Read Ebook: The Mystery of the Pinckney Draught by Nott Charles C

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It has been supposed and said that this copy of the draught was Jackson's, the inefficient Secretary of the Convention, and that he used it to save himself the trouble of writing out the proceedings in the journal by noting amendments on the margin. This like much other imaginary history is erroneous.

Whether he placed the copy among the papers of the Convention on September 17, 1787 when the Secretary brought them to him; or whether he transferred his own copy to the Secretary of State in 1796 is unknown and probably unascertainable, but the indorsement makes it certain that the paper came to the Department directly from Washington; and the 115 carefully made emendations in his handwriting are for us the highest evidence in the world of its authenticity.

The notes by Jackson are easily explicable; they are lengthy amendments which Washington could not take down from hearing them read; and he handed his printed copy to the Secretary to have them correctly and fully written out.

If the Committee of Detail--Rutledge of South Carolina, Randolph of Virginia, Gorham of Massachusetts, Ellsworth of Connecticut and Wilson of Pennsylvania--intended to keep their work a profound secret, and the secret to be buried with themselves, they could not have planned better than they did. The work was done in secret; they employed no secretary; their report was not in writing. After the committee was discharged no hint or word seems to have escaped them. No man boasted of his own part or disparaged another's. There is no journal which tells us how they worked. No son or daughter or grandchild has revealed a word that any member subsequently said. In 1813 when Edmund Randolph died, the secret of the members of the Committee of Detail died with him.

The third germinal stage was based on the draught of the Committee of Detail and extended from the 6th of August to the 12th of September. The draught of the Committee constituted the divide in the march of the framers. Behind them was the plain of philosophical disquisition on which there had been many contests, but exclusively as to what might be and might not be. Before them were many hills of difficulty to be surmounted in the practical application of abstract propositions by incorporating them in provisions and conditions to be written into the Constitution. But the work of the Convention and the debates of the members were in connection with the draughted Constitution of the Committee of Detail, or in connection with amendments thereof or additions thereto. There were indeed new provisions framed sometimes by grand committees, sometimes by special committees, sometimes by the Convention itself--provisions concerning which the Convention had not at first sufficiently instructed the Committee of Detail--provisions which the Convention had not then considered and determined even in the form of abstract propositions. The most difficult of the compromises, that between the large and the small States in the choosing of the President, was effected; and the method first proposed by Wilson and rejected by the Convention, June 2nd, that the choice should be made through the agency of electoral colleges was reconsidered and adopted. The power to try officers impeached by the House of Representatives was taken from the Supreme Court and given to the Senate; the power to appoint ambassadors, and judges of the Supreme Court, was taken from the Senate and given to the President; the power to appoint the Treasurer of the United States was taken from the Legislative branch and given to the Executive; and the important treaty-making power which at first was lodged exclusively in the Senate was transferred to the Executive subject to the ratification of the Senate. But all that was considered and agreed upon was attached to the draught of the Committee of Detail.

The fourth stage began on the 12th of September with the revised Constitution reported by the Committee appointed "to revise the style of and arrange the articles" which had been agreed upon, commonly termed the "Committee of Style," but which more correctly might have been termed the Committee of Revision. During that and the next three days the Constitution was modified by a number of amendments chiefly of the nature of corrections. The Committee of Style made no changes other than those of arrangement and language. The correction of the language of the Constitution was masterly and is ascribed by Madison to Gouverneur Morris. On Saturday the 15th of September the labors of the Convention ended. On Monday the 17th, the engrossed Constitution was signed.

These specific charges of plagiarism may be struck down by a single blow:--

When the sequence of events is observed the matter is cleared and the "phenomenon" of Madison becomes a simple link in the chain of events. Pinckney presented his draught to the Convention on its first business day before there had been a single "critical discussion." The Convention immediately referred the draught to the Committee of the Whole, which made it accessible to every member of the Convention. When a committee was appointed to draught a Constitution, the draught of Pinckney was taken from the Committee of the Whole and referred to the Committee of Detail. The committee found in the draught matter which they needed and they used it as the basis of their own draught as any committee would have done. And thus the draught of the Committee of Detail became the vehicle by means of which these provisions and expressions of Pinckney were carried into the Constitution.

THE IMPROBABILITIES

The most incisive reason given by Madison against the authenticity of the draught in the Department of State, the reason which he most reiterated, if not the one upon which he most relied, was that the draught was presented to the Convention on the 29th May and a week later, June 6th, Pinckney moved "that the first branch of the national legislature be elected by the State legislatures and not by the people." This objection is not only plausible but it rests on two incontrovertible facts each of which is a matter of record--that the draught was presented to the Convention on the 29th of May; that his inconsistent motion was made on the 6th of June. But the conclusiveness of these facts disappears when the circumstances and changed conditions of the case appear.

