Charles C. Nott

Up to this point the draught in the State Department has been considered precisely as Madison desired it should be considered; that is to say upon his objections. The inquiry moreover has been confined to the final indictment which he drew up, to-wit, the "Note of Mr. Madison to the Plan of Charles Pinckney," and to the evidence which he adduced to sustain it, to-wit Pinckney's Observations and letter and Madison's Journal of the Convention. But there is another chapter which must be considered, a chapter of facts and circumstances forming an unseen part of the strategy which his cautious policy supplied.

In his letters to Sparks and the others as in the final "Note," there is a studious comparison instituted between the draught in the State Department and the Constitution itself. There is also an argument implied that the draught in the Department cannot possibly be identical with the draught presented to the Convention because it contains some provisions which Pinckney opposed in the Convention. A student whose inquiries were limited to early editions of Madison's Writings might draw from them two extenuating inferences, the first of which would be that the weakened memory of age and infirmity had failed to bring before Madison the proper instrument for comparison, the draught of the Committee of Detail; the second that he had never heard of Pinckney's letter to the Secretary of State and knew not that Pinckney had notified the Secretary that the copy which he sent was not a literal reproduction of the lost draught and that it, like the original, contained provisions which on further reflection he had opposed in the Convention.

In the spring of 1830 Mr. Jared Sparks passed a week with Madison at Montpelier and on his return to Washington sent to him the following letter:

"Washington, May 5th, 1830.

"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, and that he has never been able to hear of another copy. It was accompanied by a long letter (written in 1819) now in the Department of State, in which Mr. Pinckney claims to himself great merit for the part he took in framing the constitution. A copy of this letter may doubtless be procured from Mr. Brent, should you desire to see it. Mr. Adams mentioned the draught once to Mr. Rufus King, who said he remembered such a draught, but that it went to a committee with other papers, and was never heard of afterwards. Mr. King's views of the subject, as far as I could collect them from Mr. Adams, were precisely such as you expressed."

Here it may be noted that what Mr. Adams heard from Mr. King is recorded in his Memoirs, May 4, 1830, Vol. VIII, p. 225. It is only what Sparks reported to Madison. Mr. King had not seen the draught, and had not heard any one narrate what its provisions were. Indeed his doubts and suspicions seem to have been founded on no other fact than that he did not hear it talked about. Like Madison, he was a witness who could testify to nothing, not even to hearsay.

On the 24th of May, 1831, Mr. Sparks, who was then at work on his life of Gouveneur Morris, again wrote to Madison.

Madison felt so solicitous about the inquiry in Charleston that on the 21st of June he wrote to Sparks, asking to be informed of the result "as soon as it is ascertained."

But on the 16th of June Sparks had written to Madison the following letter which could not have reached him when he wrote on the 21st.

When Sparks wrote his hasty letter of June 16th he was evidently writing under two misapprehensions. The first was that he supposed the question involved was whether the draught on file was an exact copy of the lost original; the second was that its verity depended entirely on Pinckney's accompanying letter. To his inquiry what did Madison think of that letter, Madison made no reply.

But in the course of the next five months Sparks cleared his mind of the above misapprehensions and freed himself from the authority of Madison's opinion; and his strong and well trained mind analysed the facts involved and grasped the real problem of the case. This analysis and this problem he set clearly before Madison in the following letter.

This letter set forth the real elements of the case, elements incontrovertible and absolutely certain—that Pinckney's draught was referred to the Committee of Detail; that it was never considered in the Convention; that the period within which the Committee framed their draught was a brief one; that the Committee's draught bears no resemblance in form to the resolutions of the Convention and contains provisions not found in them; that the Committee so departed from the resolutions, though Randolph himself was one of their number, and struck out an entirely new scheme in form of which no hint had been given in the debates and that the Committee's draught in form, language and arrangement appears to be a copy of Pinckney's with amendments and additions.

From these sure premises Sparks deduced two alternative conclusions; "I think any person examining the two [draughts] for the first time without a knowledge of the circumstances or of the bearing of the question would pronounce the Committee's report to be a copy of the draught with amendments in style and a few unimportant additions," "or that Mr. Pinckney sketched his draught from the Committee's, and in so artful a manner as to make it seem the original, a suspicion I suppose not to be admitted against a member of the convention."

In the second clause of the latter alternative Sparks with admirable sagacity applied the most delicate test that could be applied to the matter. He brings the dilemma down to this: The Committee must have used Pinckney's draught or Pinckney must have sketched his draught from the Committee's; and more than that, he must have sketched it "in so artful a manner as to make it seem the original."

When one instrument is fashioned after another the natural and even unconscious action of the mind is to correct and improve. It is a going forward toward a desirable result. To fashion the second instrument after the first but in such a manner that in many details there would be an unfailing inferiority would be a going backward. This inferiority in detail runs through the Pinckney draught as has repeatedly been shown before. When Sparks wrote the word "artful" he used the right word, the word which controlled the situation—"in so artful a manner as to make it seem the original" most accurately defines what Pinckney did in Charleston in 1818 if he then fabricated a new draught.

Of course such a fabrication was possible but it would have required a literary forger with a genius for literary forgery to have taken the Committee's draught and given these artless imperfections—these delicate touches of inferiority to the copy for the State Department.

To the specific charge that Pinckney must have sketched his draught "in so artful a manner as to make it seem the original" if it was not what he had represented it to be, Madison made no reply. Sparks had narrowed the issue to this, "Did the Committee follow Pinckney's draught or did Pinckney use the Committee's?" But Madison evaded the issue. Sparks had shown that the Committee did not confine themselves to results arrived at after discussion in the Convention; but that they had incorporated in their draught "important provisions not found in either" set of resolutions, and he called Madison's attention "to the extraordinary coincidence between the two draughts;" and he added that he could not "account for the Committee following any draught so servilely, especially with Randolph's resolutions before them, and Randolph himself one of their number." It was for Madison then to meet this issue and show definitely where the Committee got the many new provisions of their draught, important and unimportant, if they did not get them from the Pinckney draught.

On the 25th of November, 1831, Madison replied at length to Sparks' letter but he said not a word about the draught of the Committee or of Pinckney's letter to the Secretary of State. His answer was in effect, "Impossible!"

Sparks did not acknowledge the receipt of the letter until the 17th of January, 1832, and then the acknowledgment was called out by a letter from Madison of January 7th. He yielded a reluctant assent, manifestly in deference to Madison, that "this letter seems to me conclusive, but" (he immediately adds), "I am still a good deal at a loss about the first draught of the Committee. The history of the composition of the draught would be a curious item in the proceedings of the Convention." Here Sparks again put his finger on one of the things that needed explanation, "the composition of the draught." His sagacious mind grasped the fact that the structure of the draught of the Constitution—of the Constitution itself, would indeed be a "curious item in the proceedings of the Convention." It was original work in style, order, details and arrangement; "a curious item" indeed! Whose was the hand that sketched it? When Sparks was so near the end of the matter and on the path which led to the end, it seems almost incredible that he did not take one step forward. If he had he would have solved the problem and dispelled the mystery.

Madison's letter of November 25th seems to have been written for posterity as well as for the man to whom it was sent. Its untold object manifestly was to divert attention from the draught of the Committee and to direct comparison to the Constitution itself. Three years later in his letter to Judge Duer he reiterated what he had said to Sparks, and again he said nothing upon the point which Sparks had plainly placed before him. Finally when he prepared his Note to the Plan, he for a third time, was silent on the primary issue in the case, Did the Committee follow Pinckney's draught or did Pinckney surreptitiously use the Committee's?

This silence of Madison's is a most curious instance of his sagacious and adroit management. It was not his business to direct attention to this troublesome final issue and he did not. The "Note of Mr. Madison to the Plan of Charles Pinckney" would be published; the letters of Sparks to himself might never see the light. Indeed I can give this tribute to his adroitness—that this book was written in the belief that Madison, never knew of Pinckney's letter to the Secretary of State, and that his weakened mind had overlooked the draught of the Committee of Detail; and it was not till the book was finished that I found the letters of Sparks above quoted and was compelled thereby to supply this chapter, and modify what I had elsewhere written.