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"?