THE IMPROBABILITIES
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.