The Mystery of the Pinckney Draught

by Charles C. Nott

In 1777 the punishment of treason had been a delicate subject in the United States more likely to be avoided than discussed. In 1787 the members of the Convention had not forgotten that within a dozen years they had had a personal interest in that subject. Pinckney in article 6 had given Congress twenty-two specific unrestricted powers but when he came to the power to declare the punishment of treason he paused and defined what treason should consist in and provided that no person should be convicted of the restricted crime but by the testimony of two witnesses. He threw all this into a distinct paragraph which ultimately, with additional restrictions, became section 2 of article VII of the Committee's draught. But neither the paragraph of Pinckney nor the section of the Committee is in the draught of Wilson.

Wilson did not overlook the subject, "The Legislature of the United States shall have the power," his draught says, "to declare what shall be treason against the United States," and, having attached no restriction to the power, he properly placed it among the specified powers immediately after the one "To declare the law and punishment of piracies and felonies committed on the high seas and the punishment of counterfeiting the coin of the United States, and of offences against the law of nations."

But Rutledge did not consent to this. He and Pinckney seem to have vaguely feared that the law of treason might yet be administered in the United States by George III and he scrawled with his ruthless hand on the margin of Wilson's carefully written page, "Not to work corruption of Blood or Forfeit except during the life of the party"; and Wilson thereupon erased his own provision and struck it out from among the specific, unrestricted powers.

Here the significant fact to be noted is that the words written on the margin of Wilson's draught were not taken from Pinckney's. That is to say the restrictions proposed by Rutledge were additional to those set forth by Pinckney. What Pinckney wrote and what Rutledge wrote and nothing more make the second section of the Committee's draught compounded and rearranged. The material was supplied by Pinckney and Rutledge; the reconstruction, judging by the careful and logical way the work was done was by Wilson: 1 the definition of the crime; 2 the power to punish the crime defined; 3 the restriction upon judicial proceedings, on the testimony of two witnesses; 4 the restriction upon the result of conviction, that it should not work corruption of blood, or forfeiture except during the life of the person attainted. It is also to be noted that no draught of this section 2 has been found. For reasons subsequently to be stated (chap. XII) it must be inferred that it was framed on the margin of the Pinckney draught.

In article 8 of Wilson's draught immediately following his treason clause is this provision:

"To regulate the discipline of the militia of the several States."

In article 6 of Pinckney's draught the same power is given:

"To pass laws for arming organizing and disciplining the militia of the United States."

This grant of power to arm organize and discipline meant that control of State troops should be taken from the States and lodged in the general government. It was a radical departure from what had been; a change not countenanced by the Articles of Confederation and not authorized by the 23 resolutions. During the debates no member of the Convention had so much as suggested it; and on the 26th of July when the Convention adjourned to enable the Committee of Detail to draught a constitution, Pinckney alone had ventured to formulate a provision which might alarm the States and arouse the anger and opposition of the militia. He had done so; that we know; it is incontrovertible, for it is specifically described in the Observations "the exclusive right of establishing regulations for the government of the militia of the United States ought certainly to be vested in the Federal Government."

Yet the Committee of Detail did not think so and they did not report such a provision. Here again it is possible that Wilson took his provision from Pinckney's draught, but it is not possible that Pinckney took his from Wilson's.