The Mystery of the Pinckney Draught

by Charles C. Nott

The preamble to the Constitution of the United States was suggested by the Articles of Confederation and the constitutions of eleven of the thirteen States. Its language was taken by Pinckney or by Wilson, or by both, from the Constitution of Massachusetts by much condensing. Wilson's draught is identical in terms with Pinckney's save for the insertion of a single word, "our," in the last line; "for the government of ourselves and our posterity."

This word "our" is here a word of limitation, a word which taken literally would confine the blessings and government of the Constitution to the men who made it and their posterity. But at the time when these early constitutions were framed the growth of the country it was foreseen would depend chiefly on immigration. The Constitution of Massachusetts does not use the word "citizen," and throws the door of the elective franchise open to "every male person" "resident in any particular town" and to "the inhabitants of each town." "And to remove all doubts concerning the meaning of the word 'inhabitant' in this constitution, every person shall be considered as an inhabitant, for the purpose of electing and being elected into any office or place within the State in that town, district or plantation where he dwelleth or has his home." The draughtsmen of the Massachusetts Constitution therefore with logical exactitude, left the word "posterity" unrestricted, and broad enough to extend to the posterity of all men who thereafter might become inhabitants within the State.

Two things must now be noted. The first is that every word in Pinckney's preamble, save one, was taken from the preamble of the constitution of Massachusetts; the second, that Pinckney's draught adheres to the unrestricted "posterity" of the constitution, and does not follow the restricted "posterity" of the Wilson draught. The charge that Pinckney's preamble was "necessarily" derived from the Committee's draught is therefore doubly refuted. There was a source to which Pinckney could go for his preamble, the constitution of Massachusetts, and he went there; there was a deviation from the constitution of Massachusetts in the Wilson draught, and Pinckney did not follow it.

Wilson probably inserted the word "our," in his preamble for a rhetorical reason; for he was one of the signers of an instrument which rang with its own concluding words "our lives, our fortunes and our sacred honor."

The insertion of one word (our) in one of these preambles is a slender strand of circumstantial evidence. But circumstantial evidence is made up generally of slender strands; and circumstantial evidence is least suspicious when the strands are severally insignificant. With the Declaration of Independence and the Articles of Confederation and eleven of the State constitutions containing preambles, it is inconceivable that Pinckney would have framed his draught without a preamble; and if Pinckney framed the preamble, as he must have done, it is inconceivable that he would have thrown it aside in 1818 and substituted another man's, for he was never ashamed of his own work. And it must be taken as a fixed fact that Pinckney had a preamble, for the structure of the draught required it; the first article would be meaningless without one, "The stile of this government"—the government announced in the preamble. Therefore having the necessity of a preamble, and the production of one in 1818, and the strict adherence in words and intent to the constitution of Massachusetts and Pinckney's familiarity with that constitution, the severally slender strands become a cord of circumstantial evidence which must satisfy an unprejudiced mind that Pinckney was the author of the preamble in his draught. There are too many clews here to be disregarded, and they all lead one way. The unquestionable sketches of a preamble in Wilson's and Randolph's handwriting show only three attempts and three failures.

Let us now consider a second illustrative case:

As we have seen in a previous chapter (Chap. XI) the 3d of the 23 resolutions declared that the members of the House of Representatives "ought" to receive an adequate compensation for their services; and the 4th resolution, that the members of the Senate "ought" "to receive a compensation for the devotion of their time to the public service." The term "adequate" implied and required the exercise of some discretionary power, which must necessarily be national. For if Senators and Representatives were to be paid by the States which sent them to Congress, the members of Congress could not well turn around and dictate to the States what they should be paid. This was understood at the time. For on the 22d and 26th of June when the Convention refused to retain the words "to be paid out of the National Treasury" in the 3d resolution, "Massachusetts concurred" as Madison says, "not because they thought the State Treasury ought to be substituted; but because they thought nothing should be said on the subject, in which case it wd. silently devolve on the Nat. Treasury to support the National Legislature."

Furthermore this thing was not done in a corner and the consideration of it was not confined to an hour. On the 12th of June the Committee of the Whole had resolved that the Representatives in Congress "ought to be paid out of the National Treasury," and again on the same day that Senators "ought" "to be paid out of the National Treasury"; and on the 13th of June the committee had voted to report these resolutions to the Convention; and on the 22d of June the Convention had refused to change this to payment by the States. Moreover the proposition that members be paid by the States had been condemned by the strongest men in the Convention. "Those who pay are the masters of those who are paid," Hamilton had said; and Gorham, Randolph, King, Wilson, and Madison had said as much.

Nevertheless the Committee of Detail reported a provision that the members should be paid by the States; and, not only this, but also, that the compensation should be "ascertained" "by the State in which they shall be chosen."

The only reason for or explanation of the Committee's act so far as we know is that working hurriedly, they overlooked one of the details of the 3d and 4th resolution, and, using Pinckney's draught as their copy, inadvertently allowed this provision of his to stand unchanged.