were going to play a very active role.  Lawyers were involved in all
 the important stages of the development of the government of the United
 States.  Thirteen of the twenty-four participants at the Albany Congress in 1754
 were lawyers; twenty-four of the forty-five delegates to the First Continental
 Congress in 1774 were, as were twenty-six of the fifty-six delegates to the Second
 Continental Congress in 1775; and there were thirty-three lawyers among the
 fifty-five delegates to the Constitutional Convention of 1787.  This participation
 represented a flowering of the legal profession in the new nation, which was the
 result of the rise to prominence of a generation of young men who were graduates of
 the best colleges and universities on both sides of the Atlantic.

 	Lawyers were not, however, a homogeneous lot since "there were upper and
 lower lawyers, rich and poor, exclusive lawyers and lawyers hungry for clients,
 just as there are today."  And, just as today, lawyers were both admired and
 detested by their fellow citizens.  That love/hate relationship has its roots deep
 in colonial history.  Many colonists came to the New World determined to create a
 better life.  Because of what they had seen or experienced firsthand, many hoped
 for a society that could survive without lawyers.  For English settlers, that
 mindset was a result of conditions they had encountered at home. 

 	At the time that settlers were leaving to establish the ill-fated Roanoke
 Island community, one of England's greatest lawyers, Lord Edward Coke, was rising
 to fame in Parliament.  He became attorney general in 1593.  In 1606, as the
 Jamestown expedition organized, Coke became Chief Justice of the Court of Common
 Pleas and undertook his judicial role as defender of Parliament and opponent of
 executive power in the hands of the king (James I).  He was dismissed from that
 position in 1616 and elected to Parliament in 1620, at the time of the Mayflower's
 voyage to New England.  In 1628, he was one of the drafters of the Petition of
 Right, a document that has to be included in the ancestry of the Bill of Rights of
 the United States Constitution.  Coke died in 1634. 

 	At the same time that this glorious story in English law was unfolding, the
 Inns of Court were struggling with the problem of what to do about educational
 standards for barristers and what to do with the increasing numbers of attorneys
 and solicitors, many of the latter of whom were happily engaged in barratry and
 frivolous suits.  (This effort was to continue by fits and starts for the next
 three hundred years.)  In the early seventeenth century, attorneys and solicitors
 were recurrently the object of scorn, contempt, and disdain.  Charles Warren, in A
 History of the American Bar, quotes Milton:
 
     Most men are allured to the trade of law, grounding their purposes not on the
 prudent and heavenly contemplation of justice and equity which was never taught
 them, but on the promising and pleasing thoughts of litigious terms, fat
 contentions, and flowing fees.

 	It was not just the individuals who offered their services to the public who
 generated dissatisfaction with the legal profession.  The courts themselves were a
 source of resentment for entertaining so many frivolous suits.  An Act passed by
 Parliament in 1605 gives insight into the problems of the period.  It was passed
 "to reform the Multitudes and Misdemeanors of Attorneys and Solicitors-at-Law and
 to avoid unnecessary suits and charges at Law."

 	Some colonists, such as William Penn, had distinct reasons for being
 resentful of the courts and lawyers.  Penn, arrested for, in effect, preaching
 without a permit, was tried before a jury that refused to bring in a verdict of
 guilty and was then sent back over and over again by the presiding judge to
 redeliberate with increasingly threatening admonitions from both judge and
 prosecutor.  The jury members, who continued in their refusal to convict Penn, were
 finally thrown in jail themselves for contempt of court.  At one point in the
 proceedings, when Penn objected to the treatment of the jury, the judge exclaimed,
 "Stop his mouth.  Jailer, bring fetters, and stake him to the ground."  Is it any
 wonder that, when it came time to found his own colony, Penn tried to keep lawyers
 out?  It was Penn's hope that every citizen of his colony would be able to plead
 his own case.  Laws were to be kept plain and court pleadings simple.

 	Penn's was not the only colony to attempt to restrict the rise of
 lawyers; others passed laws to restrict the activities and the fees of the
 "mercenary profession."  A history of the colonial period contains the following:
        A book about Pennsylvania and New Jersey, published in 1698, stated "Of
	 lawyers and physicians I shall say nothing, because this country is	
	 peaceable and healthy.  Long may it continue and never have the occasion
	 for the tongue of the one nor the pen of the other--both equally
	 destructive of men's estates and lives."  

 In the second quarter of the next century, Georgia was described as "a happy
 flourishing colony--free from that pest and scourge of mankind called lawyers."
 In colonies where there were no restrictions, things did not go well.  John Adams
 found legal practice in Massachusetts in 1758 to be in the "hands of Deputy
 Sheriffs, Pettyfoggers, and even Constables who...received the Fees established for
 Lawyers and stirred up many unnecessary suits."  Massachusetts lawyers, according
 to Adams, were commonly denounced as "banditti, as blood suckers, as wind bags, as
 smooth-tongued rogues."

 	Roscoe Pound, in The Lawyer from Antiquity to Modern Times, notes four
 general stages of development of the legal profession in all of the colonies:
        (1) the attempt to get on without lawyers, (2) the stage of irresponsible
 	 filling out of writs by court officials and pettifoggers, (3) the era of
   	 admitted practitioners in permanent judicial organizations, and (4) the era
	 of trained lawyers--the bar of the eve of the Revolution.

 He estimates that the initial phase produced laws hostile to the practice of law
 "substantially from the middle of the seventeenth century to the middle of the
 eighteenth century."

	A Virginia statute in 1645 "recites that many troublesome suits have
 multiplied by the unskillfulness and covetousness of attorneys" and directs that
 all "mercenary attorneys" be "wholly expelled from that office."  Pound argues that
 the attempts to prevent the establishment of the legal profession facilitated and
 even spurred the development of a "low class of petty practitioners or mercenary
 attorneys who responded to a demand for necessary services."  The activities of
 these individuals eventually resulted in a movement to organize the profession and
 establish standards for its practice that was facilitated by the development of
 court systems in the colonies.  Concern for the training of practitioners
 developed, and, as the eighteenth century unfolded, there developed "systems of
 prescribed qualifications for admission to practice, and of responsibility of the
 practitioners."

 	As the Revolution neared, a growing number of practitioners were
 college-educated, and, by the time of the Revolution, over 100 American attorneys
 had studied or were still studying law in London.  This growing group of educated
 professionals contrasts sharply with part-time lawyers like the one pictured by
 John Adams in his diary entry for June 19, 1771:
 
	     In Kibby's barroom, in a little shelf within the bar, I spied two
	  books.  I asked what they were.  He said, "Every Man His Own Lawyer and
	  Gilbert's Law of Evidence."  Upon this I asked some questions of the
	  people there, and they told me that Kibby was a sort of a lawyer among
	  them; that he pleaded some of their home cases before justices and
	  arbitrators, etc.
	
	 Adams was to take the lead in trying to organize the New England bar.  His
 diary refers to meetings of the bar as early as 1759 to consider the problem of
 "pettifoggers."  This and other attempts to deal with the problem were not to meet
 with much more success than they had previously in England.  However, Adams was
 himself evidence of the growing class of respected and accomplished
 attorneys.  Others included James Wilson and John Dickinson of Pennsylvania, Edward
 Rutledge and Charles Pinckney of South Carolina, William Livingston of New Jersey,
 John Jay of New York, and Thomas Jefferson, George Mason, and George Wythe of
 Virginia.  These men formed the nucleus of what was to become the legal profession,
 "a group of men pursuing a learned art as a common calling in the spirit of a
 public service," as Roscoe Pound defined "profession."  Their presence undoubtedly
 helped to attract others into the field, and, by the time of the Revolution, "the
 legal profession probably outranked any other in training, achievement, political
 influence, wealth, social standing, and popular recognition...."

 
		     Madison's Early Contact with the Law and Lawyers

 	It was during this period that the young James Madison attempted to study
 law.  Both at Princeton, after his graduation in 1771, and at home in Montpelier,
 in Orange County, Virginia, after his return there in 1772, he devoted himself to a
 "course of reading" that "mingled miscellaneous subjects with the subjects intended
 to qualify him for the Bar."  He did not, however, form "any absolute
 determination" to become a lawyer, and his efforts did not progress with great
 rapidity.

 	There can be no doubt, however, that Madison saw that the law offered
 considerably more than the opportunity for making money.  In a letter to his
 college friend, Willam Bradford, written September 25, 1773, Madison discussed the
 choice of careers and recommended that his friend embark on a legal career.  The
 law, he wrote, "alone can bring into use many parts of knowledge you have acquired
 and will still have a taste for, & pay you for cultivating the Arts of
 Eloquence.  It is a sort of General Lover that wooes all the Muses and
 Graces."  Madison alluded to the concerns of the time about too many lawyers,
 arguing that "[t]he objection founded on the number of Lawyers should stimulate to
 Assiduity rather than discourage the Attempt."

 	On December 1, 1773, Madison wrote Bradford again, stating that "I intend
 myself to read Law occasionally and have procured books for that
 purpose...."  Bradford replied on December 25, 1773, stating that "I agree with you
 that every gentleman who has health & leisure ought to have a tolerable
 acquaintance with the Laws & constitution of his Country."  He proceeded to assure
 Madison of his own intention to study the history of England and the principles of
 "Government and the English constitution."  This assurance prompted what may be
 Madison's most illuminating comment on the study of law.  Relating his pleasure
 with regard to Bradford's intentions, Madison gently teased his friend:
 
         I was afraid you would not easily have loosened your Affections from the
	 Belles Lettres.  A Delicate Taste and warm imagination like yours must
	 find it hard to give up such refined & exquisite enjoyments for the coarse
	 and dry study of the Law: It is like leaving a pleasant flourishing field
	 for a barren desert; perhaps I should not say barren either because the Law
	 does bear fruit but it is a sour fruit that must be gathered and pressed
	 and distilled before it can bring pleasure or profit.

 So much for the Law as a "general lover"!

 	It should not be surprising that someone with such an attitude should have
 difficulty continuing his own studies.  Thus, Madison, in 1784, was still trying to
 make himself study law.  He noted in his letter of March 10th of that year to
 Edmund Randolph that, after returning to Montpelier (from the Continental Congress
 in Philadelphia), he entered "on the course of reading which I have long meditated,
 Co:Litt: in consequence & a few others from the same shelf have been my chief
 society during the Winter."  Madison noted that his progress had not been great and
 that his expected return to the Virginia legislature would further interfere with
 his studies.  One senses that Madison had difficulty persevering in his study of
 dry law books, the subject of which did not satisfy his desire for the world of
 ideas and political action.  He seems to have resorted to the study of law out of a
 sense of duty but without enthusiasm.  The editors of Madison's papers refer to his
 relationship to the law as "an avocation rather than his means of
 livelihood."  They view the responsibilities entrusted to him in the Virginia
 legislature as evidence that he "was learned in law although not a
 lawyer."  Indeed, anyone who studies his remarkable legislative skills in the
 Continental Congress, the Virginia legislature, and the House of Representatives,
 in both the preparation and passage of laws, can see the overwhelming evidence of a
 great legal mind, coupled with the adroit sensibility of an expert politician.

 	That Madison attempted to study law himself and recommended the law as a
 career to his friend Bradford, indicates that he did not disapprove of the practice
 of law or the activities of lawyers in general.  If he entertained a good opinion
 of the practice, it may be at least in part because of the lawyers with whom he had
 come in contact, many of them the most prominent and outstanding legal minds of his
 day.  The contact took place primarily in the Continental Congress from 1780 to
 1783 and 1787 to 1788, in the Constitutional Convention itself, and also in the
 Virginia legislature, in which he served from 1776 to 1779 and from 1784 to
 1786.  Not only were the lawyers whom he encountered during those years highly
 competent, they were also a heterogeneous group with widely divergent political
 ideas and loyalties.

 	Still, during this period when Madison was receiving his education in the
 real world of politics, there were aspects of the legal profession that should have
 caused him concern.  For example, those lawyers who tended to align themselves with
 propertied interests were the ones who became the most successful
 practitioners.  At the time of the Revolution, in Pound's words, "the old prejudice
 against lawyers had all but worn away."  After the Revolution, it quickly
 returned.  Pound gives three explanations: 1) economic conditions gave rise to
 widespread dissatisfaction with law and distrust of lawyers; 2) political
 conditions gave rise to English law and lawyers trained in the common law; and
 3) social conditions gave rise to disbelief in professions.  One of the reasons
 distrust of lawyers developed was that many of the most prominent pre-Revolution
 lawyers remained loyal to England and many of them fled the country.  Warren points
 out that many of those favoring the Revolution "were either actively engaged in
 politics or in the army; while others had accepted positions on the bench," thus
 leaving the practice of law in the hands of those "of a lower grade and inferior
 ability."  Furthermore, the chief business was "the collection of debts and the
 enforcement of contracts."  After the hostilities concluded, many of the debt and
 contract actions in American courts were brought on behalf of Tories, seeking
 return of their property, or English creditors, whose claims had run afoul of
 statutes passed during the Revolution.

 	That so many of the activities of lawyers were in the service of those who
 remained loyal to England led to the general public dislike.  That so many of the
 activities were in the service of propertied interests should have been of concern
 to young Madison.  If he had not noticed before, he surely took notice in 1786.  In
 August of that year, a town meeting in Hatfield, Massachusetts "went on record in
 opposition to the `selfishness' of the Massachusetts legislature, to the lawyers
 handling cases against debtors, to the courts for enforcing arbitrary foreclosure
 laws, and to the inequitable taxes that fell most heavily on the poorer
 classes."  In a similar meeting in Braintree, citizens requested "such laws...as
 may crush or at least put a proper check or restraint on that order of Gentlemen
 denominated Lawyers..."  The citizens of Dedham sent the following instructions to
 the Massachusetts legislature:

         We are not inattentive to the almost universally prevailing complaints
	 against the practice of the order of lawyers; and many of us now sensibly
	 feel the effects of their unreasonable and extravagant exactions; we think
	 their practice pernicious and their mode unconstitutional.  You will
	 therefore endeavor that such regulations be introduced into our Courts of
	 Law, and that such restraints be laid on the order
 	 of lawyers as that we may have recourse to the Laws and find our security
	 and not our ruin in them.  If upon a fair discussion and mature
	 deliberation such a measure should appear impracticable, you are to
	 endeavor that the order of Lawyers be totally abolished; an alternative
	 preferable to their continuing in their present mode.
 
	It was not long before mobs had prevented the courts from sitting in Northampton,
 Worcester, Concord, and Great Barrington, and, in September, 1786, Daniel Shays and
 a crowd of around 500 angry farmers drove off the militia at Springfield and
 forcibly disbanded the Massachusetts Supreme Court.


   	                    Madison and Hamilton
	
	 There was a more personal contact that Madison had during the years leading
 up to the Constitutional Convention that should have given him pause on at least a
 few occasions to consider the activities of lawyers and the portents of those
 activities for the future, and that was his acquaintance with Alexander
 Hamilton.  The two first met in late November 1782, in Philadelphia, when both were
 serving in the Continental Congress.  Within two weeks Hamilton had made a
 reputation in the Congress as he sought to persuade recalcitrant Rhode Island to
 join the other states in assigning a portion of their import duties to the
 Congress.  He was assigned to chair a committee to answer the objections of Rhode
 Island.  Madison served with him on that committee and thus began what was to be at
 first a fruitful political alliance but eventually a bitter political
 opposition.  Hamilton succeeded in his mission with regard to Rhode Island only to
 have his own state of New York, under the control of his then political opponent,
 Governor George Clinton, reverse itself and refuse to participate.  Still,
 according to Hamilton's biographer, Nathan Schachner, as a result of his efforts,
 "[t]he eyes of the merchants, the hard-money men, the creditors, and the
 nationalists turned to him as their spokesman and champion."

 	Hamilton and Madison were to find common ground in the years ahead in their
 conviction that the Articles of Confederation were inadequate and that a stronger 
 national government was essential if the nation was to survive.  That shared
 conviction was to bind them together as allies through the writing of The
 Federalist Papers and the ratification of the Constitution, but their alliance was
 to fall apart quickly as Hamilton solidified his power and influence in the
 Washington administration and as Madison became increasingly alarmed at the amount
 of power Hamilton wished to see vested in the national government and at the close
 relationship between Hamilton and powerful financial interests in New York and New
 England.  How well Madison understood Hamilton's political beliefs when they first
 became acquainted is not known, but Hamilton's beliefs, which were to remain
 remarkably consistent throughout his life, were already well established.  In a
 letter to a member of Congress written in November 1779, he set forth his
 conviction that the only hope to revive the sagging federal currency was to
 formulate a plan "that will make it the immediate interest of the moneyed men to
 co-operate with the government in its support."  His biographer, Nathan Schachner
 notes:
        Thus early Hamilton enunciated the principle that was to form the chief
	bastion of his philosophy of government, and to which he returned again and
  	again in later papers and actions.  A government could only be strong, its
	finances stable--and these propositions, to Hamilton, were synonymous--if
	the men of wealth were given a financial stake in its durability.

	Hamilton included in the letter his proposal for the creation of a national
 bank.  He returned to the subject of the bank in a letter to James Duane in
 the summer of 1780.  (Duane was representing New York in the Continental 
 Congress.)  Hamilton noted that the financial problems of the Congress resulted
 from the fact that "the moneyed men have not an immediate interest to uphold its
 credit"; recommended the creation of a national bank; and stated his belief that
 moneyed men should have control of "the whole or a part of its profits."  In April
 of 1781, Hamilton addressed the subject one more time, this time in an essay he
 forwarded to Robert Morris, who had just been appointed Financier by the
 Continental Congress.  In it he set forth what Schachner describes as "the essence
 of his philosophy of government: to combine in happy union the private, selfish
 interests of the men of money with the solid interests of the national
 government."  Hamilton wanted men of money to hold at least half of the stock of
 the new bank because "it is of primary importance that the money men among
 ourselves should be deeply interested in the plan."
 	
	Madison and Hamilton were together in the Congress for only a short six
 months before Hamilton asked to be replaced.  He returned to New York, where he
 quickly established himself as an attorney and developed a very successful
 practice, serving as the representative of propertied interests, particularly Tory
 propertied interests.  Long before Shays's Rebellion, Hamilton recognized the
 threat posed to property by the masses of citizens who had little property.  He
 allied himself quickly on the side of those with property.  Such a move may have
 been influenced by personal considerations with regard to his own economic future
 or to concern for the well-being of his wife's family's extensive property
 interests.  But it also reflected his basic philosophy.  Hamilton, like Madison,
 wanted to see the new nation survive and prosper.  He believed that the only way
 for that to be accomplished was for government policy to protect and promote
 property rights.

