The Mystery of the Pinckney Draught :: CHAPTER V MADISON AS AN ADVOCATE

CHAPTER V MADISON AS AN ADVOCATE

At this day Madison is regarded as one of the chief statesmen in the group of leading framers of the Constitution; but his best appreciated work was his keeping the only record which we have of that august assembly. He, who dealt with the great questions of the hour, may not have been aware how much good work the Pinckney draught was doing in an unnoticed way. Madison spared no effort to make his journal complete, and no little time in doing so. He copied and inserted in it the Virginia resolutions and the New Jersey resolutions; and he also inserted Pinckney's long speech of the 25th of June; and yet he did not procure and apparently did not even read and certainly did not insert in his journal Pinckney's plan or draught. He seems to have felt sadly a certain self-conviction of this, and to have realized the fact that the omission of the Pinckney draught from his record was an irretrievable error. To a man holding the author of the draught in contempt, it must have seemed preposterous in 1831 for the shade of Pinckney to stalk upon the historic stage and say, I formulated the Constitution. It was my hand that sketched its outline, leaving it to the members of the Convention, myself among the number, to change its provisions and modify its terms. My draught was changed and modified, and the conflicting views of the framers were welded together by notable compromises and persuasive arguments, but nevertheless I contributed more of form and substance, more of detail and language to the instrument known as the Constitution of the United States than any other man.

Accordingly, Madison, while he closed his lips as a witness, rallied his failing forces as an advocate and proceeded to give from time to time first to one correspondent and then to another and finally to the people of the United States, in a "Note" to accompany his Journal when published, all the reasons he could marshal from the written record of the case why the draught in the State Department was an impossible verity.

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 constitution. He says it was furnished by Mr. Pinckney." Among Madison's papers there is also a memorandum entitled, for Mr. Paulding in which he says:

"Much curiosity and some comment have been exerted by the marvellous identities in a plan of government proposed by Charles Pinckney in the convention of 1787, as published in the Journals with the text of the constitution, 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 Constitution 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 passed 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 passed 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 documents 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 passages 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 instituted 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 Constitution 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 constitution of New York and not the constitution 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 Constitution. This section was couched in the very words of the constitution 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 passed 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 Constitution 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 principal 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 instituted legislatures of the States" there was "a council of revision, consisting of their executive and principal officers of government" and that he had "incorporated it as part of the system"; the other containing no such provision but, like the Constitution, 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 Constitution 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 participated in the work by his repeated efforts to engraft a council of revision on the Constitution, 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 principal draughtsman of the Constitution 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 document laid before the Convention and other circumstances 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 fictitious 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 assemble, 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 circumstances, 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 embarrassment 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 documentary 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 Constitution must desire to have examined, and if possible, answered, "What provisions of the Constitution were contributed by Pinckney"?

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