The Mystery of the Pinckney Draught

This becomes in the draught:

I have spoken of the sentence, "The citizens of each State shall be entitled to all privileges and immunities of citizens in the several States" as the most felicitous sentence in the Constitution, which passed through the Committee of Detail, the Committee of Style, and the Convention without the change of a single word. But in the Articles of Confederation the provision stood in this prolix form:

"The better to secure and perpetuate mutual friendship and intercourse among the people of the different States in this union, the free inhabitants of each of these States, paupers, vagabonds, and fugitives from Justice excepted, shall be entitled to all privileges and immunities of free citizens in the several States; and the people of each State shall have free ingress and egress to and from any other State, and shall enjoy therein all the privileges of trade and commerce, subject to the same duties, impositions and restrictions as the inhabitants thereof respectively, provided that such restriction shall not extend so far as to prevent the removal of property imported into any State, to any other State of which the owner is an inhabitant."

That the work was Pinckney's we know, for the provisions set forth in articles 12 and 13 of his draught are described in the Observations.

But though the work of Pinckney was built of the thoughts, phrases and provisions of other men, the structure was his own; and in its details as in its general design, he never failed in his intent that the new republic which he was trying to found should be a nation, and that its government should have all the powers, duties, responsibilities and authority essential and incidental to nationality. The thought may have been in other minds but another draughtsman by a slight change of expression might have warped the idea and left it of no avail. It is this comprehensive generality of treatment and expression which I am now inclined to hold was Pinckney's greatest contribution to the Constitution. Indeed if Marshall had laid his hand on Pinckney's shoulder and said, "Young man, so frame your constitution that I shall be able to interpret it according to the necessities of the Republic and in harmony with the general requirements of our nationality," Pinckney would not have needed to change a single line.

For more than 70 years, Pinckney has been a condemned and misrepresented man, and what is strange, though not inexplicable, his disgrace was primarily caused by the indispensable work which he unselfishly performed for his country without honor and without reward. I began the foregoing investigation of the authenticity and verity of the draught in the State Department in consequence of the publication of Pinckney's letter to the Secretary of State in 1818 in which he states frankly that the paper sent is not a literal duplicate of the draught presented to the Convention and that the draught contained provisions which he subsequently condemned and openly opposed during the debates. I knew of the worst side of Pinckney's character—his egoism, his garrulousness, his lack of cautious common sense—and in my early study of the Constitution the Pinckney draught had seemed too much to be the work of one man, and the charges of Madison with the implications of Elliot and the silence of Story and the censure of Bancroft had confirmed my suspicion and left me with a poor opinion of the draught in the State Department and of the man who placed it there. The most which I expected from this investigation was that I should be able to say with tolerable certainty that a section here or a paragraph there in the Constitution, was the work of Pinckney. But when under the pressure of unquestionable facts, the charges of Madison fell to pieces; and when with the refutation of a charge, just so much of the draught would be positively verified and affirmed; and especially when it plainly appeared, not only that in sections and articles, and provisions and sentences, the one instrument agreed with the other but that in form and style, and phraseology and arrangement from the words of the preamble, "We the people do ordain, declare, and establish the following Constitution for the government of ourselves and posterity" to the words of the last article, "The ratifications of —— States shall be sufficient for organizing this Constitution," the draught of the Committee of Detail follows the draught in the State Department, and the Constitution follows the draught of the Committee of Detail, I was slowly forced to the conclusion that the young South Carolinian on whom I had placed no high estimate, had rendered a great service at a critical time, and that but for his needed work, the Constitution would be, at least in form, a very different instrument from the one which we revere. My slowly formed conclusion is that if wise and judicious forethought, and much patient work well done, and a breadth of view commensurate with the greatness of the subject, and the production at a critical moment of a paper which all other men in or out of the Convention had neglected to prepare, entitle a man to the lasting recognition of his countrymen, there is no framer of the Constitution more entitled to be commemorated in bronze or marble than Charles Pinckney of South Carolina.

CHAPTER XV

CONCLUSIONS ON THE WHOLE CASE

There are three reasons why the Pinckney Draught has been too readily discredited. The first is our respect for Madison, our belief that his knowledge far exceeded our own, and our deference to his repeatedly expressed opinion. The second is that the draught was never before the Convention and consequently never received the recognition of discussion. It was referred at the beginning to the Committee of the Whole; but it was not yet wanted, for the Committee debated only abstract propositions couched in formal resolutions. It was referred to the Committee of Detail; but that Committee reported only their own draught and the Convention had before them only the Committee's. The draught of Pinckney never came to a vote, was never discussed, and never received the slightest consideration in the Convention.

The third reason for discrediting the draught is to be found in the exaggerated value which has been set upon it. It has seemed to be altogether too great an instrument to have been the work of one man. We have felt in a vague way that to concede that one man could have contributed so much to the great instrument would be to detract from the work and fame of the great men whom we call the framers of the Constitution, and from the Constitution itself.

But the fact is that the draught of Pinckney is not so great as it seems. Coming from a man so well equipped for the work, so experienced in the existing affairs of our mixed governments and with such a clear comprehension of the conditions of the case, and having such a mass of material ready to his hand, the draught is not a marvelous production. That is to say the work considered as the work of so young a man is not so wonderful as at first it appears to be. It may come within the range of the improbable but not of the impossible.

Madison has himself borne witness to the fact that the subject of a substitute for the tottering power of the Confederated States was in every man's mind; and that every intelligent man of that day was more or less fitted to draught a general outline of a new national government:

"The resolutions of Mr. Randolph, the basis on which the deliberations of the Convention proceeded, were the result of a consultation among the Virginia deputies, who thought it possible that, as Virginia had taken so leading a part in reference to the Federal Convention, some initiative propositions might be expected from them. They were understood not to commit any of the members absolutely or definitively on the tenor of them. The resolutions will be seen to present the characteristics and features of a government as complete (in some respects, perhaps more so) as the plan of Mr. Pinckney, though without being thrown into a formal shape. The moment, indeed, a real constitution was looked for as a substitute for the Confederacy, the distribution of the Government into the usual departments became a matter of course with all who speculated upon the prospective change." Letter to W. A. Duer, June 5th, 1835.

The difficulty of the hour was not in draughting a constitution, but in draughting one which would not arouse the jealous antagonism of the several States. That difficulty did not trouble Pinckney. His plan contemplated having the people of each State fairly, i. e., proportionately represented in his House of Delegates, and in making the several States as States unequivocally submissive to the new national authority.

Pinckney had been for two years immediately before the sitting of the Convention, a delegate in the Congress of the Confederation. He had been the representative of South Carolina in the "grand committee" appointed to consider the alteration of the Articles of Confederation. He had been chairman of the subcommittee which draughted the committee's report of August, 1786; and (as Professor McLaughlin has pointed out) "the introducing phrases, as appears by reference to the manuscript papers of the old Congress, were written in Pinckney's own hand." In witnessing the inherent weakness and increasing degradation of the Congress, he had learned to appreciate the incapacity of the confederate system, and the necessity of a National government. No member of the Convention better appreciated those two things, or was better equipped for the task which he undertook; and there was no man in the country, except Madison, who had been through such a preparatory course and had such a combination of resources at his command. He was young, talented, experienced, ambitious, wealthy, unemployed and a ceaseless worker. The index of Madison's Journal witnesses to the immense amount of work which Pinckney did irrespective of the draught. If we discard the draught—the original draught, the disputed draught, and the draught described in the Observations, the fact will remain that Pinckney was an important contributor to the work of framing the Constitution.

Pinckney's plan of government was precisely what we might expect it to be. He was an able but not a sagacious statesman; that is he saw clearly what he wanted, but he did not see what other men wanted. Neither did he anticipate as a sagacious statesman would, the ignorance, the adverse interests and the prejudices of those who ultimately would have the power to reject or ordain the work of the Convention. Therefore he originated none of the compromises which reconciled antagonistic views and made the Constitution possible. The great and difficult problems which confronted the Convention were not solved by the Draught. Pinckney in it provided for two legislative houses and based representation on population, neglecting to place the small States on an equal footing with the large States in the Senate. He provided for one Executive head as did every government in the world, but he devised no means for uniting harmoniously the large and small States in choosing the Executive. The Draught was an admirable instrument for its purpose—an admirable model for the workmen of the Convention to correct, alter and enlarge. It was crude and unfinished but it was in well chosen words and simple sentences, eschewing particulars and presenting in a masterly way great declaratory principles of government. Pinckney had a few fanciful provisions in his plan and yet he was a practical and not a fanciful constitution-maker, not above taking the best material he could find wherever he could find it, resorting to himself last; and not above throwing aside his own work and beginning again and again until he had patiently wrought out the best that his ability could do. But when in estimating the Constitutional value of the draught, we have given credit for the admirable construction of the plan of government and for the clear declaratory style of the instrument, and for the preamble, and when we have discarded his original schemes, not adopted by the Convention, such as the plan for the Senate, we find that the remainder of the draught is made up for the most part of details suggested by his experience in the Congress of the Confederated States, details which were culled by him with extraordinary care from the constitutions of New York and Massachusetts and the Articles of Confederation.

In a word, the provisions which were rejected, such as a Senate chosen by the House of Representatives; such as a Senate having "the sole and exclusive power" to declare war, to make treaties, to appoint foreign ministers and judges of the Supreme Court; such as a national legislature having power to "revise the laws of the several States" and "to negative and annul" those which infringed the powers delegated to Congress—do not cause either wonder or admiration. It is the valuable practical provisions of the draught which provoke doubts. Yet these are for the most part the work of selection by an author thoroughly versed in what may be called the Constitutional literature and studies of the day, and who by experience knew precisely what was needed to transmute the Confederated States into an efficient National government.

In our minds we picture the framers of the Constitution as remarkable men, sage in council, experienced in affairs of state. But there were two young men, the one 36, the other 30, who furnished the constructive minds of the Convention. Madison was foremost in framing the Virginia resolutions, which brought before the Convention questions for abstract discussion and bases on which to rest principles of government. Pinckney formulated a constitution which became a basis for the most of the concrete work. Both had had the severe practical training of members of the Congress of the Confederated States during the sorest period of its humiliating helplessness, the darkening days which preceded its dissolution. Both understood thoroughly the existing system which made the Federal government dependent upon its States and therefore inferior to them; and they knew by what had been to them bitter experience that the solvency of the Federal government was dependent upon the voluntary contributions of each and all of the States, and that a single one of the great States by refusing to pay its quota could bring the nation to bankruptcy. They knew too that while the general government could make treaties, the States could violate them—that they had violated them, and even then had brought the country to the verge of a foreign war. Their minds recoiled, as the minds of young men naturally would, to the opposite extreme, and each believed in the subversion of the States. How fully they agreed a single illustration will disclose.

