This document was evidently intended as a note to the proceedings of May 29 in Madison's Debates. It was probably written before 1835, but as the "Editorial note" which is attached to it is the more important of the two, it is inserted here.
The length of the Document laid before the Convention, and other circumstances having prevented the taking of a copy at the time, that which is here inserted was taken from the paper furnished to the Secretary of State, and contained in the Journal of the Convention published in 1819 which it being taken for granted was a true copy was not then examined. The coincidence in several instances between that and the Constitution as adopted, having attracted the notice of others was at length suggested to mine. On comparing the paper with the Constitution in its final form, or in some of its Stages; and with the propositions, and speeches of Mr. Pinckney in the Convention, it would seem that considerable errour must have crept into the paper; occasioned possibly by the loss of the Document laid before the Convention, (neither that nor the Resolutions offered by Mr Patterson being among the preserved papers) and by a consequent resort for a copy to the rough draught, in which erasures and interlineations following what passed in the Convention, might be confounded in part at least with the original text, and after a lapse of more than thirty years, confounded also in the memory of the Author.
There is in the paper a similarity in some cases, and an identity in others, with details, expressions, and definitions, the results of critical discussions and modifications in the Convention that can not be ascribed to accident or anticipation.
Examples may be noticed in Article VIII of the paper; which is remarkable also for the circumstance, that whilst it specifies the functions of the President, no provision is contained in the paper for the election of such an officer, nor indeed for the appointment of any Executive Magistracy: notwithstanding the evident purpose of the Author to provide an entire plan of a Federal Government.
Again, in several instances where the paper corresponds with the Constitution, it is at variance with the ideas of Mr. Pinckney, as decidedly expressed in his propositions, and in his arguments, the former in the Journal of the Convention, the latter in the report of its debates: Thus in Art: VIII of the paper, provision is made for removing the President by impeachment; when it appears that in the Convention, July 20. he was opposed to any impeachability of the Executive Magistrate: In Art: III, it is required that all money-bills shall originate in the first Branch of the Legislature; which he strenuously opposed Aug: 8 and again Aug: 11: In Art: V members of each House are made ineligible to, as well as incapable of holding, any office under the Union &c, as was the case at one Stage of the Constitution; a disqualification highly disapproved and opposed by him Aug: 14.
A still more conclusive evidence of errour in the paper is seen in Art: III, which provides, as the Constitution does, that the first Branch of the Legislature shall be chosen by the people of the several States; whilst it appears, that on the 6th. of June, according to previous notice too, a few days only, after the Draft was laid before the Convention, its Author opposed that mode of choice, urging & proposing in place of it, an election by the Legislatures of the several States.
The remarks here made, tho' not material in themselves, were due to the authenticity and accuracy aimed at, in this Record of the proceedings of a Publick Body, so much an object, sometimes, of curious research, as at all times, of profound interest
As an Editorial note to the paper in the hand writing of Mr. M. beginning "The length &c.-"
Striking discrepancies will be found on a comparison of his plan, as furnished to Mr. Adams, and the view given of that which was laid before the Convention, in a pamphlet published by Francis Childs at New York shortly after the close of the Convention. The title of the pamphlet is "Observations on the plan of Government submitted to the Federal Convention on the 28th. of May 1787 by Charles Pinckney &ca."
But what conclusively proves that the choice of the H. of Reps. by the people could not have been the choice in the lost paper is a letter from Mr. Pinkney to J. M. of March 28. 1789, now on his files, in which he emphatically [shows] adherence to a choice by the State Legres. The following is an extract — "Are you not, to use a full expression, abundantly convinced that the theoretical nonsense of an election of the members of Congress by the people in the first instance, is clearly and practically wrong. — that it will in the end be the means of bringing our Councils into contempt and that the Legislatures (of the States) are the only proper judges of who ought to be elected." — —
Observations on Mr. Pinkney's plan &c. &c
|In the plan of Mr. Pinkney as presented to Mr. Adams & published in the Journal of the Convention. ||The plan according to his comments in the pamphlet printed by Francis Childs in New York.|
|The House of Representatives to be chosen. ||No provision for electing the House of Representatives.|
|No council of Revision. ||A Council of Revision consisting of the Executive and principal officers of government. "This, I consider as an improvement in legislation, and have therefore incorporated it as a part of the system."|
|The President to be elected for __ years — ||The Executive to be appointed septennially|
|not in the plan. ||— "have a right to convene and prorogue the Legislature upon special occasions, when they cannot agree as to the time of their adjournment;|
|"and, except as to Ambassadors, other Ministers, and Judges of the Supreme Court, he shall nominate, and with the consent of the Senate, appoint all other officers of the U. S." ||and appoint all officers except Judges and Foreign Ministers."|
| The 7th Article gives the Senate the exclusive power to regulate the manner of deciding all disputes and controversies now subsisting, or which may arise, between the States, respecting jurisdiction or territory:<3/td> ||"The 9th article respecting the appointment of Federal Courts for deciding territorial controversies between different States, is the same with that in the Confederation; but this may with propriety be left to the Supreme Judicial."|
|Article 6th. "all laws regulating commerce shall require the assent of two thirds of the members present in each House." ||"In all those important questions where the present Confederation has made the assent of nine States necessary, I have made the assent of ⅔ds. of both Houses, when assembled in Congress, and added to the number the regulation of trade and acts for levying an Impost and raising a revenue".|
|The 14th article gives the Legislature power to admit new States into the Union on the same terms with the original States by ⅔ of both Houses. — nothing further ||"I have also added an article authorising the United States, upon petition from the majority of the Citizens of any State, or Convention authorised for that purpose, and of the Legislature of the State to which they wish to be annexed, or of the States among which they are willing to be divided, to consent to such junction or division, on the terms mentioned in the article." |
|no such provision. ||page 25. "a provision respecting the attendance of the members of both Houses; the penalties under which their attendance is required, are such as to insure it, as we are to suppose no man would willingly expose himself to the ignominy of a disqualification".|
| "All criminal offences (except in cases of impeachment) shall be tried in the State where they shall be committed. The trials shall be open & public, & be by Jury." ||Trial by Jury is provided for "in all cases, criminal as well as Civil ".|
|silent. ||"to secure to authors the exclusive right to their performances and discoveries". |
| Powers of the Senate enumerated Article 7th. vizt. "to declare war, make treaties, & appoint ambassadors and Judges of the Supreme Court. ||silent.|
| "Every bill, which shall have passed the Legislature, shall be presented to the President 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 & a. & a. — The Legislature shall have power ||The Executive "is not a branch of the Legislature, farther than as a part of the Council of Revision".|
|To subdue a rebellion in any State, on application of its Legislature; || |
|To provide such dockyards & arsenals, and erect such fortifications as may be necessary for the U. S. and to exercise exclusive jurisdiction therein; || |
| To establish post & military roads; || |
|To declare the law & punishment of counterfeiting coin. || |
|To declare the punishment of treason, which shall consist only in levying war against the U. S., or any of them, or in adhering to their enemies. No person shall be convicted of treason but by the testimony of two witnesses. ||These and other important powers and|
|The prohibition of any tax on exports — — ||are unnoticed in his remarks.|
There is no numerical correspondence between the articles contained in the plan & those treated of in the pamphlet & the latter alludes to several more than are included in the former.
In Mr. Pinkney's letter to Mr. Adams, accompanying his plan, he states that "very soon after the Convention met, I changed and avowed candidly the change of my opinion on giving the power to Congress to revise the State laws in certain cases, and in giving the exclusive power to the Senate to declare war, thinking it safer to refuse the first altogether, and to vest the latter in Congress."
In his pamphlet he concludes the 5th. page of his argument in favor of the first power with these remarks — "In short, from their example, (other republics) and from our own experience, there can be no truth more evident than this, that, unless our Government is consolidated, as far as is practicable, by retrenching the State authorities, and concentering as much force & vigor in the Union, as are adequate to its exigencies, we shall soon be a divided, and consequently an unhappy people. I shall ever consider the revision and negative of the State laws, as one great and leading step to this reform, and have therefore conceived it proper to bring it into view."
On the 23. August He moved a proposition to vest this power in the Legislature, provided ⅔ of each House assented.
He does not designate the depository of the power to declare war &consequently avows no change of opinion on that subject in the pamphlet, altho' it was printed after the adjournment of the Convention and is stated to embrace the "observations he delivered at different times in the course of their discussions"
J. M. has a copy of the pamphlet much mutilated by dampness; but one in complete preservation is bound up with "Select Tracts Vol. 2." belonging to the New York Historical Society, numbered 2687.
Title Observations on the plan of Government submitted to the Federal Convention, in Philadelphia, on the 28th. of May 1787, By Mr. Charles Pinkney, Delegate from the State of South Carolina — delivered at different times in the course of their discussions —
New York: — Printed by Francis Childs.
| In the plan of Mr. Pinkney as presented to Mr. Adams and published in Journal || Plan as commented on in Pamphlet |
|Article 1. Style — ||Not adverted to|
|Article 2. Division of Legislative power in two Houses. ||recommended as essential page 8.|
|Article 3. Members of H. of D. to be chosen by the people. &a. ||silent.|
|Article 4. Senate to be elected by the H. of Del. &c. . . ||recommended page 9. but the 4th. article relates to extending rights of citizens of each State throughout U S. the delivery of fugitives from justice, on demand, & the giving faith &credit to records & proceedings of each — vide Art. 12 & 13.<4/td> |
|Article 5 — relates to the mode of electing the H. of Del. by the people & rules &a. Every bill to be presented to the President for his revision. ||This article declares that Individual states shall not exercise certain powers, founded on the principles of the 6th. of the Confederation. A Council of revision is stated to be incorporated in his plan page 9. vide Art 11. for prohibitions — empowers Congress to raise troops; & to levy taxes according to number of whites & 3/5 of other descriptions.|
| Article 6. powers of the Legislature enumerated & all constitutional acts thereof, and treaties declared to be the supreme law & the judges bound thereby. ||This article is stated to be an important alteration in the fedl. system, giving to Congress not only a revision but a negative on the State laws. The States to retain only local legislation limited to concerns affecting each only. vide Art. 11th.|
|Article 7. Senate alone to declare war- make treaties & appoint ministers & Judges of Sup. Court — To regulate the manner of deciding disputes now subsisting, or which may arise, between States respecting jurisdiction or territory — ||Article 8. like same in Confed. & gives power to exact postage for expense of office & for revenue. The 7th. article invests the U. S. with the compleat power of regulating trade & levying imposts & duties. (The regulation of commerce is given in the powers enumerated article 6th. of plan.)|
| Article 8. The Executive power — h. e. President U. S. for — years & re-eligible- To give information to the Legislature of the state of the Union & recommend measures to their consideration — To take care that the laws be executed — To commission all officers of the U. S. and except ministers & Judges of Sup. Court, nominate & with consent of Senate appoint all other officers — to receive ministers & may correspond with Ex. of different States. To grant pardon except in impeachments. To be commander in chief — to receive a fixed compensation — to take an oath — removable on impeachment by H. of D. and conviction in Supreme Court of bribery or corruption. The President of Senate to act as Prest. in case of death & a and the Speaker of H. of D. in case of death of Pres. of Senate — ||Page 9. The Executive should be appointed septennially, but his eligibility should not be limited — Not a branch of the Legislature further than as part of the Council of revision - His duties to attend to the execution of the acts of Congress, by the several States; to correspond with them on the subject; to prepare and digest, in concert with the great departments, business that will come before the Legislature. To acquire a perfect knowledge of the situation of the Union, and to be charged wth the business of the Home Deptmt. — To inspect the Departments. To consider their Heads as a Cabinet Council & to require their advice. To be Commander in Chief — to convene the legislature on special occasions & to appoint all officers but Judges & Foreign ministers — removable by impeachment — salary to be fixed permanently by the Legislature.|
| Article 9. gives the legislature power to establish Courts of law, equity & admiralty & relates to the appointment tenure &compensation of judges — one to be the Supreme Court — its jurisdiction over all cases under the laws of U. S. or affecting Ambassadors &c, to the trial of impeachment of officers of U. S.; cases of admiralty & maritime jurisdiction — cases where original & where appellate — ||The 9th article respecting the appointment of Federal Courts, for deciding controversies between different States, is the same with the Confederation; but this may with propriety be left to the Supreme Judicial (Article 7th. of the plan gives the power to the Senate of regulating the manner of decision)|
|Article 10. after first census the H. of D- shall apportion the Senate by electing one Senator for every for every — members each State shall have in H. of D- each State to have at least one member. ||The 10th article gives Congress a right to institute such offices as are necessary; of erecting a Federal Judicial Court; and of appointing Courts of Admiralty.|
|see article 6th. ||page 19. The exclusive right of coining money &ca is essential to assuring the federal funds — & a.|
|page 20. In all important questions where the Confederation made the assent of 9 States necessary I have made ⅔ of both Houses — and have added to them the regulation of trade and acts for levying Impost & raising revenue —|
|page 20. The exclusive right of making regulations for the government of the Militia ought to be vested in the Federal Councils & a|
|page 22. The article empowering the U. S. to admit new States indispensable — vide Article 14.|
|To establish uniform rules of naturalization in Article 6. ||page 23. The Fed. Govt. should possess the exclusive right of declaring on what terms the privileges of citizenship & naturalization should be extended to foreigners —|
|Article 16. provides the same by ⅔ — — ||page 23. Article 16. provides that alterations may be made by a given number of the Legislature —|
|Nothing of it ——— ||page 25. There is also in the articles, a provision respecting the attendance of members of both Houses — the penalties under which their attendance is required are such as to insure it &ca|
|It is provided in Art. 9. that "All criminal offenses (except in cases of impeachment) shall be tried in the State where committed. The trials shall be open & public, and be by Jury." nothing as to the rest — ||page 26. The next article provides for the privilege of the writ of Habeas Corpus — the trial by Jury in all cases, criminal as well as civil — the freedom of the press, and the prevention of religious tests as qualifications for offices of trust & a|
|Article 6. provides for a seat of Govt. & a National University thereat — but no protection for authors is provided — ||page 26. There is also an authority to the National legislature, permanently to fix the seat of the Genl. Govt., to secure to authors the exclusive right to their performances & discoveries & to establish a federal university.|
|Not in the plan — —— ||There are other articles of subordinate consideration.|
[As written or included by Farrand]
1 Interlined "inserted in the debates". 2 Interlined "it was apparent". 3 Interlined "had". 4 Interlined "could not have been anticipated". 5 From letters to J. K. Paulding, see CCCLXXXI and CCCLXXXIV above, it is probable that this note was prepared about June, 1831. 6 Crossed out: "by the people; with details similar to the 2d. section 1. article of the Constitution of the U. S." 7
The two paragraphs following were crossed out:
A number of important articles are referred to in the pamphlet & not found in the plan — for example "the provision respecting the attendance of the members of both Houses; the penalties under which their attendance is required, are such as to insure it, as we are to suppose no man would willingly expose himself to the ignominy of a disqualification (pa 25) providing for the writ of Habeas Corpus & trial by Jury in Civil cases (page 26) — "to secure to authors the exclusive right to their performances and discoveries" page 26.
So also In the plan presented the powers of the Senate are given in Article 7th. tho' (The mode of appointment on the rotative principles each mode of appointment class for 4 years,) the mode of appointment of that body it is silent The latter is given in the pamphlet but its powers are not enumerated. The restriction on members of both Houses from holding any office under the union is not adverted to in the pamphlet — nor the power of the Legislature to appoint a Treasurer, to establish post and military roads &c. 8
In the left hand column under "Plan", were crossed out four paragraphs on: (1) ineligibility of members of legislature to hold office; (2) "Legislature to appoint a Treasurer"; (3) Legislature "to establish post & military roads"; and (4) members of both houses to be paid by their states. Opposite each paragraph in the right hand column, "silent" was crossed out.