 	It is interesting to compare the careers of Madison and Hamilton at this
 point.  Hamilton was actively engaged in the practice of law, representing the
 property interests of the wealthy, and Madison was serving for very little pay in
 the Continental Congress and the Virginia Assembly and at times having difficulty
 meeting his expenses.  It was Hamilton who used his growing political influence in
 New York State to set in motion the events that would lead first to the Annapolis
 convention and then to the Philadelphia convention.  He acted out of his belief
 that a stronger national government was necessary to protect the property interests
 of the wealthy and to promote policies which would advance those interests. 

 	Madison shared the conviction that a stronger national government was
 necessary and may have been somewhat influenced in that regard by
 Hamilton.  However, while Hamilton built his law practice, Madison studied history
 and philosophy to determine why previous attempts at self-government had
 failed.  Madison, as discussed in Chapter II, concluded that the primary problem
 had been the problem of faction, particularly the struggle between the rich and
 poor factions.  He saw a threat from both, and his thinking evolved along paths
 leading to a system of government that would ensure that both factions would be
 checked at the same time that both would have their interests protected.  Hamilton
 saw only the threat from the poor and seems never to have a envisioned a possible
 threat from the rich.  At his most extreme, he seemed to favor the kind of strong
 national government, ruling with whatever force was necessary to protect property
 from the masses, that Madison came to view as a failure--a perversion of good
 government.  It is Hamilton, the successful practicing lawyer, who embodied many of
 the characteristics of lawyers of the future--a defender of property interests who
 sought to advance his cause and that of his clients, not just in the courtroom but
 in the policy-making processes of the government. 

 	Whether Hamilton's tilt toward the wealthy and their interests bothered
 Madison in the years prior to the Constitutional Convention is not known, but,
 after the Constitution was adopted, Hamilton's activities as Secretary of the
 Treasury in the Washington administration were to bother Madison a great deal.  The
 first source of disagreement arose from the different positions the two men took
 with regard to the question of the national debt.  Hamilton favored payment of the
 full value of government securities issued by the Continental Congress to the
 holders of those securities.  Madison favored some sort of system that would
 differentiate between the original holders of the securities and those who had
 purchased them for a fraction of their value in the speculative hope that they
 would profit from the transaction.  Hamilton was well aware of the rampant
 speculation that had taken place but was not concerned by it.  Many of his friends
 and clients were involved in speculation and stood to make a hefty profit from his
 scheme.  Thus, in the very first year under the new constitution, a lawyer was
 using his position to implement a policy that would be particularly beneficial to
 individuals with money.  Like the good lawyer that he was, Hamilton justified his
 plan as required by the law of contract, the contract in this instance stating that
 the "public will pay the sum expressed in the security, to the first holder, or his
 assignee."  It was the government's fault that the securities were worth what they
 were to the original owners who sold them, not the speculators'.  The latter paid
 what the security was worth, took the risk, and "ought to reap the benefit of his
 hazard."  Schachner points out another reason why Hamilton wanted to see
 speculators rewarded:
 
	    The transfer of holdings from the poor to the rich tied in with his
	 philosophy of government.  There was building up in America a powerful
	 group of moneyed men who had a direct financial stake in the perpetuation
	 of the nation, and he could rely on them to support his policies with a
	 passion directly proportionate to the sum total of their holdings.
	 
	Madison was not concerned with the requirements of contract law.  In a
 letter to Jefferson on February 14, 1790, he spelled out his "idea":

  	    [T]he highest market price only should be allowed to the purchasers, and the
	 balance [between that and the face value of the security] should be applied
	 to solace the original sufferers, whose claims were not in conscience
	 extinguished by a forced payment in depreciated certificates.  The equity
	 of this proposition is not contested.

 Hamilton won this particular battle when the House of Representatives
 rejected Madison's proposal on February 22nd.  

 	Hamilton then sought to implement the second part of his plan, which called
 for assumption by the national government of the debts of the states.  This plan
 would add approximately $18 million to the national debt, something that concerned
 Madison, who was strongly influenced in that regard by Jefferson.  But there was
 yet another aspect of the plan that bothered Madison.  Many of the speculators who
 stood to gain from the first part of Hamilton's plan were Northerners.  Even as the
 House was acting, speculators were rushing south to buy up securities before news
 of the action reached the owners.  The result was a transfer of money from the
 Southern states to the Northern ones.  Just such a result loomed if Hamilton's
 plans for assumption of state debts were successful.  Northern speculators had
 bought up state securities as well.  Furthermore, the plan would discriminate
 against states like Virginia that had tried to make progress in reducing their
 debts and favor states like Massachusetts that had not.  Of course part of
 Hamilton's purpose was to shift the financial interests of security holders from
 the state to the national government, a purpose also opposed by Madison.  Madison
 was to lose this battle as well, thanks to Hamilton's adroit manipulation of
 Jefferson in the famous deal that resulted in passage of assumption of the states'
 debts and the agreement to locate the nation's capital in the South. 

 	It was out of this original skirmish between Madison and Hamilton that the
 two-party system was to arise.  In the words of Robert Rutland, "Hamilton's
 financial genius was providing the grounds for a bill of divorcement that would
 lead to the creation of distinctive American parties with divergent views of
 finance, credit, taxation, and foreign policy."  Brant notes that Madison, by his
 stance "split the original Federalists asunder, fused one part of them with the
 radical wing of the vanishing Antifederalists and gave direction to the political
 cleavage which swiftly divided the American public into Federalists and
 Republicans."  Madison was the solitary leader of what was to become the new party,
 the "first man" of the House of Representatives, as Fisher Ames called him, but he
 lacked what today is called charisma.  Brant notes that:
 
     Had he possessed personal glamour the next political phenomenon in American 
 would have become known as Madisonian democracy.  As it was he planted the seed and
 started the growth of the party which received the Jeffersonian label. 

  	One more major battle remained to be fought between Hamilton and
 Madison.  On December 14, 1790, Hamilton submitted to Congress his proposal for the
 creation of a national bank.  The plan was very similar to the one he had been
 championing for eleven years.  Capital stock was not to exceed $10 million, with
 each share valued at $400.  Buyers were able to make payment one-fourth in gold and
 silver coin and three-fourths in six percent securities issued as part of the plan
 for funding the national debt and the assumption of state debts.  Here was the
 jewel in the crown of Hamilton's plan to bind the interests of the wealthy to the
 interests of the nation.  The participation of the United States in ownership of
 the shares of the bank was to be limited to $2 million.  "To attach full confidence
 to an institution of this nature," Hamilton wrote, "it appears to be an essential
 ingredient in its structure that it shall be under a private not a public
 Direction, under the guidance of individual interest not of public policy.

 	Madison and Hamilton were to become embroiled in a debate over the
 constitutionality of the bank that was to have far-reaching repercussions for the
 future, but it seems likely that Madison was led to his position with regard to
 constitutionality as a result of his opposition to the bank on other
 grounds.  According to the editors of Madison's papers, he believed the bank would
 "benefit a few private individuals at the expense of the public."  Brant is more
 specific: "He saw in the bank an instrument of monopoly and feared it would fortify
 the new money power grasping for control of the nation."  Clearly, Madison must
 have been troubled by three aspects of the proposed bank.  First, the price per
 share was too high to make the shares available to the general public; only those
 with money need apply.  Second, the scheme for payment by buyers would favor all
 those who had been actively speculating in government securities--again, those with
 money.  Third, the limitation of the participation by the government ensured that
 the bank's control, and the lion's share of any profits to be made, would be in the
 hands of the wealthy.  But those concerns were not sufficient to win a battle
 against the bank in the House.  As Rutland notes, "Madison could look around the
 House and almost name those who would be among the first stock purchasers if the
 bank bill passed.  Almost to a man, they were Northern congressmen and their banker
 friends."

 	To attempt to win the battle in the House, it was necessary for Madison to
 come up with arguments that would overcome individual interest and greed.  He fell
 back on the strongest argument available to him, a particularly forceful argument
 coming from him: that the national government had no power under the Constitution
 to create a national bank.  As Brant points out, bank incorporation was the one
 issue "where he had a record of strict construction, contrasting sharply with his
 generally broad concept of federal power."  Madison argued that there was no
 specific power to create a bank.  The power was not granted by the phrase "provide
 for the general welfare," by the power to borrow money, or by the "necessary and
 proper" clause.  Madison, whose logic in discussing constitutional provisions was
 almost always forceful and convincing, seems curiously unconvincing in discussing
 the necessary and proper clause, and one wonders if he really believed in his
 arguments.  The irony of his position must have been clear to him.  After spending
 so many years arguing for a more powerful national government, it was now achieved,
 and he was having to argue against it.  He was forced into that position by the
 actions of Hamilton, but it was not the fact that the actions were being carried
 out by the national government that was the real source of Madison's
 objections.  The real objection arose because he believed that the national
 government was being captured by a faction that was using its powers to enact
 policies "adverse to the rights of other citizens, or to the permanent and
 aggregate interests of the community."
 	Hamilton's success and Madison's change of position raise the question of
 whether Madison abandoned the theories he set forth in The Federalist
 Papers.  Madison was not a fickle philosopher who went from theory to theory in a
 cavalier way.  He was, instead, a philosopher and a political scientist whose ideas
 evolved in a steady way, their course always influenced considerably by what he
 encountered in the world of politics.  As Madison began to believe that Hamilton
 and his followers represented the kind of faction that he so feared, a wealthy
 faction that would use the government to exploit the rest of the citizens, Madison
 did not abandon the theories he had constructed so carefully over so many years but
 instead began to search for ways to adapt, to modify, to tinker.  The answer that
 he gradually developed was the creation of an opposition party to that of
 Hamilton.  In a throwback to the brilliant strategy of supporters of the
 Constitution who fixed the name Antifederalists on the Constitution's opponents,
 Madison quickly fixed the Hamiltonians with the label "Antirepublicans," as he
 rallied to his standard the "true-friends" of republicanism.  In this light,
 Madison is not the failed philosopher, beating a hasty retreat; rather, he is the
 defender of the republican ramparts, holding aloft the flag and rallying the
 faithful to the defense of republican liberty.

	In the words of Irving Brant:
	     Madison rose to national leadership as organizer of the machinery of
	 government and framer of policies designed  to strengthen the nation
	 without giving advantage to section or class....Having done this, he
	 deliberately abandoned his majority leadership when he saw that the price
	 of keeping it was to become a tool of financial oligarchy.  In the second
	 phase, Madison just as definitely rose to leadership of the
	 opposition.  Championing veterans and other small fry against powerful
	 speculators, he found himself at last defending farmers, merchants,
	 storekeepers, small manufacturers--the America of wayside life--against
	 organized commercial and financial interests with the government as their
	 instrument.  The result was to make him the fusing agent of a new and
	 powerful political movement.
	
	 By helping to create an opposition party, Madison contributed what may be
 his second greatest service to the nation, the establishment of a two-party
 system.  If one party went too far, as Madison believed Hamilton and the
 Federalists had done, the other party would serve as a restraint and offer an
 alternative.  Because of the need to attract a majority of voters to gain control
 of the executive and legislative branches, both parties would be inhibited from
 straying too far to the extreme.  Since both would have to be broad-based, both
 would serve as mini-extended republics, complete with a broad set of divergent
 views and multiple members of different factions.  National policies of such
 parties, just as national leaders, would have to be broad-based, the result of
 consensus and compromise.  Factions would be amalgamated, and interests aggregated,
 in both parties. 

 	The one resource that Madison needed to ensure the success of his party was
 close at hand in the presence of his intimate friend and political soul-mate,
 Thomas Jefferson.  For it was Jefferson who had the personal magnetism and popular
 following that Madison lacked.  Rutland concludes that the effects of Hamilton's
 success caused Madison "to become somewhat embittered," but that is to ignore the
 fact that while Madison lost the battles over the debt and the bank, he was to
 succeed in creating a party that would drive the Hamiltonians from control of the
 executive and legislative branches of the government.  Before that could happen,
 however, Madison had to endure one more crushing assault on his theories and
 sensibilities, the passage of the Alien and Sedition Acts in 1798.
 
 	By that year, Hamilton had returned to his law practice in New York,
 although he was in constant, secret communication with most of the cabinet members
 of President John Adams' administration.  Madison had chosen not to run for
 re-election to the House of Representatives in 1796 and had returned to
 Montpelier.  Jefferson was, of course, serving as Vice President to Adams.  Both
 Madison and Jefferson had had a hand in establishing newspapers which were critical
 of the Hamiltonians.  Criticism became particularly sharp during the Adams
 years.  One of the factors affecting the growing division of the nation into
 Federalists and Democratic Republicans was the issue of the French, with the
 Federalists tending to side with and respect the British and their government, and
 adherents of the Democratic Republicans siding with the French and glorying in
 their revolution.  The latter enthusiasm was of great concern to Federalists and to
 the wealthy in the North who much preferred the order of the British system to the
 chaos and threat to life and property implicit in the French Revolution.  The Adams
 administration developed deepening difficulties with the French government.  First
 the French refused to accept his ambassador, James Monroe.  Then, in the infamous
 XYZ affair, a bi-partisan commission, sent by Adams to try to avoid a war, was met
 by three French agents who demanded bribes before they would negotiate.  War seemed
 inevitable.

 	Federalists in Congress took advantage of the situation to introduce
 legislation designed to restrict aliens from entering the country and to give the
 government power to restrict the activities of those already in.  Most important
 was the Sedition Act, introduced in the House of Representatives on June 4, 1798,
 by Samuel Sewall, a lawyer from Marblehead, Massachusetts.  The act provided
 possible fines and imprisonment for anyone who combined or conspired "with intent
 to oppose any measure or measures of the government of the United States" or who
 wrote, uttered, or published "any false, scandalous and malicious writing or
 writings" against the government, the Congress or the President with intent to
 defame or to bring them into contempt or disrepute."
 
 	The Senate passed the Sedition Act on July 4th, of all days, and the House
 passed a slightly amended version six days later.  Supporters of the measure had a
 little difficulty, but not much, with the arguments made by Albert Gallatin on the
 floor of the House that the Act was a violation of the First Amendment.  They
 concentrated on the fact that the Act was much more enlightened than its
 counterparts in British history, since truth could be used as a defense and guilt
 would be determined by a jury, not by a judge. 

 	Madison and Jefferson were appalled by the legislation and shortly produced
 the Virginia and Kentucky resolutions, respectively.  Jefferson in his resolution
 asserted the power of one state to declare acts of Congress null and void.  Madison
 was less radical.  Pledging support to the defense of the Constitution and the
 maintenance of the Union, his resolution condemned the acts as unconstitutional and
 urged other states to do likewise.  Not only were powers to pass such laws not
 delegated, but with regard to the Sedition Act, they were specifically prohibited
 by the First Amendment.  Brant points out that Madison avoided having Virginia
 declare the law null and void and that it was also his intention that the power to
 declare it unconstitutional be lodged only in those states that were the original
 parties to the compact.

 	Once again Madison reconsidered his position.  Alarmed by the actions of the
 national government, he moved further back from strong support for a powerful 
 national government and, in the process inadvertently breathed life into an idea,
 nullification, that would cause serious problems for the nation in the years ahead
 and, eventually, threaten its very survival.  To understand the nature of his
 response to the Alien and Sedition Acts it is necessary to return briefly to his
 theories.  Madison favored an upper house in the national legislature that would be
 controlled by those with property.  The lower house was to be representative of the
 masses and directly elected by them.  Madison hoped that the upper house would
 protect propertied interests from the excesses of the lower house and that the
 lower house would protect non-propertied interests from the excesses of the upper.

 	In his years in the House of Representatives, Madison had watched as the
 Hamiltonians gained control of both the House and the Senate and used their control 
 to adopt policies favorable to the wealthy.  Now many of the same members were
 using power to adopt policies stripping the poor of one of their basic human
 rights, the right to criticize their oppressors.  This perversion of Madison's
 scheme is what drove him to the authorship of the Virginia Resolution.  Luckily for
 him, the long-term result of the Alien and Sedition Acts was a growing
 dissatisfaction with the Hamiltonian Federalists complemented by growing enthusiasm
 for the party of Jefferson.  At the same time, Adams finally learned that his
 cabinet had been consulting secretly with Hamilton and a nasty split developed
 between the Hamiltonian wing of the Federalist party and the New England supporters
 of John Adams.  This was to lead, at the very time that the Sedition Act's
 prohibitions expired, to the elevation of Jefferson to the White House and to the
 permanent relegation of the Federalist Party to minority status. 

 	The passage of the Sedition Act is of importance for another reason.  It
 provided one more example to Madison of the nefarious influence that members of the
 legal profession could exert in his system of government.  Why was the House, for
 instance, not more representative of the interests of the masses?  Why did the
 House fail to reject the Sedition Act?  Perhaps one of the reasons lay in the
 number of lawyers serving as representatives.  The final vote on the Sedition Act
 in the House on July 10, 1798, was 44-41.  Thirty of the forty-four members who
 voted in favor were lawyers and three others had served as justices of the peace or
 assistant judges.  Of the thiry lawyers, twenty-four were from Northern states
 where most of the nation's banking and financial interests were located.  Of the
 forty-one who voted against, only thirteen were lawyers, and only three of them
 were from the North.  In the Senate, where the vote to pass was 18-6, thirteen of
 the eighteen were lawyers and two others had served as justices of the
 peace.  Eleven of the thirteen were from the North.  One had served as the Chief
 Justice of the New Hampshire Supreme court and another as Chief Justice of the
 Vermont Supreme Court and as a federal district court judge.  Still another had
 served as a judge on the Delaware Court of Appeals.  Four of those voting against
 were lawyers; all four were from Southern states.

  	Aleine Austin, author of an interesting study of Matthew Lyon, the New York
 Congressman who was prosecuted for violation of the Sedition Act and subsequently
 sent to jail, suggests that part of the reason for the measure's passage in the
 House was a class bias, with the establishment members, many of them lawyers,
 looking for ways to put the lid on outspoken, uncultured immigrants such as
 Lyon.  Repression of one class by another was one of Madison's great fears. 
 	For Madison, the first twelve years in the existence of the federal
 government had proven to be trying and frustrating.  Having devoted Herculean
 efforts to the achievement of the Constitution, he watched as the system he had
 done so much to create was used to accomplish so many of the ends he hoped to
 avoid.  The involvement of lawyers in that development was highly significant, but
 there is no evidence that Madison recognized the nature of the threat that they
 posed, except to the extent that he lumped them in with the wealthy interests in
 the country.  But whether he realized it or not, the problem was there from the
 start.  Lawyers used the practice of law to make their reputations and then ran for
 public office.  Once elected they supported the Hamiltonian credit measures that
 helped to make many of their clients, and many of them, rich.  And, when newspapers
 and Democratic Republican politicians became increasingly critical of them and the
 measures supported by their party, they voted overwhelmingly to suppress freedom of
 speech and freedom of the press.  Many of them were soon to be replaced in the
 House and the Senate, as the Jeffersonian Democrats swept to power, but the
 influence of lawyers on the Madisonian republic was just getting started.