In the first place Pinckney had forestalled the point made by Madison by declaring in his letter to the Secretary of State that there were provisions in the draught which on further reflection he had opposed in the Convention. This declaration, it must be remembered, was made before the publication of Madison's Journal, before it was known that it would be published, before Pinckney knew or could have known what the Journal would show. In other words it was he himself who first revealed his own inconsistency in having presented a plan for one thing in May and in having contended for another thing in June. The explanation is not an afterthought or a defence, but an avowal made in due time.

In the second place the draught was presented on the 29th of May, but it was not written then. It must have been written weeks before this in Pinckney's study in Charleston. When he wrote it he had before him, as every American of that day had, the Constitution of Great Britain, the constitution under which he had grown up, the merits and virtues and wisdom and excellencies of which he had read and re-read in Blackstone. It was a matter of course for him, when dealing with the legislative power, to have his Congress consist of two houses. As to this there would not be a doubt or a thought. The next thing would be to have the members of the first house, like the members of the House of Commons, elected by the people. So far he had no reason to pause and reflect. But when he came to the second house, he had no nobility at hand of which it might be composed. Here his invention began, and he avowedly so contrived his Senate that it should in fact though not in form, represent not nobility but wealth. It is probable that when he was draughting his constitution, it never entered his head that the lower house of the American parliament could be chosen by any other means than the means by which the House of Commons was chosen and the lower house of every American State.

In the third place between the 29th of May and the 6th of June the subject had come before the Convention and had been discussed and South Carolina had taken a position against it.

Gerry of Massachusetts said that "the evils we experience flow from the excess of democracy"; and that "he did not like the election by the people." Butler, of South Carolina, "thought an election by the people an impracticable mode." Rutledge, the strongest man in the State, seconded the motion to have the first branch elected by the State legislatures. Charles Cotesworth Pinckney, the most esteemed citizen of the State and Pinckney's kinsman, brought South Carolina before the Convention as an illustration and even went so far as to say "an election of either branch by the people, scattered as they are in many States, particularly in South Carolina, is totally impracticable."

Pinckney was the youngest member of the delegation--much the youngest. He was not yet 30; and, with the exception of Dayton and Mercer was the youngest member of the Convention. It would have been natural for him as a Southerner "to go with his State"--and as a young man to defer to his seniors. And after hearing the debate on the 31st of May and the reasons of his fellow delegates from South Carolina, it was proper for him to change his mind and advocate election by the State legislatures as a better mode. It would have been a matter of wonder if he had not!

But there is a letter of George Read which should be considered, for it suggests the question whether this change of Pinckney did not take place before the 29th of May; that is to say before he presented his draught to the Convention.

On the 20th of May 1787 Mr. Read wrote from Philadelphia to John Dickinson:

"I am in possession of a copied draught of a federal system intended to be proposed if something nearly similar shall not precede it. Some of its principal features are taken from the New York system of government. A house of delegates and senate for a general legislature, as to the great business of the Union. The first of them to be chosen by the legislature of each State, in proportion to its number of white inhabitants, and three-fifths of all others, fixing a number for sending each representative. The second, to-wit the senate, to be elected by the delegates so returned, either from themselves or the people at large, in four great districts, into which the United States are to be divided for the purpose of forming this senate from which, when so formed, is to be divided into four classes for the purpose of an annual rotation of a fourth of the members. A president having only executive powers for seven years."

This letter is very far from being conclusive. In the first place it does not appear that Mr. Read had seen the original of this "copied draught" or that Pinckney had given him the copy or had told him what his plan was or that any person who had seen the original draught had told him what it contained. In the second place the existence of an unauthenticated copy on the 20th of May does not conclusively prove that a different version of the same draught was not presented to the Convention on the 29th of May. Still this letter undoubtedly refers to Pinckney's draught and compels a more searching examination of the question raised than would otherwise be necessary.