On Friday, June 8th,

"Mr. Pinckney moved 'that the National Legislature shd. have authority to negative all laws which they shd. judge to be improper.' He urged that such a universality of the power was indispensably necessary to render it effectual; that the States must be kept in due subordination to the nation; that if the States were left to act of themselves in any case, it wd. be impossible to defend the national prerogatives, however extensive they might be on paper; that the acts of Congress had been defeated by this means; nor had foreign treaties escaped repeated violations; that this universal negative was in fact the corner stone of an efficient national Govt."

"Mr. Madison seconded the motion. He could not but regard an indefinite power to negative legislative acts of the States as absolutely necessary to a perfect System. Experience had evinced a constant tendency in the States to encroach on the federal authority; to violate national Treaties; to infringe the rights and interests of each other; to oppress the weaker party within their respective jurisdictions. A negative was the mildest expedient that could be devised for preventing these mischiefs."

But it was for these same reasons that neither Madison nor Pinckney attempted to frame a compromise. Each wanted a national government with unequivocal powers. Each ignored the jealousy of the small States, the apprehensions of the slave States, the increasing preponderence of the free States. Both intended that these elements of distrust should be absorbed by the overwhelming power of the new national government. For more than 100 years the American people have kept the cardinal idea of these youthful statesmen buried from sight or contemplation as something impractical or dangerous but they are now beginning to ask themselves whether an overwhelming national government is not the better agency for the control and management of their modern, complex, national life.

Considering that Madison and Pinckney worked in such different fields, the abstract and the concrete, it is remarkable that the work of the one repeatedly and constantly agrees with the work of the other. Considering that they had worked side by side for years conferring daily on the same absorbing subject, encountering the same difficulties, thwarted by the same obstacles, defeated by the same incapacities, their minds intent on the same ends, it is not remarkable that an identity of purpose was followed, though in different forms, by an identity of results and that the work of Pinckney was little more than an embodiment of the propositions of Madison. Together they furnished just what the necessities of the hour required, ideas of government for consideration and discussion; formulated constitutional provisions for amendment and adoption. Greatly to be regretted it is that the two men who did such valuable interserviceable work for the cause to which their lives were then devoted, and whose names should be most closely associated in the history of the Constitution, now appear so irretrievably antagonistic.

There are some provisions in the draught which are not sustained by the confirmatory fact of being incorporated in the draught of the Committee of Detail, and notably the following:

"The legislature of the United States shall have the power" "to pass laws for arming, organizing and disciplining the militia of the United States," Art. 6. This power to organize and discipline the militia was a radical transfer of authority from the States to the new national government, a power which the committee were not instructed to transfer and which accordingly they did not incorporate in their draught. But it is specifically set forth in the Observations as one of the provisions of the draught; and on the 18th of August Pinckney advocated in the Convention substantially the same thing.

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:

1. The draught in the State Department agrees so closely with the draught of the Committee of Detail, in form, in phraseology, in structure, in arrangement, in extent, in its beginning and its ending that unquestionably the one draught must have followed the other. There can be no middle ground here.

2. With the uncovering of the Committee's draught and the bringing of the Observations into the case and the confirmatory matter in the Randolph and Wilson draughts, it becomes evident that the suspected fraud was an impossibility. That is to say, when Pinckney described in the Observations the draught which he was subsequently to present to the Convention he thereby described the draught which he was ultimately to place in the Department of State. In a word, if a fraud was perpetrated in 1818, it must have been begun in 1787, before the Convention met, which is a reductio ad absurdum.

3. The Observations were printed and published during the lifetime of every member of the Convention, including the five members of the Committee of Detail, and Pinckney immediately republished them in the South Carolina State Gazette. In 1819 when the copy of the draught was published and circulated as a public document there were 16 members of the Convention still living, among whom was Madison, the chronicler of the Convention.

It must therefore be held that Pinckney did not conceal anything or shrink from investigation; and that all which he did was done in due time, in the light of day and in the most open manner. Indeed it may be asked whether there ever was an historical document which was so doubly published and declared both prior to and at the time when it was produced as the Pinckney draught; or which could have been so easily refuted, if it was really refutable? A court of justice in such a case would say, "The plea of fraud is sustained by no evidence whatever. To allow a document which was placed in the files of the Government at the instance of a high officer of State to be attacked and discredited because of the doubts and suspicions of individuals, no matter how eminent and intelligent, would be a monstrous abuse of authority which can not be upheld in either law or morals."

4. A question may be raised as to whether the Journal of Madison can properly be admitted as evidence against the claim of Pinckney; and it must be conceded that Madison occupied the position of a controversialist; that during the whole of the period of controversy his chronicle of the Convention was in his exclusive possession; and that it was within his power at any moment to obliterate parts or passages which, coming to the knowledge of the world, would weaken his own position and vindicate Pinckney and sustain the draught. But such a suggestion against the integrity of such a man is not to be lightly entertained. It is no more to be believed without evidence (and evidence of the most clear and unequivocal character) that Madison, for his own purposes, obliterated historical evidence, than that Pinckney fabricated it. Each was a member of the Congress of the Confederation; each was a delegate to the great Convention; each was eminent for his zeal in the prolonged and often hopeless work of framing the Constitution; each has left behind him a long record of distinguished public life. The one laboriously prepared the only draught of the Constitution that was made for the use of the Convention; and the other laboriously prepared the only chronicle of the framers' work which the world possesses. It is not for the bitterness of controversy, heedlessly, to assail such men.

