CHAPTER IV

WHAT PINCKNEY DID FOR THE CONSt.i.tUTION

The style of the Const.i.tution, we owe to Pinckney. Behind him, perhaps, was Chief Justice Jay, whose hand appears in the first Const.i.tution 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 Const.i.tution--the clear, concise, declarative, imperative style which seems a characteristic part of the great instrument. Pinckney appreciated the difference between a const.i.tution 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 a.s.sign 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 const.i.tute 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 Const.i.tution of the United States, may well wonder what kind of a Const.i.tution 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 const.i.tution, 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 Const.i.tution shows that not one of the five members commanded what may be called the style of the Const.i.tution; 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 const.i.tutions 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 a.s.signed to them. Yet the work which they actually did only demonstrates that for them to have produced a complete draught of the Const.i.tution--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 Const.i.tution 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 const.i.tutions 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, una.s.sisted, could have drawn up a const.i.tution 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 Const.i.tution 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 const.i.tution which would give to the waning Confederation the character and authority of nationality, the nationality of the Confederated States might disappear, he resolutely a.s.signed 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 Ma.s.sachusetts 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 pa.s.s 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 const.i.tutional 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 t.i.tle of n.o.bility" (Art.

Confederation VI). "The Legislature of the United States shall pa.s.s no law on the subject of religion" (Const.i.tution of New York); "nor touching or abridging the liberty of the press" (Const.i.tution Ma.s.sachusetts); "nor shall the privilege of the writ of habeas corpus ever be suspended except in case of rebellion or invasion" (Const.i.tution Ma.s.s.).

The resolution of March 21, 1787 is as follows:

"WEDNESDAY, MARCH 21, 1787.

"Resolved, That the legislatures of the several states cannot of right pa.s.s any act or acts, for interpreting, explaining, or construing a national treaty or any part or clause of it; nor for restraining, limiting or in any manner impeding, r.e.t.a.r.ding or counteracting the operation and execution of the same, for that on being const.i.tutionally made, ratified and published, they become in virtue of the confederation, part of the law of the land, and are not only independent of the will and power of such legislatures, but also binding and obligatory on them."

This becomes in the draught:

"All acts made by the Legislature of the United States, pursuant to this Const.i.tution, and all Treaties made under the authority of the United States, shall be the Supreme Law of the Land; and all Judges shall be bound to consider them as such in their decisions."

I have spoken of the sentence, "The citizens of each State shall be ent.i.tled to all privileges and immunities of citizens in the several States" as the most felicitous sentence in the Const.i.tution, which pa.s.sed 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 ent.i.tled 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 Const.i.tution. Indeed if Marshall had laid his hand on Pinckney's shoulder and said, "Young man, so frame your const.i.tution 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 Const.i.tution 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 Const.i.tution, 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 Const.i.tution for the government of ourselves and posterity" to the words of the last article, "The ratifications of ---- States shall be sufficient for organizing this Const.i.tution," the draught of the Committee of Detail follows the draught in the State Department, and the Const.i.tution 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 Const.i.tution 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, ent.i.tle a man to the lasting recognition of his countrymen, there is no framer of the Const.i.tution more ent.i.tled 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 Const.i.tution, and from the Const.i.tution 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 ma.s.s 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 subst.i.tute 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 const.i.tution was looked for as a subst.i.tute 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 const.i.tution, 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 ma.n.u.script 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 Const.i.tution.

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 antic.i.p.ate 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 Const.i.tution 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 const.i.tution-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 Const.i.tutional 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 const.i.tutions of New York and Ma.s.sachusetts 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 Const.i.tutional literature and studies of the day, and who by experience knew precisely what was needed to trans.m.u.te the Confederated States into an efficient National government.

In our minds we picture the framers of the Const.i.tution 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 const.i.tution 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 ill.u.s.tration 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 ident.i.ty of purpose was followed, though in different forms, by an ident.i.ty 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 const.i.tutional 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 a.s.sociated in the history of the Const.i.tution, 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 pa.s.s 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.