But Washington, though he knew it not, was then approaching the verge of his third cycle of ill.u.s.trious service rendered to his country--"the country he a.s.sembled out of chaos."

Madison writing to Jefferson, then in Paris, on Tuesday, the 15th of May, happily recorded the fact that Washington, true to his life record, was on the ground when he should have been: "Monday last was the day for the meeting of the Convention. The number as yet a.s.sembled is but small.

Among the few is General Washington who arrived on Sunday evening, amidst the acclamations of the people, as well as more sober marks of the affection and veneration which continue to be felt for his character."

But a quorum of lesser men did not appear until Friday May 25th. On that day nine States were represented by twenty-nine delegates among whom was Charles Pinckney on whose motion a committee was appointed, of which he was one, to prepare standing rules and orders. The only other business was the election of Washington as President and Major William Jackson as Secretary. On Monday May 28th the Convention next met when "Mr. Wythe, from the committee for preparing rules made a report which, employed the deliberations of this day." Tuesday May 29th was the great day when Randolph "opened the main business" and presented the Virginia resolutions, and Pinckney "laid before, the House the draught of a Federal Government." These were not days to be easily confounded. But between the presentation of the draught to the Convention and the writing of the t.i.tle for the printer in New York four months had elapsed crowded with labor and excitement, and Pinckney had forgotten the date of the most eventful day of his life. The error of this date means a great deal.

In his letter to the Secretary of State covering the draught in the Department, Pinckney says that he has then four or five draughts of the Const.i.tution in his possession. It is certain that the draught in the Department conforms much more closely to the draught which he presented to the Convention than to the draught which he describes in the Observations. If we consider the facts established (as we must) that the Observations were written before the a.s.sembling of the Convention, that they were written many months before their publication, that they were not examined or revised when they were published, it is easily within the range of possibilities, if not of probabilities, that the draught which formed the "text of the discourse" was one of the four or five which Pinckney had drawn at various times and was not the one which he finally submitted to the Convention.

If the Observations were what they pretend to be the text of a real speech actually spoken at the time when Pinckney was about to present his draught to the Convention they would be very good secondary evidence of the contents of the paper which he held in his hand and which he then and there presented, and thereby parted company with. But a speech which was never spoken to suppositional auditors who never heard it, is not a public declaration of the contents of another paper. The Observations are not a speech because they are cast in the form of a speech. They are simply a paper which may have been written in Charleston before the a.s.sembling of the Convention, or (possibly) in New York after the Convention had been dissolved, and whenever written Pinckney may have had before him another of the four or five const.i.tutions which he had draughted. With the uncovering of the fact that this paper was not contemporaneous, and that it did not necessarily refer to the particular copy of the draught which Pinckney presented to the Convention on the 29th of May, the supposed value of the Observations as evidence to impeach the integrity of the draught in the State Department is blown to pieces.

If this were a suit between Madison and Pinckney it might be held that Pinckney would be estopped from questioning the veracity of the paper which he wrote and made public, or the actuality of the facts which it sets forth. But an estoppel which in the words of c.o.ke, "concludeth a man to alleage the truth" does not extend to the student of Const.i.tutional history. He is not a party to that record and is at liberty to use it for what it may be worth against Pinckney or for Pinckney, to overthrow the draught or to substantiate the draught--to use it in any way which will tend to clear the situation from error, and authenticate the true history of the Const.i.tution.

Madison in his "Note to the Plan" regarded article VIII as "remarkable also for the circ.u.mstance that whilst it specifies the functions of the President, no provision is contained in the paper for the election of such an officer." The plain unquestionable purpose of Madison when so writing was to impress upon the American mind the improbability, the almost impossibility, of Pinckney's having neglected to provide for the election of the President while actually establishing the office and defining the functions of the officer; and hence that the paper which is so remarkable for the omission cannot be a true copy of the one presented to the Convention; and the inevitable inference from this is that the real draught, the one presented to the Convention on the 29th of May contained and must have contained, and could not have overlooked the needed provision declaring how the President should be chosen.

The choosing of the President by means of electoral colleges in which each State should have a proportionate power equal to its total representation in the two houses of Congress was one of the notable compromises between the large and small States; and what Madison says must excite the curiosity of the Const.i.tutional student to know in what manner Pinckney provided in his draught for the choosing of the President and whether he attempted a compromise. The original draught is lost; but here Madison appears with the Observations which he fortunately saw in 1787 and which he fortunately remembered in 1831 and which, remembering, he brought to light and made an authority; and these Observations, according to Madison, presumptively set forth what the original draught contained so fully and accurately that upon the faith of them we can and must reject the copy of the draught which Pinckney produced and placed in the State Department. Therefore we may turn to the Observations with unusual interest to ascertain whether Pinckney provided, and in what manner he provided, for the choosing of the President.

We find that the Observations are as silent as the draught in the State Department. They are not more silent however. If the Observations said nothing and were absolutely silent on the subject of the President, it might be a casual oversight of the writer. But the Observations agree with article VIII; both recognize the Executive as vested in one person; both limit his term of office, the one to seven, the other to ---- years; both expressly declare that he shall be re-eligible; both are silent as to the means by which he shall be chosen. The Observations here are little more than a paraphrase of article VIII. Madison regarded the omission to provide for so vitally important a thing as the choosing of the President as "remarkable"; but the more remarkable the omission, the more significant the coincidence.

The explanation of Pinckney's conduct and of the contradictions between his statements in the Observations and the facts appearing on the records of the Convention, including in the term the Madison Journal and the Yates Minutes is, I think, the following:

The first business day of the Convention, probably, was the most impressive day of all its sittings. There were less than forty delegates present but among them were the most distinguished men of the country; Washington, Hamilton, Rufus King, David Brearly, both Robert and Gouverneur Morris, George Read, George Mason, George Wythe, John Rutledge, John d.i.c.kinson and Elbridge Gerry. A painful anxiety existed concerning everything which lay before them--the method of procedure, the specific subjects to be considered, the prejudices of the different States, the views and plans and projects of the different members.

Randolph, as heretofore has been said, opened the great business which was to result either in the formation of a National government or in the dissolution of the feeble Confederation which existed, by the presentation of the abstract propositions which the delegates from Virginia had formulated for the consideration of the Convention, and by a masterly address in which he set forth the perils of the hour and the difficulties to be overcome. When he concluded his solemn and philosophical exposition of the impending problems the Convention adjourned as well it might.

Pinckney must have been impressed by this. He had studied the field long and intelligently; but there were now waters before him which were beyond his depth--difficulties which he had not considered; prejudices and jealousies for which he had formulated no compromise. It was not the time for the man believed to be the youngest member to harangue the Convention on his scheme for a new government.

Pinckney unquestionably had prepared a written speech in his study in Charleston. It was his strategic purpose to deliver the speech at the opening of the Convention and draw forth expressions of opinion concerning his scheme for a National government, after which he would modify his plan and when modified to suit himself or to suit a majority of the members, he would present it. But when the time came to speak he saw that the Convention was in no humor to listen to an oration about his plan, and that the business before them would be the consideration and discussion of abstract propositions one by one as set forth in the Virginia resolutions, and that no plan would be considered until the delegates should learn by intelligent discussion what they wanted to formulate. He therefore wisely reversed his strategy, withholding the speech but presenting the draught, thereby placing himself on the record and establishing what in patent law would be called priority of invention.

After the great work was done and the Const.i.tution had gone forth to the world Pinckney knew that his draught was buried in the secrecy of the proceedings. He too, like many another effusive young man, may have thought his speech too good to be lost. Certainly he could not resist the temptation of revealing what he had written and of recording the great part he had played among the eminent actors in the Convention. He avoided violating the pledge of secrecy by revealing no act or proceeding of the Convention, not even that his plan had been presented and referred. And it is fair to say that while he acted like a boy, he also gave out the full record in a manly way. The absurdities in his draught, as some of his provisions must have seemed to many intelligent men, were set forth; the provisions which failed were set forth; the propositions which he himself had abandoned and opposed were set forth.

There was no tampering with the record. There are pa.s.sages in some of his imperfectly reported speeches in the Convention which bear some resemblance to his discursive rhetorical flights in the Observations, and these he may have thought justified the t.i.tle with which he prefaced the publication. The two lines on the t.i.tle page, "Delivered at different Times in the course of their Discussions," are in very small type and appear much as if they had been crowded into a printer's proof--as if they had been an afterthought. But however that may be one thing is certain, that the speech setting forth the contents of his plan was never made in the Convention.

The Observations sustain the draught in the State Department in matters of substance, but not in order and arrangement. The Observations also allude to provisions which are not in the draught in the State Department, provisions which may or may not have been in the draught which was presented to the Convention; and these I shall subsequently examine. As to the variance in order and arrangement there are two things which should be considered: First: as a matter of antiquarian research it would be interesting and satisfactory to ascertain that the one draught was a facsimile or exact duplicate of the other; but where the purpose of the inquiry (as in this case) is to ascertain what contributions the draught of Pinckney made to the Const.i.tution of the United States, it is wholly immaterial whether one provision followed another or preceded it, or was far removed from it. The second thing to be remembered is that the draught of the Committee of Detail, so far as it agrees in order and arrangement with the draught in the State Department furnishes us with presumptive evidence of the order and arrangement in the draught which was presented to the Convention. A comparison of the two will show that the variances are so trivial that they are not worthy of further consideration.

As we have seen (chapter VI) Madison did not cite the Observations in the "Note of Mr. Madison to the plan of Charles Pinckney," but did prepare a footnote for the Note to be appended to and published with it by his future editor who he then believed would be Mrs. Madison. Why he did not cite or set forth in his own Note the "striking discrepancies"

set forth in the footnote, but planned and arranged that they should be brought before the public by his editor has seemed inexplicable hitherto. The reason is now plain--he did not wish to a.s.sume the responsibility of citing the pamphlet of Pinckney because he knew that it consisted of a speech which was never made.

Madison cited the Observations and the eighth article and the fifth article of Pinckney's draught to secure its condemnation; but of each he might say as Balak the son of Zippor said to the prophet of old, "I took thee to curse mine enemies and behold thou hast blessed them!" He hunted for the Observations; he found them; he brought them to the knowledge of men, he appealed to them, he made them an authority by which Pinckney should be judged out of his own mouth; and lo! they furnish the strongest confirmation of the verity of the draught which he attacked.

The Observations seem to have been a fateful thing, fatal to whichever party relied upon them. Madison exhumed them and believed that they would destroy the pretensions of Pinckney and vindicate himself--and they have but demonstrated the superficiality of his own investigation and the baselessness of his deductions. Pinckney fearing that the part which he had played in the Convention would never be known, that his great contribution to the Const.i.tution might never receive so much as the notice of men, impelled by his boyish egoism and by what Madison called with reference to another contemporaneous publication, "his appet.i.te for expected praise," improperly laid them before the world--and they have done more than any other one thing to smirch his good name and bury in oblivion the great work of his life.

CHAPTER X

THE SILENCE OF MADISON

Up to this point the draught in the State Department has been considered precisely as Madison desired it should be considered; that is to say upon his objections. The inquiry moreover has been confined to the final indictment which he drew up, to-wit, the "Note of Mr. Madison to the Plan of Charles Pinckney," and to the evidence which he adduced to sustain it, to-wit Pinckney's Observations and letter and Madison's Journal of the Convention. But there is another chapter which must be considered, a chapter of facts and circ.u.mstances forming an unseen part of the strategy which his cautious policy supplied.

In his letters to Sparks and the others as in the final "Note," there is a studious comparison inst.i.tuted between the draught in the State Department and the Const.i.tution itself. There is also an argument implied that the draught in the Department cannot possibly be identical with the draught presented to the Convention because it contains some provisions which Pinckney opposed in the Convention. A student whose inquiries were limited to early editions of Madison's Writings might draw from them two extenuating inferences, the first of which would be that the weakened memory of age and infirmity had failed to bring before Madison the proper instrument for comparison, the draught of the Committee of Detail; the second that he had never heard of Pinckney's letter to the Secretary of State and knew not that Pinckney had notified the Secretary that the copy which he sent was not a literal reproduction of the lost draught and that it, like the original, contained provisions which on further reflection he had opposed in the Convention.

In the spring of 1830 Mr. Jared Sparks pa.s.sed a week with Madison at Montpelier and on his return to Washington sent to him the following letter:

"WASHINGTON, May 5th, 1830.

"Since my return I have conversed with Mr. Adams concerning Charles Pinckney's draught of a const.i.tution. He says it was furnished by Mr. Pinckney, and that he has never been able to hear of another copy. It was accompanied by a long letter (written in 1819) now in the Department of State, in which Mr. Pinckney claims to himself great merit for the part he took in framing the const.i.tution. A copy of this letter may doubtless be procured from Mr. Brent, should you desire to see it. Mr. Adams mentioned the draught once to Mr. Rufus King, who said he remembered such a draught, but that it went to a committee with other papers, and was never heard of afterwards. Mr. King's views of the subject, as far as I could collect them from Mr.

Adams, were precisely such as you expressed."

Here it may be noted that what Mr. Adams heard from Mr. King is recorded in his Memoirs, May 4, 1830, Vol. VIII, p. 225. It is only what Sparks reported to Madison. Mr. King had not seen the draught, and had not heard any one narrate what its provisions were. Indeed his doubts and suspicions seem to have been founded on no other fact than that he did not hear it talked about. Like Madison, he was a witness who could testify to nothing, not even to hearsay.

On the 24th of May, 1831, Mr. Sparks, who was then at work on his life of Gouveneur Morris, again wrote to Madison.

"BOSTON, May 24, 1831.

"In touching on the Convention, I shall state the matter relating to Mr. Pinckney's draught, as I have heard it from you, and from Mr. Adams as reported to him by Mr. King.

Justice and truth seem to me to require this exposition. I shall write to Charleston, and endeavor to have the draught inspected, which was left by Mr. Pinckney. Your explanation, that he probably added particulars as they arose in debate, and at last forgot which was original and what superadded, is the only plausible way of accounting for the mystery, and it may pa.s.s for what it is worth.

Should anything occur to you, which you may think proper to communicate to me on the subject, I shall be well pleased to receive it."

Madison felt so solicitous about the inquiry in Charleston that on the 21st of June he wrote to Sparks, asking to be informed of the result "as soon as it is ascertained."

But on the 16th of June Sparks had written to Madison the following letter which could not have reached him when he wrote on the 21st.

"BOSTON, June 16th, 1831.

"I have procured from the Department of State a copy of the letter from Mr. Charles Pinckney to Mr. Adams, when he sent his draught for publication. This letter is so conclusive on the subject that I do not think it necessary to make any further inquiry. It is evident, that the draught, which he forwarded, was a compilation made at the time from loose sketches and notes. The letter should have been printed in connexion with the draught. I imagine Mr. Pinckney expected it. He does not pretend that this draught was absolutely the one he handed into the Convention. He only 'believes'

it was the one, but is not certain.

"Should you have leisure, I beg you will favor me with your views of this letter. It touches upon several matters respecting the history and progress of the Convention. Do these accord with your recollection? I would not weary or trouble you, but when you recollect that there is no other fountain to which I can go for information, I trust you will pardon my importunity."

When Sparks wrote his hasty letter of June 16th he was evidently writing under two misapprehensions. The first was that he supposed the question involved was whether the draught on file was an exact copy of the lost original; the second was that its verity depended entirely on Pinckney's accompanying letter. To his inquiry what did Madison think of that letter, Madison made no reply.

But in the course of the next five months Sparks cleared his mind of the above misapprehensions and freed himself from the authority of Madison's opinion; and his strong and well trained mind a.n.a.lysed the facts involved and grasped the real problem of the case. This a.n.a.lysis and this problem he set clearly before Madison in the following letter.

"BOSTON, November 14th, 1831.

"My mind has got into a new perplexity about Pinckney's Draught of a Const.i.tution. By a rigid comparison of that instrument with a Draught of the Committee reported August 6th they are proved to be essentially, and almost identically, the same thing. It is impossible to resist the conviction, that they proceeded from one and the same source.

"This being established, the only question is, whether it originated with the committee, or with Mr. Pinckney, and I confess that judging only from the face of the thing my impressions incline to the latter. Here are my reasons.

"1. All the papers referred to the committee were Randolph's Resolutions as amended, and Patterson's Resolutions and Pinckney's Draught without having been altered or considered. The committee had them in hand nine days. Their Report bears no resemblance in form to either of the sets of resolutions, and contains several important provisions not found in either of them. Is it probable that they would have deserted these, particularly the former, which had been examined seriatim in the convention, and struck out an entirely new scheme (in its form) of which no hints had been given in the debates?

"2. The language and arrangement of the Report are an improvement upon Pinckney's Draught. Negligent expressions are corrected, words changed and sentences broken for the better. In short, I think any person examining the two for the first time, without a knowledge of circ.u.mstances, or of the bearing of the question, would p.r.o.nounce the Committee's Report to be a copy of the Draught, with amendments in style, and a few unimportant additions.

"3. If this conclusion be not sound, it will follow that Mr. Pinckney sketched his draught from the Committee's Report, and in so artful a manner as to make it seem the original, a suspicion I suppose not to be admitted against a member of the Convention for forming the Const.i.tution of the United States.

"Will you have the goodness to let me know your opinion? If I am running upon a wrong track I should be glad to get out of it, for I like not devious ways, and would fain have light rather than darkness.

"P.S.--You may be a.s.sured, Sir, that I have no intention of printing anything on this subject, nor of using your authority in any manner respecting it. I am aware of the delicate situation in which such a step would place you, and you may rely upon my discretion. I am greatly puzzled, however, in respect to the extraordinary coincidence between the two draughts. Notwithstanding my reasons above given, I cannot account for the committee's following any draught so servilely, especially with Randolph's Resolutions before them, and Randolph himself one of their number.--I doubt whether any clear light can be gained, till Pinckney's original draught shall be found, which is probably among the papers of one of the committee. It seems to me that your secretary of the convention was a very stupid secretary, not to take care of these things better, and to make a better Journal than the dry bones that now go by that name."