5. The Journal of Madison must be received as authentic history. At the same time it must be borne in mind that it was not written with the fulness and precision of the modern stenographer. Madison could not transcribe the words which a speaker uttered and leave us to ascertain the speaker's meaning from his words. All that such a reporter could do was to record what he believed to be the speaker's meaning. It follows that condensed passages, isolated sentences, casual turns of expression cannot be used as admissions against Pinckney, and must be considered with disinterested caution, if they be considered at all.

Time which destroys, also discloses; and time may bring to light some record which will change the conclusions of to-day. But as the case now stands it must be said that the Pinckney Draught in the Department of State is (with the exceptions before noted), all that Pinckney represented it to be.

CHAPTER XVI

OF PINCKNEY PERSONALLY

Pinckney was in the fourth generation of a family which had been distinguished for more than one hundred years for its public services. He had been elected to the provincial legislature of South Carolina before he had come of age; and he had made himself before the sitting of the Convention a prominent member of the Congress of the Confederated States. He had a clearer apprehension of the actual needs of American nationality than any other member of the Convention. This may be seen in his Observations and in his speech of the 25th of June. There is a passage in that speech in which anticipating the Farewell Address of Washington and the peace policy of Jefferson he looks forward through the ensuing century of the Constitution and depicts the practical blessings which it was to bring to the American people with a clearness and accuracy that is extraordinary:

"Our true situation appears to me to be this—a new, extensive country, containing within itself the materials for forming a government capable of extending to its citizens all the blessings of civil and religious liberty—capable of making them happy at home. This is the great end of republican establishments. We mistake the object of our government, if we hope or wish that it is to make us respectable abroad. Conquests or superiority among other powers is not, or ought not ever to be, the object of republican systems. If they are sufficiently active and energetic to rescue us from contempt, and preserve our domestic happiness and security, it is all we can expect from them—it is more than almost any other government insures to its citizens."

Pinckney's experience in the Congress of the Confederation made him despise the existing Federal Government and undervalue the local authority of the States. He came into the Convention its most extreme Federalist—more so even than Hamilton. As he said in the Observations:

"In the federal councils, each State ought to have a weight in proportion to its importance; and no State is justly entitled to greater."

"The Senatorial districts into which the Union is to be divided [in his plan] 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 next provision [in his draught] 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."

"The idea that 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."

"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."

In the Convention Pinckney moved that the members of the lower House should be chosen by the legislatures "of the several States"; but this was the one thing which he conceded to "the several States." The Senate was to be chosen by the House of Delegates; and what is more significant, the Senate was not to represent States, with the saving clause, "Each State shall be entitled to have at least one member in the Senate." Finally he would strike an absolutely fatal blow at State sovereignty by providing, "the Legislature of the United States shall have the power to revise the Laws of the several States that may be supposed to infringe the powers exclusively delegated by this Constitution to Congress, and to negative and annul such as do."

Knowing as we do of Pinckney's youth (he was not yet 30) and of Madison's poor opinion of him, it is desirable that we should know, if possible, what his contemporaries in the Convention thought of him. William Pierce the delegate from Georgia who has left to us the anecdote of Washington before quoted (p. 230) noted at the time his impressions of the leading members of the Convention. From these I select his sketches of four of the young members of the Convention who had even then attained distinction, Edmund Randolph, Rufus King, Alexander Hamilton and Charles Pinckney:

"Mr. Randolph is Governor of Virginia—a young gentleman in whom unite all the accomplishments of the Scholar and the Statesman. He came forward with the postulata or first principles on which the Convention acted; and he supported them with a force of eloquence and reasoning that did him great honor. He has a most harmonious voice, a fine person and striking manners."

"Mr. King is a Man much distinguished for his eloquence and great parliamentary talents. He was educated in Massachusetts, and is said to have good classical as well as legal knowledge. He has served for three years in the Congress of the United States with great and deserved applause, and is at this time high in the confidence and approbation of his Countrymen. This Gentleman is about thirty-three years of age, about five feet ten Inches high, well formed, an handsome face, with a strong expressive Eye, and a sweet high toned voice. In his public speaking there is something peculiarly strong and rich in his expression, clear, and convincing in his arguments, rapid and irresistible at times in his eloquence but he is not always equal. His action is natural, swimming, and graceful, but there is a rudeness of manner sometimes accompanying it. But take him tout en semble, he may with propriety be ranked among the Luminaries of the present age."

"Col. Hamilton is deservedly celebrated for his talents. He is a practitioner of the Law, and reputed to be a finished Scholar. To a clear and strong judgment he unites the ornaments of fancy, and whilst he is able, convincing, and engaging in his eloquence the Heart and Head sympathize in approving him. Yet there is something too feeble in his voice to be equal to the strains of oratory;—it is my opinion that he is a convincing Speaker, that (than) a blazing Orator. Col. Hamilton requires time to think,—he enquires into every part of his subject with the searchings of phylosophy, and when he comes forward he comes highly charged with interesting matter, there is no skimming over the surface of a subject with him, he must sink to the bottom to see what foundation it rests on.—His language is not always equal, sometimes didactic like Bolingbroke's, at others light and tripping like Sterne's. His eloquence is not so defusive as to trifle with the senses, but he rambles just enough to strike and keep up the attention. He is about 33 years old, of small stature, and lean. His manners are tinctured with stiffness, and sometimes with a degree of vanity that is highly disagreeable."

"Mr. Charles Pinckney is a young Gentleman of the most promising talents. He is, altho' only 24 [29] y's of age, in possession of a very great variety of knowledge. Government, Law, History and Phylosophy are his favorite studies, but he is intimately acquainted with every species of polite learning, and has a spirit of application and industry beyond most Men. He speaks with neatness and perspicuity, and treats every subject as fully, without running into prolixity, as it requires. He has been a member of Congress, and served in that Body with ability and eclat." (William Pierce of Georgia; 3 Amer. Hist. Review, 313.)

In this materialistic world of cause and effect there sometimes seem to be recurring fatalities which attend individuals that needlessness has not caused and that foresight could not have prevented—a fate of fire or flood or shipwreck, of good fortune or of bad fortune, of successes or of casualties of escapes or of disasters—a fate that fastens upon an individual and cannot be shaken off. The fate assigned to Pinckney seems to have been oblivion. Substantially everything which he prized is gone. His house was one of the finest in Charleston, if not the finest, and it was destroyed. He believed his library to be the most valuable library in the South and his great gallery to hold the rarest pictures in this country yet but a few volumes remain of the one and but two portraits of the other. His garden was the most beautiful in the State, it was his pride, his delight, and obliteration has indeed been its portion; even the soil which bore him flowers and shrubbery and trees and was laden with all the loveliness of semi-tropical vegetation is gone; for it was carried away during the Civil War to make military defenses. At the beginning of this investigation I began to search for the papers of which Pinckney speaks in his letter to the Secretary of State—papers which might throw new light on the framing of the Constitution or solve the problem of the contents of the draught. In this search General McCrady, of Charleston kindly and sympathetically co-operated, but I soon received his assurance that the quest was not a new one for him, and that neither in the Historical Society of South Carolina of which he was President nor in the possession of his friends could a document or paper or even a letter be found. At that time I desired to obtain a specimen of Pinckney's early handwriting and accordingly carried my pursuit into the circle of his direct descendants; but the sad reply came from his great-grandson, Mr. Charles Pinckney of Claremont, South Carolina that "all of his papers and private manuscripts were destroyed in the great fire in Charleston in 1861," and that his descendants possess "no remains of his handwriting except the autographs in his books." Letters and papers of eminent men are constantly coming to the light from unexpected hiding places and there is the official correspondence in the State Department and papers may exist in the public offices of South Carolina, but apart from these, my investigation stops at a point where it must be said that not so much as a single line of the writing of Charles Pinckney now exists.

In 1787 while Pinckney was in the full possession of his youthful power and fortune and all those things which give a man a prestige above his fellows, fate seems to have leaned forward and touched the instrument which was the supreme work of his life, the Draught of the Constitution of the United States—and to have set a seal upon the lips of every man who could testify as to its contents. If ever there was a paper of which it might be predicted that it would survive its time and be securely kept, that was the paper. The Convention was composed of the most orderly, caretaking and reputable of men, and the author of the draught was one of them. The command of the Convention was that its papers should be preserved. The papers were placed in the custody of the most scrupulous of men and by him transferred to the official guardianship of a department of the Government, and there we might expect to find the draught of Pinckney; but fate had touched the great State paper, and we find only that it had vanished mysteriously from the earth.

The following biographical sketch is by Mr. Wm. S. Elliott, of South Carolina, a grand nephew of Pinckney:

"In the diploma, by which the degree of Doctor of Laws was conferred upon him by the University of Princeton, New Jersey, it is expressly declared, that it 'is conferred on account of high acquirements, learning and ability, and particularly for his distinguished services in Congress and the Federal Convention.' From 1787 to 1789, he was traveling on the Continent and on his return, was elected Governor of the State. While Governor, he was a delegate to, and made president of the State Convention for forming the Constitution. In 1791 he was chosen a second time, and in 1796 a third time, Governor of the State; in 1798 a Senator in Congress, where he remained until 1801, when Mr. Jefferson appointed him Minister Plenipotentiary to Spain, with power to treat for the purchase of Louisiana and Florida. On his return in 1806, he was a fourth time honored with the position of Governor of the State, and he is the only citizen who has been so frequently elevated to the executive chair. From this period he retired from public life, until in 1818, when he was elected under great party excitement to the United States House of Representatives by Charleston District, and he here closed his political life with his speech in opposition to the Missouri Compromise.

"Family tradition and genealogical history are the very reverse of amber, which, itself a valuable substance, usually includes trifles; whereas, these trifles being in themselves very insignificant and trifling do, nevertheless, serve to perpetuate a great deal of what is rare and valuable in ancient manners, and to record many curious and minute facts, which could have been preserved and conveyed through no other medium.

"Charles Pinckney professed an exquisite appreciation of the beautiful in nature and in art. His collection of paintings, statuettes, medals, etc., rendered his house almost a museum. His fine library, occupying an entire suite of three large rooms—the floors and windows of which were kept richly carpeted and curtained, while the ceilings were decorated with classic representations—is supposed to have contained near twenty thousand of the rarest and choicest books, collected from every part of the Continent, and in every language spoken in the enlightened world."

Thomas Pinckney,
who settled in South Carolina in 1687,
was the father of
(2)            (3)
William,          Thomas.
Master in Chancery.
His Son,
Col. Chas. Pinckney.
His Son,
Governor Charles Pinckney.
His Son,
Hon. Henry L. Pinckney.

"A life of Charles Pinckney was prepared and in the possession of the Hon. Henry L. Pinckney for revision and addition; with it were his valuable papers. The fire of 1861, which desolated the city of Charleston, destroyed almost everything, and this, and the former essay, are compiled from many stray notes, mutilated manuscripts and a few papers, still in our possession.

"A very strange and melancholy feeling overtakes us as we search the remains of Charles Pinckney. Here is a man upon whom Heaven appears to have showered its gifts. Distinguished in ancestry, possessing fine intellect, vigorous health, and large fortune, with his political ambition fully gratified, of refined tastes and cultivation, linking his name successfully and eminently, with his day and his race, and yet, here are his memorials in a few tattered bits of paper, scarcely decipherable. His ashes are in the family burying ground. The spot is known. No stone, however, marks his final resting-place. His house in Charleston years ago, passed into the hands of the stranger, and has been torn down. The very earth has been removed, and now forms one of the fortifications of White Point Battery, erected during the late war for the defense of the city of Charleston. The library is broken and scattered. The picture of Lady Hamilton, and his own portrait, are the only two that we know of that remain of his once splendid gallery. The beautiful grounds of "Fee Farm" have disappeared, and the plough runs its furrows through the grove, and the grave-yard.". DeBow's Review, April 2, 1866.

APPENDIX

Mr. Charles Pinckney's Draught of a Federal Government

We the people of the States of New Hampshire Massachusetts Rhode Island & Providence Plantations—Connecticut New York New Jersey Pennsylvania Delaware Maryland Virginia North Caroline South Carolina & Georgia do ordain declare & establish the following Constitution for the Government of Ourselves and Posterity.

Article 1:

The Stile of This Government shall be The United States of America & The Government shall consist of supreme legislative Executive and judicial Powers—

2

The Legislative Power shall be vested in a Congress To consist of Two separate Houses—One to be called The House of Delegates & the other the Senate who shall meet on the * * * day of * * * in every Year

3

The members of the House of Delegates shall be chosen every * * * Year by the people of the several States & the qualification of the electors shall be the same as those of the Electors in the several States for their legislatures—each member shall have been a citizen of the United States for * * * Years—shall be of * * * Years of age & a resident of the State he is chosen for—until a census of the people shall be taken in the manner herein after mentioned the House of Delegates shall consist of * * * to be chosen from the different states in the following proportions—for New Hampshire. * * * for Massachusetts * * * for Rhode Island * * *. for Connecticut. * * * for New York * * * for New Jersey, * * * for Pennsylvania. * * * for Delaware * * * for Maryld * * * for Virginie. * * * for North Caroline * * * for South Carolina——. for Georgia——. & 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——all money bills of every kind shall originate in the house of Delegates & shall not be altered by the Senate—The House of Delegates shall exclusively possess the power of impeachment & shall choose its own Officers & Vacancies therein shall be supplied by the Executive authority of the State in the representation from which they shall happen—

4

The Senate shall be elected & chosen by the House of Delegates which House immediately after their meeting shall choose by ballot * * * Senators from among the Citizens & residents of New Hampshire. * * * from among those of Massachusetts. * * * from among those of Rhode Island. * * * from among those of Connecticut. * * * from among those of New York. * * * from among those of New Jersey * * * from among those of Pennsylvanie * * * from among those of Delaware— * * * from among those of Maryland, * * * from among those of Virginia * * * from among those of North Caroline * * * from among those of South Caroline & * * * from among those of Georgia—

The Senators chosen from New Hampshire Massachusetts Rhode Island & Connecticut shall form one class—those from New York New Jersey Pennsylvanie & Delaware one class—& those from Maryland Virginie North Caroline South Caroline & Georgia one class—

The House of Delegates shall number these Classes one two three & fix the times of their service by Lot—the first Class shall serve for * * * Years—the second for * * * Years & the third for * * * Years—as their Times of service expire the House of Delegates shall fill them up by Elections for * * * Years & they shall fill all Vacancies that arise from death or resignation for the Time of service remaining of the members so dying or resigning—

Each Senator shall be * * * years of age at leest—shall have been a Citizen of the United States at 4 Years before his Election & shall be a resident of the state he is chosen from—

The Senate shall choose its own Officers

5

Each State shall prescribe the time & manner of holding Elections by the People for the house of Delegates & the House of Delegates shall be the judges of the Elections returns & Qualifications of their members.

In each house a Majority shall constitute a Quorum to do business—Freedom of Speech & Debate in the legislature shall not be impeached or Questioned in any place out of it & the Members of both Houses shall in all cases except for Treason Felony or breach of the Peace be free from arrest during their attendance at Congress & in going to & returning from it—both houses shall keep journals of their Proceedings & publish them except on secret occasions & the yeas and nays may be entered thereon at the desire of one * * * of the members present.

Neither house without the consent of the other shall adjourn for more than * * * days nor to any Place but where they are sitting.

The members of each house shall not be eligible to or capable of holding any office under the Union during the time for which they have been respectively elected nor the members of the Senate for one Year after—

The members of each house shall be paid for their services by the State's which they represent—

Every bill which shall have passed the Legislature shall be presented to the President of the United States for his revision—if he approves it he shall sign it—but if he does not approve it he shall return it with his objections to the house it originated in, which house if two thirds of the members present, notwithstanding the Presidents objections agree to pass it, shall send it to the other house with the Presidents Objections, where if two thirds of the members present also agree to pass it, the same shall become a law—& all bills sent to the President & not returned by him within * * * days shall be laws unless the Legislature by their adjournment prevent their return in which case they shall not be laws.

6th

The Legislature of the United States shall have the power to lay & collect Taxes, Duties, Imposts & Excises

To regulate Commerce with all nations & among the several states—

To borrow money & emit bills of Credit

To establish Post Offices

To raise armies

To build & equip Fleets

To pass laws for arming organising & disciplining the Militia of the United States—

To subdue a rebellion in any state on application of its legislature

To coin money & regulate the Value of all coins & fix the Standard of weights & measures

To provide such Dock Yards & arsenals & erect such fortifications as may be necessary for the United States, & to exercise exclusive Jurisdiction therein

To appoint a Treasurer by ballott

To constitute Tribunals inferior to the Supreme Court

To establish Post & military roads

To establish and provide for a national University at the Seat of the Government of the United States—

To establish uniform rules of Naturalization

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

To make rules concerning Captures from an Enemy

To declare the law & Punishment of piracies & felonies at sea & of counterfeiting Coin & of all offences against the Laws of Nations

To call forth the aid of the Militia to execute the laws of the Union enforce treaties suppress insurrections & repel invasions

And to make all laws for carrying the foregoing powers into execution.—

The Legislature of the United States shall have the Power to declare the Punishment of Treason which shall consist only in levying War against the United States or any of them or in adhering to their Enemies.—No person shall be convicted of Treason but by the Testimony of two Witnesses.—

The proportions of direct Taxation shall be regulated by the whole number of inhabitants of every description which number shall within * * * Years after the first meeting of the Legislature & within the term of every * * * Years after be taken in the manner to be prescribed by the legislature

No tax shall be laid on articles exported from the States—nor capitation tax but in proportion to the Census before directed

All laws regulating Commerce shall require the assent of two thirds of the members present in each house—

The United States shall not grant any title of Nobility—

The Legislature of the United States shall pass no Law on the subject of Religion, nor touching or abridging the Liberty of the Press nor shall the Privilege of the Writ of Habeas Corpus ever be suspended except in case of Rebellion or Invasion

All acts made by the Legislature of the United States pursuant to this Constitution & all Treaties made under the authority of the United States shall be the Supreme Law of the Land & all Judges shall be bound to consider them as such in their decisions

7

The Senate shall have the sole and exclusive power to declare war & to make treaties & to appoint Ambassadors & other Ministers to Foreign nations & Judges of the Supreme Court

They shall have the exclusive power to regulate the manner of deciding all disputes & Controversies now subsisting or which may arise between the States respecting Jurisdiction or Territory

8

The Executive Power of the United States shall be vested in a President of the United States of America which shall be his stile & his title shall be His Excellency——He shall be elected for * * * Years & shall be re-eligible.

He shall from time give information to the Legislature of the state of the Union & recommend to their consideration the measures he may think necessary—he shall take care that the laws of the United States be duly executed: he shall commission all the Officers of the United States & except as to Ambassadors other ministers & Judges of the Supreme Court he shall nominate & with the consent of the Senate appoint all other Officers of the United States—He shall receive public Ministers from foreign nations & may correspond with the Executives of the different states—He shall have power to grant pardons and reprieves except in impeachments—He shall be commander in chief of the army & navy of the United States & of the Militia of the several states, & shall receive a compensation which shall not be increased or diminished during his continuance in office—At Entering on the Duties of his office he shall take an Oath to faithfully execute the duties of a President of the United States—He shall be removed from his office on impeachment by the house of Delegates & Conviction in the supreme Court of Treason bribery or Corruption—In case of his removal death resignation or disability The President of the Senate shall exercise the duties of his office until another President be chosen—& in case of the death of the President of the Senate the Speaker of the House of Delegates shall do so——

9

The Legislature of the United States shall have the Power & it shall be their duty to establish such Courts of Law Equity & Admiralty as shall be necessary—the Judges of these Courts shall hold their Offices during good behavior & receive a compensation which shall not be increased or diminished during their continuance in office—One of these Courts 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 & Consuls—To the trial of impeachments of Officers of the United States—To all cases of Admiralty & maritime jurisdiction—In cases of impeachment affecting Ambassadors and other public Ministers the Jurisdiction shall be original & in all the other cases appellate—

All Criminal offences (except in cases of impeachment) shall be tried in the state where they shall be committed—the trial shall be open & public & be by Jury—

10

Immediately after the first census of the people of United States the House of Delegates shall apportion the Senate by electing for each State out of the Citizens resident therein one Senator for every * * * members such state shall have in the house of Delegates—Each State however shall be entitled to have at least one member in the Senate———

11

No State shall grant Letters of marque & reprisal or enter into treaty or alliance or confederation nor grant any title of nobility nor without the Consent of the Legislature of the United States lay any impost on imports—nor keep Troops or Ships of War in Time of peace—nor enter into compacts with other states or foreign powers or emit bills of Credit or make anything but Gold Silver or Copper a Tender in payment of debts nor engage in War except for self defence when actually invaded or the danger of invasion is so great as not to admit of delay until the Government of the United States can be informed thereof—& to render these prohibitions effectual the Legislature of the United States shall have the power to revise the laws of the several states that may be supposed to infringe the Powers exclusively delegated by the Constitution to Congress & to negative & annul such as do

12

The Citizens of each state shall be entitled to all privileges & immunities of Citizens in the several states—

Any person charged with Crimes in any State fleeing from Justice in another shall on demand of the Executive of the State from which he fled be delivered up & removed to the State having jurisdiction of the Offence—

13

Full faith shall be given in each State to the acts of the Legislature & to the records & judicial Proceedings of the Courts & Magistrates of every State

14

The Legislature shall have power to admit new States into the Union on the same terms with the original States provided two thirds of the members present in both houses agree

15

On the application of the legislature of a State the United States shall protect it against domestic insurrections

16

If Two Thirds of the Legislatures of the States apply for the same The Legislature of the United States shall call a Convention for the purpose of amending the Constitution—Or should Congress with the Consent of Two thirds of each house propose to the States amendments to the same—the agreement of Two Thirds of the Legislatures of the States shall be sufficient to make the said amendments Parts of the Constitution

The Ratifications of the * * * Conventions of * * * States shall be sufficient for organizing this Constitution.—

DRAUGHT OF THE COMMITTEE OF DETAIL.

We the People of the States of New Hampshire, Massachusetts, Rhode-Island, and Providence Plantations, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North-Carolina, South-Carolina, and Georgia, do ordain, declare and establish the following Constitution for the Government of Ourselves and our Posterity.

Article I

The stile of this Government shall be, "The United States of America."

II

The Government shall consist of supreme legislative, executive and judicial powers.

III

The legislative power shall be vested in a Congress, to consist of two separate and distinct bodies of men, a House of Representatives, and a Senate; each of which shall in all cases, have a negative on the other. The Legislature shall meet on the first Monday in December in every year.

IV

Sect. 1. The Members of the House of Representatives shall be chosen every second year, by the people of the several States comprehended within this Union. The qualifications of the electors shall be the same, from time to time, as those of the electors in the several States, of the most numerous branch of their own legislatures.

Sect. 2. Every Member of the House of Representatives shall be of the age of twenty-five years at least; shall have been a citizen in the United States for at least three years before his election; and shall be, at the time of his election, a resident of the State in which he shall be chosen.

Sect. 3. The House of Representatives shall, at its first formation, and until the number of citizens and inhabitants shall be taken in the manner herein after described, consist of sixty-five Members, of whom three shall be chosen in New Hampshire, eight in Massachusetts, one in Rhode-Island and Providence Plantations, five in Connecticut, six in New York, four in New Jersey, eight in Pennsylvania, one in Delaware, six in Maryland, ten in Virginia, five in North-Carolina, five in South-Carolina, and three in Georgia.

Sect. 4. As the proportions of numbers in the 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 herein after made, at the rate of one for every forty thousand.

Sect. 5. All bills for raising or appropriating money, and for fixing the salaries of the officers of government, shall originate in the House of Representatives, and shall not be altered or amended by the Senate. No money shall be drawn from the public Treasury, but in pursuance of appropriations that shall originate in the House of Representatives.

Sect. 6. The House of Representatives shall have the sole power of impeachment. It shall choose its Speaker and other officers.

Sect. 7. Vacancies in the House of Representatives shall be supplied by writs of election from the executive authority of the State, in the representation from which they shall happen.

V

Sect. 1. The Senate of the United States shall be chosen by the Legislatures of the several States. Each Legislature shall chuse two members. Vacancies may be supplied by the Executive until the next meeting of the Legislature. Each member shall have one vote.

Sect. 2. The Senators shall be chosen for six years; but immediately after the first election they shall be divided, by lot, into three classes, as nearly as may be, numbered one, two and three. The seats of the members of the first class shall be vacated at the expiration of the second year, of the second class at the expiration of the fourth year, of the third class at the expiration of the sixth year, so that a third part of the members may be chosen every second year.

Sect. 3. Every member of the Senate shall be of the age of thirty years at least; shall have been a citizen in the United States for at least four years before his election; and shall be, at the time of his election, a resident of the State for which he shall be chosen.

Sect. 4. The Senate shall chuse its own President and other officers.

VI

Sect. 1. The times and places and the manner of holding the elections of the members of each House shall be prescribed by the Legislature of each State; but their provisions concerning them may, at any time, be altered by the Legislature of the United States.

Sect. 2. The Legislature of the United States shall have authority to establish such uniform qualifications of the members of each House, with regard to property, as to the said Legislature shall seem expedient.

Sect. 3. In each House a majority of the members shall constitute a quorum to do business; but a smaller number may adjourn from day to day.

Sect. 4. Each House shall be the judge of the elections, returns and qualifications of its own members.

Sect. 5. Freedom of speech and debate in the Legislature shall not be impeached or questioned in any court or place out of the Legislature; and the members of each House shall, in all cases, except treason, felony and breach of the peace, be privileged from arrest during their attendance at Congress, and in going to and returning from it.

Sect. 6. Each House may determine the rules of its proceedings; may punish its members for disorderly behaviour; and may expel a member.

Sect. 7. The House of Representatives, and the Senate, when it shall be acting in a legislative capacity, shall keep a journal of their proceedings, and shall, from time to time, publish them: and the yeas and nays of the members of each House, on any question, shall, at the desire of one-fifth part of the members present, be entered on the journal.

Sect. 8. Neither House, without the consent of the other, shall adjourn for more than three days nor to any other place than that at which the two Houses are sitting. But this regulation shall not extend to the Senate, when it shall exercise the powers mentioned in the * * * article.

Sect. 9. The members of each House shall be ineligible to, and incapable of holding any office under the authority of the United States, during the time for which they shall respectively be elected: and the members of the Senate shall be ineligible to, and incapable of holding any such office for one year afterwards.

Sect. 10. The members of each House shall receive a compensation for their services, to be ascertained and paid by the State, in which they shall be chosen.