The Mystery of the Pinckney Draught

by Charles C. Nott

The draught of Randolph discloses three important pieces of information which tend positively to sustain the Pinckney draught. The first is (in the words of Mr. Meigs) "that it was drawn up after the Convention had agreed upon the resolutions that were referred to the Committee of Detail on July 26th; and in numerous instances its language is modeled upon them with even verbal accuracy." (Growth of the Constitution, p. 318.) Manifestly this draught was not written—was not even begun, until after Randolph had become a member of the Committee. The writing of it, the revising of it, its numerous alterations and corrections, the submission of it to Rutledge, his examination of it and his changes and additions must have taken time. Almost every sentence in it is checked as if it had been compared with some other paper. In a word it indicates that some days must have passed after the 26th of July before Randolph and Rutledge could have written it, and revised it, and left it in its present form; and it witnesses the important fact that only five or six days before the finished draught of the Committee of Detail was put in the hands of the printer at least two members of the committee were no nearer completion of the work than this disheveled draught.

The great improbability against the Pinckney draught is that one man alone and unassisted should have prepared so much of the Constitution. But it is a hundred times more improbable that this Committee unassisted by Pinckney's draught should have prepared and completed their own with all its well selected details, with language carefully taken from many sources, and with provisions far in excess of their instructions, than that Pinckney should have completed his in his own time (making as he did, four or five versions of it), thoroughly versed, as he was, in the needs and weaknesses of the existing general government and the constitutions of the several States, and able to confer, as he did, with the ablest statesmen in the country.

The second thing which the Randolph draught does for us is important and most interesting. It enables us to ascertain the fact that the section of the Committee's draught which declares the jurisdiction of the Supreme Court (Art. XI, sec. 3), was the work of three persons; and the very words which each contributed.

The 16th resolution of the Convention was as follows:

"16. Resolved, That the jurisdiction of the national judiciary shall extend to cases arising under laws passed by the general legislature, and to such other questions as involve the national peace and harmony."

Randolph followed the resolution but enlarged the jurisdiction; and Rutledge added two provisions in marginal notes; and their proposed section was as follows:

"The jurisdiction of the supreme tribunal shall extent; 1, to all cases arising under laws passed by the general Legislature; 2, to impeachments of officers; and 3, to such cases as the national legislature shall assign, as involving the national peace and harmony; in the collection of the revenue; in disputes between citizens of different States (here Rutledge has added on the margin 'in disputes between a State and a citizen or citizens of other States'); in disputes between different States; and disputes in which subjects or citizens of other countries are concerned (here Rutledge has added 'in cases of admiralty jurisdiction'). But this supreme jurisdiction, shall be appellate only; except in cases of impeachment and in those instances, in which the Legislature shall make it original; and the Legislature shall organize it. The whole or a part of the jurisdiction aforesaid, according to the discretion of the legislature, may be assigned to the inferior tribunals as original tribunals." Meigs, p. 244.

When we pass to the draught of the Committee of Detail we find that the latter part of this section of Randolph's was adopted, but that the first part was rejected. This rejection however was not a curtailment of jurisdiction, but a substitution of other language in the stead of Randolph's. The question therefore which is now presented to us is this, Who contributed the substitute? Who was the author of the first part of the 3d section?

The corresponding declaration of jurisdiction in the Pinckney draught in article 10 contains only four subjects of jurisdiction. Each of these was suggested by other provisions of the draught. Article 8 for instance, provides that the President may be removed "on impeachment by the House of Delegates and conviction in the Supreme Court." Article 10 accordingly provides that the jurisdiction of the Supreme Court shall extend to "the trial of impeachment of officers." The style is characteristic of Pinckney; clear and terse and yet carelessly expressed. "One of these courts," he says, "shall be termed the Supreme Court, whose jurisdiction shall extend to all cases arising under the laws of the United States, or affecting ambassadors, other public ministers and consuls; to the trial and impeachment of officers of the United States; to all cases of admiralty and maritime jurisdiction."