At what time the Pinckney draught was first brought to Madison's attention I have not been able to discover; but on the 5th of May, 1830, Mr. Jared Sparks had been spoken or written to on the subject, for he then replied to Madison, writing from Washington, "Since my return I have conversed with Mr. Adams concerning Charles Pinckney's draught of a const.i.tution. He says it was furnished by Mr. Pinckney." Among Madison's papers there is also a memorandum ent.i.tled, for Mr. Paulding in which he says:

"Much curiosity and some comment have been exerted by the marvellous ident.i.ties in a plan of government proposed by Charles Pinckney in the convention of 1787, as published in the Journals with the text of the const.i.tution, as finally agreed to."

This memorandum is not dated, but is placed chronologically before a letter to Mr. J. K. Paulding dated April, 1831.

On the 21st of June, 1831, he wrote to Jared Sparks: "May I ask you to let me know the result of your correspondence with Charleston on the subject of Mr. Pinckney's draught of a Const.i.tution for the United States as soon as it is ascertained?"

On the 27th of June, he again wrote to Mr. Paulding saying that he has "received the volume of pamphlets containing that of Mr. Charles Pinckney."

On the 25th of November, 1831, he again wrote to Mr. Sparks: "The simple question is whether the draught sent by Mr. Pinckney to Mr. Adams and printed in the Journal of the Convention could be the same with that presented by him to the Convention on the 29th May, 1787, and I regret to say that _the evidence that that was not the case is irresistible_."

He instances the election of members of Congress by the people, and the debate of June 6 as "a sufficient example." "But what decides the point"

is a letter "from him to me" dated March 28, 1789--a letter quoted by Gilpin of which I shall hereafter speak.

Madison is guarded in all he says, but it is perfectly plain that while he wished to impress upon Paulding and Sparks the idea that the draught which Pinckney placed in the State Department was not the draught which he presented to the Convention, he at the same time shrank from bringing on a controversy and from irritating the friends of Pinckney and forcing them into an investigation of the matter. It was, he evidently thought, a case of "least said, soonest mended." Madison was a sagacious and an experienced statesman who thoroughly understood his countrymen; Paulding and Sparks were his friends and followers; what he wished to have said pa.s.sed into Gilpin's edition of the Journal and Elliot's Debates, and gave the unquestioning world what he wished it to know and nothing more.

The bridge which he built was safely pa.s.sed over by the friends of Pinckney and his method of destroying the good name of the draught without needlessly smirching the good name of Pinckney, and without inciting a controversy on the subject has been so successful that for seventy years the draught has remained silently condemned, and no man has even thought that an investigation could possibly reverse the accepted judgment.

But on the 25th of April 1835, William A. Duer of New York wrote to Madison on the same subject and making the same inquiry. Judge Duer was an eminent and brilliant member of the New York bar and was then President of Columbia College and had been a well known judge. For three years the ghost of Pinckney had not been raised to disturb the serenity of Madison's old age. Paulding and Sparks were his friends and were publicists. To them he could say little which would mean much; and for them his wishes and suggestions would be as binding as a law. Judge Duer was not such a personal friend and to him Madison must speak more freely; he was the possessor of a strong inquiring mind, and to him, Madison must so strongly state the case that it would seem unquestionable. He therefore, with characteristic caution lingered until the 5th of June, and then in his reply to Judge Duer made a supreme, if not final effort.

In this letter, he brings up again, the election of members by "the people" and Pinckney's speech against it on the 6th of June. "Other discrepancies," he says, "will be found in a source also within your reach, a pamphlet published by Mr. Pinckney soon after the close of the Convention" (Pinckney's Observations). "A friend who has examined and compared the two doc.u.ments has pointed out the discrepancies noted below." "One conjecture explaining the phenomenon has been that Mr.

Pinckney interwove with the draught sent to Mr. Adams pa.s.sages as agreed to in the Convention in the progress of the work and which after a lapse of more than thirty years were not separated by his recollection."

The "discrepancies noted below" are for the most part unimportant; and will be examined hereafter; but there is one which should be considered now, for it affects Madison more than it affects Pinckney. The discrepancy referred to is this: In the Observations Pinckney says that, "in the best inst.i.tuted Legislatures of the States we find not only two branches [of the legislature] but in some 'a council of revision'"; and he adds that he has incorporated this "as a part of the system." The friend says "The pamphlet refers to the following provisions which are not found in the plan furnished to Mr. Adams as forming a part of the plan presented to the Convention: The executive term of service 7 years. 2. A council of revision."

The statesmen who framed the Const.i.tution were sufficiently statesmen to know that what we call the veto power is not really a veto power; and that the President, unlike the Crown, is not a part of the law-making power. The const.i.tution of New York and not the const.i.tution of Great Britain furnished the framers with the needed model. By all of them it was known that the duty imposed and intended to be imposed upon the President was simply a duty of "revision." This has been a subject of judicial inquiry and the history of the veto provision may be stated in the words of the court:

"At an early day, June 6, this question of legislative power was determined by two decisive votes. The Convention adopted the principle of revision, but being mindful, as Rutledge afterwards said, that 'the judges ought never to give their opinion on a law, till it comes before them,'

and that they 'of all men are the most unfit to be concerned in the Revisionary Council,' struck out Randolph's 'convenient number of the national judiciary'

and left the power of revision in the President alone. At a later day, August 6th, Rutledge 'delivered in the Report of the Committee of Detail,' the committee which embodied the previously ascertained views of the Convention in a draught of the proposed Const.i.tution. This section was couched in the very words of the const.i.tution of New York: Every bill shall be presented to the President '_for his revision_'; 'if upon _such revision_' he approve it, he shall sign it; 'if upon _such revision_ it shall appear to him improper for being pa.s.sed into a law,' he shall return it. On the 15th of August, with this word _revision_ three times repeated, 'The thirteenth section of article 6, as amended, was then agreed to' by all the States. It is this vote which is expressive of the final intent of the Convention.

The verbal form in which the provision stands in the Const.i.tution was the work of the Committee of Style.

"This 'revisionary business,' as Madison calls it, came up again and again; appears and reappears in his Journal from the 6th of June to the 16th of August; was considered and reconsidered, discussed and rediscussed. The views of members swung between the extremes of absolute affirmative power in Congress and absolute negative power in the President. The proposition of Hamilton 'to give the Executive an absolute negative on the laws,' identical with the legislative power of the Crown, was rejected by ten States and supported by none. The proposition of Madison to add the judges of the Supreme Court in the 'revision' of bills was likewise rejected. At last the deliberations ended where they had begun. The Convention held fast to the principle of a Council of Revision and left the duties of the council in the President alone. He was to be the Council of Revision. In the words of Madison, the Convention 'gave the Executive alone, without the judiciary, the _revisionary control_ on the laws, unless overruled by two-thirds of each branch.'" _The United States v. Weil_ (29 Court of Claims Reports 523; affirmed in _La Abra Co. v. The United States_, 175 U.S.R. 423.

Madison forgot that on the 6th of June South Carolina had voted "no" on the motion, to make "a convenient number of the National judiciary" a council of revision, and that the vote was unanimous; and he forgot that he had written with his own hand only eight days after Pinckney had presented his draught to the Convention:

"Mr. Pinckney _had been at first_ in favor of joining the heads of the princ.i.p.al departments, the Secretary of War, of foreign affairs, etc., in the council of revision. He had however _relinquished the idea_ from a consideration that these could be called on by the Executive Magistrate whenever he pleased to consult them. He was opposed to an introduction of the judges into the business." Hunt's Writings of Madison, III., pp. 89, 111.

According to Madison there was a discrepancy--more than a discrepancy, a flat contradiction between the Observations and the draught in the State Department, the one saying explicitly that in "some of the best inst.i.tuted legislatures of the States" there was "a council of revision, consisting of their executive and princ.i.p.al officers of government" and that he had "incorporated it as part of the system"; the other containing no such provision but, like the Const.i.tution, giving the executive alone the revisionary control of the laws. A superficial examination of the case would easily bring one to the conclusion that Pinckney in 1818 omitted the council of revision from the draught for the State Department and copied from the Const.i.tution the provision which the Convention framed. But the brief speech of Pinckney written down contemporaneously by Madison himself, singularly vindicates both the Observations and the draught and leaves the latter stronger than it would have been if Madison's friend had not furnished "the discrepancies noted below."

The significance of the term "council of revision" was not known to the friend who arrayed the Observations against the draught and may not have been to Judge Duer. Neither did they know that in the judgment and understanding of the Convention the President with powers and duties defined as they were defined was in legal effect the embodiment of the council of revision. But Madison knew it, or had known it. He too had personally partic.i.p.ated in the work by his repeated efforts to engraft a council of revision on the Const.i.tution, and his knowledge he had written down in his own words. Certainly he had no right to attack Pinckney through his unnamed friend. Certainly he had no right to leave Judge Duer to infer that the discrepancies noted below had received his scrutiny and approval. His Journal he knew would be published, he was even then providing for it in his will, and when published it would contradict the discrepancy noted below and sustain the copy of the draught which he was attacking. The obvious explanation is that Madison's failing memory failed to record his own words, "the Convention gave the executive alone, without the judiciary, the revisionary control of the laws," and Pinckney's express declaration as early as the 6th of June that "he had been at first" in favor of a council of revision but for reasons stated had changed his mind.

And let it not be supposed that Madison deliberately intended to deceive or that he was actuated by a malignant wish to deprive Pinckney of any thing which he really believed was actually his due. Madison was then an old man--a very old man--in his 85th year who had lived long and under the strain of great labors and intense excitements and withering anxieties. He was too old and too weary, and too strongly prejudiced to change his mind in a minute or to reverse the judgment of many years by an investigation de novo.

The word "phenomenon" in his letter to Judge Duer reveals his state of mind and well explains his acts. That the boy who had lodged in the same house with him in Philadelphia, the youngest member of the Convention as he believed, who was always talking about his draught, whom he disliked and underrated, that he should appear in 1818 as the chief contributor to, as the princ.i.p.al draughtsman of the Const.i.tution of the United States was indeed to him a phenomenon. It was something which he could not really believe. There is a note of contrition when he writes that "the length of the doc.u.ment laid before the Convention and other circ.u.mstances prevented my taking a copy at the time." He really believed that if he had procured and kept a copy of the draught which Pinckney laid before the Convention, it would have blown to pieces this wild pretentious claim which he had laid before the Secretary of State.

And Madison made a great mistake when he represented Pinckney to Judge Duer as an old man in 1818 whose waning recollection could not then separate the real from the fict.i.tious in the draught which he had found among his papers in Charleston. For Madison in 1835, when he wrote to Judge Duer, was twenty-five years older than Pinckney was when he sent the draught to Mr. Adams; and twenty-five years at that end of life is no small difference. Moreover his memory from his youth up had been laden and taxed with great events. It was fifty-two years since he had made this despondent note in his record of the debates in Congress:

"Monday, March 17, 1783.

"A letter was received from General Washington, enclosing two anonymous and inflammatory exhortations to the army to a.s.semble, for the purpose of seeking, by other means, that justice which their country showed no disposition to afford them. The steps taken by the general to avert the gathering storm, and his professions of inflexible adherence to his duty to Congress and to his country, excited the most affectionate sentiments towards him. By private letters from the army, and other circ.u.mstances, there appeared good ground for suspecting that the civil creditors were intriguing, in order to inflame the army into such desperation as would produce a general provision for the public debts. These papers were committed to Mr.

