THE POSITION TAKEN BY MADISON
The position taken by Madison in private letters to individuals, he had a right to modify, abandon or withdraw; and it would not be treating him fairly to hold him to words hastily written and perhaps inspired by an impulse of the moment. But the "Note of Mr. Madison to the Plan of Charles Pinckney" (Elliot Vol. 5, 578) deliberately prepared by him for future publication, and intended by him to accompany the draught of the State Department in future publications so that it should destroy the supposed verity of the copy, must be taken as the final expression of his judgment.
"Note of Mr. Madison to the Plan of Charles Pinckney, May 29, 1787."
"The length of the Document laid before the Convention, and other circumstances, having prevented the taking of a copy at the time, that which is ["here inserted" stricken out] inserted in the Debates was taken from the paper furnished to the Secretary of State, and contained in the Journal of the Convention, published in 1819 which it being taken for granted was a true copy was not then examined. The coincidence in several instances between that and the Constitution as adopted, having attracted the notice of others was at length suggested to mine. On comparing the paper with the Constitution in its final form, or in some of its Stages; and with the propositions, and speeches of Mr. Pinckney in the Convention, it was apparent that considerable errour had crept into the paper; occasioned ["probably" stricken out] possibly by the loss of the Document laid before the Convention, (neither that nor the Resolutions offered by Mr. Patterson, being among the preserved papers), and by a consequent resort for a copy to the rough draught, in which erasures and interlineations following what passed in the Convention, might be confounded in part at least with the original text, and after a lapse of more than thirty years, confounded also in the memory of the Author.
"There is in the paper a similarity in some cases, and an identity in others, with details, expressions, and definitions, the results of critical discussions and modifications in the Convention, that ["cannot be ascribed to accident or anticipation" omitted] could not have been anticipated.
"Examples may be noticed in Article VIII. of the paper; which 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, nor indeed for the appointment of any Executive Magistracy: notwithstanding the evident purpose of the Author to provide an entire plan of a Federal Government.
"Again, in several instances where the paper corresponds with the Constitution, it is at variance with the ideas of Mr. Pinckney, as decidedly expressed in his propositions, and in his arguments, the former in the Journal of the Convention, the latter in the report of its debates: Thus in Art: VIII. of the paper, provision is made for removing the President by impeachment; when it appears that in the Convention, July 20, he was opposed to any impeachability of the Executive Magistrate: In Art: III., it is required that all money-bills shall originate in the first Branch of the Legislature; which he strenuously opposed Aug: 8, and again, Aug: 11. In Art: V., members of each House are made ineligible to, as well as incapable of holding, any office under the Union, etc., as was the case at one Stage of the Constitution; a disqualification highly disapproved and opposed by him Aug: 14.
"A still more conclusive evidence of errour in the paper is seen in Art: III., which provides, as the Constitution does, that the first Branch of the Legislature shall be chosen by the people of the several States; whilst it appears, that on the 6th of June, according to previous notice, too, a few days only, after the Draft was laid before the Convention, its Author opposed that mode of choice, urging & proposing, in place of it, an election by the Legislatures of the several States.
"The remarks here made, tho' not material in themselves, were due to the authenticity and accuracy aimed at, in this Record of the proceedings of a Publick Body, so much an object, sometimes, of curious research, as at all times, of profound interest."
"As an Editorial note to the paper in the hand writing of Mr. M. beginning 'The length, &c.'"
"*Striking discrepancies will be found on a comparison of his plan, as furnished to Mr. Adams, and the view given of that which was laid before the Convention, in a pamphlet published by Francis Childs at New York shortly after the close of the Convention. The title of the pamphlet is 'Observations on the plan of Government submitted to the Federal Convention on the 28th of May, 1787, by Charles Pinckney, &c.'
"But what conclusively proves that the choice of the H. of Reps. by the people could not have been the choice in the lost paper is a letter from Mr. Pinckney to J. M. of March 28, 1789, now on his files, in which he emphatically adheres to a choice by the State Legrs. The following is an extract—'Are you not, to use a full expression, abundantly convinced that the theoretical nonsense of an election of the members of Congress by the people in the first instance, is clearly and practically wrong—that it will in the end be the means of bringing our Councils into contempt and that the Legislatures (of the States) are the only proper judges of who ought to be elected?'"
It is plain that Madison intended that the last two paragraphs of the foregoing, beginning with an asterisk, should take the form of an editorial note, and he so prepared the paper even to the placing of the asterisk at the beginning. As long before this as 1821 he had determined in his own mind that the publication of the Journal should be as he termed it, "a posthumous one" (letter to Thomas Ritchie September 15, 1821), and he carried out the intention by so providing in his will made in 1835. The expected editor was Mrs. Madison; and she, he knew, would scrupulously and intelligently carry into effect his slightest wish. She was not able to perform the editorial task.
When these charges of Madison are analyzed they may be reduced to three. The first and most serious charge is that there are coincidences "in several instances" between the draught and the Constitution—"a similarity in some cases and an identity in others with details, expressions and definitions" which were "the results of critical discussion and modification in the Convention." The second is that there are provisions in the draught inconsistent with Pinckney's known views, with the propositions which he presented and the speeches which he made in the Convention and that these provisions are so inconsistent with his views and speeches that they are "conclusive evidence of error" in the draught. The third, is that Pinckney immediately after the sittings of the Convention printed and published a paper entitled "Observations" which described the contents of the draught which he had presented to the Convention and that the two are utterly irreconcilable.