The Mystery of the Pinckney Draught

by Charles C. Nott

Let us take another illustrative case:

Luther Martin's resolution of July 17th provided, "The legislative acts of the United States" "and all treaties" "shall be the supreme law of the respective States." (The 7th of the 23 resolutions.) Article VIII. of the draught of the Committee of Detail varied the phraseology in one word "shall be the supreme law of the several States." The committee of Style gave us the provision as it stands in the Constitution: (Art. VI.) "This Constitution and the Laws of the United States which shall be made in pursuance thereof; and all treaties which shall be made under the Authority of the United States shall be the supreme law of the land."

Turning back from the Constitution to Pinckney's draught, avowedly drawn up before the work of the Convention had even begun, we find in his Article VI. "All acts made by the legislature of the United States pursuant to this Constitution, and all treaties made under the authority of the United States shall be the supreme law of the land."

This assuredly seems to be an instance which confirms Madison; that is to say an instance where as Madison said there are to be found in the draught in the State Department, "the results of critical discussion and modification in the Convention." Must we also add, with Madison "which could not have been anticipated"? Moreover if Pinckney obtained this provision by purloining it, he must have taken it from the Constitution itself. The language in his draught apparently involves and combines three distinct acts of the Convention; the adoption of the resolution of Martin on the 17th of July; the acceptance of the Committee's draught of the 6th of August; the revision by the Committee of Style, just before the dissolution of the Convention. This makes a dark charge against Pinckney—far darker and more specific than any charge that Madison preferred against him. At first sight it seems as if at last Pinckney was taken in the toils of his own weaving, as if there were no escape for him and that he must be convicted. But the simple explanation is that Pinckney took his provision and its verbiage from the Congress of the Confederated States in the resolution of March 21st 1787. Luther Martin did not adhere to the language of the resolution; and he did not intend to; for his resolution was a compromise, an alternate for a proposed power in Congress to negative the laws of the States, and he intended that his resolution should bear directly and explicitly upon "the respective States." The subject was one of great importance, of surpassing interest and had but recently been disposed of by compromise in the Convention, and the Committee properly adhered to Martin's resolution, correcting only one word by the substitution of another, "several" for "respective," "shall be the supreme law of the several States."

Pinckney had been a member of the Congress when the resolution of March 21st was passed; he may have draughted it himself; and certainly it covered a matter in which he was interested above all other things, the supremacy of the National Government. The Committee of Style may have taken the concluding phrase from the resolution of Congress or they may have placed it in the Constitution on their own motion; for Trevett v. Weeden had been heard and adjudicated by the Supreme Court of Rhode Island on September 25th, 26th, 1786, and the words "THE LAW OF THE LAND" were in the air; and the term had received a judicial significance which has never been adequately appreciated. It meant an authority higher than a statute.

There are three important articles in Wilson's draught which are not Wilson's. These appear on the margin in the handwriting of Rutledge and answer to article XIV, XV and XVI of the Committee's draught. As they are in almost the precise language of Pinckney's articles 12 and 13 the much repeated question again arises, did Rutledge take them from the Pinckney draught; were they then in the Pinckney draught to be taken; or did Pinckney abstract them from the Committee's draught? The question is easily and decisively answered: these articles are described in the Observations; Pinckney's title to them cannot be questioned; Wilson and Rutledge had his draught before them, and used it, when Rutledge wrote these articles upon the margin.

The veto power was cast by the Convention in their resolutions with those of the Executive. Pinckney had placed it in his draught among the legislative, though he is careful to say in the Observations that the Executive "is not a branch of the Legislature farther than as a part of the council of revision." Nevertheless he placed the veto at the end of his article 5—an article relating to the choosing of members of the lower house; to the privileges of Representatives and Senators; to the business proceedings of both houses. Wilson more clearly perceived that the American veto would lack the finality of the Le roy, avisera of the Crown, and that it would be neither a legislative nor an executive power though having the properties of both; and he properly made of the veto power an entire and independent article, article 7 of his draught. There were members of the Convention who regarded the veto power as a bulwark against the encroachments of the legislative power; and Wilson himself had said that, "the Executive ought to have an absolute negative"; that "without such a self-defence the Legislature can at any moment sink it into non-existence." Unquestionably the veto provision ought to have been placed in the Committee's draught as Wilson placed it in his own. But it was not. On the contrary it appears there as it appears in Pinckney's, as an incongruous paragraph at the end of an article which deals with the House of Representatives, with the business of both Houses and with the privileges of the members of each. The one thing certain here is absolutely certain—that the Committee in this did not follow Wilson's draught though it was correct and did follow some other draught though it was incorrect.

It is comprehensible that if the provision of the veto power had started wrong as it did in Pinckney's draught, it might have continued wrong, and its misplacement might have remained unnoticed; but it is incomprehensible how the error could have been known to at least the two leading members of the Committee and have been actually and plainly corrected by one of them and the provision then have relapsed into the condition in which Pinckney left it, unless the Committee found about the end say of the seventh day that they must forego either the completion of Wilson's carefully prepared work or their bringing into the convention printed copies for the use of members, and that they then determined to use Pinckney's draught as copy for the printer, letting Wilson work into it, so far as he could, the corrections that he had embodied in his own and the changes which the Committee had agreed upon. The incompleteness with which this was done shows very plainly that toward the end of the ten days the Committee worked in haste. There are too many errors in the draught which would be both inexcusable and inexplicable if the Committee had had ordinary time to do their extraordinary work.

There is a curious omission in Wilson's draught which indirectly brings to the light the composite authorship of one section of the Constitution.