The Mystery of the Pinckney Draught

by Charles C. Nott

The style of the Constitution, we owe to Pinckney. Behind him, perhaps, was Chief Justice Jay, whose hand appears in the first Constitution of New York, but none of the men connected with the Convention, not even Hamilton, had attained what we may term the style of the Constitution—the clear, concise, declarative, imperative style which seems a characteristic part of the great instrument. Pinckney appreciated the difference between a constitution and a statute and in maintaining this difference his hand rarely erred. The Committee of Detail corrected Pinckney's language, occasionally, and sometimes rendered the meaning more certain by amplification but whenever they departed from his draught, there is an immediate falling off in style. A flagrant instance of this is in article IX, sections 2 and 3. In the hands of the Committee the provision relating to disputes and controversies between States expands into a string of minor provisions containing more than 400 words with all the involved petty particularities of an incoherent statute. Exempli gratia, "The Senate shall also assign a day for the appearance of the parties, by their agents before that house. The agents shall be directed to appoint, by joint consent, commissions or judges to constitute a court for hearing and determining the matter in question. But if the agents cannot agree, the Senate shall name three persons out of each of the several States; and from the list of such persons, each party shall alternately strike out one, until the number shall be reduced to thirteen; and from that number not less than seven, nor more than nine, names, as the Senate shall direct, shall in their presence, be drawn out by lot; and the persons whose names shall be so drawn, or any five of them, shall be,", etc., etc. The person who remembers that this and more like it, was actually prepared and printed and reported to the Convention as a proposed part of the Constitution of the United States, may well wonder what kind of a Constitution the Committee of Detail would have framed, if they had not had Pinckney to block out their work for them.

When dealing with the number of representatives in the first or lower house, Pinckney provided (Art. 3) for a specific number from each State, in the first instance, and then by one of his terse emphatic sentences, "and the legislature shall hereafter regulate the number of delegates by the number of inhabitants, according to the provisions hereinafter made at the rate of one for every —— thousand." The Committee adopted this verbatim but they prefaced it with an extraordinary apology or explanation, bearing some resemblance to the preamble of a statute (Art. 14, sec. 4): "As the proportions of numbers in different States will alter from time to time; as some of the States may hereafter be divided; as others may be enlarged by addition of territory; as two or more states may be united; as new states will be erected within the limits of the United States—the legislature shall, in each of these cases, regulate the number of representatives by the number of inhabitants, according to the provisions hereinafter made, at the rate of one for every forty thousand."

This "as," "as," "as," "as," "as" would be slovenly work even for a statute. It sounds little like a law, not at all like a constitution, much like an extract from a committee's report, justifying their work, explaining why a proposed provision may become at some unforeseen time, necessary or desirable.

It is true that the former of these provisions was taken from the Articles of Confederation; and that the latter is a paraphrase of the 8th resolution, but that only makes the matter worse. Their verbosity and incongruity were thereby placed before the eyes of every member of the Committee; and the fact that such provisions, flagrantly verbose and inexcusably incongruous, went into a draught of the Constitution shows that not one of the five members commanded what may be called the style of the Constitution; while the additional fact that not one instance of such prolixity of detail is to be found in the Pinckney draught shows that he was the master of its style and not the Committee.

There are unquestionably clauses and sentences and provisions in the Committee's draught which show the hand of the thoughtful statesman or of the good lawyer. Thus to Pinckney's provisions relating to the action of Congress on bills returned by the President with his objections, we have, "But, in all cases, the votes of both Houses shall be determined by yeas and nays; and the names of the persons voting for or against the bill shall be entered on the Journal of each House respectively." And to Pinckney's provisions concerning the conviction of treason, there is added, "No attainder of treason shall work corruption of blood, nor forfeiture, except during the life of the person attainted." In a word there is manifestly more than one hand in the Committee's work. In Pinckney's draught the warp and woof is of one texture from beginning to end. Even when an article is made up entirely of cullings from State constitutions and from the Articles of Confederation, the finished fabric is unquestionably of Pinckney's weaving.

It is not to be inferred that the members of the Committee of Detail were mediocre men or that they were negligent of the grave duty assigned to them. Yet the work which they actually did only demonstrates that for them to have produced a complete draught of the Constitution—as complete as the one which they reported—entirely the work of their own hands, in the limited time allowed them would have been an impossibility. The reduction of the Constitution to a written form with all its details required research, reflection, patient work and unhurried thought. Through the wide field of State and Federal relations, through State constitutions and the Articles of Confederation the framer needed to search, weighing State prejudices and national necessities, taking what was desirable, but with equal care leaving what was objectionable. There were not five men in the world working in each other's way, discussing each other's work, who, unassisted, could have drawn up a constitution in which so much was embodied and so little overlooked and have brought their patchwork contributions into one harmonious whole within the time prescribed. The country was well filled with men of talents, of ability, of energy, of patriotic fervor, with men who knew the conditions of our national affairs, the difficulties of acting, the perils of inaction, and yet the fact, undeniable, is that only one man foresaw the coming necessity of the situation and had the forethought to prepare a draught of the Constitution for the use of the Convention. The more I have surveyed the situation, the greater has appeared the necessity for some such work at the time; the more I have studied the work of Pinckney, the more perfectly adapted to the necessities of the situation does it appear to have been.

When Pinckney, foreseeing that a national Convention would be held and that if it failed to frame a constitution which would give to the waning Confederation the character and authority of nationality, the nationality of the Confederated States might disappear, he resolutely assigned to himself the task of framing one in which nationality should be secure and a national government above and independent of the States be the result. While yet a member of Congress he saw plainly these things—that the government of the Confederated States was drifting toward insolvency, for New York and Massachusetts alone had paid in full their quota of the Federal expenses; that it was drifting towards war; for at least one of the States was flagrantly violating the treaty of peace with Great Britain; that the Congress could neither raise money nor maintain a treaty; for the only power which it practically possessed was to beseech the States to pay their respective shares of the Federal expenses, and to pass as recently as March 21, 1787, resolutions urging on the States a repeal of all laws contravening the treaty of peace with Great Britain.

Pinckney was then in the full flush of youthful egoism, but the oldest member of the Convention, even Franklin, could not have chosen his method of construction more wisely. Wherever constitutional material existed, Pinckney found it, and preferred it to his own. A single paragraph will give an effective object lesson of his careful composite work:

"The United States shall not grant any title of nobility" (Art. Confederation VI). "The Legislature of the United States shall pass no law on the subject of religion" (Constitution of New York); "nor touching or abridging the liberty of the press" (Constitution Massachusetts); "nor shall the privilege of the writ of habeas corpus ever be suspended except in case of rebellion or invasion" (Constitution Mass.).

The resolution of March 21, 1787 is as follows: