The Observations of Pinckney, in Madison's estimation, fully sustained his arguments and justified his attacks on the verity of the draught in the State Department. The publication so entitled is a small pamphlet of 27 pages. It has the following title page:

Observations
on the
PLAN OF GOVERNMENT
Submitted to the
FEDERAL CONVENTION
in Philadelphia on the 28th of May, 1787
By Mr. Charles Pinckney
Delegate from the State of South Carolina
DELIVERED AT DIFFERENT TIMES
IN THE COURSE OF THEIR DISCUSSIONS.
New York. Printed
by Francis Childs

Two copies of this are in the library of the New York Historical Society, and it is reprinted in Moore's American Eloquence. It bears no date, but we learn from Madison's letter to Washington (before quoted) that it must have been published before the 14th of October, 1787; that is to say immediately after the dissolution of the Convention on the 17th of September.

Madison unquestionably relied upon this pamphlet as containing the highest evidence against the verity of the draught in the State Department. The anxiety which he showed to obtain it, and the care with which he brought it to the attention of those who were or who in the future might be interested in the matter make it plain that he regarded the Observations as a conservatory of admissions which Pinckney would not deny if he were living, and which his friends could not controvert now that Pinckney was dead.

The first record we have of Madison's reliance on this pamphlet is a memorandum found among his papers which bears no date but which must have been written prior to April 6th, 1831.

"FOR MR. PAULDING"

At some time subsequent to the 6th of April he wrote to Mr. Paulding, saying that in a previous letter "I requested you to make an inquiry concerning a small pamphlet of Charles Pinckney printed at the close of the Federal Convention of 1787;" and on the 6th of June he again wrote to Mr. Paulding,

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

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

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

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

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

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

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

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

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

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

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

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

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

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

There is another fact to be considered in connection with the foregoing. Between the opening statements of the Observations and the title to the pamphlet there is a flat contradiction. In the speech he says expressly that the "plan will admit of important amendments"; that he does "not mean to offer it for the consideration of the House"; that he has "taken the liberty of mentioning it because it was his duty to do so." In the title to the pamphlet he says, "Plan of Government submitted to the Federal Convention in Philadelphia on the 28th of May 1787." It is plain that the speech and its title were written at different times and that in this the two are irreconcilable. It is also plain that Pinckney when he wrote a title for the printer in New York had forgotten the detail of the contents of the speech and did not take the trouble to examine it. We may therefore conclude that the two events were far apart, the one having taken place in Charleston before the assembling of the Convention and the other taking place in New York when the publication of the speech required that a title should be given to it.

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

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

But Washington, though he knew it not, was then approaching the verge of his third cycle of illustrious service rendered to his country—"the country he assembled out of chaos."

Madison writing to Jefferson, then in Paris, on Tuesday, the 15th of May, happily recorded the fact that Washington, true to his life record, was on the ground when he should have been: "Monday last was the day for the meeting of the Convention. The number as yet assembled is but small. Among the few is General Washington who arrived on Sunday evening, amidst the acclamations of the people, as well as more sober marks of the affection and veneration which continue to be felt for his character."

But a quorum of lesser men did not appear until Friday May 25th. On that day nine States were represented by twenty-nine delegates among whom was Charles Pinckney on whose motion a committee was appointed, of which he was one, to prepare standing rules and orders. The only other business was the election of Washington as President and Major William Jackson as Secretary. On Monday May 28th the Convention next met when "Mr. Wythe, from the committee for preparing rules made a report which, employed the deliberations of this day." Tuesday May 29th was the great day when Randolph "opened the main business" and presented the Virginia resolutions, and Pinckney "laid before, the House the draught of a Federal Government." These were not days to be easily confounded. But between the presentation of the draught to the Convention and the writing of the title for the printer in New York four months had elapsed crowded with labor and excitement, and Pinckney had forgotten the date of the most eventful day of his life. The error of this date means a great deal.

In his letter to the Secretary of State covering the draught in the Department, Pinckney says that he has then four or five draughts of the Constitution in his possession. It is certain that the draught in the Department conforms much more closely to the draught which he presented to the Convention than to the draught which he describes in the Observations. If we consider the facts established (as we must) that the Observations were written before the assembling of the Convention, that they were written many months before their publication, that they were not examined or revised when they were published, it is easily within the range of possibilities, if not of probabilities, that the draught which formed the "text of the discourse" was one of the four or five which Pinckney had drawn at various times and was not the one which he finally submitted to the Convention.

If the Observations were what they pretend to be the text of a real speech actually spoken at the time when Pinckney was about to present his draught to the Convention they would be very good secondary evidence of the contents of the paper which he held in his hand and which he then and there presented, and thereby parted company with. But a speech which was never spoken to suppositional auditors who never heard it, is not a public declaration of the contents of another paper. The Observations are not a speech because they are cast in the form of a speech. They are simply a paper which may have been written in Charleston before the assembling of the Convention, or (possibly) in New York after the Convention had been dissolved, and whenever written Pinckney may have had before him another of the four or five constitutions which he had draughted. With the uncovering of the fact that this paper was not contemporaneous, and that it did not necessarily refer to the particular copy of the draught which Pinckney presented to the Convention on the 29th of May, the supposed value of the Observations as evidence to impeach the integrity of the draught in the State Department is blown to pieces.

If this were a suit between Madison and Pinckney it might be held that Pinckney would be estopped from questioning the veracity of the paper which he wrote and made public, or the actuality of the facts which it sets forth. But an estoppel which in the words of Coke, "concludeth a man to alleage the truth" does not extend to the student of Constitutional history. He is not a party to that record and is at liberty to use it for what it may be worth against Pinckney or for Pinckney, to overthrow the draught or to substantiate the draught—to use it in any way which will tend to clear the situation from error, and authenticate the true history of the Constitution.

Madison in his "Note to the Plan" regarded article VIII as "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." The plain unquestionable purpose of Madison when so writing was to impress upon the American mind the improbability, the almost impossibility, of Pinckney's having neglected to provide for the election of the President while actually establishing the office and defining the functions of the officer; and hence that the paper which is so remarkable for the omission cannot be a true copy of the one presented to the Convention; and the inevitable inference from this is that the real draught, the one presented to the Convention on the 29th of May contained and must have contained, and could not have overlooked the needed provision declaring how the President should be chosen.

The choosing of the President by means of electoral colleges in which each State should have a proportionate power equal to its total representation in the two houses of Congress was one of the notable compromises between the large and small States; and what Madison says must excite the curiosity of the Constitutional student to know in what manner Pinckney provided in his draught for the choosing of the President and whether he attempted a compromise. The original draught is lost; but here Madison appears with the Observations which he fortunately saw in 1787 and which he fortunately remembered in 1831 and which, remembering, he brought to light and made an authority; and these Observations, according to Madison, presumptively set forth what the original draught contained so fully and accurately that upon the faith of them we can and must reject the copy of the draught which Pinckney produced and placed in the State Department. Therefore we may turn to the Observations with unusual interest to ascertain whether Pinckney provided, and in what manner he provided, for the choosing of the President.

We find that the Observations are as silent as the draught in the State Department. They are not more silent however. If the Observations said nothing and were absolutely silent on the subject of the President, it might be a casual oversight of the writer. But the Observations agree with article VIII; both recognize the Executive as vested in one person; both limit his term of office, the one to seven, the other to ---- years; both expressly declare that he shall be re-eligible; both are silent as to the means by which he shall be chosen. The Observations here are little more than a paraphrase of article VIII. Madison regarded the omission to provide for so vitally important a thing as the choosing of the President as "remarkable"; but the more remarkable the omission, the more significant the coincidence.

The explanation of Pinckney's conduct and of the contradictions between his statements in the Observations and the facts appearing on the records of the Convention, including in the term the Madison Journal and the Yates Minutes is, I think, the following:

The first business day of the Convention, probably, was the most impressive day of all its sittings. There were less than forty delegates present but among them were the most distinguished men of the country; Washington, Hamilton, Rufus King, David Brearly, both Robert and Gouverneur Morris, George Read, George Mason, George Wythe, John Rutledge, John Dickinson and Elbridge Gerry. A painful anxiety existed concerning everything which lay before them—the method of procedure, the specific subjects to be considered, the prejudices of the different States, the views and plans and projects of the different members. Randolph, as heretofore has been said, opened the great business which was to result either in the formation of a National government or in the dissolution of the feeble Confederation which existed, by the presentation of the abstract propositions which the delegates from Virginia had formulated for the consideration of the Convention, and by a masterly address in which he set forth the perils of the hour and the difficulties to be overcome. When he concluded his solemn and philosophical exposition of the impending problems the Convention adjourned as well it might.

Pinckney must have been impressed by this. He had studied the field long and intelligently; but there were now waters before him which were beyond his depth—difficulties which he had not considered; prejudices and jealousies for which he had formulated no compromise. It was not the time for the man believed to be the youngest member to harangue the Convention on his scheme for a new government.

Pinckney unquestionably had prepared a written speech in his study in Charleston. It was his strategic purpose to deliver the speech at the opening of the Convention and draw forth expressions of opinion concerning his scheme for a National government, after which he would modify his plan and when modified to suit himself or to suit a majority of the members, he would present it. But when the time came to speak he saw that the Convention was in no humor to listen to an oration about his plan, and that the business before them would be the consideration and discussion of abstract propositions one by one as set forth in the Virginia resolutions, and that no plan would be considered until the delegates should learn by intelligent discussion what they wanted to formulate. He therefore wisely reversed his strategy, withholding the speech but presenting the draught, thereby placing himself on the record and establishing what in patent law would be called priority of invention.

After the great work was done and the Constitution had gone forth to the world Pinckney knew that his draught was buried in the secrecy of the proceedings. He too, like many another effusive young man, may have thought his speech too good to be lost. Certainly he could not resist the temptation of revealing what he had written and of recording the great part he had played among the eminent actors in the Convention. He avoided violating the pledge of secrecy by revealing no act or proceeding of the Convention, not even that his plan had been presented and referred. And it is fair to say that while he acted like a boy, he also gave out the full record in a manly way. The absurdities in his draught, as some of his provisions must have seemed to many intelligent men, were set forth; the provisions which failed were set forth; the propositions which he himself had abandoned and opposed were set forth. There was no tampering with the record. There are passages in some of his imperfectly reported speeches in the Convention which bear some resemblance to his discursive rhetorical flights in the Observations, and these he may have thought justified the title with which he prefaced the publication. The two lines on the title page, "Delivered at different Times in the course of their Discussions," are in very small type and appear much as if they had been crowded into a printer's proof—as if they had been an afterthought. But however that may be one thing is certain, that the speech setting forth the contents of his plan was never made in the Convention.

The Observations sustain the draught in the State Department in matters of substance, but not in order and arrangement. The Observations also allude to provisions which are not in the draught in the State Department, provisions which may or may not have been in the draught which was presented to the Convention; and these I shall subsequently examine. As to the variance in order and arrangement there are two things which should be considered: First: as a matter of antiquarian research it would be interesting and satisfactory to ascertain that the one draught was a facsimile or exact duplicate of the other; but where the purpose of the inquiry (as in this case) is to ascertain what contributions the draught of Pinckney made to the Constitution of the United States, it is wholly immaterial whether one provision followed another or preceded it, or was far removed from it. The second thing to be remembered is that the draught of the Committee of Detail, so far as it agrees in order and arrangement with the draught in the State Department furnishes us with presumptive evidence of the order and arrangement in the draught which was presented to the Convention. A comparison of the two will show that the variances are so trivial that they are not worthy of further consideration.

As we have seen (chapter VI) Madison did not cite the Observations in the "Note of Mr. Madison to the plan of Charles Pinckney," but did prepare a footnote for the Note to be appended to and published with it by his future editor who he then believed would be Mrs. Madison. Why he did not cite or set forth in his own Note the "striking discrepancies" set forth in the footnote, but planned and arranged that they should be brought before the public by his editor has seemed inexplicable hitherto. The reason is now plain—he did not wish to assume the responsibility of citing the pamphlet of Pinckney because he knew that it consisted of a speech which was never made.

Madison cited the Observations and the eighth article and the fifth article of Pinckney's draught to secure its condemnation; but of each he might say as Balak the son of Zippor said to the prophet of old, "I took thee to curse mine enemies and behold thou hast blessed them!" He hunted for the Observations; he found them; he brought them to the knowledge of men, he appealed to them, he made them an authority by which Pinckney should be judged out of his own mouth; and lo! they furnish the strongest confirmation of the verity of the draught which he attacked.

The Observations seem to have been a fateful thing, fatal to whichever party relied upon them. Madison exhumed them and believed that they would destroy the pretensions of Pinckney and vindicate himself—and they have but demonstrated the superficiality of his own investigation and the baselessness of his deductions. Pinckney fearing that the part which he had played in the Convention would never be known, that his great contribution to the Constitution might never receive so much as the notice of men, impelled by his boyish egoism and by what Madison called with reference to another contemporaneous publication, "his appetite for expected praise," improperly laid them before the world—and they have done more than any other one thing to smirch his good name and bury in oblivion the great work of his life.