The Mystery of the Pinckney Draught

by Charles C. Nott

But there is a letter of George Read which should be considered, for it suggests the question whether this change of Pinckney did not take place before the 29th of May; that is to say before he presented his draught to the Convention.

On the 20th of May 1787 Mr. Read wrote from Philadelphia to John Dickinson:

"I am in possession of a copied draught of a federal system intended to be proposed if something nearly similar shall not precede it. Some of its principal features are taken from the New York system of government. A house of delegates and senate for a general legislature, as to the great business of the Union. The first of them to be chosen by the legislature of each State, in proportion to its number of white inhabitants, and three-fifths of all others, fixing a number for sending each representative. The second, to-wit the senate, to be elected by the delegates so returned, either from themselves or the people at large, in four great districts, into which the United States are to be divided for the purpose of forming this senate from which, when so formed, is to be divided into four classes for the purpose of an annual rotation of a fourth of the members. A president having only executive powers for seven years." (Read's Life of George Read of Delaware p. 443.)

This letter is very far from being conclusive. In the first place it does not appear that Mr. Read had seen the original of this "copied draught" or that Pinckney had given him the copy or had told him what his plan was or that any person who had seen the original draught had told him what it contained. In the second place the existence of an unauthenticated copy on the 20th of May does not conclusively prove that a different version of the same draught was not presented to the Convention on the 29th of May. Still this letter undoubtedly refers to Pinckney's draught and compels a more searching examination of the question raised than would otherwise be necessary.

In a paper which will be called, briefly, "the Observations" written by Pinckney before he left Charleston he sets forth at length a description of his plan of government. In the opening paragraph of this paper he says that he will "give each article" of his draught "that either materially varies" from the present government "or is new." He then goes on to say that "the first important alteration is that of the principle of representation." "Representation is a sign of the reality. Upon this principle, however abused, the Parliament of Great Britain is formed, and it has been universally adopted by the States in the formation of their legislatures." This is all which Pinckney, writing before the Convention began its work, had to say concerning the lower house of Congress. His Senate was new and concerning it he had much more to say, and he described it. But of the lower house, the popular body, he had nothing to say save that there would be such a house, and that it would rest upon the principle of representation "universally adopted by the States in the formation of their legislatures." The Virginia resolutions undoubtedly expressed the opinion of substantially all Americans when they said, "Resolved that the members of the first branch of the national legislature ought to be elected by the people of the several States." Assuredly if the draught which Pinckney was then describing had contained the extraordinary and novel proposition that the popular branch of the national legislature, the body which should represent the people, was not to be chosen by the people he would have had something "new" to lay before the Convention—something which did not exist in the government of any English speaking people in the world—something which "materially varied" from the belief and usage and history and traditions of the people who were to ordain this Constitution. Knowing Pinckney as we do—his general views, his adherence to the general principles of the British constitution, his attentive study of State constitutions, his outspokenness, his belief in his own devices, we know that if his draught had then contained so radical a departure from all existing constitutions as that which he subsequently proposed in the Convention, and if he had worked himself into a belief at the time when he wrote the Observations that the election of their representatives by the people was "theoretical nonsense", he could not have refrained from saying so. What is said in the Observations harmonized with the constitutions of every State in the Confederation and with the Virginia resolutions and with the views of every member of the Convention excepting the five great land owners from South Carolina.

The Observations, therefore (written before the Convention and published afterwards), sustain the draught in the State Department.

The words "the people" appear directly and necessarily in article 3 of the draught: "The Members of the House of Delegates shall be chosen every —— year by the people of the several States; and the qualifications of the electors shall be the same as those of the electors in the several States for their Legislatures." They reappear casually and needlessly in article 5: "Each State shall prescribe the time and manner of holding elections by the people for the House of Delegates." The draught therefore in these provisions is consistent with itself.

In the draught of the Committee of Detail the words of Pinckney's article 3 again appear with some amplification, but in the same order with the same context and with the same intent. Such agreements come not by chance.

And if such agreements come not by chance, could Pinckney while he was copying the committee's draught for his own article 3 have written these two troublesome words "the people" without taking heed of their significance, without realizing what he was doing, without remembering that his own draught had said "the legislatures of the several States." He could not! For there is another provision in the draught in the State Department which was not taken from the committee's draught—which did not exist in the committee's draught—which must have been deliberately framed by Pinckney—the provision before quoted from article 5, "Each State shall prescribe the time and manner of holding elections by the people for the House of Delegates." That is to say if Pinckney unintentionally abstracted his article 3 from the committee's draught in 1818, he, nevertheless, must have fabricated designedly his article 5 at the same time; for there is nothing in the committee's draught to suggest it.

Then the question immediately arises, What motive could Pinckney have had for falsifying his draught and making this change from the election of delegates by State legislatures to their election by the people of the several States. The answer of the superficial of course will be, "So that the world should believe that he had always been in favor of the election of representatives by the people." No other reason can well be assigned; yet there could not have been such a motive. Pinckney knew that his draught was to be soon published and that with it would be published the official Journal of the Convention and that the publication would disclose to the world this record: