CHAPTER XIII

WHAT BECAME OF THE DRAUGHT

A question of much interest follows the foregoing investigation; to-wit,

why was not the Pinckney draught found among the records and papers of

the Convention?

It was the only draught of a constitution which had been before the

Convention; it had been referred to the Committee of the Whole and

referred to the committee charged with the duty of preparing a draught

of the Constitution; and that committee had used it for that purpose. It

was a paper of unique character and unquestionable importance and one of

the records of the Convention. Why was it not found in the sealed

package of the Convention's records?

And there was another paper, which should have been found but was not.

This was the report of the Committee of Detail, containing, or

accompanying, their draught of a Constitution. The absence of any other

paper that should have been placed in the package might be strange, yet

not significant. But these two papers, if there were two, related to the

same subject, contained more or less the same provisions, had been used

for the same most important purpose by the same men, and were on the 6th

of August, 1787, if they then existed, in the possession and official

custody of the Committee of Detail. When Rutledge on the morning of that

day "delivered in" the most important report ever laid before the

Convention he should have laid upon the Secretary's desk those two

papers, if there were such to lay there. Yet neither Pinckney's draught

of the Constitution, nor the Committee's draught of the Constitution,

was found in the sealed package; nothing was found but one printed copy

of the Committee's draught.

The draught of the Committee of Detail was the most important of all the

papers of the Convention, for the reason that it was the embodiment of

all that had been done during the first period of the Convention's work,

the abstract stage, and was to be the foundation of all that was yet to

be done in bringing the Constitution to its concrete and final form.

For purposes of construction and interpretation the draught is the most

valuable paper that exists or that ever did exist, inasmuch as it sets

forth in a tangible, practical, unmistakable form the results so far

attained and the views which a majority of the members held, and the

conclusions which a majority of the States had reached when the work of

abstract consideration ceased, and the work of changing their abstract

ideas into the concrete provisions of the Constitution began. There was

no other report, draught or document which should have been so

watchfully guarded and carefully kept as the report of the Committee of

Detail, if there were indeed such a document to preserve.

To comprehend and appreciate the significance of the disappearance of

these two papers, it is necessary that we understand the conditions of

the case--the circumstances which tended toward their destruction, and

those which should have secured their preservation.

The first of these conditions was secrecy. The Convention early

determined "That nothing spoken in the House be printed or otherwise

published or communicated without leave." No reporter was present at the

sittings of the Convention; no stenographer, typewriter or amanuensis

served the members; no clerical force aided the Committee of Detail. The

secrets of the Convention were in the custody of the members, and from

the 29th of May to the 17th of September not one was revealed to the

expectant, inquisitive, anxious American world.

As the work of the Convention drew toward its close, it was determined

that the obligation of secrecy should be continued into the indefinite

future. The records were to be placed under seal and the custodian was

to be Washington himself. Washington asked what should be done with the

records; and the Convention answered that "he retain the Journal and

other papers subject to the orders of Congress, if ever formed under the

Constitution." For thirty years and more the seals remained unbroken;

and for thirty years and more no member of the Convention spoke.

Let the reader imagine, if he can, what would be the public feeling now,

if a convention should be sitting from the 29th of May to the 17th of

September to frame a new constitution for the United States which should

sit with closed doors, and whose members should disclose no act, speak

no word, drop no hint from the beginning to the end; and who, when the

end was reached, should say absolutely nothing of what had been said and

done in the secret proceedings of the Convention. We owe much to the

framers of the Constitution; they were not common men.

The first and highest instance of this sense of obligation is where we

should expect to find it, in the personal journal of Washington.

"Friday, 1st June.

"Attending in Convention--_and nothing being suffered to

transpire no minute of the proceedings has been, or will be

inserted in this diary_."

And for this reason, no member of the Committee wrote. The unfortunate

Observations of Pinckney were the only publication that gave a glimmer

of what had been done, or might have been done in the Convention--of

what had been said or might have been said. The Journal of Madison was

not published until after Congress had released the secrets of the

Convention. The members had taken no solemn oath, nor clasped hands nor

pledged their honor to each other, but they kept silence.

A single incident fortunately preserved by William Pierce of Georgia

will show how the obligation was regarded during the sitting of the

Convention. It grandly displays the personal majesty of Washington, and

the value which he set upon the secrecy of the Convention's

deliberations. To a better appreciation of what took place it must be

remembered that the Convention as a mark of respect for their great

presiding officer established this rule: "_When the House shall adjourn,

every member shall stand in his place until the President pass him._"

Mr. Pierce says:

"When the Convention first opened at Philadelphia, there were a number

of propositions brought forward as great leading principles for the new

Government to be established for the United States. A copy of these

propositions was given to each Member with an injunction to keep

everything a profound secret. One morning, by accident, one of the

Members dropt his copy of the propositions, which being luckily picked

up by General Mifflin was presented to General Washington, our

President, who put it in his pocket. After the Debates of the Day were

over, and the question for adjournment was called for, the General arose

from his seat, and previous to his putting the question addressed the

Convention in the following manner:--

"'_Gentlemen_: I am sorry to find some one Member of this Body, has been

so neglectful of the secrets of the Convention as to drop in the State

House a copy of their proceedings, which by accident was picked up and

delivered to me this Morning. I must entreat, Gentlemen, to be more

careful, lest our transactions get into the News Papers, and disturb the

public repose by premature speculations. I know not whose paper it is,

but there it is (throwing it down on the table), let him who owns it

take it.' At the same time he bowed, picked up his Hat, and quitted the

room with a dignity so severe that every Person seemed alarmed; for my

part I was extremely so, for putting my hand to my pocket I missed my

copy of the same Paper, but advancing up to the Table my fears soon

dissipated; I found it to be the handwriting of another person. When I

went to my lodgings in the Indian Queen, I found my copy in a coat

pocket which I had pulled off that Morning. It is something remarkable

that no Person ever owned the Paper." (3 Amer. Hist. Review, 324.)

The obligation of secrecy required that these two papers should not be

lost--that they should not be left where they might fall into the hands

of someone who would publish them, that they should not remain in the

possession of a member; and the final determination of the Convention

implied that these two papers should be delivered by the Committee of

Detail into the hands of the Secretary of the Convention and be by him

placed in the custody of Washington.

The second condition was time--the time within which the Committee's

work must be done.

On Thursday, the 24th of July, the Convention appointed the Committee of

Detail "for the purpose of reporting a Constitution," and on the 26th,

referred to the Committee certain resolutions and "adjourned until

Monday, August 6th, that the Committee of Detail might have time to

prepare and report the Constitution." This adjournment gave to the

Committee ten full days in which to prepare and complete their draught,

two of which were Sundays. The committee moreover determined to furnish

to each member of the Convention a printed copy. On Monday, the 6th of

August, the Committee appeared in the Convention bringing with them the

printed copies of the draught.

The draught contains about 3,600 words. A good printer in the olden days

when there was not a typesetting machine in the world would have

required (according to the computation of a present day printer) three

days for doing the work, allowing therein a reasonable time for changes

and corrections made in the proofs. It cannot be supposed that after the

admonition of Washington, the Committee could be negligent in their

selection of a printer. They would not carry their copy into a large

printing office, if any such there was in Philadelphia, but would surely

place it in the hands of some individual printer recommended to them as

trustworthy by Wilson or Gouverneur Morris or some other delegate from

Philadelphia, perchance by Franklin, the greatest printer in the world.

In a word, the printing would not have been confided to a shop full of

men but would have been given to one man and marked "confidential"; and

it is safe to say that the copy must have been in the printer's hands by

the close of the 7th day. Besides the typesetting, the proofs were to be

examined, and the work scanned in the clearer light of printed matter by

every member of the committee; and errors were to be corrected, and

possibly changes made.

After these ten days of actual and constructive work the Committee

appeared in the Convention bringing with them a draught containing

fifty-seven articles and sections, and some 200 constitutional

provisions. Some of these provisions had been prescribed by the 23

resolutions, and some had been suggested by the Articles of

Confederation, but there were others declaratory of the inherent powers

of a national sovereignty which had neither been directed by the

Convention, nor were contained in the Articles of Confederation. No

reflective person beginning the study of the Constitution can read

Madison's Journal attentively through to the 26th of July without being

astonished by the greater comprehensiveness and detail and breadth and

completeness of the draught which the committee produced in a printed

form on the morning of the 6th of August.

Besides the provisions in the draught which have passed into, and in a

literal or modified form, have become parts of the Constitution, there

was some work of the committee which must have involved consideration,

discussion, and a waste of time. These hindrances left a perilously

narrowed period within which a committee must draught the Constitution

of the United States.

It was therefore no time to stand upon trifles or to pause to adjust

formal niceties. Within the closed doors of Independence Hall would be

impatient men who had given their time since the 25th of May and who

were sitting unceasingly through the heat of the Philadelphia summer,

defraying in whole or in part their own expenses, though many of them

were men of narrow means, ill able to give either their time or their

money. To their anxious eyes the end seemed far away, and success far

from certain, and they would resent unnecessary delay. It would be just

to young, ambitious Mr. Pinckney to return his draught, unsullied, to

the Secretary that it might tell the story in future years, unquestioned

and unquestionable, of his splendid contribution to the Constitution. It

would be proper and according to parliamentary usage for the committee

to hand in their draught in writing, covered by a report attested by

their signatures, both of which would remain in the archives of the

Convention and perhaps in the archives of a future government. But the

committee could not linger for these desirable things. Pinckney's

draught must be sacrificed to hasten the good work along, to save time,

if it were but a day; and their own report and draught must be

"delivered in" figuratively, that is to say by the mouth of their

chairman and by the means of the printed copies, one for each member.

The committee, so all the circumstances unite in telling us, took

Pinckney's draught and considered it; some provisions they retained;

some they corrected, some they amended, some they changed, some they

struck out. The amendments they wrote on the broad margin of the large

foolscap sheets or wrote out on separate slips of paper which they

wafered to the margin. When they had finished this work Pinckney's

draught had become "printer's copy." For one brief week it served a

great purpose and was the most useful document in the world. Then it was

scrupulously destroyed; and concerning it no man of the men who knew its

contents is known to have spoken a single word.

Apart from the inferential and conjectural statements of the preceding

paragraph, the stricter principles of law lead to or toward the same

conclusion. The draught was placed in the committee's hands to be used

but not to be destroyed. Nevertheless the right to use, like the right

of eminent domain, was commensurate with the necessities of the

situation, and the committee might use it by destroying it.

The law allows within certain limitations, the presumption of fact that

where an administrative officer had a certain, specific official duty

to perform, he performed it. The Secretary of the Convention and the

members of the Committee of Detail were not public officers but were

charged with duties which, if not official, were still public, and the

obligations and presumptions belonging to administrative officers may

properly be applied to them. The Secretary's entry in the Journal of the

Convention says, "The report was then delivered in at the Secretary's

table, and being read once throughout, and copies thereof given to the

members, it was moved and seconded to adjourn." All that there was to be

"delivered in," was placed upon the Secretary's table, and it became his

duty to preserve whatever the Committee had placed there subject to the

future commands of the Convention. The "copies thereof" were the printed

copies of the draught; and "the report" which was "then delivered in at

the Secretary's table" was one of the printed copies accompanied by the

oral explanation of the chairman.

What the Secretary did with the papers in his charge is told in the

following note and extract:

"MONDAY EVENING.

"Major Jackson presents his most respectful compliments to

General Washington....

"Major Jackson, after burning all the loose scraps of paper

which belong to the Convention, will this evening wait upon

the General with the Journals and other papers which their

vote directs to be delivered to His Excellency."

Indorsed by Washington:

"From MAJ'R WM. JACKSON, 17th Sept., 1787."

"MONDAY, 17th.

"Met in Convention when the Constitution received the

unanimous assent of 11 States and Col'n Hamilton's, from

New York (the only delegate from thence in Convention) and

was subscribed to by every Member present except Gov'r

Randolph and Col'n Mason from Virginia--& Mr. Gerry from

Massachusetts. The business being thus closed, the Members

adjourned to the City Tavern, dined together and took a

cordial leave of each other.--after which I returned to my

lodgings--did some business with, and received the papers

from the secretary of the Convention, and retired to

meditate upon the momentous wk which had been executed,

after not less than five, for a large part of the time six,

and sometimes 7 hours sitting every day, sundays & the ten

days' adjournment to give a Com'ee opportunity & time to

arrange the business, for more than four months."

WASHINGTON'S DIARY.

The Secretary of the Convention has generally been censured as

incompetent and negligent. Nevertheless the papers which he transferred

to Washington witness for him that he did preserve and keep whatever

papers came within his official custody. The Secretary of State

certified, March 19th, 1796, that in addition to the Journals then

received from Washington "were seven other papers of no consequence in

relation to the proceedings of the Convention." One of these is a

"draught of the letter from the Convention to Congress to accompany the

Constitution"; one is an order from "the directors of the Library

company of Philadelphia" to the Librarian directing him to "furnish the

gentlemen who compose the Convention now sitting with such books as

they may desire during their continuance at Philadelphia, taking

receipts for the same"; one is a letter from "one of the people called

Jews" setting forth that by the Constitution of Pennsylvania "a Jew is

deprived of holding any publick office or place of Government." The

others are even of less consequence. They make plain by their

unimportance the important fact that Major Jackson scrupulously kept

every paper which Rutledge "delivered in at the Secretary's table" on

the 6th of August. That is to say, it is made plain that on the 6th of

August, Rutledge did not deliver in at the Secretary's table either a

written report of the committee or the Pinckney draught.

Judging in the light of all the facts which the case discloses we must

conclude that the only thing which would have justified the Committee of

Detail in not returning the Pinckney draught to the Secretary of the

Convention was that it had been destroyed; the only thing which would

have justified the Committee in destroying it, was that they were

compelled to use it as printer's copy.

The Committee did well to use it. And yet if there was one thing in the

world which justified Pinckney in publishing the Observations, it was

that the Committee of Detail had destroyed his draught.

CHAPTER IV

WHAT PINCKNEY DID FOR THE CONSTITUTION

The style of the Constitution, we owe to Pinckney. Behind him, perhaps,

was Chief Justice Jay, whose hand appears in the first Constitution of

New York, but none of the men connected with the Convention, not even

Hamilton, had attained what we may term the style of the

Constitution--the clear, concise, declarative, imperative style which

seems a characteristic part of the great instrument. Pinckney

appreciated the difference between a constitution and a statute and in

maintaining this difference his hand rarely erred. The Committee of

Detail corrected Pinckney's language, occasionally, and sometimes

rendered the meaning more certain by amplification but whenever they

departed from his draught, there is an immediate falling off in style. A

flagrant instance of this is in article IX, sections 2 and 3. In the

hands of the Committee the provision relating to disputes and

controversies between States expands into a string of minor provisions

containing more than 400 words with all the involved petty

particularities of an incoherent statute. _Exempli gratia_, "The Senate

shall also assign a day for the appearance of the parties, by their

agents before that house. The agents shall be directed to appoint, by

joint consent, commissions or judges to constitute a court for hearing

and determining the matter in question. But if the agents cannot agree,

the Senate shall name three persons out of each of the several States;

and from the list of such persons, each party shall alternately strike

out one, until the number shall be reduced to thirteen; and from that

number not less than seven, nor more than nine, names, as the Senate

shall direct, shall in their presence, be drawn out by lot; and the

persons whose names shall be so drawn, or any five of them, shall be,",

etc., etc. The person who remembers that this and more like it, was

actually prepared and printed and reported to the Convention as a

proposed part of the Constitution of the United States, may well wonder

what kind of a Constitution the Committee of Detail would have framed,

if they had not had Pinckney to block out their work for them.

When dealing with the number of representatives in the first or lower

house, Pinckney provided (Art. 3) for a specific number from each State,

in the first instance, and then by one of his terse emphatic sentences,

"and the legislature shall hereafter regulate the number of delegates by

the number of inhabitants, according to the provisions hereinafter made

at the rate of one for every ---- thousand." The Committee adopted this

verbatim but they prefaced it with an extraordinary apology or

explanation, bearing some resemblance to the preamble of a statute (Art.

14, sec. 4): "As the proportions of numbers in different States will

alter from time to time; as some of the States may hereafter be divided;

as others may be enlarged by addition of territory; as two or more

states may be united; as new states will be erected within the limits of

the United States--the legislature shall, in each of these cases,

regulate the number of representatives by the number of inhabitants,

according to the provisions hereinafter made, at the rate of one for

every forty thousand."

This "as," "as," "as," "as," "as" would be slovenly work even for a

statute. It sounds little like a law, not at all like a constitution,

much like an extract from a committee's report, justifying their work,

explaining why a proposed provision may become at some unforeseen time,

necessary or desirable.

It is true that the former of these provisions was taken from the

Articles of Confederation; and that the latter is a paraphrase of the

8th resolution, but that only makes the matter worse. Their verbosity

and incongruity were thereby placed before the eyes of every member of

the Committee; and the fact that such provisions, flagrantly verbose and

inexcusably incongruous, went into a draught of the Constitution shows

that not one of the five members commanded what may be called the style

of the Constitution; while the additional fact that not one instance of

such prolixity of detail is to be found in the Pinckney draught shows

that he was the master of its style and not the Committee.

There are unquestionably clauses and sentences and provisions in the

Committee's draught which show the hand of the thoughtful statesman or

of the good lawyer. Thus to Pinckney's provisions relating to the action

of Congress on bills returned by the President with his objections, we

have, "But, in all cases, the votes of both Houses shall be determined

by yeas and nays; and the names of the persons voting for or against the

bill shall be entered on the Journal of each House respectively." And to

Pinckney's provisions concerning the conviction of treason, there is

added, "No attainder of treason shall work corruption of blood, nor

forfeiture, except during the life of the person attainted." In a word

there is manifestly more than one hand in the Committee's work. In

Pinckney's draught the warp and woof is of one texture from beginning to

end. Even when an article is made up entirely of cullings from State

constitutions and from the Articles of Confederation, the finished

fabric is unquestionably of Pinckney's weaving.

It is not to be inferred that the members of the Committee of Detail

were mediocre men or that they were negligent of the grave duty

assigned to them. Yet the work which they actually did only

demonstrates that for them to have produced a complete draught of the

Constitution--as complete as the one which they reported--entirely the

work of their own hands, in the limited time allowed them would have

been an impossibility. The reduction of the Constitution to a written

form with all its details required research, reflection, patient work

and unhurried thought. Through the wide field of State and Federal

relations, through State constitutions and the Articles of Confederation

the framer needed to search, weighing State prejudices and national

necessities, taking what was desirable, but with equal care leaving what

was objectionable. There were not five men in the world working in each

other's way, discussing each other's work, who, unassisted, could have

drawn up a constitution in which so much was embodied and so little

overlooked and have brought their patchwork contributions into one

harmonious whole within the time prescribed. The country was well filled

with men of talents, of ability, of energy, of patriotic fervor, with

men who knew the conditions of our national affairs, the difficulties

of acting, the perils of inaction, and yet the fact, undeniable, is that

only one man foresaw the coming necessity of the situation and had the

forethought to prepare a draught of the Constitution for the use of the

Convention. The more I have surveyed the situation, the greater has

appeared the necessity for some such work at the time; the more I have

studied the work of Pinckney, the more perfectly adapted to the

necessities of the situation does it appear to have been.

When Pinckney, foreseeing that a national Convention would be held and

that if it failed to frame a constitution which would give to the waning

Confederation the character and authority of nationality, the

nationality of the Confederated States might disappear, he resolutely

assigned to himself the task of framing one in which nationality should

be secure and a national government above and independent of the States

be the result. While yet a member of Congress he saw plainly these

things--that the government of the Confederated States was drifting

toward insolvency, for New York and Massachusetts alone had paid in full

their quota of the Federal expenses; that it was drifting towards war;

for at least one of the States was flagrantly violating the treaty of

peace with Great Britain; that the Congress could neither raise money

nor maintain a treaty; for the only power which it practically possessed

was to beseech the States to pay their respective shares of the Federal

expenses, and to pass as recently as March 21, 1787, resolutions urging

on the States a repeal of all laws contravening the treaty of peace with

Great Britain.

Pinckney was then in the full flush of youthful egoism, but the oldest

member of the Convention, even Franklin, could not have chosen his

method of construction more wisely. Wherever constitutional material

existed, Pinckney found it, and preferred it to his own. A single

paragraph will give an effective object lesson of his careful composite

work:

"The United States shall not grant any title of nobility" (Art.

Confederation VI). "The Legislature of the United States shall pass no

law on the subject of religion" (Constitution of New York); "nor

touching or abridging the liberty of the press" (Constitution

Massachusetts); "nor shall the privilege of the writ of habeas corpus

ever be suspended except in case of rebellion or invasion" (Constitution

Mass.).

The resolution of March 21, 1787 is as follows:

"WEDNESDAY, MARCH 21, 1787.

"Resolved, That the legislatures of the several states

cannot of right pass any act or acts, for interpreting,

explaining, or construing a national treaty or any part or

clause of it; nor for restraining, limiting or in any

manner impeding, retarding or counteracting the operation

and execution of the same, for that on being

constitutionally made, ratified and published, they become

in virtue of the confederation, part of the law of the

land, and are not only independent of the will and power of

such legislatures, but also binding and obligatory on

them."

This becomes in the draught:

"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; and all Judges shall be bound to consider

them as such in their decisions."

I have spoken of the sentence, "The citizens of each State shall be

entitled to all privileges and immunities of citizens in the several

States" as the most felicitous sentence in the Constitution, which

passed through the Committee of Detail, the Committee of Style, and the

Convention without the change of a single word. But in the Articles of

Confederation the provision stood in this prolix form:

"The better to secure and perpetuate mutual friendship and intercourse

among the people of the different States in this union, the free

inhabitants of each of these States, paupers, vagabonds, and fugitives

from Justice excepted, shall be entitled to all privileges and

immunities of free citizens in the several States; and the people of

each State shall have free ingress and egress to and from any other

State, and shall enjoy therein all the privileges of trade and commerce,

subject to the same duties, impositions and restrictions as the

inhabitants thereof respectively, provided that such restriction shall

not extend so far as to prevent the removal of property imported into

any State, to any other State of which the owner is an inhabitant."

