The Mystery of the Pinckney DraughtNott, Charles C.
History
The Mystery of the Pinckney Draught
Nott, Charles C.
Constitutional history -- United States; Pinckney, Charles, 1757-1824
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.
Public-domain text, read in full here on John Shaqi.
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