In a paper which will be called, briefly, "the Observations" written by Pinckney before he left Charleston he sets forth at length a description of his plan of government. In the opening paragraph of this paper he says that he will "give each article" of his draught "that either materially varies" from the present government "or is new." He then goes on to say that "the first important alteration is that of the principle of representation." "Representation is a sign of the reality. Upon this principle, however abused, the Parliament of Great Britain is formed, and it has been universally adopted by the States in the formation of their legislatures." This is all which Pinckney, writing before the Convention began its work, had to say concerning the lower house of Congress. His Senate was new and concerning it he had much more to say, and he described it. But of the lower house, the popular body, he had nothing to say save that there would be such a house, and that it would rest upon the principle of representation "universally adopted by the States in the formation of their legislatures." The Virginia resolutions undoubtedly expressed the opinion of substantially all Americans when they said, "Resolved that the members of the first branch of the national legislature ought to be elected by the people of the several States." Assuredly if the draught which Pinckney was then describing had contained the extraordinary and novel proposition that the popular branch of the national legislature, the body which should represent the people, was not to be chosen by the people he would have had something "new" to lay before the Convention--something which did not exist in the government of any English speaking people in the world--something which "materially varied" from the belief and usage and history and traditions of the people who were to ordain this Constitution. Knowing Pinckney as we do--his general views, his adherence to the general principles of the British constitution, his attentive study of State constitutions, his outspokenness, his belief in his own devices, we know that if his draught had then contained so radical a departure from all existing constitutions as that which he subsequently proposed in the Convention, and if he had worked himself into a belief at the time when he wrote the Observations that the election of their representatives by the people was "theoretical nonsense", he could not have refrained from saying so. What is said in the Observations harmonized with the constitutions of every State in the Confederation and with the Virginia resolutions and with the views of every member of the Convention excepting the five great land owners from South Carolina.

The Observations, therefore , sustain the draught in the State Department.

In the draught of the Committee of Detail the words of Pinckney's article 3 again appear with some amplification, but in the same order with the same context and with the same intent. Such agreements come not by chance.

Then the question immediately arises, What motive could Pinckney have had for falsifying his draught and making this change from the election of delegates by State legislatures to their election by the people of the several States. The answer of the superficial of course will be, "So that the world should believe that he had always been in favor of the election of representatives by the people." No other reason can well be assigned; yet there could not have been such a motive. Pinckney knew that his draught was to be soon published and that with it would be published the official Journal of the Convention and that the publication would disclose to the world this record:

"Wednesday, June 6, 1787 "Mr. Gorham in the Chair.

"It was moved by Mr. Pinckney, seconded by Mr. Rutledge to strike the word 'people' out of the 4th resolution submitted by Mr. Randolph, and to insert in its place the word

'Legislatures' so as to read 'resolved that the Members of the first branch of the national legislature ought to be elected by the Legislatures of the several States'

"and on the question to strike out "it passed in the negative.""

It is possible that the person who gave the "copied draught" to Mr. Read was Pinckney himself; and it is probable that by the 20th of May he had changed his mind concerning the election of delegates by the people and had determined to make his draught conform to the views of his fellow delegates from South Carolina. We know, as will hereafter appear, that he contemplated making many amendments to his draught before presenting it to the Convention; and that he hastily and prematurely presented it on the 29th of May so that it should go with the Virginia resolutions to the Committee of the Whole. The change we are considering may not have been made in the written instrument which he laid upon the Secretary's desk, though he made the change in his own mind. But be that as it may, it is as certain as existing knowledge goes that no man saw the original draught with the words "by the people" twice stricken out and the words "by the legislatures of the several States" twice written in; and until this change in the original draught is shown by positive testimony, unequivocal in terms and above suspicion in character, the circumstantial evidence that the draught went to the Convention with the words "the people" in the 3d and 5th articles is overwhelming.

There are some other things specified in the Note not of great importance, but which serve to show how eagerly Madison clutched at anything that would operate as a makeweight against Pinckney and his draught.

"In article V, members of each house are made ineligible to as well as incapable of holding any office" a provision, Madison continues, which "was highly disapproved of by him on the 14th of August."

What was this disapproval? Article V provides that the members of each house shall not be eligible to office during the time for which they have been respectively elected, "nor the members of the Senate for one year after." This idea that a member of Congress should not hold, during his legislative term of office, an executive office which he had helped to create or the emoluments of which he had helped to increase, undoubtedly existed in many minds. But under the scheme embodied in the Pinckney draught there was a peculiar reason why the ineligibility of Senators should continue after their legislative terms of office had expired. That reason was because , the Senate was to be an appointing power. It was to "have sole and exclusive power to" "appoint ambassadors, and other ministers to foreign nations, and judges of the Supreme Court." Under this scheme it was obvious that a Senator should not be allowed to step out of office at the expiration of his term on one day and be appointed by his late colleagues to an important office on the next day. It is, therefore, not a surprising thing to find this provision in the draught and to find it applied only to the Senate.

On the 14th of August Pinckney had so far modified his own views that he was then in favor of making the members of each House incapable of holding executive salaried offices while they continued members, with a provision that "the acceptance of such office shall vacate their seats respectively." This having failed in Convention, he on the same day urged a general postponement of the subject "until it should be seen what powers should be vested in the Senate" "when," he said, "it would be more easy to judge of the expediency of allowing officers of State to be chosen out of that body." This postponement was agreed to nem. con. It is manifest that the idea of the Senate being an appointing power was still uppermost in his mind. He gave good reasons for not making ineligibility absolute; but he consistently adhered to the idea that the same person should not be both a Legislator and an officer of State.

