The Mystery of the Pinckney Draught

by Charles C. Nott

The draught also provides that the legislature of the United States shall have power, "To provide for the establishment of a seat of government for the United States, not exceeding —— miles square, in which they shall have exclusive jurisdiction." Art. 6. This also was a radical innovation which the Committee could not adopt without authority. But it was also specifically set forth in the Observations; and on the 18th of August Pinckney moved in the Convention;

"To fix and permanently establish the seat of government of the United States in which they shall possess the exclusive right of soil and jurisdiction."

The draught also provides, "nor shall the privilege of the writ of habeas corpus ever be suspended, except in cases of rebellion or invasion." Art. 6.

The Convention shrank from the insertion of a bill of rights in the Constitution because, as was subsequently explained, it was feared that it might bring up the subject of slavery, one member insisting that it should contain a declaration against slavery, and another that it should specifically declare that it did not extend to slaves. Accordingly the committee did not incorporate this declaration of right in their draught. But it is set forth in the Observations; and on the 20th of August Pinckney proposed in the Convention a stronger and more explicit provision.

These provisions, therefore, are sustained by the public, contemporaneous avowal of Pinckney that they were in the draught which he had prepared for the use of the Convention; and by the recorded facts that when he found that the committee had not considered them as within their jurisdiction and had not incorporated them in their draught he brought them before the Convention and sought to have them inserted in the Constitution. As it is certain that the ideas were his, and that he formulated them into provisions substantially identical with those in the State Department draught, at the time when the Convention was considering the respective subjects, it requires very little additional assurance to make us accept them as a part of the draught presented to the Convention.

Conversely, there are provisions which may have been in the draught presented to the Convention, but which are not in the draught filed in the State Department. The most notable of these is the one relating to patents and copyright. Pinckney says in the Observations "There is also an authority to the national legislature" "to secure to authors the exclusive right to their performances and discoveries;" and on the 18th of August he moved in the Convention to insert among other powers "To grant patents for useful inventions."

If the provision was in the original draught, the Committee of Detail were not authorized to adopt it and did not; but the Convention did and it became a part of the Constitution. Pinckney was constantly nursing his draught, revising, amending, rearranging, and it is not improbable that he inserted this provision in one copy and neglected to insert it in the others. But he certainty seems to have been the author of it. From one point of view it may seem a needless Constitutional provision; for a national legislature could so legislate without it. But under the British Constitution monopolies were a prerogative of the Crown, and a patent was deemed a monopoly. Pinckney therefore did wisely in expressly assigning patent-rights and copyrights to the legislative branch of the Government, giving to the mind-work of the inventor or author the character of property and the safeguard of the law.

Another provision is the compromise relating to slave representation. In the State Department draught it is provided that the number of the delegates shall be regulated "by the number of inhabitants" (Art. 3) and that "the proportion of direct taxation shall be regulated by the whole number of inhabitants of every description." In the Observations he says that his plan contains a provision "for empowering Congress to levy taxes upon the States, agreeable to the rule now in use, an enumeration of the white inhabitants, and three-fifths of other descriptions." In the Convention on the 12th of July, "Mr. Pinckney moved to amend Mr. Randolph's motion so as to make 'blacks equal to the whites in the ratio of representation.' This he urged was nothing more than justice. The blacks are the labourers, the peasants of the Southern States: they are as productive of pecuniary resources as those of the Northern States. They add equally to the wealth, and, considering money as the sinews of war, to the strength of the nation. It will also be politic with regard to the Northern States, as taxation is to keep pace with Representation."

This is conclusive as to Pinckney's views. It confirms the draught in the State Department and shows too that the copy of the draught on which the Observations were founded differed in this detail from the draught presented to the Convention.

On a review of the entire case I have reached the following conclusions: