The Mystery of the Pinckney Draught

by Charles C. Nott

"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.