The Mystery of the Pinckney Draught

by Charles C. Nott

"Wednesday, June 6, 1787
"Mr. Gorham in the Chair.

"It was moved by Mr. Pinckney, seconded by Mr. Rutledge to strike the word 'people' out of the 4th resolution submitted by Mr. Randolph, and to insert in its place the word

'Legislatures' so as to read 'resolved that the Members of the first branch of the national legislature ought to be elected by the Legislatures of the several States'

"and on the question to strike out "it passed in the negative.""

If Pinckney's article 3 had really provided that members of the first house should be chosen by the legislatures of the several States, certainly his article 5 would not have provided that "each State shall prescribe the time and manner of holding elections by the people." Article 3 laid down the basic principle that representatives were to be chosen by the people, and article 5 provided for the time and manner when and whereby the people should elect their representatives; and article 4 provided that Senators should be chosen, not by the people or the legislatures of the several States, but by the House of Delegates. In all these provisions we again see that the draught in the State Department is consistent with itself.

It is possible that the person who gave the "copied draught" to Mr. Read was Pinckney himself; and it is probable that by the 20th of May he had changed his mind concerning the election of delegates by the people and had determined to make his draught conform to the views of his fellow delegates from South Carolina. We know, as will hereafter appear, that he contemplated making many amendments to his draught before presenting it to the Convention; and that he hastily and prematurely presented it on the 29th of May so that it should go with the Virginia resolutions to the Committee of the Whole. The change we are considering may not have been made in the written instrument which he laid upon the Secretary's desk, though he made the change in his own mind. But be that as it may, it is as certain as existing knowledge goes that no man saw the original draught with the words "by the people" twice stricken out and the words "by the legislatures of the several States" twice written in; and until this change in the original draught is shown by positive testimony, unequivocal in terms and above suspicion in character, the circumstantial evidence that the draught went to the Convention with the words "the people" in the 3d and 5th articles is overwhelming.

There are some other things specified in the Note not of great importance, but which serve to show how eagerly Madison clutched at anything that would operate as a makeweight against Pinckney and his draught.

Article VIII "is remarkable also for the circumstance that whilst it specifies the functions of the President, no provision is contained in the paper for the election of such an officer." This is not a complete statement of the case. The article declares that "the executive power" shall be vested in a President and that "he shall be elected for —— years." The provisions relating to the President were on their face incomplete. There are virtually two blanks left in the provision, the one relating to the length of the President's term of office, the other to the manner in which he should be chosen. The 12th resolution filled these blanks for a time by saying "seven years" for the one and by "the National legislature" for the other. Here were "results" arrived at in the Convention. That Pinckney did not fill these blanks in the Department copy—blanks so obvious and so easily filled—goes a great way to show that he did not in any place complete his draught by writing into it "results" arrived at in the Convention. It is a strained, artificial conclusion which calls an omission "remarkable" when the instrument is avowedly nothing but an incomplete, tentative draught prepared for the future consideration of its author as well as other persons.

Madison notes "variances" between the draught in the Department and the propositions and arguments of Pinckney in the Convention. "Thus in article VIII" he says, Pinckney provides for the impeachment of the President but on the 20th of July he was opposed to "any impeachability of the Executive." "He was sure they ought not to issue from the legislature who would in that case hold them as a rod over the Executive." But the draught says much more than Madison repeats. "He shall be removed from his office on impeachment by the House of Delegates and conviction in the Supreme Court." Pinckney did not oppose that in the Convention. Madison on his own record clearly had no right to say that Pinckney "was opposed to any impeachability of the Executive." He did not oppose such an impeachability as his draught provided for viz., by the Supreme Court, and his reasons quoted by Madison do not apply to the impeachability provided in his draught.

"In article III it is required that all money-bills shall originate in the first branch of the legislature; which he strenuously opposed on the 8th of August and again on the 11th." Here Madison overlooked the significance of these dates. They are subsequent to the report of the Committee of Detail by which report Pinckney's plan for the organization of the Senate had been rejected. Pinckney alluded to this on the 11th when he said, "The rule of representation in the first branch was the true condition to that in the second branch." Neither does it appear in Madison's Journal that he "strenuously opposed." On the 11th he "was sorry to oppose reopening the question," but "he considered it a mere waste of time." On the 8th his opposition had been couched in three lines, "If the Senate can be trusted with the many great powers proposed, it surely can be trusted with that of originating money-bills." Pinckney's real position in regard to this was clearly stated by himself and thus recorded by Madison on Wednesday, June 13th; "Mr. Pinckney thinks the question premature. If the Senate should be formed on the same proportional representation, as it stands at present, they should have equal power. Otherwise a different principle should be introduced." How did the Senate "stand at present," on June 13th. This is shown by the resolutions of the Committee of the Whole of the same day. "That the right of suffrage in the second branch of the national legislature ought to be according to the rule established for the first branch." Resolution 8. The Senate therefore was "at present," a very different representative body than the Senate of Pinckney's draught; and to say on these changed conditions and on the record of what he did say that he "strenuously opposed" the very thing which he had adopted in his draught is a wild use of terms.