The Mystery of the Pinckney Draught Part 5

"DEAR SIR.--Since my letter answering yours of April 6th, in which I requested you to make an inquiry concerning a small pamphlet of Charles Pinckney printed at the close of the Federal Convention of 1787, it has occurred to me that the pamphlet might not have been put in circulation, but only presented to his friends, etc. In that way I may have become possessed of the copy to which I referred as in a damaged state. On this supposition the only chance of success must be among the books, etc., of individuals on the list of Mr. Pinckney's political a.s.sociates and friends. Of those who belonged to N. York, I recollect no one so likely to have received a copy as Rufus King. If that was the case, it may remain with his representative, and I would suggest an informal resort to that quarter, with a hope that you will pardon this further tax on your kindness."

On the 27th of June he wrote to Mr. Paulding for the third time regarding the Observations:

"June 27th, 1831.

"DEAR SIR:--With your favor of the 20th instant I received the volume of pamphlets containing that of Mr. Charles Pinckney, for which I am indebted to your obliging researches. The volume shall be duly returned, and in the mean time duly taken care of. I have not sufficiently examined the pamphlet in question, but I have no doubt that it throws light on the subject to which it has relation."

On the 25th of November he wrote at length to Jared Sparks setting forth all his objections to the draught and added: "Further discrepancies might be found in the observations of Mr. Pinckney, printed in a pamphlet by Francis Childs, in New York, shortly after the close of the Convention. I have a copy too mutilated for use, but it may probably be preserved in some of your historical repositories."

On the 5th of June 1835 he wrote to Judge Duer: "Other discrepancies will be found in a source also within your reach, in a pamphlet published by Mr. Pinckney soon after the close of the Convention, in which he refers to parts of his plan which are at variance with the doc.u.ment in the printed Journal. A friend who has examined and compared the two doc.u.ments has pointed out the discrepancies noted below."

Then follows the list of discrepancies "pointed out" by "a friend"; and in this letter he refers Judge Duer to the library of the Historical Society of New York as the place where a copy of the Observations can be found.

The following paragraphs from the Observations contain all that bears upon the contents of the draught, and all upon which Madison relied.

"There is no one, I believe, who doubts there is something particularly alarming in the present conjuncture. There is hardly a man in or out of office, who holds any other language. Our Government is despised--our laws are robbed of their respected terrors--their inaction is a subject of ridicule--and their exertion, of abhorrence and opposition--rank and office have lost their reverence and effect--our foreign politics are as much deranged, as our domestic economy--our friends are slackened in their affection, and our citizens loosened from their obedience.

We know neither how to yield nor how to enforce--hardly any thing abroad or at home is sound and entire--disconnection and confusion in offices, in States and in parties, prevail throughout every part of the Union. These are facts universally admitted and lamented."

"Be a.s.sured that however unfas.h.i.+onable for the moment your sentiments may be, yet, if your system is accommodated to the situation of the Union, and founded in wise and liberal principles, it will in time be consented to. An energetic government is our true policy, and it will at last be discovered and prevail."

"Presuming that the question will be taken up de novo, I do not conceive it necessary to go into minute detail of the defects of the present confederation, but request permission to submit, with deference to the House, the draught of a government which I have formed for the Union.

The defects of the present will appear in the course of the examination. I shall give each article that either materially varies or is new. I well know the science of government is at once a delicate and difficult one, and none more so than that of republics. I confess my situation or experience have not been such as to enable me to form the clearest and justest opinions. The sentiments I shall offer are the result of not so much reflection as I could have wished. The plan will admit of important amendments. I do not mean at once to offer it for the consideration of the House, but have taken the liberty of mentioning it, because it was my duty to do so.

"The first important alteration is that of the principle of representation and the distribution of the different powers of government. In the federal councils, each State ought to have a weight in proportion to its importance; and no State is justly ent.i.tled to greater. A representation is a sign of the reality. Upon this principle, however abused, the Parliament of Great Britain is formed, and it had been universally adopted by the States in the formation of their legislatures."

"In the Parliament of Great Britain as well as in most and the best inst.i.tuted legislatures of the States, we find not only two branches, but in some a council of revision, consisting of their executive and princ.i.p.al officers of government. This I consider as an improvement in legislation, and have therefore incorporated it as a part of the system.

"The Senate, I propose to have elected by the House of Delegates, upon proportionable principles, in the manner I have stated, which though rotative, will give a sufficient degree of stability and independence. The districts, into which the Union is to be divided; will be so apportioned as to give to each its due weight, and the Senate, calculated in this, as it ought to be in every government, to represent the wealth of the nation.

"The executive should be appointed septennially, but his eligibility ought not to be limited: He is not a branch of the legislature farther, than as a part of the council of revision; and the suffering him to continue eligible will not only be the means of ensuring his good behavior, but serve to render the office more respectable.

"The 4th article, respecting the extending the rights of the citizens of each State throughout the United States; the delivery of fugitives from justice upon demand, and the giving full faith and credit to the records and proceedings of each, is formed exactly upon the principles of the 4th article of the present confederation, except with this difference, that the demand of the Executive of a State for any fugitive criminal offender shall be complied with. It is now confined to treason, felony, or other high misdemeanor; but as there is no good reason for confining it to those crimes, no distinction ought to exist, and a State should always be at liberty to demand a fugitive from its justice, let his crime be what it may.

"The 5th article, declaring that individual States shall not exercise certain powers, is also founded on the same principle as the 6th of the confederation.

"The next is an important alteration of the Federal system, and is intended to give the United States in Congress, not only a revision of the legislative acts of each State, but a negative upon all such as shall appear to them improper.

"I apprehend the true intention of the States in uniting is, to have a firm, national government, capable of effectually executing its acts, and dispensing its benefits and protection. In it alone can be vested those powers and prerogatives which more particularly distinguish a sovereign State. The members which compose the superintending government are to be considered merely as parts of a great whole, and only suffered to retain the powers necessary to the administration of their State systems. The idea which has been so long and falsely entertained of each being a sovereign State, must be given up; for it is absurd to suppose there can be more than one sovereignty within a government. The States should retain nothing more than that mere local legislation, which, as _districts_ of a general government, they can exercise more to the benefit of their particular inhabitants, than if it was vested in a Supreme Council; but in every foreign concern as well as in those internal regulations, which respecting the whole ought to be uniform and national, the States must not be suffered to interfere. No act of the Federal Government in pursuance of its const.i.tutional powers ought by any means to be within the control of the State Legislatures; if it is, experience warrants me in a.s.serting they will a.s.suredly interfere and defeat its operation.

"The next article proposes to invest a number of exclusive rights, delegated by the present confederation, with this alteration: that it is intended to give the unqualified power of raising troops, either in time of peace or war, in any manner the Union may direct. It does not confine them to raise troops by quotas on particular States, or to give them the right of appointing regimental officers, but enables Congress to raise troops as they shall think proper, and to appoint all the officers. It also 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.

"The 7th article invests the United States with the complete power of regulating the trade of the Union, and levying such imposts and duties upon the same, for the use of the United States, as shall in the opinion of Congress, be necessary and expedient.

"The 8th article only varies so far from the present, as in the article of the Post Office, to give the Federal Government a power not only to exact as much postage as will bear the expense of the office, but also for the purpose of raising a revenue. Congress had this in contemplation some time since, and there can be no objection, as it is presumed, in the course of a few years the Post Office will be capable of yielding a considerable sum to the public treasury.

"The 9th article, respecting the appointment of Federal courts for deciding territorial controversies between different States, is the same with that in the confederation; but this may with propriety be left to the supreme judiciary.

"The 10th article gives Congress a right to inst.i.tute all such offices as are necessary for managing the concerns of the Union; of erecting a federal judicial court for the purposes therein specified; and of appointing courts of Admiralty for the trial of maritime causes in the States respectively.

"The exclusive right of coining money--regulating its alloy, and determining in what species of money the common treasury shall be supplied--is essential to a.s.suring the federal funds.

"In all those important questions, where the present confederation has made the a.s.sent of nine States necessary, I have made the a.s.sent of two-thirds of both Houses, when a.s.sembled in Congress, and added to the number the regulation of trade, and acts for levying an impost and raising a revenue.

"The exclusive right of establis.h.i.+ng regulations for the government of the militia of the United States, ought certainly to be vested in the federal council.

"The article empowering the United States to admit new States into the confederacy is become indispensable, from the separation of certain districts from the original States--and the increasing population and consequence of the western territory. I have also _added an article_ authorizing the United States, upon the pet.i.tion from the majority of the citizens of any State or convention authorized for that purpose, and of the legislature of the State to which they wish to be annexed, or of the States among which they are willing to be divided, to consent to such junction or division, on the term mentioned in the article.

"The Federal Government should also possess the exclusive right of declaring on what terms the privileges of citizens.h.i.+p and naturalization should be extended to foreigners.

"The 16th article proposes to declare that if it should hereafter appear necessary to the United States to recommend the grant of any additional powers, that the a.s.sent of a given number of the States shall be sufficient to invest them and bind the Union as fully as if they had been confirmed by the legislatures of all the States. The principles of this, and the article which provides for the future alteration of the Const.i.tution by its being first agreed to in Congress, and ratified by a certain proportion of the legislatures, are precisely the same.

"There is also in the articles a provision respecting the attendance of the members of both Houses; it is proposed that they shall be the judges of their own rules and proceedings, _nominate their own officers_, and be obliged, after accepting their appointments, to attend the stated meetings of the legislature; the penalties under which their attendance is required, are such as to insure it, as we are to suppose no man would willingly expose himself to the ignominy of a disqualification.

"The next article provides for the privilege of the writ of habeas corpus--the trial by jury in all cases, criminal as well as civil--the freedom of the press and the prevention of religious tests as qualifications to offices of trust or emolument.

"There is also an authority to the national legislature, permanently to fix the seat of the general government, to secure to authors the exclusive right to their performances and discoveries, and to establish a Federal University.

"There are other articles, but of subordinate consideration. In opening the subject, the limits of my present observations would only permit me to touch the outlines; in these I have endeavored to unite and apply, as far as the nature of our Union would permit, the excellencies of such of the States' Const.i.tutions as have been most approved.

"I ought again to apologize for presuming to intrude my sentiments upon a subject of such difficulty and importance. It is one that I have for a considerable time attended to. I am doubtful whether the convention will, at first be inclined to proceed as far as I have intended; but this I think may be safely a.s.serted, that upon a clear and comprehensive view of the relative situation of the Union, and its members, we shall be convinced of the policy of concentring in the federal head, a complete supremacy in the affairs of government; leaving only to the States such powers as may be necessary for the management of their internal concerns."

The first comment to be made on this speech of Pinckney's is _that it was never made, and that no speech whatever was made by him when he presented his draught to the Convention_.

Upon this question of fact there are two witnesses, Madison and Yates.

The evidence which they have left to us is negative and positive, the one showing inferentially, what could not have occurred in the Convention on the 29th of May 1787 and the other stating positively what did occur; the one absolutely silent as to any speech by Pinckney; the other telling us that "_Mr. Pinckney a member from South Carolina then added that he had reduced his ideas of a new government to a system which he then read_."

Madison has written for us an account of the manner in which he took his notes and wrote out his Journal--a most interesting account, showing us the method he pursued, the efforts which he made, and reminding us how much we owe him for his fidelity to his self-imposed task.

"The curiosity I had felt during my researches into the history of the most distinguished confederacies, particularly those of antiquity, and the deficiency I found in the means of satisfying it, more especially in what related to the process, the principles, the reasons, and the antic.i.p.ations, which prevailed in the formation of them, determined me to preserve, as far as I could, an exact account of what might pa.s.s in the Convention whilst executing its trust; with the magnitude of which I was duly impressed, as I was by the gratification promised to future curiosity by an authentic exhibition of the objects, the opinions, and the reasonings from which the new system of government was to receive its peculiar structure and organization. Nor was I unaware of the value of such a contribution to the fund of materials to the history of a Const.i.tution on which would be staked the happiness of a people great even in its infancy, and possibly the cause of liberty throughout the world.