That the work was Pinckney's we know, for the provisions set forth in

articles 12 and 13 of his draught are described in the Observations.

But though the work of Pinckney was built of the thoughts, phrases and

provisions of other men, the structure was his own; and in its details

as in its general design, he never failed in his intent that the new

republic which he was trying to found should be a nation, and that its

government should have all the powers, duties, responsibilities and

authority essential and incidental to nationality. The thought may have

been in other minds but another draughtsman by a slight change of

expression might have warped the idea and left it of no avail. It is

this comprehensive generality of treatment and expression which I am now

inclined to hold was Pinckney's greatest contribution to the

Constitution. Indeed if Marshall had laid his hand on Pinckney's

shoulder and said, "Young man, so frame your constitution that I shall

be able to interpret it according to the necessities of the Republic

and in harmony with the general requirements of our nationality,"

Pinckney would not have needed to change a single line.

For more than 70 years, Pinckney has been a condemned and misrepresented

man, and what is strange, though not inexplicable, his disgrace was

primarily caused by the indispensable work which he unselfishly

performed for his country without honor and without reward. I began the

foregoing investigation of the authenticity and verity of the draught in

the State Department in consequence of the publication of Pinckney's

letter to the Secretary of State in 1818 in which he states frankly that

the paper sent is not a literal duplicate of the draught presented to

the Convention and that the draught contained provisions which he

subsequently condemned and openly opposed during the debates. I knew of

the worst side of Pinckney's character--his egoism, his garrulousness,

his lack of cautious common sense--and in my early study of the

Constitution the Pinckney draught had seemed too much to be the work of

one man, and the charges of Madison with the implications of Elliot and

the silence of Story and the censure of Bancroft had confirmed my

suspicion and left me with a poor opinion of the draught in the State

Department and of the man who placed it there. The most which I expected

from this investigation was that I should be able to say with tolerable

certainty that a section here or a paragraph there in the Constitution,

was the work of Pinckney. But when under the pressure of unquestionable

facts, the charges of Madison fell to pieces; and when with the

refutation of a charge, just so much of the draught would be positively

verified and affirmed; and especially when it plainly appeared, not only

that in sections and articles, and provisions and sentences, the one

instrument agreed with the other but that in form and style, and

phraseology and arrangement from the words of the preamble, "We the

people do ordain, declare, and establish the following Constitution for

the government of ourselves and posterity" to the words of the last

article, "The ratifications of ---- States shall be sufficient for

organizing this Constitution," the draught of the Committee of Detail

follows the draught in the State Department, and the Constitution

follows the draught of the Committee of Detail, I was slowly forced to

the conclusion that the young South Carolinian on whom I had placed no

high estimate, had rendered a great service at a critical time, and that

but for his needed work, the Constitution would be, at least in form, a

very different instrument from the one which we revere. My slowly formed

conclusion is that if wise and judicious forethought, and much patient

work well done, and a breadth of view commensurate with the greatness of

the subject, and the production at a critical moment of a paper which

all other men in or out of the Convention had neglected to prepare,

entitle a man to the lasting recognition of his countrymen, there is no

framer of the Constitution more entitled to be commemorated in bronze or

marble than Charles Pinckney of South Carolina.

CHAPTER XV

CONCLUSIONS ON THE WHOLE CASE

There are three reasons why the Pinckney Draught has been too readily

discredited. The first is our respect for Madison, our belief that his

knowledge far exceeded our own, and our deference to his repeatedly

expressed opinion. The second is that the draught was never before the

Convention and consequently never received the recognition of

discussion. It was referred at the beginning to the Committee of the

Whole; but it was not yet wanted, for the Committee debated only

abstract propositions couched in formal resolutions. It was referred to

the Committee of Detail; but that Committee reported only their own

draught and the Convention had before them only the Committee's. The

draught of Pinckney never came to a vote, was never discussed, and never

received the slightest consideration in the Convention.

The third reason for discrediting the draught is to be found in the

exaggerated value which has been set upon it. It has seemed to be

altogether too great an instrument to have been the work of one man. We

have felt in a vague way that to concede that one man could have

contributed so much to the great instrument would be to detract from the

work and fame of the great men whom we call the framers of the

Constitution, and from the Constitution itself.

But the fact is that the draught of Pinckney is not so great as it

seems. Coming from a man so well equipped for the work, so experienced

in the existing affairs of our mixed governments and with such a clear

comprehension of the conditions of the case, and having such a mass of

material ready to his hand, the draught is not a marvelous production.

That is to say the work considered as the work of so young a man is not

so wonderful as at first it appears to be. It may come within the range

of the improbable but not of the impossible.

Madison has himself borne witness to the fact that the subject of a

substitute for the tottering power of the Confederated States was in

every man's mind; and that every intelligent man of that day was more or

less fitted to draught a general outline of a new national government:

"The resolutions of Mr. Randolph, the basis on which the deliberations

of the 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

characteristics and features of a government as complete (in some

respects, perhaps more so) as the plan of Mr. Pinckney, though 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 upon the prospective change."

Letter to W. A. Duer, June 5th, 1835.

The difficulty of the hour was not in draughting a constitution, but in

draughting one which would not arouse the jealous antagonism of the

several States. That difficulty did not trouble Pinckney. His plan

contemplated having the people of each State fairly, _i. e._,

proportionately represented in his House of Delegates, and in making the

several States as States unequivocally submissive to the new national

authority.

Pinckney had been for two years immediately before the sitting of the

Convention, a delegate in the Congress of the Confederation. He had been

the representative of South Carolina in the "grand committee" appointed

to consider the alteration of the Articles of Confederation. He had been

chairman of the subcommittee which draughted the committee's report of

August, 1786; and (as Professor McLaughlin has pointed out) "the

introducing phrases, as appears by reference to the manuscript papers of

the old Congress, were written in Pinckney's own hand." In witnessing

the inherent weakness and increasing degradation of the Congress, he had

learned to appreciate the incapacity of the confederate system, and the

necessity of a National government. No member of the Convention better

appreciated those two things, or was better equipped for the task which

he undertook; and there was no man in the country, except Madison, who

had been through such a preparatory course and had such a combination of

resources at his command. He was young, talented, experienced,

ambitious, wealthy, unemployed and a ceaseless worker. The index of

Madison's Journal witnesses to the immense amount of work which Pinckney

did irrespective of the draught. If we discard the draught--the original

draught, the disputed draught, and the draught described in the

Observations, the fact will remain that Pinckney was an important

contributor to the work of framing the Constitution.