On the 14th of August Pinckney proposed to make members ineligible to hold any office by which they would receive a salary. This was merely a restriction on the original proposition of the draught, a limiting of its application to salaried offices but leaving members eligible and capable of filling honorary positions. To say that his original proposition was thereby "highly disapproved" by him is certainly an abuse of the term "highly disapproved." The objection of Madison when tested by his own record, the Journal, comes down to this: that three months or more after Pinckney wrote the draught, he thought it better to limit the Constitutional prohibition to "salaried offices." This restriction was a trivial and a sensible modification. To infer from it that Pinckney then "highly disapproved" his own original proposition merely marks the nervous excitement which seems to have impelled Madison to exaggerate every little deviation of Pinckney from the strict letter of his draught into conclusive evidence that this draught never existed.

This brings us to the extrinsic evidence on which Madison relied, the testimony of Pinckney against himself.

THE OBSERVATIONS

The Observations of Pinckney, in Madison's estimation, fully sustained his arguments and justified his attacks on the verity of the draught in the State Department. The publication so entitled is a small pamphlet of 27 pages. It has the following title page:

Observations on the PLAN OF GOVERNMENT Submitted to the FEDERAL CONVENTION in Philadelphia on the 28th of May, 1787

DELIVERED AT DIFFERENT TIMES IN THE COURSE OF THEIR DISCUSSIONS.

New York. Printed by Francis Childs

Two copies of this are in the library of the New York Historical Society, and it is reprinted in Moore's American Eloquence. It bears no date, but we learn from Madison's letter to Washington that it must have been published before the 14th of October, 1787; that is to say immediately after the dissolution of the Convention on the 17th of September.

Madison unquestionably relied upon this pamphlet as containing the highest evidence against the verity of the draught in the State Department. The anxiety which he showed to obtain it, and the care with which he brought it to the attention of those who were or who in the future might be interested in the matter make it plain that he regarded the Observations as a conservatory of admissions which Pinckney would not deny if he were living, and which his friends could not controvert now that Pinckney was dead.

The first record we have of Madison's reliance on this pamphlet is a memorandum found among his papers which bears no date but which must have been written prior to April 6th, 1831.

"FOR MR. PAULDING"

"Much curiosity and some comment have been exerted by the marvellous identities in a plan of Government proposed by Charles Pinckney in the Convention of 1787 as published in the Journals with the text of the Constitution, as finally agreed to. I find among my pamphlets a copy of a small one entitled Observations on the Plan of Government submitted to the Federal Convention, in Philadelphia, on the 28th of May, by Mr. C. Pinckney, a Delegate from S. Carolina, delivered at different times in the Convention.

"The copy is so defaced and mutilated that it is impossible to make out enough of the plan, as referred to in the Observations, for a due comparison of it with that printed in the Journal. The pamphlet was printed in N. York by Francis Childs. The year is defaced. It must have been not very long after the close of the Convention, and with the sanction, at least, of Mr. Pinckney himself. It has occurred to me that a copy may be attainable at the printing office, if still kept up, or in some of the libraries or historical collections in the city. When you can snatch a moment, in your walks with other views, for a call at such places, you will promote an object of some little interest as well as delicacy, by ascertaining whether the article in question can be met with. I have among my manuscript papers lights on the subject. The pamphlet of Mr. P. could not fail to add to them.

"April, 1831."

At some time subsequent to the 6th of April he wrote to Mr. Paulding, saying that in a previous letter "I requested you to make an inquiry concerning a small pamphlet of Charles Pinckney printed at the close of the Federal Convention of 1787;" and on the 6th of June he again wrote to Mr. Paulding,

"June 6th, 1831.

"DEAR SIR.--Since my letter answering yours of April 6th, in which I requested you to make an inquiry concerning a small pamphlet of Charles Pinckney printed at the close of the Federal Convention of 1787, it has occurred to me that the pamphlet might not have been put in circulation, but only presented to his friends, etc. In that way I may have become possessed of the copy to which I referred as in a damaged state. On this supposition the only chance of success must be among the books, etc., of individuals on the list of Mr. Pinckney's political associates and friends. Of those who belonged to N. York, I recollect no one so likely to have received a copy as Rufus King. If that was the case, it may remain with his representative, and I would suggest an informal resort to that quarter, with a hope that you will pardon this further tax on your kindness."

On the 27th of June he wrote to Mr. Paulding for the third time regarding the Observations:

"June 27th, 1831.

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