The Mystery of the Pinckney Draught

by Charles C. Nott

The reason why the Pinckney draught has received so little attention, and he has received no credit at all for what apparently is an extraordinary piece of constitutional work can be readily explained.

The statement of Madison is written in temperate and guarded terms; and it is manifest that he was careful to speak with courtesy of Pinckney and to furnish an explanation in the nature of a bridge over which the friends of Pinckney, then deceased, might retreat. But what he does say instantly brings the reader's mind to the conclusion that the paper in the State Department is not the paper—that it is not a substantial copy of the paper, which was before the Convention. Story had been appointed by Madison and it was not for Story to accept what Madison rejected; and Story was so great a man, so great a judge and commentator, that it was not for lesser men to reverse him. Madison's comment and Story's silence have united to condemn the draught so effectively that while printed and reprinted it has been as unnoted as if it had never been written. The final, judicial edict of George Bancroft expressed the general judgment when he wrote of the original draught which was actually before the Convention, "No part of it was used, and no copy of it has been preserved."

Moreover Madison is too great an authority to be lightly questioned, the highest authority that exists concerning the proceedings of the Convention; and he asserts and undertakes to demonstrate that the one paper can not be a true copy of the other. He designates provisions which he says originated in the Convention and could not have been predetermined by Pinckney; and still more conclusively, as he thinks, he points to the fact that the paper in the Department contains provisions to which Pinckney was himself opposed, provisions against which he spoke and voted in the Convention. Here Madison builds his bridge. Mr. Pinckney, he suggests, furnished this copy many years after the event (nearly 32 years), after he had become an old man and the record of events had faded in his memory; and probably as the work of the Convention went on he had used a copy of his draught as a memorandum and had interlined in it provisions which the Convention framed; and when he sent the copy to the Secretary of State he had forgotten this, or had gradually come to regard the interlined matter as his own. A writer like Story with the training of a lawyer and a judge on finding the authenticity of the copy impeached in part would be almost certain to exclude it wholly from the consideration of the jury. Historical analysis and research may, nevertheless, render that clear which is obscure and show us where the work of Pinckney begins and ends.

There are some extrinsic facts which hitherto unknown should be noted.

In the first place this letter of Pinckney anticipates one of Madison's criticisms and explains away his strongest point.

"It may be necessary to remark," he says, "that very soon after the Convention met I changed and avowed candidly the change of my opinion on giving the power to Congress to revise the State laws in certain cases, and in giving the exclusive power to the Senate to declare war, thinking it safest to refuse the first altogether and to vest the latter in Congress." Hunt's Madison, III, p. 22.

As to one of these things concerning which Pinckney says he changed his mind after the Convention met, the power of Congress to revise the laws of the States, the assertion is not sustained by Madison's record of the proceedings. He undoubtedly did change his mind but not until after the adjournment of the Convention. There was however another provision in his draught to which his assertion would apply. Concerning it he did change his mind and "avowed candidly the change of his opinion" and did so "very soon after the Convention met." This is the provision which declares that members of the lower house shall be chosen by the people of the several States. Article 3. As early as the 6th of June he proposed that they should be chosen by the legislatures of the several States. Writing 32 years after the event and when the record had faded in his memory, the two things, to use Madison's words, "were not separated by his recollection."

The letter is a contemporaneous declaration, given at the moment when he produced the document and placed it on file in the Department of State, that the copy, like the original, contained provisions which he opposed in the Convention. With this contemporaneous notice to the Secretary of State one of Madison's objections which at first seemed insuperable, if it does not fall to the ground, at least becomes susceptible of explanation; and the retention in the copy of the draught of these apparently inconsistent things, accompanied at the time, as they were, by Pinckney's declaration, not only removes the objection of Madison but tells strongly in favor of the draught being what Pinckney represented it to be.

In the second place Pinckney speaks of having "several rough draughts of the Constitution" ("4 or 5 draughts" he says) and he adds "that they are all substantially the same, differing only in words and the arrangement of the articles." Pinckney had preserved them certainly until the end of the year 1818, and "numerous notes and papers which he had retained relating to the Federal Convention." He also says that "with the aid of the journal of the Convention and the numerous notes and memorandums I have preserved, it would now be in my power to give a view of the almost insuperable difficulties the Convention had to encounter, and of the conflicting opinions of the members; and I believe I should have attempted it had I not always understood Mr. Madison intended it. He alone possessed and retained more numerous and particular notes of their proceedings than myself." These "numerous notes and memorandums, more numerous and particular" than those preserved by any other person, Madison "alone" excepted, and with them the "several rough draughts," which he found with the other papers on his return to Charleston in 1818, existed when Pinckney wrote his letter and placed his copy of the draught in the State Department. They existed both to refresh his memory and to refute him if he was not acting in good faith. He acknowledged Madison to be his superior in "notes and memorandums" and a particular knowledge of the proceedings of the Convention; and Madison was still living, and Pinckney by placing his copy of the draught in the State Department invited Madison and all the world to examine it. That was the time when Madison should have spoken. It is most unfortunate that he waited fourteen years, and until after Pinckney's death and the death of every other member of the Convention, before he spoke.