James Madison Papers

James Madison to William A. Duer, 5 May 1835

Montpellier May 5th. 1835.

Dear Sir.


I have received your letter of April 25th., and with the aid of a friend and amanuensis have made out the following answer.

On the subject of Mr. Pinkney’s proposed plan of a Constitution it is to be observed that the plan printed in the Journal was not the document actually presented by him to the Convention. That document was no otherwise noticed in the proceedings of the Convention than by a reference of it with Mr. Randolph’s plan to a Committee of the whole and afterwards to a Committee of detail, with others. And not being found among the papers left with President Washington and finally deposited in the Department of State, Mr. Adams, charged with the publication of them, obtained from Mr. Pinkney the document in the printed Journals as a copy supplying the place of the missing one. In this there must be error, there being sufficient evidence, even on the face of the Journals, that the copy sent to Mr. Adams could not be the same with the document laid before the Convention. Take for example the article constituting the House of Representatives, the corner stone of the fabric, the identity, even verbal, of which with the adopted Constitution has attracted so much notice. In the first place the details and phraseology of the Constitution appear to have been the result of successive discussions, and are too minute and exact to have been anticipated. In the next place it appears that within a few days after Mr. Pinkney presented his plan to the Convention, he moved to strike out from the Resolution of Mr. Randolph the provision for the election of the House of Representatives by the people, and refer the choice of that house to the Legislatures of the States, and to this preference it appears he adhered in the subsequent proceedings of the Convention. Other discrepancies will be found in a source also within your reach, in a pamphlet* published by Mr. Pinkney soon after the close of the Convention, in which he refers to parts of his plan which are at variance with the document in the printed Journal. A friend who had examined and compared the two documents has pointed out the discrepancies noted below.+ Further evidence on this subject, not within your own reach, must await a future and perhaps a posthumous disclosure.

*Observations on the plan of Government submitted to the Federal Convention on the 28th. of May 1787 by C. Pinkney &ca. See Select Tracts Vol. 2. in the Library of the Historical Society of New York.

One conjecture explaining the phenomenon has been that Mr. Pinkney interwove with the draft sent to Mr. Adams passages as agreed on 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 Resolutions of Mr. Randolph, the basis on which the deliberations of tie Convention proceeded, were the result of a consultation among the Virginia deputies who thought it possible that as Virginia had taken so leading a part in reference to the Federal Convention, some initiative propositions might be expected from them. They were understood not to commit any of the members absolutely or definitively on the tenor of them. The Resolutions will be seen to present the characteristic provisions and features of a Government as complete; in some respects perhaps more so; than the plan of Mr. Pinkney tho’ without being thrown into a formal shape. The moment indeed a real Constitution was looked for as a substitute for the Confederacy, the distribution of the Government into the usual departments became a matter of course with all who speculated on the prospective change, and the form of General Resolutions was adopted as most respectful to the Convention and as the most convenient for discussion. It may be observed that in reference to the powers to be given to the General Government the Resolutions comprehended as well the powers contained in the Articles of Confederation, without enumerating them, as others not overlooked in the Resolutions but left to be developed and defined by the Convention.

With regard to the plan proposed by Mr. Hamilton I may say to you that a Constitution such as you describe was never proposed in the Convention, but was communicated by him to me at the close of it. The original draft being in possession of his family, and their property, I have considered any publicity of it as lying with them.

Mr. Yates’ notes as you observe, are very inaccurate; they are also in some respects grossly erroneous. The desultory manner in which he took them, catching sometimes but half the language, may in part account for it. Tho’ said to be a respectable & honorable man, he brought with him to the Convention the strongest prejudices against the existence and object of the Body, in which he was strengthened by the course taken in its deliberations. He left the Convention also long before the opinions and views of many members were finally developed into their practical application. The passion and prejudice of Mr. S. Martin betrayed in his published letter could not fail to discolour his representations. He also left the Convention before the completion of their work. I have heard, but will not vouch for the fact, that he became sensible of, and admitted his error. Certain it is that he joined the party who favored the Constitution in its most liberal construction.

I can add little to what I have already said in relation to the agency of your father in the adoption of the Federal Constitution. My only correspondence with him was a short one, introduced by a letter from him during the Convention of New York, at the request of Mr. Hamilton who was too busy to write himself, giving and requesting information as to the progress of the Constitution in New York and Virginia. Of my letter or letters to him I retain no copy. The two letters to me being short, copies of them will be sent, if not on his files, and if desired. They furnish an additional proof that he was an ardent friend of the depending Constitution.

I have marked this letter "confidential" and wish it to be considered for yourself only. In my present condition, enfeebled by age and crippled by disease, I may well be excused for wishing not to be in any way brought to public view on subjects involving considerations of a delicate nature. I thank you Sir, for your kind sentiments and good wishes and pray you to accept a sincere return of them.

James Madison

P.S. Wishing to be sure that this communication has not miscarried, I ask the favor of a single line acknowledginging the receipt of it.

+Discrepancies noted between the plan of Mr. Charles Pinkney as furnished by him to Mr. Adams, and the plan presented to the Convention as described in his pamphlet.

The pamphlet refers to the following provisions as forming a part of the plan presented to the Convention, which are not contained in the plan furnished to Mr. Adams. 1. The Executive term of service, 7 years. 2. A council of Revision 3. A power to convene and prorogue the Legislature. 4. For the junction or division of States. 5. For enforcing the attendance of members of the Legislature. 6. For securing exclusive right to authors and discoverers.

The plan according to the pamphlet provided for the appointment of all officers, except Judges and Ministers, by the Executive; omitting the consent of the Senate required in the plan sent to Mr. Adams.

Article numbered 9., according to the pamphlet, refers to the decision of disputes between the States to the mode prescribed under the Confederation. Article numbered 7. in the plan sent to Adams, gives to the Senate the regulation of the mode.

According to the pamphlet the plan provided for "trial by Jury in all cases, Civil as well as Criminal". The plan sent to Mr. Adams excepts "cases of impeachment" and omits "Civil".

There is no numerical correspondence between the articles as placed in the plan sent to Mr. Adams, and as noticed in the pamphlet, & the latter refers numerically to more than are contained in the former.

It is remarkable that altho’ the plan furnished to Mr. Adams enumerates, with such close resemblance to the Constitution as adopted, the following provisions, and among them the fundamental article relating to the Constitution of the House of Representatives they are unnoticed in his observations on the plan of government submitted by him to the Convention; while minor provisions, as that for enforcing the attendance of the members of the Legislature, are commented on. I cite the following tho’ others might be added.

*1. The election by the people of the House of Representatives.

2. The Executive veto on the laws.

3. To subdue a rebellion in a State.

4. To provide dockyards & arsenals and erect fortifications & exercise exclusive jurisdiction therein.

5. To establish post and Military roads.

6. To declare the punishment of Treason &c.

7. No tax shall be laid on articles exported from the States.

*Not improbably unnoticed because the plan presented by him to the Convention contained his favorite mode of electing the House of Representatives by the State Legislatures, so essentially different from that of an election by the people as in the Constitution recommended for adoption.

RC (NHi); draft dated June 5, 1835 (DLC: Rives Collection, Madison Papers).

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