Gilman, Mr. Dyer, Mr. Clark, Mr. Rutledge, and Mr. Mercer.

The appointment of these gentlemen was brought about by a few members, who wished to saddle with this embarra.s.sment the men who had opposed the measures necessary for satisfying the army, viz., the half-pay and permanent funds; against one or other of which the individuals in question had voted.

"This alarming intelligence from the army, added to the critical situation to which our affairs in Europe were reduced by the variance of our ministers with our ally, and to the difficulty of establishing the means of fulfilling the engagements and securing the harmony of the United States, and to the confusions apprehended from the approaching resignation of the superintendent of finance, gave peculiar awe and solemnity to the present moment, and oppressed the minds of Congress with an anxiety and distress which had been scarcely felt in any period of the revolution."

It was 48 years since Madison had served as the most laborious member of the Convention. It was 28 years since he had seen the Navy disgraced by the surrender of the Chesapeake after firing only a single gun--a disgrace caused by the shameful negligence and incapacity of administrative officers at Washington while he was a member of Jefferson's Cabinet. It was 21 years since he had seen the Army disgraced by the negligence of his own Secretary of War and the incapacity of a general of his own choosing, and his Capitol burnt and himself and his Cabinet fugitives, and his heroic wife, her friends and the military guard of "a hundred men all gone," resolutely refusing to leave the Executive Mansion until she had taken "the precious portrait"

of Washington from its frame to save it from the ignominy of capture by a British Army. The Pinckney draught was but a leaf blown aside in the tumults of his troubled life.

But there remains the doc.u.mentary evidence which Madison adduced and the specification of plagiarism which he filed; and apart from Madison and apart from Pinckney there remains the ultimate question which every student of the Const.i.tution must desire to have examined, and if possible, answered, "What provisions of the Const.i.tution were contributed by Pinckney"?

CHAPTER VI

THE POSITION TAKEN BY MADISON

The position taken by Madison in private letters to individuals, he had a right to modify, abandon or withdraw; and it would not be treating him fairly to hold him to words hastily written and perhaps inspired by an impulse of the moment. But the "Note of Mr. Madison to the Plan of Charles Pinckney" (Elliot Vol. 5, 578) deliberately prepared by him for future publication, and intended by him to accompany the draught of the State Department in future publications so that it should destroy the supposed verity of the copy, must be taken as the final expression of his judgment.

"Note of Mr. Madison to the Plan of Charles Pinckney, May 29, 1787."

"The length of the Doc.u.ment laid before the Convention, and other circ.u.mstances, having prevented the taking of a copy at the time, that which is ["here inserted" stricken out]

inserted in the Debates was taken from the paper furnished to the Secretary of State, and contained in the Journal of the Convention, published in 1819 which it being taken for granted was a true copy was not then examined. The coincidence in several instances between that and the Const.i.tution as adopted, having attracted the notice of others was at length suggested to mine. On comparing the paper with the Const.i.tution in its final form, or in some of its Stages; and with the propositions, and speeches of Mr. Pinckney in the Convention, it was apparent that considerable errour had crept into the paper; occasioned ["probably" stricken out] possibly by the loss of the Doc.u.ment laid before the Convention, (neither that nor the Resolutions offered by Mr. Patterson, being among the preserved papers), and by a consequent resort for a copy to the rough draught, in which erasures and interlineations following what pa.s.sed in the Convention, might be confounded in part at least with the original text, and after a lapse of more than thirty years, confounded also in the memory of the Author.

"There is in the paper a similarity in some cases, and an ident.i.ty in others, with details, expressions, and definitions, the results of critical discussions and modifications in the Convention, that ["cannot be ascribed to accident or antic.i.p.ation" omitted] could not have been antic.i.p.ated.

