The Mystery of the Pinckney Draught

by Charles C. Nott

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: