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