"In pursuance of the task I had a.s.sumed, I chose a seat in front of the presiding member, with the other members on my right and left hands. In this favorable position, for hearing all that pa.s.sed, I noted in terms legible, and in abbreviations and marks intelligible to myself, what was read from the chair or spoken by the members; and losing not a moment unnecessarily between the adjournment and rea.s.sembling of the Convention, I was enabled to write out my daily notes during the session, or within a few finis.h.i.+ng days after its close, in the extent and form preserved, in my own hand, on my files.

"In the labor and correctness of this, I was not a little aided by practice, and by a familiarity with the style and the train of observation and reasoning which characterized the princ.i.p.al speakers. It happened, also, that I was not absent a single day, nor more than a casual fraction of an hour in any day, so that _I could not have lost a single speech, unless a very short one_."

Yates was at the time of writing his Minutes 49 years of age. During the Revolution he had written political essays highly esteemed over the signature of the Rough Hewer. He had been for eleven years a judge of the Supreme Court of New York--a judge of the old school before the days of stenographers and printed arguments and was well trained in taking notes of what counsel said.

The Minutes of Yates are manifestly the work of a man accustomed to take down the ideas rather than the words of public speakers. His reports of the debates are briefer than Madison's showing much less of the reporter and much more of the lawyer or judge accustomed to a.n.a.lyze and to note the scope and sense of an argument. His report of the chief speech of Pinckney, that of June 25th, when compared with the full speech written out by Pinckney for Madison is a remarkably clear and accurate and full abstract. It is also valuable as giving us an abstract of the conclusion of the speech which Pinckney neglected to furnish. Madison says in his letter to Judge Duer, "Mr. Yates's notes as you observe are very inaccurate; they are also in some respects grossly erroneous." There are indeed mistakes resulting from his non-acquaintance with the delegates; and especially in his confusing the names of the two Pinckneys, the first name of each being the same as the first name of the other and both being delegates from the same State. But be that as it may, Yates correctly characterized the speech of Randolph as "long and elaborate,"

and Pinckney's draught as a "system" of a "new government"; and he certainly knew enough to distinguish between the delivery of a long speech and the reading of a formal doc.u.ment.

The fact therefor must be regarded as established as firmly as any fact recorded in the annals of the Convention that on the day when Pinckney presented his draught to the Convention he did not deliver and could not have delivered a speech making 27 pages of printed matter.

There is another fact to be considered in connection with the foregoing.

Between the opening statements of the Observations and the t.i.tle to the pamphlet there is a flat contradiction. In the speech he says expressly that the "plan will admit of important amendments"; that he does "not mean to offer it for the consideration of the House"; that he has "taken the liberty of mentioning it because it was his duty to do so."

In the t.i.tle to the pamphlet he says, "Plan of Government submitted to the Federal Convention in Philadelphia on the 28th of May 1787." It is plain that the speech and its t.i.tle were written at different times and that in this the two are irreconcilable. It is also plain that Pinckney when he wrote a t.i.tle for the printer in New York had forgotten the detail of the contents of the speech and did not take the trouble to examine it. We may therefore conclude that the two events were far apart, the one having taken place in Charleston before the a.s.sembling of the Convention and the other taking place in New York when the publication of the speech required that a t.i.tle should be given to it.

Furthermore the t.i.tle to the speech contains a significant error in saying that the plan of government was submitted to the Convention "on the 28th of May"; for the first days of the Convention were not days to be quickly forgotten.

The day fixed for the meeting of the delegates in Convention was Monday, May 14th 1787. Was.h.i.+ngton, notwithstanding his painful illness during the winter and the expected death of his mother was among the first who arrived in Philadelphia. On the 27th of April he had written to Knox, "Though so much afflicted with a Rheumatick complaint (of which I have not been entirely free for Six months) as to be under the necessity of carrying my arm in a Sling for the last ten days, I had fixed on Monday next for my departure, and had made every necessary arrangement for the purpose when (within this hour) I am called by an express, who a.s.sures me not a moment is to be lost, to see a mother and only sister (who are supposed to be in the agonies of Death) expire; and I am hastening to obey this Melancholy call, after having just buried a Brother who was the intimate companion of my youth, and the friend of my ripened age. This journey of mine then, 100 miles, in the disordered frame of my body, will, I am persuaded, unfit me for the intended trip to Philadelphia."