The Mystery of the Pinckney Draught

by Charles C. Nott

Furthermore the title to the speech contains a significant error in saying that the plan of government was submitted to the Convention "on the 28th of May"; for the first days of the Convention were not days to be quickly forgotten.

The day fixed for the meeting of the delegates in Convention was Monday, May 14th 1787. Washington, notwithstanding his painful illness during the winter and the expected death of his mother was among the first who arrived in Philadelphia. On the 27th of April he had written to Knox, "Though so much afflicted with a Rheumatick complaint (of which I have not been entirely free for Six months) as to be under the necessity of carrying my arm in a Sling for the last ten days, I had fixed on Monday next for my departure, and had made every necessary arrangement for the purpose when (within this hour) I am called by an express, who assures me not a moment is to be lost, to see a mother and only sister (who are supposed to be in the agonies of Death) expire; and I am hastening to obey this Melancholy call, after having just buried a Brother who was the intimate companion of my youth, and the friend of my ripened age. This journey of mine then, 100 miles, in the disordered frame of my body, will, I am persuaded, unfit me for the intended trip to Philadelphia."

But Washington, though he knew it not, was then approaching the verge of his third cycle of illustrious service rendered to his country—"the country he assembled out of chaos."

Madison writing to Jefferson, then in Paris, on Tuesday, the 15th of May, happily recorded the fact that Washington, true to his life record, was on the ground when he should have been: "Monday last was the day for the meeting of the Convention. The number as yet assembled is but small. Among the few is General Washington who arrived on Sunday evening, amidst the acclamations of the people, as well as more sober marks of the affection and veneration which continue to be felt for his character."

But a quorum of lesser men did not appear until Friday May 25th. On that day nine States were represented by twenty-nine delegates among whom was Charles Pinckney on whose motion a committee was appointed, of which he was one, to prepare standing rules and orders. The only other business was the election of Washington as President and Major William Jackson as Secretary. On Monday May 28th the Convention next met when "Mr. Wythe, from the committee for preparing rules made a report which, employed the deliberations of this day." Tuesday May 29th was the great day when Randolph "opened the main business" and presented the Virginia resolutions, and Pinckney "laid before, the House the draught of a Federal Government." These were not days to be easily confounded. But between the presentation of the draught to the Convention and the writing of the title for the printer in New York four months had elapsed crowded with labor and excitement, and Pinckney had forgotten the date of the most eventful day of his life. The error of this date means a great deal.

In his letter to the Secretary of State covering the draught in the Department, Pinckney says that he has then four or five draughts of the Constitution in his possession. It is certain that the draught in the Department conforms much more closely to the draught which he presented to the Convention than to the draught which he describes in the Observations. If we consider the facts established (as we must) that the Observations were written before the assembling of the Convention, that they were written many months before their publication, that they were not examined or revised when they were published, it is easily within the range of possibilities, if not of probabilities, that the draught which formed the "text of the discourse" was one of the four or five which Pinckney had drawn at various times and was not the one which he finally submitted to the Convention.

If the Observations were what they pretend to be the text of a real speech actually spoken at the time when Pinckney was about to present his draught to the Convention they would be very good secondary evidence of the contents of the paper which he held in his hand and which he then and there presented, and thereby parted company with. But a speech which was never spoken to suppositional auditors who never heard it, is not a public declaration of the contents of another paper. The Observations are not a speech because they are cast in the form of a speech. They are simply a paper which may have been written in Charleston before the assembling of the Convention, or (possibly) in New York after the Convention had been dissolved, and whenever written Pinckney may have had before him another of the four or five constitutions which he had draughted. With the uncovering of the fact that this paper was not contemporaneous, and that it did not necessarily refer to the particular copy of the draught which Pinckney presented to the Convention on the 29th of May, the supposed value of the Observations as evidence to impeach the integrity of the draught in the State Department is blown to pieces.

If this were a suit between Madison and Pinckney it might be held that Pinckney would be estopped from questioning the veracity of the paper which he wrote and made public, or the actuality of the facts which it sets forth. But an estoppel which in the words of Coke, "concludeth a man to alleage the truth" does not extend to the student of Constitutional history. He is not a party to that record and is at liberty to use it for what it may be worth against Pinckney or for Pinckney, to overthrow the draught or to substantiate the draught—to use it in any way which will tend to clear the situation from error, and authenticate the true history of the Constitution.

Madison in his "Note to the Plan" regarded article VIII as "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." The plain unquestionable purpose of Madison when so writing was to impress upon the American mind the improbability, the almost impossibility, of Pinckney's having neglected to provide for the election of the President while actually establishing the office and defining the functions of the officer; and hence that the paper which is so remarkable for the omission cannot be a true copy of the one presented to the Convention; and the inevitable inference from this is that the real draught, the one presented to the Convention on the 29th of May contained and must have contained, and could not have overlooked the needed provision declaring how the President should be chosen.

The choosing of the President by means of electoral colleges in which each State should have a proportionate power equal to its total representation in the two houses of Congress was one of the notable compromises between the large and small States; and what Madison says must excite the curiosity of the Constitutional student to know in what manner Pinckney provided in his draught for the choosing of the President and whether he attempted a compromise. The original draught is lost; but here Madison appears with the Observations which he fortunately saw in 1787 and which he fortunately remembered in 1831 and which, remembering, he brought to light and made an authority; and these Observations, according to Madison, presumptively set forth what the original draught contained so fully and accurately that upon the faith of them we can and must reject the copy of the draught which Pinckney produced and placed in the State Department. Therefore we may turn to the Observations with unusual interest to ascertain whether Pinckney provided, and in what manner he provided, for the choosing of the President.