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
By Mr. Charles Pinckney
Delegate from the State of South Carolina
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 (before quoted)
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.
"DEAR SIR:--With your favor of the 20th instant I received
the volume of pamphlets containing that of Mr. Charles
Pinckney, for which I am indebted to your obliging
researches. The volume shall be duly returned, and in the
mean time duly taken care of. I have not sufficiently
examined the pamphlet in question, but I have no doubt that
it throws light on the subject to which it has relation."
On the 25th of November he wrote at length to Jared Sparks setting forth
all his objections to the draught and added: "Further discrepancies
might be found in the observations of Mr. Pinckney, printed in a
pamphlet by Francis Childs, in New York, shortly after the close of the
Convention. I have a copy too mutilated for use, but it may probably be
preserved in some of your historical repositories."
On the 5th of June 1835 he wrote to Judge Duer: "Other discrepancies
will be found in a source also within your reach, in a pamphlet
published by Mr. Pinckney 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 has examined and compared
the two documents has pointed out the discrepancies noted below."
Then follows the list of discrepancies "pointed out" by "a friend"; and
in this letter he refers Judge Duer to the library of the Historical
Society of New York as the place where a copy of the Observations can be
found.
The following paragraphs from the Observations contain all that bears
upon the contents of the draught, and all upon which Madison relied.
"There is no one, I believe, who doubts there is something
particularly alarming in the present conjuncture. There is
hardly a man in or out of office, who holds any other
language. Our Government is despised--our laws are robbed
of their respected terrors--their inaction is a subject of
ridicule--and their exertion, of abhorrence and
opposition--rank and office have lost their reverence and
effect--our foreign politics are as much deranged, as our
domestic economy--our friends are slackened in their
affection, and our citizens loosened from their obedience.
We know neither how to yield nor how to enforce--hardly any
thing abroad or at home is sound and entire--disconnection
and confusion in offices, in States and in parties, prevail
throughout every part of the Union. These are facts
universally admitted and lamented."
"Be assured that however unfashionable for the moment your
sentiments may be, yet, if your system is accommodated to
the situation of the Union, and founded in wise and liberal
principles, it will in time be consented to. An energetic
government is our true policy, and it will at last be
discovered and prevail."
"Presuming that the question will be taken up de novo, I do
not conceive it necessary to go into minute detail of the
defects of the present confederation, but request
permission to submit, with deference to the House, the
draught of a government which I have formed for the Union.
The defects of the present will appear in the course of the
examination. I shall give each article that either
materially varies or is new. I well know the science of
government is at once a delicate and difficult one, and
none more so than that of republics. I confess my situation
or experience have not been such as to enable me to form
the clearest and justest opinions. The sentiments I shall
offer are the result of not so much reflection as I could
have wished. The plan will admit of important amendments. I
do not mean at once to offer it for the consideration of
the House, but have taken the liberty of mentioning it,
because it was my duty to do so.
"The first important alteration is that of the principle of
representation and the distribution of the different powers
of government. In the federal councils, each State ought to
have a weight in proportion to its importance; and no State
is justly entitled to greater. A representation is a sign
of the reality. Upon this principle, however abused, the
Parliament of Great Britain is formed, and it had been
universally adopted by the States in the formation of their
legislatures."
"In the Parliament of Great Britain as well as in most and
the best instituted legislatures of the States, we find not
only two branches, but in some a council of revision,
consisting of their executive and principal officers of
government. This I consider as an improvement in
legislation, and have therefore incorporated it as a part
of the system.
"The Senate, I propose to have elected by the House of
Delegates, upon proportionable principles, in the manner I
have stated, which though rotative, will give a sufficient
degree of stability and independence. The districts, into
which the Union is to be divided; will be so apportioned as
to give to each its due weight, and the Senate, calculated
in this, as it ought to be in every government, to
represent the wealth of the nation.
"The executive should be appointed septennially, but his
eligibility ought not to be limited: He is not a branch of
the legislature farther, than as a part of the council of
revision; and the suffering him to continue eligible will
not only be the means of ensuring his good behavior, but
serve to render the office more respectable.
"The 4th article, respecting the extending the rights of
the citizens of each State throughout the United States;
the delivery of fugitives from justice upon demand, and the
giving full faith and credit to the records and proceedings
of each, is formed exactly upon the principles of the 4th
article of the present confederation, except with this
difference, that the demand of the Executive of a State for
any fugitive criminal offender shall be complied with. It
is now confined to treason, felony, or other high
misdemeanor; but as there is no good reason for confining
it to those crimes, no distinction ought to exist, and a
State should always be at liberty to demand a fugitive from
its justice, let his crime be what it may.
"The 5th article, declaring that individual States shall
not exercise certain powers, is also founded on the same
principle as the 6th of the confederation.
"The next is an important alteration of the Federal system,
and is intended to give the United States in Congress, not
only a revision of the legislative acts of each State, but
a negative upon all such as shall appear to them improper.
"I apprehend the true intention of the States in uniting
is, to have a firm, national government, capable of
effectually executing its acts, and dispensing its benefits
and protection. In it alone can be vested those powers and
prerogatives which more particularly distinguish a
sovereign State. The members which compose the
superintending government are to be considered merely as
parts of a great whole, and only suffered to retain the
powers necessary to the administration of their State
systems. The idea which has been so long and falsely
entertained of each being a sovereign State, must be given
up; for it is absurd to suppose there can be more than one
sovereignty within a government. The States should retain
nothing more than that mere local legislation, which, as
_districts_ of a general government, they can exercise more
to the benefit of their particular inhabitants, than if it
was vested in a Supreme Council; but in every foreign
concern as well as in those internal regulations, which
respecting the whole ought to be uniform and national, the
States must not be suffered to interfere. No act of the
Federal Government in pursuance of its constitutional
powers ought by any means to be within the control of the
State Legislatures; if it is, experience warrants me in
asserting they will assuredly interfere and defeat its
operation.
"The next article proposes to invest a number of exclusive
rights, delegated by the present confederation, with this
alteration: that it is intended to give the unqualified
power of raising troops, either in time of peace or war,
in any manner the Union may direct. It does not confine
them to raise troops by quotas on particular States, or to
give them the right of appointing regimental officers, but
enables Congress to raise troops as they shall think
proper, and to appoint all the officers. It also contains a
provision for empowering Congress to levy taxes upon the
States, agreeable to the rule now in use, an enumeration of
the white inhabitants, and three-fifths of other
descriptions.
"The 7th article invests the United States with the
complete power of regulating the trade of the Union, and
levying such imposts and duties upon the same, for the use
of the United States, as shall in the opinion of Congress,
be necessary and expedient.
"The 8th article only varies so far from the present, as in
the article of the Post Office, to give the Federal
Government a power not only to exact as much postage as
will bear the expense of the office, but also for the
purpose of raising a revenue. Congress had this in
contemplation some time since, and there can be no
objection, as it is presumed, in the course of a few years
the Post Office will be capable of yielding a considerable
sum to the public treasury.
"The 9th article, respecting the appointment of Federal
courts for deciding territorial controversies between
different States, is the same with that in the
confederation; but this may with propriety be left to the
supreme judiciary.
"The 10th article gives Congress a right to institute all
such offices as are necessary for managing the concerns of
the Union; of erecting a federal judicial court for the
purposes therein specified; and of appointing courts of
Admiralty for the trial of maritime causes in the States
respectively.
"The exclusive right of coining money--regulating its
alloy, and determining in what species of money the common
treasury shall be supplied--is essential to assuring the
federal funds.
"In all those important questions, where the present
confederation has made the assent of nine States necessary,
I have made the assent of two-thirds of both Houses, when
assembled in Congress, and added to the number the
regulation of trade, and acts for levying an impost and
raising a revenue.
"The exclusive right of establishing regulations for the
government of the militia of the United States, ought
certainly to be vested in the federal council.
"The article empowering the United States to admit new
States into the confederacy is become indispensable, from
the separation of certain districts from the original
States--and the increasing population and consequence of
the western territory. I have also _added an article_
authorizing the United States, upon the petition from the
majority of the citizens of any State or convention
authorized for that purpose, and of the legislature of the
State to which they wish to be annexed, or of the States
among which they are willing to be divided, to consent to
such junction or division, on the term mentioned in the
article.