Pinckney's plan of government was precisely what we might expect it to

be. He was an able but not a sagacious statesman; that is he saw clearly

what he wanted, but he did not see what other men wanted. Neither did he

anticipate as a sagacious statesman would, the ignorance, the adverse

interests and the prejudices of those who ultimately would have the

power to reject or ordain the work of the Convention. Therefore he

originated none of the compromises which reconciled antagonistic views

and made the Constitution possible. The great and difficult problems

which confronted the Convention were not solved by the Draught. Pinckney

in it provided for two legislative houses and based representation on

population, neglecting to place the small States on an equal footing

with the large States in the Senate. He provided for one Executive head

as did every government in the world, but he devised no means for

uniting harmoniously the large and small States in choosing the

Executive. The Draught was an admirable instrument for its purpose--an

admirable model for the workmen of the Convention to correct, alter and

enlarge. It was crude and unfinished but it was in well chosen words and

simple sentences, eschewing particulars and presenting in a masterly way

great declaratory principles of government. Pinckney had a few fanciful

provisions in his plan and yet he was a practical and not a fanciful

constitution-maker, not above taking the best material he could find

wherever he could find it, resorting to himself last; and not above

throwing aside his own work and beginning again and again until he had

patiently wrought out the best that his ability could do. But when in

estimating the Constitutional value of the draught, we have given credit

for the admirable construction of the plan of government and for the

clear declaratory style of the instrument, and for the preamble, and

when we have discarded his original schemes, not adopted by the

Convention, such as the plan for the Senate, we find that the remainder

of the draught is made up for the most part of details suggested by his

experience in the Congress of the Confederated States, details which

were culled by him with extraordinary care from the constitutions of New

York and Massachusetts and the Articles of Confederation.

In a word, the provisions which were rejected, such as a Senate chosen

by the House of Representatives; such as a Senate having "the sole and

exclusive power" to declare war, to make treaties, to appoint foreign

ministers and judges of the Supreme Court; such as a national

legislature having power to "revise the laws of the several States" and

"to negative and annul" those which infringed the powers delegated to

Congress--do not cause either wonder or admiration. It is the valuable

practical provisions of the draught which provoke doubts. Yet these are

for the most part the work of selection by an author thoroughly versed

in what may be called the Constitutional literature and studies of the

day, and who by experience knew precisely what was needed to transmute

the Confederated States into an efficient National government.

In our minds we picture the framers of the Constitution as remarkable

men, sage in council, experienced in affairs of state. But there were

two young men, the one 36, the other 30, who furnished the constructive

minds of the Convention. Madison was foremost in framing the Virginia

resolutions, which brought before the Convention questions for abstract

discussion and bases on which to rest principles of government. Pinckney

formulated a constitution which became a basis for the most of the

concrete work. Both had had the severe practical training of members of

the Congress of the Confederated States during the sorest period of its

humiliating helplessness, the darkening days which preceded its

dissolution. Both understood thoroughly the existing system which made

the Federal government dependent upon its States and therefore inferior

to them; and they knew by what had been to them bitter experience that

the solvency of the Federal government was dependent upon the voluntary

contributions of each and all of the States, and that a single one of

the great States by refusing to pay its quota could bring the nation to

bankruptcy. They knew too that while the general government could make

treaties, the States could violate them--that they had violated them,

and even then had brought the country to the verge of a foreign war.

Their minds recoiled, as the minds of young men naturally would, to the

opposite extreme, and each believed in the subversion of the States. How

fully they agreed a single illustration will disclose.

On Friday, June 8th,

"Mr. Pinckney moved 'that the National Legislature shd. have authority

to negative all laws which they shd. judge to be improper.' He urged

that such a universality of the power was indispensably necessary to

render it effectual; that the States must be kept in due subordination

to the nation; that if the States were left to act of themselves in any

case, it wd. be impossible to defend the national prerogatives, however

extensive they might be on paper; that the acts of Congress had been

defeated by this means; nor had foreign treaties escaped repeated

violations; that this universal negative was in fact the corner stone of

an efficient national Govt."

"Mr. Madison seconded the motion. He could not but regard an indefinite

power to negative legislative acts of the States as absolutely necessary

to a perfect System. Experience had evinced a constant tendency in the

States to encroach on the federal authority; to violate national

Treaties; to infringe the rights and interests of each other; to oppress

the weaker party within their respective jurisdictions. A negative was

the mildest expedient that could be devised for preventing these

mischiefs."

But it was for these same reasons that neither Madison nor Pinckney

attempted to frame a compromise. Each wanted a national government with

unequivocal powers. Each ignored the jealousy of the small States, the

apprehensions of the slave States, the increasing preponderence of the

free States. Both intended that these elements of distrust should be

absorbed by the overwhelming power of the new national government. For

more than 100 years the American people have kept the cardinal idea of

these youthful statesmen buried from sight or contemplation as something

impractical or dangerous but they are now beginning to ask themselves

whether an overwhelming national government is not the better agency for

the control and management of their modern, complex, national life.

Considering that Madison and Pinckney worked in such different fields,

the abstract and the concrete, it is remarkable that the work of the one

repeatedly and constantly agrees with the work of the other. Considering

that they had worked side by side for years conferring daily on the same

absorbing subject, encountering the same difficulties, thwarted by the

same obstacles, defeated by the same incapacities, their minds intent

on the same ends, it is not remarkable that an identity of purpose was

followed, though in different forms, by an identity of results and that

the work of Pinckney was little more than an embodiment of the

propositions of Madison. Together they furnished just what the

necessities of the hour required, ideas of government for consideration

and discussion; formulated constitutional provisions for amendment and

adoption. Greatly to be regretted it is that the two men who did such

valuable interserviceable work for the cause to which their lives were

then devoted, and whose names should be most closely associated in the

history of the Constitution, now appear so irretrievably antagonistic.

There are some provisions in the draught which are not sustained by the

confirmatory fact of being incorporated in the draught of the Committee

of Detail, and notably the following:

"The legislature of the United States shall have the power" "to pass

laws for arming, organizing and disciplining the militia of the United

States," Art. 6. This power to organize and discipline the militia was a

radical transfer of authority from the States to the new national

government, a power which the committee were not instructed to transfer

and which accordingly they did not incorporate in their draught. But it

is specifically set forth in the Observations as one of the provisions

of the draught; and on the 18th of August Pinckney advocated in the

Convention substantially the same thing.

The draught also provides that the legislature of the United States

shall have power, "To provide for the establishment of a seat of

government for the United States, not exceeding ---- miles square, in

which they shall have exclusive jurisdiction." Art. 6. This also was a

radical innovation which the Committee could not adopt without

authority. But it was also specifically set forth in the Observations;

and on the 18th of August Pinckney moved in the Convention;

"To fix and permanently establish the seat of government of the United

States in which they shall possess the exclusive right of soil and

jurisdiction."

The draught also provides, "nor shall the privilege of the writ of

habeas corpus ever be suspended, except in cases of rebellion or

invasion." Art. 6.

The Convention shrank from the insertion of a bill of rights in the

Constitution because, as was subsequently explained, it was feared that

it might bring up the subject of slavery, one member insisting that it

should contain a declaration against slavery, and another that it should

specifically declare that it did not extend to slaves. Accordingly the

committee did not incorporate this declaration of right in their

draught. But it is set forth in the Observations; and on the 20th of

August Pinckney proposed in the Convention a stronger and more explicit

provision.

These provisions, therefore, are sustained by the public,

contemporaneous avowal of Pinckney that they were in the draught which

he had prepared for the use of the Convention; and by the recorded facts

that when he found that the committee had not considered them as within

their jurisdiction and had not incorporated them in their draught he

brought them before the Convention and sought to have them inserted in

the Constitution. As it is certain that the ideas were his, and that he

formulated them into provisions substantially identical with those in

the State Department draught, at the time when the Convention was

considering the respective subjects, it requires very little additional

assurance to make us accept them as a part of the draught presented to

the Convention.

