The Mystery of the Pinckney Draught

by Charles C. Nott

And there was another paper, which should have been found but was not. This was the report of the Committee of Detail, containing, or accompanying, their draught of a Constitution. The absence of any other paper that should have been placed in the package might be strange, yet not significant. But these two papers, if there were two, related to the same subject, contained more or less the same provisions, had been used for the same most important purpose by the same men, and were on the 6th of August, 1787, if they then existed, in the possession and official custody of the Committee of Detail. When Rutledge on the morning of that day "delivered in" the most important report ever laid before the Convention he should have laid upon the Secretary's desk those two papers, if there were such to lay there. Yet neither Pinckney's draught of the Constitution, nor the Committee's draught of the Constitution, was found in the sealed package; nothing was found but one printed copy of the Committee's draught.

The draught of the Committee of Detail was the most important of all the papers of the Convention, for the reason that it was the embodiment of all that had been done during the first period of the Convention's work, the abstract stage, and was to be the foundation of all that was yet to be done in bringing the Constitution to its concrete and final form. For purposes of construction and interpretation the draught is the most valuable paper that exists or that ever did exist, inasmuch as it sets forth in a tangible, practical, unmistakable form the results so far attained and the views which a majority of the members held, and the conclusions which a majority of the States had reached when the work of abstract consideration ceased, and the work of changing their abstract ideas into the concrete provisions of the Constitution began. There was no other report, draught or document which should have been so watchfully guarded and carefully kept as the report of the Committee of Detail, if there were indeed such a document to preserve.

To comprehend and appreciate the significance of the disappearance of these two papers, it is necessary that we understand the conditions of the case—the circumstances which tended toward their destruction, and those which should have secured their preservation.

The first of these conditions was secrecy. The Convention early determined "That nothing spoken in the House be printed or otherwise published or communicated without leave." No reporter was present at the sittings of the Convention; no stenographer, typewriter or amanuensis served the members; no clerical force aided the Committee of Detail. The secrets of the Convention were in the custody of the members, and from the 29th of May to the 17th of September not one was revealed to the expectant, inquisitive, anxious American world.

As the work of the Convention drew toward its close, it was determined that the obligation of secrecy should be continued into the indefinite future. The records were to be placed under seal and the custodian was to be Washington himself. Washington asked what should be done with the records; and the Convention answered that "he retain the Journal and other papers subject to the orders of Congress, if ever formed under the Constitution." For thirty years and more the seals remained unbroken; and for thirty years and more no member of the Convention spoke.

Let the reader imagine, if he can, what would be the public feeling now, if a convention should be sitting from the 29th of May to the 17th of September to frame a new constitution for the United States which should sit with closed doors, and whose members should disclose no act, speak no word, drop no hint from the beginning to the end; and who, when the end was reached, should say absolutely nothing of what had been said and done in the secret proceedings of the Convention. We owe much to the framers of the Constitution; they were not common men.

The first and highest instance of this sense of obligation is where we should expect to find it, in the personal journal of Washington.

"Friday, 1st June.

"Attending in Convention—and nothing being suffered to transpire no minute of the proceedings has been, or will be inserted in this diary."

And for this reason, no member of the Committee wrote. The unfortunate Observations of Pinckney were the only publication that gave a glimmer of what had been done, or might have been done in the Convention—of what had been said or might have been said. The Journal of Madison was not published until after Congress had released the secrets of the Convention. The members had taken no solemn oath, nor clasped hands nor pledged their honor to each other, but they kept silence.