"The Federal Government should also possess the exclusive
right of declaring on what terms the privileges of
citizenship and naturalization should be extended to
foreigners.
"The 16th article proposes to declare that if it should
hereafter appear necessary to the United States to
recommend the grant of any additional powers, that the
assent of a given number of the States shall be sufficient
to invest them and bind the Union as fully as if they had
been confirmed by the legislatures of all the States. The
principles of this, and the article which provides for the
future alteration of the Constitution by its being first
agreed to in Congress, and ratified by a certain proportion
of the legislatures, are precisely the same.
"There is also in the articles a provision respecting the
attendance of the members of both Houses; it is proposed
that they shall be the judges of their own rules and
proceedings, _nominate their own officers_, and be obliged,
after accepting their appointments, to attend the stated
meetings of the legislature; the penalties under which
their attendance is required, are such as to insure it, as
we are to suppose no man would willingly expose himself to
the ignominy of a disqualification.
"The next article provides for the privilege of the writ of
habeas corpus--the trial by jury in all cases, criminal as
well as civil--the freedom of the press and the prevention
of religious tests as qualifications to offices of trust
or emolument.
"There is also an authority to the national legislature,
permanently to fix the seat of the general government, to
secure to authors the exclusive right to their performances
and discoveries, and to establish a Federal University.
"There are other articles, but of subordinate
consideration. In opening the subject, the limits of my
present observations would only permit me to touch the
outlines; in these I have endeavored to unite and apply, as
far as the nature of our Union would permit, the
excellencies of such of the States' Constitutions as have
been most approved.
"I ought again to apologize for presuming to intrude my
sentiments upon a subject of such difficulty and
importance. It is one that I have for a considerable time
attended to. I am doubtful whether the convention will, at
first be inclined to proceed as far as I have intended; but
this I think may be safely asserted, that upon a clear and
comprehensive view of the relative situation of the Union,
and its members, we shall be convinced of the policy of
concentring in the federal head, a complete supremacy in
the affairs of government; leaving only to the States such
powers as may be necessary for the management of their
internal concerns."
The first comment to be made on this speech of Pinckney's is _that it
was never made, and that no speech whatever was made by him when he
presented his draught to the Convention_.
Upon this question of fact there are two witnesses, Madison and Yates.
The evidence which they have left to us is negative and positive, the
one showing inferentially, what could not have occurred in the
Convention on the 29th of May 1787 and the other stating positively what
did occur; the one absolutely silent as to any speech by Pinckney; the
other telling us that "_Mr. Pinckney a member from South Carolina then
added that he had reduced his ideas of a new government to a system
which he then read_."
Madison has written for us an account of the manner in which he took his
notes and wrote out his Journal--a most interesting account, showing us
the method he pursued, the efforts which he made, and reminding us how
much we owe him for his fidelity to his self-imposed task.
"The curiosity I had felt during my researches into the history of the
most distinguished confederacies, particularly those of antiquity, and
the deficiency I found in the means of satisfying it, more especially in
what related to the process, the principles, the reasons, and the
anticipations, which prevailed in the formation of them, determined me
to preserve, as far as I could, an exact account of what might pass in
the Convention whilst executing its trust; with the magnitude of which I
was duly impressed, as I was by the gratification promised to future
curiosity by an authentic exhibition of the objects, the opinions, and
the reasonings from which the new system of government was to receive
its peculiar structure and organization. Nor was I unaware of the value
of such a contribution to the fund of materials to the history of a
Constitution on which would be staked the happiness of a people great
even in its infancy, and possibly the cause of liberty throughout the
world.
"In pursuance of the task I had assumed, I chose a seat in front of the
presiding member, with the other members on my right and left hands. In
this favorable position, for hearing all that passed, I noted in terms
legible, and in abbreviations and marks intelligible to myself, what was
read from the chair or spoken by the members; and losing not a moment
unnecessarily between the adjournment and reassembling of the
Convention, I was enabled to write out my daily notes during the
session, or within a few finishing days after its close, in the extent
and form preserved, in my own hand, on my files.
"In the labor and correctness of this, I was not a little aided by
practice, and by a familiarity with the style and the train of
observation and reasoning which characterized the principal speakers. It
happened, also, that I was not absent a single day, nor more than a
casual fraction of an hour in any day, so that _I could not have lost a
single speech, unless a very short one_."
Yates was at the time of writing his Minutes 49 years of age. During the
Revolution he had written political essays highly esteemed over the
signature of the Rough Hewer. He had been for eleven years a judge of
the Supreme Court of New York--a judge of the old school before the days
of stenographers and printed arguments and was well trained in taking
notes of what counsel said.
The Minutes of Yates are manifestly the work of a man accustomed to take
down the ideas rather than the words of public speakers. His reports of
the debates are briefer than Madison's showing much less of the reporter
and much more of the lawyer or judge accustomed to analyze and to note
the scope and sense of an argument. His report of the chief speech of
Pinckney, that of June 25th, when compared with the full speech written
out by Pinckney for Madison is a remarkably clear and accurate and full
abstract. It is also valuable as giving us an abstract of the conclusion
of the speech which Pinckney neglected to furnish. Madison says in his
letter to Judge Duer, "Mr. Yates's notes as you observe are very
inaccurate; they are also in some respects grossly erroneous." There are
indeed mistakes resulting from his non-acquaintance with the delegates;
and especially in his confusing the names of the two Pinckneys, the
first name of each being the same as the first name of the other and
both being delegates from the same State. But be that as it may, Yates
correctly characterized the speech of Randolph as "long and elaborate,"
and Pinckney's draught as a "system" of a "new government"; and he
certainly knew enough to distinguish between the delivery of a long
speech and the reading of a formal document.
The fact therefor must be regarded as established as firmly as any fact
recorded in the annals of the Convention that on the day when Pinckney
presented his draught to the Convention he did not deliver and could not
have delivered a speech making 27 pages of printed matter.
There is another fact to be considered in connection with the foregoing.
Between the opening statements of the Observations and the title to the
pamphlet there is a flat contradiction. In the speech he says expressly
that the "plan will admit of important amendments"; that he does "not
mean to offer it for the consideration of the House"; that he has
"taken the liberty of mentioning it because it was his duty to do so."
In the title to the pamphlet he says, "Plan of Government submitted to
the Federal Convention in Philadelphia on the 28th of May 1787." It is
plain that the speech and its title were written at different times and
that in this the two are irreconcilable. It is also plain that Pinckney
when he wrote a title for the printer in New York had forgotten the
detail of the contents of the speech and did not take the trouble to
examine it. We may therefore conclude that the two events were far
apart, the one having taken place in Charleston before the assembling of
the Convention and the other taking place in New York when the
publication of the speech required that a title should be given to it.
Furthermore the title to the speech contains a significant error in
saying that the plan of government was submitted to the Convention "on
the 28th of May"; for the first days of the Convention were not days to
be quickly forgotten.
The day fixed for the meeting of the delegates in Convention was
Monday, May 14th 1787. Washington, notwithstanding his painful illness
during the winter and the expected death of his mother was among the
first who arrived in Philadelphia. On the 27th of April he had written
to Knox, "Though so much afflicted with a Rheumatick complaint (of which
I have not been entirely free for Six months) as to be under the
necessity of carrying my arm in a Sling for the last ten days, I had
fixed on Monday next for my departure, and had made every necessary
arrangement for the purpose when (within this hour) I am called by an
express, who assures me not a moment is to be lost, to see a mother and
only sister (who are supposed to be in the agonies of Death) expire; and
I am hastening to obey this Melancholy call, after having just buried a
Brother who was the intimate companion of my youth, and the friend of my
ripened age. This journey of mine then, 100 miles, in the disordered
frame of my body, will, I am persuaded, unfit me for the intended trip
to Philadelphia."
But Washington, though he knew it not, was then approaching the verge of
his third cycle of illustrious service rendered to his country--"the
country he assembled 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 assembled 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 title 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
Constitution 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 assembling 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
assembling 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 constitutions 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 Coke, "concludeth a
man to alleage the truth" does not extend to the student of
Constitutional 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 Constitution.
Madison in his "Note to the Plan" regarded article VIII as "remarkable
also for the circumstance 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 Constitutional 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 Dickinson 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 Constitution 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 passages 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 title with which he prefaced
the publication. The two lines on the title 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 Constitution 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 assume 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 Constitution 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
appetite 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.