The most incisive reason given by Madison against the authenticity of the draught in the Department of State, the reason which he most reiterated, if not the one upon which he most relied, was that the draught was presented to the Convention on the 29th May and a week later, June 6th, Pinckney moved "that the first branch of the national legislature be elected by the State legislatures and not by the people." This objection is not only plausible but it rests on two incontrovertible facts each of which is a matter of record—that the draught was presented to the Convention on the 29th of May; that his inconsistent motion was made on the 6th of June. But the conclusiveness of these facts disappears when the circumstances and changed conditions of the case appear.
In the first place Pinckney had forestalled the point made by Madison by declaring in his letter to the Secretary of State that there were provisions in the draught which on further reflection he had opposed in the Convention. This declaration, it must be remembered, was made before the publication of Madison's Journal, before it was known that it would be published, before Pinckney knew or could have known what the Journal would show. In other words it was he himself who first revealed his own inconsistency in having presented a plan for one thing in May and in having contended for another thing in June. The explanation is not an afterthought or a defence, but an avowal made in due time.
In the second place the draught was presented on the 29th of May, but it was not written then. It must have been written weeks before this in Pinckney's study in Charleston. When he wrote it he had before him, as every American of that day had, the Constitution of Great Britain, the constitution under which he had grown up, the merits and virtues and wisdom and excellencies of which he had read and re-read in Blackstone. It was a matter of course for him, when dealing with the legislative power, to have his Congress consist of two houses. As to this there would not be a doubt or a thought. The next thing would be to have the members of the first house, like the members of the House of Commons, elected by the people. So far he had no reason to pause and reflect. But when he came to the second house, he had no nobility at hand of which it might be composed. Here his invention began, and he avowedly so contrived his Senate that it should in fact though not in form, represent not nobility but wealth. It is probable that when he was draughting his constitution, it never entered his head that the lower house of the American parliament could be chosen by any other means than the means by which the House of Commons was chosen and the lower house of every American State.
In the third place between the 29th of May and the 6th of June the subject had come before the Convention and had been discussed and South Carolina had taken a position against it.
Gerry of Massachusetts said that "the evils we experience flow from the excess of democracy"; and that "he did not like the election by the people." Butler, of South Carolina, "thought an election by the people an impracticable mode." Rutledge, the strongest man in the State, seconded the motion to have the first branch elected by the State legislatures. Charles Cotesworth Pinckney, the most esteemed citizen of the State and Pinckney's kinsman, brought South Carolina before the Convention as an illustration and even went so far as to say "an election of either branch by the people, scattered as they are in many States, particularly in South Carolina, is totally impracticable."
Pinckney was the youngest member of the delegation—much the youngest. He was not yet 30; and, with the exception of Dayton and Mercer was the youngest member of the Convention. It would have been natural for him as a Southerner "to go with his State"—and as a young man to defer to his seniors. And after hearing the debate on the 31st of May and the reasons of his fellow delegates from South Carolina, it was proper for him to change his mind and advocate election by the State legislatures as a better mode. It would have been a matter of wonder if he had not!
But there is a letter of George Read which should be considered, for it suggests the question whether this change of Pinckney did not take place before the 29th of May; that is to say before he presented his draught to the Convention.
On the 20th of May 1787 Mr. Read wrote from Philadelphia to John Dickinson:
"I am in possession of a copied draught of a federal system intended to be proposed if something nearly similar shall not precede it. Some of its principal features are taken from the New York system of government. A house of delegates and senate for a general legislature, as to the great business of the Union. The first of them to be chosen by the legislature of each State, in proportion to its number of white inhabitants, and three-fifths of all others, fixing a number for sending each representative. The second, to-wit the senate, to be elected by the delegates so returned, either from themselves or the people at large, in four great districts, into which the United States are to be divided for the purpose of forming this senate from which, when so formed, is to be divided into four classes for the purpose of an annual rotation of a fourth of the members. A president having only executive powers for seven years." (Read's Life of George Read of Delaware p. 443.)