Conversely, there are provisions which may have been in the draught

presented to the Convention, but which are not in the draught filed in

the State Department. The most notable of these is the one relating to

patents and copyright. Pinckney says in the Observations "There is also

an authority to the national legislature" "to secure to authors the

exclusive right to their performances and discoveries;" and on the 18th

of August he moved in the Convention to insert among other powers "To

grant patents for useful inventions."

If the provision was in the original draught, the Committee of Detail

were not authorized to adopt it and did not; but the Convention did and

it became a part of the Constitution. Pinckney was constantly nursing

his draught, revising, amending, rearranging, and it is not improbable

that he inserted this provision in one copy and neglected to insert it

in the others. But he certainty seems to have been the author of it.

From one point of view it may seem a needless Constitutional provision;

for a national legislature could so legislate without it. But under the

British Constitution monopolies were a prerogative of the Crown, and a

patent was deemed a monopoly. Pinckney therefore did wisely in expressly

assigning patent-rights and copyrights to the legislative branch of the

Government, giving to the mind-work of the inventor or author the

character of property and the safeguard of the law.

Another provision is the compromise relating to slave representation. In

the State Department draught it is provided that the number of the

delegates shall be regulated "by the number of inhabitants" (Art. 3) and

that "the proportion of direct taxation shall be regulated by the whole

number of inhabitants of every description." In the Observations he says

that his plan 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." In

the Convention on the 12th of July, "Mr. Pinckney moved to amend Mr.

Randolph's motion so as to make 'blacks equal to the whites in the ratio

of representation.' This he urged was nothing more than justice. The

blacks are the labourers, the peasants of the Southern States: they are

as productive of pecuniary resources as those of the Northern States.

They add equally to the wealth, and, considering money as the sinews of

war, to the strength of the nation. It will also be politic with regard

to the Northern States, as taxation is to keep pace with

Representation."

This is conclusive as to Pinckney's views. It confirms the draught in

the State Department and shows too that the copy of the draught on which

the Observations were founded differed in this detail from the draught

presented to the Convention.

On a review of the entire case I have reached the following conclusions:

1. The draught in the State Department agrees so closely with the

draught of the Committee of Detail, in form, in phraseology, in

structure, in arrangement, in extent, in its beginning and its ending

that unquestionably the one draught must have followed the other. There

can be no middle ground here.

2. With the uncovering of the Committee's draught and the bringing of

the Observations into the case and the confirmatory matter in the

Randolph and Wilson draughts, it becomes evident that the suspected

fraud was an impossibility. That is to say, when Pinckney described in

the Observations the draught which he was subsequently to present to the

Convention he thereby described the draught which he was ultimately to

place in the Department of State. In a word, if a fraud was perpetrated

in 1818, it must have been begun in 1787, before the Convention met,

which is a reductio ad absurdum.

3. The Observations were printed and published during the lifetime of

every member of the Convention, including the five members of the

Committee of Detail, and Pinckney immediately republished them in the

South Carolina State Gazette. In 1819 when the copy of the draught was

published and circulated as a public document there were 16 members of

the Convention still living, among whom was Madison, the chronicler of

the Convention.

It must therefore be held that Pinckney did not conceal anything or

shrink from investigation; and that all which he did was done in due

time, in the light of day and in the most open manner. Indeed it may be

asked whether there ever was an historical document which was so doubly

published and declared both prior to and at the time when it was

produced as the Pinckney draught; or which could have been so easily

refuted, if it was really refutable? A court of justice in such a case

would say, "The plea of fraud is sustained by no evidence whatever. To

allow a document which was placed in the files of the Government at the

instance of a high officer of State to be attacked and discredited

because of the doubts and suspicions of individuals, no matter how

eminent and intelligent, would be a monstrous abuse of authority which

can not be upheld in either law or morals."

4. A question may be raised as to whether the Journal of Madison can

properly be admitted as evidence against the claim of Pinckney; and it

must be conceded that Madison occupied the position of a

controversialist; that during the whole of the period of controversy his

chronicle of the Convention was in his exclusive possession; and that it

was within his power at any moment to obliterate parts or passages

which, coming to the knowledge of the world, would weaken his own

position and vindicate Pinckney and sustain the draught. But such a

suggestion against the integrity of such a man is not to be lightly

entertained. It is no more to be believed without evidence (and evidence

of the most clear and unequivocal character) that Madison, for his own

purposes, obliterated historical evidence, than that Pinckney fabricated

it. Each was a member of the Congress of the Confederation; each was a

delegate to the great Convention; each was eminent for his zeal in the

prolonged and often hopeless work of framing the Constitution; each has

left behind him a long record of distinguished public life. The one

laboriously prepared the only draught of the Constitution that was made

for the use of the Convention; and the other laboriously prepared the

only chronicle of the framers' work which the world possesses. It is not

for the bitterness of controversy, heedlessly, to assail such men.

5. The Journal of Madison must be received as authentic history. At the

same time it must be borne in mind that it was not written with the

fulness and precision of the modern stenographer. Madison could not

transcribe the words which a speaker uttered and leave us to ascertain

the speaker's meaning from his words. All that such a reporter could do

was to record what he believed to be the speaker's meaning. It follows

that condensed passages, isolated sentences, casual turns of expression

cannot be used as admissions against Pinckney, and must be considered

with disinterested caution, if they be considered at all.

* * * * *

Time which destroys, also discloses; and time may bring to light some

record which will change the conclusions of to-day. But as the case now

stands it must be said that the Pinckney Draught in the Department of

State is (with the exceptions before noted), all that Pinckney

represented it to be.

CHAPTER XVI

OF PINCKNEY PERSONALLY

Pinckney was in the fourth generation of a family which had been

distinguished for more than one hundred years for its public services.

He had been elected to the provincial legislature of South Carolina

before he had come of age; and he had made himself before the sitting of

the Convention a prominent member of the Congress of the Confederated

States. He had a clearer apprehension of the actual needs of American

nationality than any other member of the Convention. This may be seen in

his Observations and in his speech of the 25th of June. There is a

passage in that speech in which anticipating the Farewell Address of

Washington and the peace policy of Jefferson he looks forward through

the ensuing century of the Constitution and depicts the practical

blessings which it was to bring to the American people with a clearness

and accuracy that is extraordinary:

"Our true situation appears to me to be this--a new, extensive country,

containing within itself the materials for forming a government capable

of extending to its citizens all the blessings of civil and religious

liberty--capable of making them happy at home. This is the great end of

republican establishments. We mistake the object of our government, if

we hope or wish that it is to make us respectable abroad. Conquests or

superiority among other powers is not, or ought not ever to be, the

object of republican systems. If they are sufficiently active and

energetic to rescue us from contempt, and preserve our domestic

happiness and security, it is all we can expect from them--it is more

than almost any other government insures to its citizens."

Pinckney's experience in the Congress of the Confederation made him

despise the existing Federal Government and undervalue the local

authority of the States. He came into the Convention its most extreme

Federalist--more so even than Hamilton. As he said in the Observations:

"In the federal councils, each State ought to have a weight in

proportion to its importance; and no State is justly entitled to

greater."

"The Senatorial districts into which the Union is to be divided [in his

plan] 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 next provision [in his draught] 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."

"The idea that 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."

"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."

In the Convention Pinckney moved that the members of the lower House

should be chosen by the legislatures "of the several States"; but this

was the one thing which he conceded to "the several States." The Senate

was to be chosen by the House of Delegates; and what is more

significant, the Senate was not to represent States, with the saving

clause, "Each State shall be entitled to have at least one member in the

Senate." Finally he would strike an absolutely fatal blow at State

sovereignty by providing, "the Legislature of the United States shall

have the power to revise the Laws of the several States that may be

supposed to infringe the powers exclusively delegated by this

Constitution to Congress, and to negative and annul such as do."

Knowing as we do of Pinckney's youth (he was not yet 30) and of

Madison's poor opinion of him, it is desirable that we should know, if

possible, what his contemporaries in the Convention thought of him.

William Pierce the delegate from Georgia who has left to us the anecdote

of Washington before quoted (p. 230) noted at the time his impressions

of the leading members of the Convention. From these I select his

sketches of four of the young members of the Convention who had even

then attained distinction, Edmund Randolph, Rufus King, Alexander

Hamilton and Charles Pinckney:

"Mr. Randolph is Governor of Virginia--a young gentleman in whom unite

all the accomplishments of the Scholar and the Statesman. He came

forward with the postulata or first principles on which the Convention

acted; and he supported them with a force of eloquence and reasoning

that did him great honor. He has a most harmonious voice, a fine person

and striking manners."

"Mr. King is a Man much distinguished for his eloquence and great

parliamentary talents. He was educated in Massachusetts, and is said to

have good classical as well as legal knowledge. He has served for three

years in the Congress of the United States with great and deserved

applause, and is at this time high in the confidence and approbation of

his Countrymen. This Gentleman is about thirty-three years of age, about

five feet ten Inches high, well formed, an handsome face, with a strong

expressive Eye, and a sweet high toned voice. In his public speaking

there is something peculiarly strong and rich in his expression, clear,

and convincing in his arguments, rapid and irresistible at times in his

eloquence but he is not always equal. His action is natural, swimming,

and graceful, but there is a rudeness of manner sometimes accompanying

it. But take him _tout en semble_, he may with propriety be ranked among

the Luminaries of the present age."

"Col. Hamilton is deservedly celebrated for his talents. He is a

practitioner of the Law, and reputed to be a finished Scholar. To a

clear and strong judgment he unites the ornaments of fancy, and whilst

he is able, convincing, and engaging in his eloquence the Heart and Head

sympathize in approving him. Yet there is something too feeble in his

voice to be equal to the strains of oratory;--it is my opinion that he

is a convincing Speaker, that (than) a blazing Orator. Col. Hamilton

requires time to think,--he enquires into every part of his subject with

the searchings of phylosophy, and when he comes forward he comes highly

charged with interesting matter, there is no skimming over the surface

of a subject with him, he must sink to the bottom to see what foundation

it rests on.--His language is not always equal, sometimes didactic like

Bolingbroke's, at others light and tripping like Sterne's. His eloquence

is not so defusive as to trifle with the senses, but he rambles just

enough to strike and keep up the attention. He is about 33 years old, of

small stature, and lean. His manners are tinctured with stiffness, and

sometimes with a degree of vanity that is highly disagreeable."

"Mr. Charles Pinckney is a young Gentleman of the most promising

talents. He is, altho' only 24 [29] y's of age, in possession of a very

great variety of knowledge. Government, Law, History and Phylosophy are

his favorite studies, but he is intimately acquainted with every species

of polite learning, and has a spirit of application and industry beyond

most Men. He speaks with neatness and perspicuity, and treats every

subject as fully, without running into prolixity, as it requires. He has

been a member of Congress, and served in that Body with ability and

eclat." (_William Pierce of Georgia_; 3 Amer. Hist. Review, 313.)

In this materialistic world of cause and effect there sometimes seem to

be recurring fatalities which attend individuals that needlessness has

not caused and that foresight could not have prevented--a fate of fire

or flood or shipwreck, of good fortune or of bad fortune, of successes

or of casualties of escapes or of disasters--a fate that fastens upon an

individual and cannot be shaken off. The fate assigned to Pinckney seems

to have been oblivion. Substantially everything which he prized is gone.

His house was one of the finest in Charleston, if not the finest, and it

was destroyed. He believed his library to be the most valuable library

in the South and his great gallery to hold the rarest pictures in this

country yet but a few volumes remain of the one and but two portraits of

the other. His garden was the most beautiful in the State, it was his

pride, his delight, and obliteration has indeed been its portion; even

the soil which bore him flowers and shrubbery and trees and was laden

with all the loveliness of semi-tropical vegetation is gone; for it was

carried away during the Civil War to make military defenses. At the

beginning of this investigation I began to search for the papers of

which Pinckney speaks in his letter to the Secretary of State--papers

which might throw new light on the framing of the Constitution or solve

the problem of the contents of the draught. In this search General

McCrady, of Charleston kindly and sympathetically co-operated, but I

soon received his assurance that the quest was not a new one for him,

and that neither in the Historical Society of South Carolina of which he

was President nor in the possession of his friends could a document or

paper or even a letter be found. At that time I desired to obtain a

specimen of Pinckney's early handwriting and accordingly carried my

pursuit into the circle of his direct descendants; but the sad reply

came from his great-grandson, Mr. Charles Pinckney of Claremont, South

Carolina that "all of his papers and private manuscripts were destroyed

in the great fire in Charleston in 1861," and that his descendants

possess "no remains of his handwriting except the autographs in his

books." Letters and papers of eminent men are constantly coming to the

light from unexpected hiding places and there is the official

correspondence in the State Department and papers may exist in the

public offices of South Carolina, but apart from these, my

investigation stops at a point where it must be said that not so much as

a single line of the writing of Charles Pinckney now exists.

In 1787 while Pinckney was in the full possession of his youthful power

and fortune and all those things which give a man a prestige above his

fellows, fate seems to have leaned forward and touched the instrument

which was the supreme work of his life, the Draught of the Constitution

of the United States--and to have set a seal upon the lips of every man

who could testify as to its contents. If ever there was a paper of which

it might be predicted that it would survive its time and be securely

kept, that was the paper. The Convention was composed of the most

orderly, caretaking and reputable of men, and the author of the draught

was one of them. The command of the Convention was that its papers

should be preserved. The papers were placed in the custody of the most

scrupulous of men and by him transferred to the official guardianship of

a department of the Government, and there we might expect to find the

draught of Pinckney; but fate had touched the great State paper, and we

find only that it had vanished mysteriously from the earth.

* * * * *

The following biographical sketch is by Mr. Wm. S. Elliott, of South

Carolina, a grand nephew of Pinckney:

"In the diploma, by which the degree of Doctor of Laws was conferred

upon him by the University of Princeton, New Jersey, it is expressly

declared, that it 'is conferred on account of high acquirements,

learning and ability, and particularly for his distinguished services in

Congress and the Federal Convention.' From 1787 to 1789, he was

traveling on the Continent and on his return, was elected Governor of

the State. While Governor, he was a delegate to, and made president of

the State Convention for forming the Constitution. In 1791 he was chosen

a second time, and in 1796 a third time, Governor of the State; in 1798

a Senator in Congress, where he remained until 1801, when Mr. Jefferson

appointed him Minister Plenipotentiary to Spain, with power to treat for

the purchase of Louisiana and Florida. On his return in 1806, he was a

fourth time honored with the position of Governor of the State, and he

is the only citizen who has been so frequently elevated to the executive

chair. From this period he retired from public life, until in 1818, when

he was elected under great party excitement to the United States House

of Representatives by Charleston District, and he here closed his

political life with his speech in opposition to the Missouri Compromise.

"Family tradition and genealogical history are the very reverse of

amber, which, itself a valuable substance, usually includes trifles;

whereas, these trifles being in themselves very insignificant and

trifling do, nevertheless, serve to perpetuate a great deal of what is

rare and valuable in ancient manners, and to record many curious and

minute facts, which could have been preserved and conveyed through no

other medium.

"Charles Pinckney professed an exquisite appreciation of the beautiful

in nature and in art. His collection of paintings, statuettes, medals,

etc., rendered his house almost a museum. His fine library, occupying an

entire suite of three large rooms--the floors and windows of which were

kept richly carpeted and curtained, while the ceilings were decorated

with classic representations--is supposed to have contained near twenty

thousand of the rarest and choicest books, collected from every part of

the Continent, and in every language spoken in the enlightened world."

Thomas Pinckney,

who settled in South Carolina in 1687,

was the father of

(2) (3)

William, Thomas.

Master in Chancery.

His Son,

Col. Chas. Pinckney.

His Son,

Governor Charles Pinckney.

His Son,

Hon. Henry L. Pinckney.

"A life of Charles Pinckney was prepared and in the possession of the

Hon. Henry L. Pinckney for revision and addition; with it were his

valuable papers. The fire of 1861, which desolated the city of

Charleston, destroyed almost everything, and this, and the former essay,

are compiled from many stray notes, mutilated manuscripts and a few

papers, still in our possession.

"A very strange and melancholy feeling overtakes us as we search the

remains of Charles Pinckney. Here is a man upon whom Heaven appears to

have showered its gifts. Distinguished in ancestry, possessing fine

intellect, vigorous health, and large fortune, with his political

ambition fully gratified, of refined tastes and cultivation, linking his

name successfully and eminently, with his day and his race, and yet,

here are his memorials in a few tattered bits of paper, scarcely

decipherable. His ashes are in the family burying ground. The spot is

known. No stone, however, marks his final resting-place. His house in

Charleston years ago, passed into the hands of the stranger, and has

been torn down. The very earth has been removed, and now forms one of

the fortifications of White Point Battery, erected during the late war

for the defense of the city of Charleston. The library is broken and

scattered. The picture of Lady Hamilton, and his own portrait, are the

only two that we know of that remain of his once splendid gallery. The

beautiful grounds of "FEE FARM" have disappeared, and the plough runs

its furrows through the grove, and the grave-yard.". DeBow's Review,

April 2, 1866.

APPENDIX

MR. CHARLES PINCKNEY'S DRAUGHT OF A FEDERAL GOVERNMENT

We the people of the States of New Hampshire Massachusetts Rhode Island

& Providence Plantations--Connecticut New York New Jersey Pennsylvania

Delaware Maryland Virginia North Caroline South Carolina & Georgia do

ordain declare & establish the following Constitution for the Government

of Ourselves and Posterity.

Article 1:

The Stile of This Government shall be The United States of America & The

Government shall consist of supreme legislative Executive and judicial

Powers--

2

The Legislative Power shall be vested in a Congress To consist of Two

separate Houses--One to be called The House of Delegates & the other the

Senate who shall meet on the * * * day of * * * in every Year

3

The members of the House of Delegates shall be chosen every * * * Year

by the people of the several States & the qualification of the electors

shall be the same as those of the Electors in the several States for

their legislatures--each member shall have been a citizen of the United

States for * * * Years--shall be of * * * Years of age & a resident of

the State he is chosen for--until a census of the people shall be taken

in the manner herein after mentioned the House of Delegates shall

consist of * * * to be chosen from the different states in the following

proportions--for New Hampshire. * * * for Massachusetts * * * for Rhode

Island * * *. for Connecticut. * * * for New York * * * for New Jersey,

* * * for Pennsylvania. * * * for Delaware * * * for Maryld * * * for

Virginie. * * * for North Caroline * * * for South Carolina----. for

Georgia----. & the Legislature shall hereafter regulate the number of

delegates by the number of inhabitants according to the Provisions

hereinafter made, at the rate of one for every * * * thousand----all

money bills of every kind shall originate in the house of Delegates &

shall not be altered by the Senate--The House of Delegates shall

exclusively possess the power of impeachment & shall choose its own

Officers & Vacancies therein shall be supplied by the Executive

authority of the State in the representation from which they shall

happen--

4

The Senate shall be elected & chosen by the House of Delegates which

House immediately after their meeting shall choose by ballot * * *

Senators from among the Citizens & residents of New Hampshire. * * *

from among those of Massachusetts. * * * from among those of Rhode

Island. * * * from among those of Connecticut. * * * from among those of

New York. * * * from among those of New Jersey * * * from among those of

Pennsylvanie * * * from among those of Delaware-- * * * from among those

of Maryland, * * * from among those of Virginia * * * from among those

of North Caroline * * * from among those of South Caroline & * * * from

among those of Georgia--

The Senators chosen from New Hampshire Massachusetts Rhode Island &

Connecticut shall form one class--those from New York New Jersey

Pennsylvanie & Delaware one class--& those from Maryland Virginie North

Caroline South Caroline & Georgia one class--

The House of Delegates shall number these Classes one two three & fix

the times of their service by Lot--the first Class shall serve for * * *

Years--the second for * * * Years & the third for * * * Years--as their

Times of service expire the House of Delegates shall fill them up by

Elections for * * * Years & they shall fill all Vacancies that arise

from death or resignation for the Time of service remaining of the

members so dying or resigning--

Each Senator shall be * * * years of age at leest--shall have been a

Citizen of the United States at 4 Years before his Election & shall be a

resident of the state he is chosen from--

The Senate shall choose its own Officers

5

Each State shall prescribe the time & manner of holding Elections by the

People for the house of Delegates & the House of Delegates shall be the

judges of the Elections returns & Qualifications of their members.

In each house a Majority shall constitute a Quorum to do

business--Freedom of Speech & Debate in the legislature shall not be

impeached or Questioned in any place out of it & the Members of both

Houses shall in all cases except for Treason Felony or breach of the

Peace be free from arrest during their attendance at Congress & in going

to & returning from it--both houses shall keep journals of their

Proceedings & publish them except on secret occasions & the yeas and

nays may be entered thereon at the desire of one * * * of the members

present.

Neither house without the consent of the other shall adjourn for more

than * * * days nor to any Place but where they are sitting.

The members of each house shall not be eligible to or capable of holding

any office under the Union during the time for which they have been

respectively elected nor the members of the Senate for one Year after--

The members of each house shall be paid for their services by the

State's which they represent--

Every bill which shall have passed the Legislature shall be presented to

the President of the United States for his revision--if he approves it

he shall sign it--but if he does not approve it he shall return it with

his objections to the house it originated in, which house if two thirds

of the members present, notwithstanding the Presidents objections agree

to pass it, shall send it to the other house with the Presidents

Objections, where if two thirds of the members present also agree to

pass it, the same shall become a law--& all bills sent to the President

& not returned by him within * * * days shall be laws unless the

Legislature by their adjournment prevent their return in which case they

shall not be laws.

6th

The Legislature of the United States shall have the power to lay &

collect Taxes, Duties, Imposts & Excises

The Mystery of the Pinckney Draught · 第 13 / 14 章