THE MYSTERY OF THE PINCKNEY DRAUGHT
BY CHARLES C. NOTT
FORMERLY
Chief Justice of the United States Court of Claims
NEW YORK
THE CENTURY CO.
1908
Copyright, 1908, by
THE CENTURY CO.
_Published, November, 1908._
TO
CEPHAS BRAINERD
OF THE NEW YORK BAR
A SOUND LAWYER AND A LONG-TRIED FRIEND
CONTENTS
CHAPTER PAGE
I. STATEMENT OF THE CASE 3
II. THE DRAUGHT IN THE STATE DEPARTMENT 16
III. OF THE ISSUE OF FRAUD 23
IV. MADISON AS A WITNESS 29
V. MADISON AS AN ADVOCATE 40
VI. THE POSITION TAKEN BY MADISON 58
VII. THE PLAGIARISMS 65
VIII. THE IMPROBABILITIES 85
IX. THE OBSERVATIONS 105
X. THE SILENCE OF MADISON 143
XI. THE WILSON AND RANDOLPH DRAUGHTS 158
XII. THE COMMITTEE'S USE OF THE DRAUGHT 206
XIII. WHAT BECAME OF THE DRAUGHT 225
XIV. WHAT PINCKNEY DID FOR THE CONSTITUTION 243
XV. CONCLUSIONS ON THE WHOLE CASE 257
XVI. OF PINCKNEY PERSONALLY 278
APPENDIX
MR. CHARLES PINCKNEY'S DRAUGHT OF A FEDERAL GOVERNMENT 295
DRAUGHT OF THE COMMITTEE OF DETAIL 306
INDEX 325
THE MYSTERY OF THE PINCKNEY DRAUGHT
CHAPTER I
STATEMENT OF THE CASE
When I began the studies which have resulted in this book someone asked
me what I was doing, and I chanced to answer that I was looking into the
mystery of Pinckney's draught of the Constitution. Afterwards I received
a letter from Professor J. Franklin Jameson in which he spoke of the
uncertainties attending the draught as "mysteries"; and later I found
that Jared Sparks, back in 1831, had been engaged in the same study and
had used the same term. With two such scholars as Professor Jameson and
Mr. Sparks recognizing the knowable but unknown element which we call
mystery, I retain the term which I chanced to use.
"A true mystery, instead of ending discussion, calls for more." "What
constitutes a mystery is the unknown which is certainly connected with
the known. A mystery therefore is unfinished knowledge."[1]
[Footnote 1: Dr. William Hanna Thomson, Brain and Personality, p. 278.]
At the opening of the Convention which framed the Constitution, Charles
Pinckney of South Carolina presented a draught of a constitution that
was referred to the Committee of the Whole. This draught was not a
subject of notice or comment by any speaker or writer of the time. One
might infer from the silence of all records and writers that it was the
fanciful scheme of an individual which exercised no influence whatever
on the Convention and did not contribute a single line or sentence to
the Constitution.
On the adjournment of the Convention its records and papers were placed
under seal and the obligation of secrecy was set upon its members. When
ultimately the seals were broken and the package was opened, more than
thirty years afterwards, the draught of Pinckney was not found. John
Quincy Adams then Secretary of State applied to Pinckney for a copy; and
he on the 30th of December 1818, sent to the Secretary of State the
duplicate or copy of the draught now in the Department of State. The
document was published and remained unquestioned until in 1830, six
years after the death of Pinckney, it came, or was brought, to the
attention of Madison; and he at different times wrote to at least four
persons concerning it and also prepared a statement which was
subsequently published with it in Gilpin's edition of Madison's Journal,
and in Elliot's Debates; and then the Pinckney draught slept unnoticed
in constitutional publications until a review in the columns of the
Nation awakened an interest in Mr. Worthington C. Ford and he in 1895
published the letter which accompanied the draught when it was placed in
the State Department. Nevertheless, if the copy in the Department is
identical in terms, or substantially identical in terms, with the paper
which Pinckney presented to the Convention, then Charles Pinckney
contributed more of words and provisions to the Constitution of the
United States than any other man. And this draught so prepared by him
was so largely adopted in a silent way that the law student who might
chance to read it, not knowing of the comment of Madison and its
rejection by all commentators, would be tempted to speak of the
Constitution of the United States as the constitution of Pinckney.
The reason why the Pinckney draught has received so little attention,
and he has received no credit at all for what apparently is an
extraordinary piece of constitutional work can be readily explained.
The statement of Madison is written in temperate and guarded terms; and
it is manifest that he was careful to speak with courtesy of Pinckney
and to furnish an explanation in the nature of a bridge over which the
friends of Pinckney, then deceased, might retreat. But what he does say
instantly brings the reader's mind to the conclusion that the paper in
the State Department is not the paper--that it is not a substantial copy
of the paper, which was before the Convention. Story had been appointed
by Madison and it was not for Story to accept what Madison rejected; and
Story was so great a man, so great a judge and commentator, that it was
not for lesser men to reverse him. Madison's comment and Story's
silence have united to condemn the draught so effectively that while
printed and reprinted it has been as unnoted as if it had never been
written. The final, judicial edict of George Bancroft expressed the
general judgment when he wrote of the original draught which was
actually before the Convention, "No part of it was used, and no copy of
it has been preserved."
Moreover Madison is too great an authority to be lightly questioned, the
highest authority that exists concerning the proceedings of the
Convention; and he asserts and undertakes to demonstrate that the one
paper can not be a true copy of the other. He designates provisions
which he says originated in the Convention and could not have been
predetermined by Pinckney; and still more conclusively, as he thinks, he
points to the fact that the paper in the Department contains provisions
to which Pinckney was himself opposed, provisions against which he spoke
and voted in the Convention. Here Madison builds his bridge. Mr.
Pinckney, he suggests, furnished this copy many years after the event
(nearly 32 years), after he had become an old man and the record of
events had faded in his memory; and probably as the work of the
Convention went on he had used a copy of his draught as a memorandum and
had interlined in it provisions which the Convention framed; and when he
sent the copy to the Secretary of State he had forgotten this, or had
gradually come to regard the interlined matter as his own. A writer like
Story with the training of a lawyer and a judge on finding the
authenticity of the copy impeached in part would be almost certain to
exclude it wholly from the consideration of the jury. Historical
analysis and research may, nevertheless, render that clear which is
obscure and show us where the work of Pinckney begins and ends.
There are some extrinsic facts which hitherto unknown should be noted.
In the first place this letter of Pinckney anticipates one of Madison's
criticisms and explains away his strongest point.
"It may be necessary to remark," he says, "that very soon after the
Convention met I changed and avowed candidly the change of my opinion on
giving the power to Congress to revise the State laws in certain cases,
and in giving the exclusive power to the Senate to declare war, thinking
it safest to refuse the first altogether and to vest the latter in
Congress." Hunt's Madison, III, p. 22.
As to one of these things concerning which Pinckney says he changed his
mind after the Convention met, the power of Congress to revise the laws
of the States, the assertion is not sustained by Madison's record of the
proceedings. He undoubtedly did change his mind but not until after the
adjournment of the Convention. There was however another provision in
his draught to which his assertion would apply. Concerning it he did
change his mind and "avowed candidly the change of his opinion" and did
so "very soon after the Convention met." This is the provision which
declares that members of the lower house shall be chosen by the _people_
of the several States. Article 3. As early as the 6th of June he
proposed that they should be chosen by the _legislatures_ of the several
States. Writing 32 years after the event and when the record had faded
in his memory, the two things, to use Madison's words, "were not
separated by his recollection."
The letter is a contemporaneous declaration, given at the moment when he
produced the document and placed it on file in the Department of State,
that the copy, like the original, contained provisions which he opposed
in the Convention. With this contemporaneous notice to the Secretary of
State one of Madison's objections which at first seemed insuperable, if
it does not fall to the ground, at least becomes susceptible of
explanation; and the retention in the copy of the draught of these
apparently inconsistent things, accompanied at the time, as they were,
by Pinckney's declaration, not only removes the objection of Madison but
tells strongly in favor of the draught being what Pinckney represented
it to be.
In the second place Pinckney speaks of having "several rough draughts of
the Constitution" ("4 or 5 draughts" he says) and he adds "that they are
all substantially the same, differing only in words and the arrangement
of the articles." Pinckney had preserved them certainly until the end of
the year 1818, and "numerous notes and papers which he had retained
relating to the Federal Convention." He also says that "with the aid of
the journal of the Convention and the numerous notes and memorandums I
have preserved, it would now be in my power to give a view of the almost
insuperable difficulties the Convention had to encounter, and of the
conflicting opinions of the members; and I believe I should have
attempted it had I not always understood Mr. Madison intended it. He
alone possessed and retained more numerous and particular notes of their
proceedings than myself." These "numerous notes and memorandums, more
numerous and particular" than those preserved by any other person,
Madison "alone" excepted, and with them the "several rough draughts,"
which he found with the other papers on his return to Charleston in
1818, existed when Pinckney wrote his letter and placed his copy of the
draught in the State Department. They existed both to refresh his memory
and to refute him if he was not acting in good faith. He acknowledged
Madison to be his superior in "notes and memorandums" and a particular
knowledge of the proceedings of the Convention; and Madison was still
living, and Pinckney by placing his copy of the draught in the State
Department invited Madison and all the world to examine it. That was the
time when Madison should have spoken. It is most unfortunate that he
waited fourteen years, and until after Pinckney's death and the death of
every other member of the Convention, before he spoke.
Like many another young lawyer I came upon Pinckney's draught in
Elliot's Debates and was astounded by finding so large a part of the
Constitution apparently written by the hand of a man whom I had never
heard extolled as a framer of the Constitution; and like many another
young lawyer, I accepted the reasons of Madison and the silence of Story
as conclusive. But the discovery and publication of Pinckney's letter in
1895 threw new light upon the subject and made it plain that Madison's
objections should not be taken as final and that his premises needed
corroboration. I therefore prepared the following inquiries in the hope
that I could persuade some historical scholar to take up this work of
Constitutional investigation.
1. Does the draught in the State Department upon its face appear to be
an author's draught--a, "rough draught," as Pinckney called it--with
his corrections, erasures, interlineations and alterations or does it
appear to be a duplicate or a fair copy of an original or "rough"
draught? It is in the handwriting of Pinckney; does it appear to be his
original piece of work, or an engrossed copy made by him of another
paper?
2. If upon the face of the instrument it appears to be an engrossed
copy, though in Pinckney's handwriting, that is a copy of the rough
draught with its alterations and corrections engrossed therein, then the
historical critic must proceed to try the issue of Pinckney's
truthfulness. He tells the Secretary of State at the time when he
produces the paper that "it is impossible for me now to say which of the
4 or 5 draughts I have is the one. But enclosed I send you the one I
believe was it. I repeat, however, that they are substantially the same,
differing only in form and unessentials." If this language be taken
literally it means that he is about to place in the archives of the
Department of State one of those "original" "4 or 5 draughts" and as he
believes the very one of which he prepared an engrossed copy for the
use of the Convention. If the language be not taken literally, it at
least means that he sends a true copy of one of the original rough
draughts. Is there anything in the draught to refute either
representation? Does it contain words, phrases, clauses, provisions
which certainly did originate in the Convention; which were ground out
there, and which could not possibly have been anticipated by Pinckney as
he sat in his study early in 1787 making draught after draught for the
consideration of the coming Convention?
3. Finally, it will be apparent on reflection that even if all of the
foregoing issues should be decided against Pinckney; that is to say, if
it should be found that the paper in the State Department is not an
original draught--is not one of the four or five draughts to which
Pinckney alludes, or that it contains interlineations of which Pinckney
could not have been the author, even then after deciding all doubtful
points against him a great deal will remain which must have been his;
and historical criticism and careful analysis will be able to measure
this residuum and give us a fair estimate of its value, so that we can
know with tolerable certainty how much of the Constitution was the work
of Pinckney.
As I have not been able to persuade any competent scholar to take up
this inquiry which seems to me to be an inquiry due to the truthfulness
of our Constitutional history and to the memory of a framer of the
Constitution whose work was not questioned until after his death, I have
felt that the work has become a duty and that the duty has been imposed
on me.