OF THE ISSUE OF FRAUD
On this issue of fraud we must first look at the circumstances as they
existed in December, 1818.
Pinckney had been a Senator of the United States, Governor of South
Carolina, Minister to Spain and had just been elected to the important
Congress which was to grapple with the National questions involved in
the Missouri Compromise. He may have been a vain man as Madison thought
him--(most men of great ability and prominence are egotistical; it is
egotism ordinarily which impels them to the front) but no one has
intimated that Pinckney could have been guilty of an act which from
moral and historical points of view was little better than a crime. Some
one contributed the many provisions which are to be found in the
Constitution, and it would have been infamous to filch the honor from
the real author. The most felicitous sentence in the Constitution, "The
citizens of each State shall be entitled to all privileges and
immunities of citizens in the several States," if it was Pinckney's,
passed through the Committee of Detail, the Committee of Style and the
Convention without the change of a single word. It was one of those rare
sentences of which everybody approved; and it is not lightly to be
assumed that in 1818 Pinckney would steal such a conspicuous sentence
from the Constitution and place it at the head of one of his own
articles.
Moreover if the draught was a tissue of fraud detection was always
possible; and detection would have blasted the life of Pinckney nowhere
with greater severity than in his own State. In 1818 sixteen other
members of the Convention were still living, and three of them had been
members of the Committee of Style, and two of them (Charles Cotesworth
Pinckney and Pierce Butler), had been delegates from South Carolina.
Letters too from members might disclose the fatal truth. A son of some
member might come forward with his father's draught of some of these
provisions. Autobiographies, diaries and personal reminiscences of
members might exist. Detection was possible, and in the ordinary course
of human events, certain. Conversely it is proper here to note the fact
that in all these years not a line of writing has been found to thrown a
shade of discredit upon the Pinckney draught.
The temptation, too, was relatively small. The Constitution was not then
in the estimation of the American people what it is now. No one then had
proclaimed it to be "the greatest work ever thrown off by the brain and
purpose of man." In 1818 the first work on the Constitution (Rawle's)
had not yet been written. Monroe was President, and the country was just
emerging from the poverty which followed the war of 1812-15.
Pennsylvania and Georgia had defied the federal power and the latter had
passed a statute making it a crime punishable with death to enforce the
process of the Supreme Court of the United States. State feeling was
always stronger in the South than in the North and out of State feeling
had grown the doctrine of State rights. The South at that time could
cherish no warm regard for the man who had first written "all acts made
by the legislature of the United States, pursuant to this Constitution,
and all treaties made under the authority of the United States shall be
the supreme law of the land."
It must also be noted that Pinckney was not a volunteer in this
matter--that he did not thrust his draught upon the Secretary of
State--that he never came before the public claiming to have contributed
this or anything to the Constitution. The subject was introduced by Mr.
Adams and not by Pinckney; and the draught was produced in response to
Mr. Adams' inquiries concerning it. Pinckney showed no great solicitude
about it then. His letter is slovenly and careless and manifestly not
written for posterity, and it contains no indication of his regarding it
as any thing more than a personal explanation. It was due to Mr. Adams
to tell him that this draught which he inclosed was not a literal
duplicate of the one which he had placed before the Convention; and it
was due to himself to say that it contained provisions of which he had
subsequently disapproved and which he had opposed in the Convention.
Pinckney certainly did not suppose that he was writing history or
biography when he wrote that letter.
The letter demonstrates how inadequately Pinckney estimated the
greatness of the Constitution and overestimated his own part in the
work, and how poorly the Constitution was then esteemed. At the
beginning it had been but an experiment and in the opinion of many men
an experiment that would fail. Under the moulding hands of Jay and
Marshall it had become to Southern statesmen more and more an object of
distrust and dislike. It seemed then a growing menace to the rights of
the South and the sovereignty of South Carolina. For Pinckney to have
asserted publicly that he was the chief author of the instrument and of
its most offensive provisions would have inclined his fellow citizens in
Charleston to say that instead of boasting of his work he ought to be
ashamed of it; that where State rights were involved it was at best
ambiguous; and that, if he was the author of the draught, he more than
any other man had enabled the judges to interpret the Constitution in
favor of Federal supremacy.
Certainly if this issue of fraud had been involved in a criminal case
Pinckney would have been able to establish two things--good character,
and the absence of a motive to defraud.