The Mystery of the Pinckney Draught

by Charles C. Nott

We find that the Observations are as silent as the draught in the State Department. They are not more silent however. If the Observations said nothing and were absolutely silent on the subject of the President, it might be a casual oversight of the writer. But the Observations agree with article VIII; both recognize the Executive as vested in one person; both limit his term of office, the one to seven, the other to ---- years; both expressly declare that he shall be re-eligible; both are silent as to the means by which he shall be chosen. The Observations here are little more than a paraphrase of article VIII. Madison regarded the omission to provide for so vitally important a thing as the choosing of the President as "remarkable"; but the more remarkable the omission, the more significant the coincidence.

The explanation of Pinckney's conduct and of the contradictions between his statements in the Observations and the facts appearing on the records of the Convention, including in the term the Madison Journal and the Yates Minutes is, I think, the following:

The first business day of the Convention, probably, was the most impressive day of all its sittings. There were less than forty delegates present but among them were the most distinguished men of the country; Washington, Hamilton, Rufus King, David Brearly, both Robert and Gouverneur Morris, George Read, George Mason, George Wythe, John Rutledge, John Dickinson and Elbridge Gerry. A painful anxiety existed concerning everything which lay before them—the method of procedure, the specific subjects to be considered, the prejudices of the different States, the views and plans and projects of the different members. Randolph, as heretofore has been said, opened the great business which was to result either in the formation of a National government or in the dissolution of the feeble Confederation which existed, by the presentation of the abstract propositions which the delegates from Virginia had formulated for the consideration of the Convention, and by a masterly address in which he set forth the perils of the hour and the difficulties to be overcome. When he concluded his solemn and philosophical exposition of the impending problems the Convention adjourned as well it might.

Pinckney must have been impressed by this. He had studied the field long and intelligently; but there were now waters before him which were beyond his depth—difficulties which he had not considered; prejudices and jealousies for which he had formulated no compromise. It was not the time for the man believed to be the youngest member to harangue the Convention on his scheme for a new government.

Pinckney unquestionably had prepared a written speech in his study in Charleston. It was his strategic purpose to deliver the speech at the opening of the Convention and draw forth expressions of opinion concerning his scheme for a National government, after which he would modify his plan and when modified to suit himself or to suit a majority of the members, he would present it. But when the time came to speak he saw that the Convention was in no humor to listen to an oration about his plan, and that the business before them would be the consideration and discussion of abstract propositions one by one as set forth in the Virginia resolutions, and that no plan would be considered until the delegates should learn by intelligent discussion what they wanted to formulate. He therefore wisely reversed his strategy, withholding the speech but presenting the draught, thereby placing himself on the record and establishing what in patent law would be called priority of invention.

After the great work was done and the Constitution had gone forth to the world Pinckney knew that his draught was buried in the secrecy of the proceedings. He too, like many another effusive young man, may have thought his speech too good to be lost. Certainly he could not resist the temptation of revealing what he had written and of recording the great part he had played among the eminent actors in the Convention. He avoided violating the pledge of secrecy by revealing no act or proceeding of the Convention, not even that his plan had been presented and referred. And it is fair to say that while he acted like a boy, he also gave out the full record in a manly way. The absurdities in his draught, as some of his provisions must have seemed to many intelligent men, were set forth; the provisions which failed were set forth; the propositions which he himself had abandoned and opposed were set forth. There was no tampering with the record. There are passages in some of his imperfectly reported speeches in the Convention which bear some resemblance to his discursive rhetorical flights in the Observations, and these he may have thought justified the title with which he prefaced the publication. The two lines on the title page, "Delivered at different Times in the course of their Discussions," are in very small type and appear much as if they had been crowded into a printer's proof—as if they had been an afterthought. But however that may be one thing is certain, that the speech setting forth the contents of his plan was never made in the Convention.

The Observations sustain the draught in the State Department in matters of substance, but not in order and arrangement. The Observations also allude to provisions which are not in the draught in the State Department, provisions which may or may not have been in the draught which was presented to the Convention; and these I shall subsequently examine. As to the variance in order and arrangement there are two things which should be considered: First: as a matter of antiquarian research it would be interesting and satisfactory to ascertain that the one draught was a facsimile or exact duplicate of the other; but where the purpose of the inquiry (as in this case) is to ascertain what contributions the draught of Pinckney made to the Constitution of the United States, it is wholly immaterial whether one provision followed another or preceded it, or was far removed from it. The second thing to be remembered is that the draught of the Committee of Detail, so far as it agrees in order and arrangement with the draught in the State Department furnishes us with presumptive evidence of the order and arrangement in the draught which was presented to the Convention. A comparison of the two will show that the variances are so trivial that they are not worthy of further consideration.

As we have seen (chapter VI) Madison did not cite the Observations in the "Note of Mr. Madison to the plan of Charles Pinckney," but did prepare a footnote for the Note to be appended to and published with it by his future editor who he then believed would be Mrs. Madison. Why he did not cite or set forth in his own Note the "striking discrepancies" set forth in the footnote, but planned and arranged that they should be brought before the public by his editor has seemed inexplicable hitherto. The reason is now plain—he did not wish to assume the responsibility of citing the pamphlet of Pinckney because he knew that it consisted of a speech which was never made.

Madison cited the Observations and the eighth article and the fifth article of Pinckney's draught to secure its condemnation; but of each he might say as Balak the son of Zippor said to the prophet of old, "I took thee to curse mine enemies and behold thou hast blessed them!" He hunted for the Observations; he found them; he brought them to the knowledge of men, he appealed to them, he made them an authority by which Pinckney should be judged out of his own mouth; and lo! they furnish the strongest confirmation of the verity of the draught which he attacked.

The Observations seem to have been a fateful thing, fatal to whichever party relied upon them. Madison exhumed them and believed that they would destroy the pretensions of Pinckney and vindicate himself—and they have but demonstrated the superficiality of his own investigation and the baselessness of his deductions. Pinckney fearing that the part which he had played in the Convention would never be known, that his great contribution to the Constitution might never receive so much as the notice of men, impelled by his boyish egoism and by what Madison called with reference to another contemporaneous publication, "his appetite for expected praise," improperly laid them before the world—and they have done more than any other one thing to smirch his good name and bury in oblivion the great work of his life.