This letter is very far from being conclusive. In the first place it does not appear that Mr. Read had seen the original of this "copied draught" or that Pinckney had given him the copy or had told him what his plan was or that any person who had seen the original draught had told him what it contained. In the second place the existence of an unauthenticated copy on the 20th of May does not conclusively prove that a different version of the same draught was not presented to the Convention on the 29th of May. Still this letter undoubtedly refers to Pinckney's draught and compels a more searching examination of the question raised than would otherwise be necessary.
In a paper which will be called, briefly, "the Observations" written by Pinckney before he left Charleston he sets forth at length a description of his plan of government. In the opening paragraph of this paper he says that he will "give each article" of his draught "that either materially varies" from the present government "or is new." He then goes on to say that "the first important alteration is that of the principle of representation." "Representation is a sign of the reality. Upon this principle, however abused, the Parliament of Great Britain is formed, and it has been universally adopted by the States in the formation of their legislatures." This is all which Pinckney, writing before the Convention began its work, had to say concerning the lower house of Congress. His Senate was new and concerning it he had much more to say, and he described it. But of the lower house, the popular body, he had nothing to say save that there would be such a house, and that it would rest upon the principle of representation "universally adopted by the States in the formation of their legislatures." The Virginia resolutions undoubtedly expressed the opinion of substantially all Americans when they said, "Resolved that the members of the first branch of the national legislature ought to be elected by the people of the several States." Assuredly if the draught which Pinckney was then describing had contained the extraordinary and novel proposition that the popular branch of the national legislature, the body which should represent the people, was not to be chosen by the people he would have had something "new" to lay before the Convention—something which did not exist in the government of any English speaking people in the world—something which "materially varied" from the belief and usage and history and traditions of the people who were to ordain this Constitution. Knowing Pinckney as we do—his general views, his adherence to the general principles of the British constitution, his attentive study of State constitutions, his outspokenness, his belief in his own devices, we know that if his draught had then contained so radical a departure from all existing constitutions as that which he subsequently proposed in the Convention, and if he had worked himself into a belief at the time when he wrote the Observations that the election of their representatives by the people was "theoretical nonsense", he could not have refrained from saying so. What is said in the Observations harmonized with the constitutions of every State in the Confederation and with the Virginia resolutions and with the views of every member of the Convention excepting the five great land owners from South Carolina.
The Observations, therefore (written before the Convention and published afterwards), sustain the draught in the State Department.
The words "the people" appear directly and necessarily in article 3 of the draught: "The Members of the House of Delegates shall be chosen every —— year by the people of the several States; and the qualifications of the electors shall be the same as those of the electors in the several States for their Legislatures." They reappear casually and needlessly in article 5: "Each State shall prescribe the time and manner of holding elections by the people for the House of Delegates." The draught therefore in these provisions is consistent with itself.
In the draught of the Committee of Detail the words of Pinckney's article 3 again appear with some amplification, but in the same order with the same context and with the same intent. Such agreements come not by chance.
And if such agreements come not by chance, could Pinckney while he was copying the committee's draught for his own article 3 have written these two troublesome words "the people" without taking heed of their significance, without realizing what he was doing, without remembering that his own draught had said "the legislatures of the several States." He could not! For there is another provision in the draught in the State Department which was not taken from the committee's draught—which did not exist in the committee's draught—which must have been deliberately framed by Pinckney—the provision before quoted from article 5, "Each State shall prescribe the time and manner of holding elections by the people for the House of Delegates." That is to say if Pinckney unintentionally abstracted his article 3 from the committee's draught in 1818, he, nevertheless, must have fabricated designedly his article 5 at the same time; for there is nothing in the committee's draught to suggest it.
Then the question immediately arises, What motive could Pinckney have had for falsifying his draught and making this change from the election of delegates by State legislatures to their election by the people of the several States. The answer of the superficial of course will be, "So that the world should believe that he had always been in favor of the election of representatives by the people." No other reason can well be assigned; yet there could not have been such a motive. Pinckney knew that his draught was to be soon published and that with it would be published the official Journal of the Convention and that the publication would disclose to the world this record:
"Wednesday, June 6, 1787
"Mr. Gorham in the Chair.
"It was moved by Mr. Pinckney, seconded by Mr. Rutledge to strike the word 'people' out of the 4th resolution submitted by Mr. Randolph, and to insert in its place the word
'Legislatures' so as to read 'resolved that the Members of the first branch of the national legislature ought to be elected by the Legislatures of the several States'
"and on the question to strike out "it passed in the negative.""
If Pinckney's article 3 had really provided that members of the first house should be chosen by the legislatures of the several States, certainly his article 5 would not have provided that "each State shall prescribe the time and manner of holding elections by the people." Article 3 laid down the basic principle that representatives were to be chosen by the people, and article 5 provided for the time and manner when and whereby the people should elect their representatives; and article 4 provided that Senators should be chosen, not by the people or the legislatures of the several States, but by the House of Delegates. In all these provisions we again see that the draught in the State Department is consistent with itself.
It is possible that the person who gave the "copied draught" to Mr. Read was Pinckney himself; and it is probable that by the 20th of May he had changed his mind concerning the election of delegates by the people and had determined to make his draught conform to the views of his fellow delegates from South Carolina. We know, as will hereafter appear, that he contemplated making many amendments to his draught before presenting it to the Convention; and that he hastily and prematurely presented it on the 29th of May so that it should go with the Virginia resolutions to the Committee of the Whole. The change we are considering may not have been made in the written instrument which he laid upon the Secretary's desk, though he made the change in his own mind. But be that as it may, it is as certain as existing knowledge goes that no man saw the original draught with the words "by the people" twice stricken out and the words "by the legislatures of the several States" twice written in; and until this change in the original draught is shown by positive testimony, unequivocal in terms and above suspicion in character, the circumstantial evidence that the draught went to the Convention with the words "the people" in the 3d and 5th articles is overwhelming.
There are some other things specified in the Note not of great importance, but which serve to show how eagerly Madison clutched at anything that would operate as a makeweight against Pinckney and his draught.
Article VIII "is remarkable also for the circumstance that whilst it specifies the functions of the President, no provision is contained in the paper for the election of such an officer." This is not a complete statement of the case. The article declares that "the executive power" shall be vested in a President and that "he shall be elected for —— years." The provisions relating to the President were on their face incomplete. There are virtually two blanks left in the provision, the one relating to the length of the President's term of office, the other to the manner in which he should be chosen. The 12th resolution filled these blanks for a time by saying "seven years" for the one and by "the National legislature" for the other. Here were "results" arrived at in the Convention. That Pinckney did not fill these blanks in the Department copy—blanks so obvious and so easily filled—goes a great way to show that he did not in any place complete his draught by writing into it "results" arrived at in the Convention. It is a strained, artificial conclusion which calls an omission "remarkable" when the instrument is avowedly nothing but an incomplete, tentative draught prepared for the future consideration of its author as well as other persons.
Madison notes "variances" between the draught in the Department and the propositions and arguments of Pinckney in the Convention. "Thus in article VIII" he says, Pinckney provides for the impeachment of the President but on the 20th of July he was opposed to "any impeachability of the Executive." "He was sure they ought not to issue from the legislature who would in that case hold them as a rod over the Executive." But the draught says much more than Madison repeats. "He shall be removed from his office on impeachment by the House of Delegates and conviction in the Supreme Court." Pinckney did not oppose that in the Convention. Madison on his own record clearly had no right to say that Pinckney "was opposed to any impeachability of the Executive." He did not oppose such an impeachability as his draught provided for viz., by the Supreme Court, and his reasons quoted by Madison do not apply to the impeachability provided in his draught.
