Like many another young lawyer I came upon Pinckney's draught in Elliot's Debates and was astounded by finding so large a part of the Constitution apparently written by the hand of a man whom I had never heard extolled as a framer of the Constitution; and like many another young lawyer, I accepted the reasons of Madison and the silence of Story as conclusive. But the discovery and publication of Pinckney's letter in 1895 threw new light upon the subject and made it plain that Madison's objections should not be taken as final and that his premises needed corroboration. I therefore prepared the following inquiries in the hope that I could persuade some historical scholar to take up this work of Constitutional investigation.
1. Does the draught in the State Department upon its face appear to be an author's draught—a, "rough draught," as Pinckney called it—with his corrections, erasures, interlineations and alterations or does it appear to be a duplicate or a fair copy of an original or "rough" draught? It is in the handwriting of Pinckney; does it appear to be his original piece of work, or an engrossed copy made by him of another paper?
2. If upon the face of the instrument it appears to be an engrossed copy, though in Pinckney's handwriting, that is a copy of the rough draught with its alterations and corrections engrossed therein, then the historical critic must proceed to try the issue of Pinckney's truthfulness. He tells the Secretary of State at the time when he produces the paper that "it is impossible for me now to say which of the 4 or 5 draughts I have is the one. But enclosed I send you the one I believe was it. I repeat, however, that they are substantially the same, differing only in form and unessentials." If this language be taken literally it means that he is about to place in the archives of the Department of State one of those "original" "4 or 5 draughts" and as he believes the very one of which he prepared an engrossed copy for the use of the Convention. If the language be not taken literally, it at least means that he sends a true copy of one of the original rough draughts. Is there anything in the draught to refute either representation? Does it contain words, phrases, clauses, provisions which certainly did originate in the Convention; which were ground out there, and which could not possibly have been anticipated by Pinckney as he sat in his study early in 1787 making draught after draught for the consideration of the coming Convention?
3. Finally, it will be apparent on reflection that even if all of the foregoing issues should be decided against Pinckney; that is to say, if it should be found that the paper in the State Department is not an original draught—is not one of the four or five draughts to which Pinckney alludes, or that it contains interlineations of which Pinckney could not have been the author, even then after deciding all doubtful points against him a great deal will remain which must have been his; and historical criticism and careful analysis will be able to measure this residuum and give us a fair estimate of its value, so that we can know with tolerable certainty how much of the Constitution was the work of Pinckney.
As I have not been able to persuade any competent scholar to take up this inquiry which seems to me to be an inquiry due to the truthfulness of our Constitutional history and to the memory of a framer of the Constitution whose work was not questioned until after his death, I have felt that the work has become a duty and that the duty has been imposed on me.
CHAPTER II
THE DRAUGHT IN THE STATE DEPARTMENT
The Pinckney draught in the Department of State is written on unruled paper larger than common foolscap, hand made, and with untrimmed edges. The interlineations are few and trivial and clerical, the insertion of an omitted word and the like. There are two exceptions to this. In article 3 the draught says, "The House of Delegates shall consist of ---- to be chosen from the different States in the following proportions: For New Hampshire —— for Massachusetts ——" etc., etc. But the names of the States are not set forth in the body of the instrument as they stand in all editions, being written on the margin and the place where they should have been inserted being noted by a mark.