"Examples may be noticed in Article VIII. of the paper; which is remarkable also for the circ.u.mstance, that whilst it specifies the functions of the President, no provision is contained in the paper for the election of such an officer, nor indeed for the appointment of any Executive Magistracy: notwithstanding the evident purpose of the Author to provide an _entire_ plan of a Federal Government.

"Again, in several instances where the paper corresponds with the Const.i.tution, it is at variance with the ideas of Mr. Pinckney, as decidedly expressed in his propositions, and in his arguments, the former in the Journal of the Convention, the latter in the report of its debates: Thus in Art: VIII. of the paper, provision is made for removing the President by impeachment; when it appears that in the Convention, July 20, he was opposed to any impeachability of the Executive Magistrate: In Art: III., it is required that all money-bills shall originate in the first Branch of the Legislature; which he strenuously opposed Aug: 8, and again, Aug: 11. In Art: V., members of each House are made ineligible to, as well as incapable of holding, any office under the Union, etc., as was the case at one Stage of the Const.i.tution; a disqualification highly disapproved and opposed by him Aug: 14.

"A still more conclusive evidence of errour in the paper is seen in Art: III., which provides, as the Const.i.tution does, that the first Branch of the Legislature shall be chosen by the people of the several States; whilst it appears, that on the 6th of June, according to previous notice, too, a few days only, after the Draft was laid before the Convention, its Author opposed that mode of choice, urging & proposing, in place of it, an election by the Legislatures of the several States.

"The remarks here made, tho' not material in themselves, were due to the authenticity and accuracy aimed at, in this Record of the proceedings of a Publick Body, so much an object, sometimes, of curious research, as at all times, of profound interest."

"As an Editorial note to the paper in the hand writing of Mr. M. beginning 'The length, &c.'"

"*Striking discrepancies will be found on a comparison of his plan, as furnished to Mr. Adams, and the view given of that which was laid before the Convention, in a pamphlet published by Francis Childs at New York shortly after the close of the Convention. The t.i.tle of the pamphlet is 'Observations on the plan of Government submitted to the Federal Convention on the 28th of May, 1787, by Charles Pinckney, &c.'

"But what conclusively proves that the choice of the H. of Reps. _by the people_ could not have been the choice in the lost paper is a letter from Mr. Pinckney to J. M. of _March 28, 1789_, now on his files, in which he emphatically adheres to a choice by the _State Legrs._ The following is an extract--'Are you not, to use a full expression, abundantly convinced that the theoretical nonsense of an election of the members of Congress by the people in the first instance, is clearly and practically wrong--that it will in the end be the means of bringing our Councils into contempt and that the Legislatures (of the States) are the only proper judges of who ought to be elected?'"

It is plain that Madison intended that the last two paragraphs of the foregoing, beginning with an asterisk, should take the form of an editorial note, and he so prepared the paper even to the placing of the asterisk at the beginning. As long before this as 1821 he had determined in his own mind that the publication of the Journal should be as he termed it, "a posthumous one" (letter to Thomas Ritchie September 15, 1821), and he carried out the intention by so providing in his will made in 1835. The expected editor was Mrs. Madison; and she, he knew, would scrupulously and intelligently carry into effect his slightest wish. She was not able to perform the editorial task.

When these charges of Madison are a.n.a.lyzed they may be reduced to three.

The first and most serious charge is that there are coincidences "in several instances" between the draught and the Const.i.tution--"a similarity in some cases and an ident.i.ty in others with details, expressions and definitions" which were "the results of critical discussion and modification in the Convention." The second is that there are provisions in the draught inconsistent with Pinckney's known views, with the propositions which he presented and the speeches which he made in the Convention and that these provisions are so inconsistent with his views and speeches that they are "conclusive evidence of error" in the draught. The third, is that Pinckney immediately after the sittings of the Convention printed and published a paper ent.i.tled "Observations"

which described the contents of the draught which he had presented to the Convention and that the two are utterly irreconcilable.