"In article III it is required that all money-bills shall originate in the first branch of the legislature; which he strenuously opposed on the 8th of August and again on the 11th." Here Madison overlooked the significance of these dates. They are subsequent to the report of the Committee of Detail by which report Pinckney's plan for the organization of the Senate had been rejected. Pinckney alluded to this on the 11th when he said, "The rule of representation in the first branch was the true condition to that in the second branch." Neither does it appear in Madison's Journal that he "strenuously opposed." On the 11th he "was sorry to oppose reopening the question," but "he considered it a mere waste of time." On the 8th his opposition had been couched in three lines, "If the Senate can be trusted with the many great powers proposed, it surely can be trusted with that of originating money-bills." Pinckney's real position in regard to this was clearly stated by himself and thus recorded by Madison on Wednesday, June 13th; "Mr. Pinckney thinks the question premature. If the Senate should be formed on the same proportional representation, as it stands at present, they should have equal power. Otherwise a different principle should be introduced." How did the Senate "stand at present," on June 13th. This is shown by the resolutions of the Committee of the Whole of the same day. "That the right of suffrage in the second branch of the national legislature ought to be according to the rule established for the first branch." Resolution 8. The Senate therefore was "at present," a very different representative body than the Senate of Pinckney's draught; and to say on these changed conditions and on the record of what he did say that he "strenuously opposed" the very thing which he had adopted in his draught is a wild use of terms.
"In article V, members of each house are made ineligible to as well as incapable of holding any office" a provision, Madison continues, which "was highly disapproved of by him on the 14th of August."
What was this disapproval? Article V provides that the members of each house shall not be eligible to office during the time for which they have been respectively elected, "nor the members of the Senate for one year after." This idea that a member of Congress should not hold, during his legislative term of office, an executive office which he had helped to create or the emoluments of which he had helped to increase, undoubtedly existed in many minds. But under the scheme embodied in the Pinckney draught there was a peculiar reason why the ineligibility of Senators should continue after their legislative terms of office had expired. That reason was because (Art. VIII), the Senate was to be an appointing power. It was to "have sole and exclusive power to" "appoint ambassadors, and other ministers to foreign nations, and judges of the Supreme Court." Under this scheme it was obvious that a Senator should not be allowed to step out of office at the expiration of his term on one day and be appointed by his late colleagues to an important office on the next day. It is, therefore, not a surprising thing to find this provision in the draught and to find it applied only to the Senate.
On the 14th of August Pinckney had so far modified his own views that he was then in favor of making the members of each House incapable of holding executive salaried offices while they continued members, with a provision that "the acceptance of such office shall vacate their seats respectively." This having failed in Convention, he on the same day urged a general postponement of the subject "until it should be seen what powers should be vested in the Senate" "when," he said, "it would be more easy to judge of the expediency of allowing officers of State to be chosen out of that body." This postponement was agreed to nem. con. It is manifest that the idea of the Senate being an appointing power was still uppermost in his mind. He gave good reasons for not making ineligibility absolute; but he consistently adhered to the idea that the same person should not be both a Legislator and an officer of State.
On the 14th of August Pinckney proposed to make members ineligible to hold any office by which they would receive a salary. This was merely a restriction on the original proposition of the draught, a limiting of its application to salaried offices but leaving members eligible and capable of filling honorary positions. To say that his original proposition was thereby "highly disapproved" by him is certainly an abuse of the term "highly disapproved." The objection of Madison when tested by his own record, the Journal, comes down to this: that three months or more after Pinckney wrote the draught, he thought it better to limit the Constitutional prohibition to "salaried offices." This restriction was a trivial and a sensible modification. To infer from it that Pinckney then "highly disapproved" his own original proposition merely marks the nervous excitement which seems to have impelled Madison to exaggerate every little deviation of Pinckney from the strict letter of his draught into conclusive evidence that this draught never existed.
This brings us to the extrinsic evidence on which Madison relied, the testimony of Pinckney against himself.
