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diff --git a/40904-0.txt b/40904-0.txt new file mode 100644 index 0000000..815711a --- /dev/null +++ b/40904-0.txt @@ -0,0 +1,6964 @@ +*** START OF THE PROJECT GUTENBERG EBOOK 40904 *** + +THE MYSTERY OF THE PINCKNEY DRAUGHT + +BY CHARLES C. NOTT + +FORMERLY + +Chief Justice of the United States Court of Claims + +NEW YORK +THE CENTURY CO. +1908 + + +Copyright, 1908, by +THE CENTURY CO. + +_Published, November, 1908._ + + +TO +CEPHAS BRAINERD +OF THE NEW YORK BAR +A SOUND LAWYER AND A LONG-TRIED FRIEND + + + + +CONTENTS + + +CHAPTER PAGE + +I. STATEMENT OF THE CASE 3 + +II. THE DRAUGHT IN THE STATE DEPARTMENT 16 + +III. OF THE ISSUE OF FRAUD 23 + +IV. MADISON AS A WITNESS 29 + +V. MADISON AS AN ADVOCATE 40 + +VI. THE POSITION TAKEN BY MADISON 58 + +VII. THE PLAGIARISMS 65 + +VIII. THE IMPROBABILITIES 85 + +IX. THE OBSERVATIONS 105 + +X. THE SILENCE OF MADISON 143 + +XI. THE WILSON AND RANDOLPH DRAUGHTS 158 + +XII. THE COMMITTEE'S USE OF THE DRAUGHT 206 + +XIII. WHAT BECAME OF THE DRAUGHT 225 + +XIV. WHAT PINCKNEY DID FOR THE CONSTITUTION 243 + +XV. CONCLUSIONS ON THE WHOLE CASE 257 + +XVI. OF PINCKNEY PERSONALLY 278 + +APPENDIX + +MR. CHARLES PINCKNEY'S DRAUGHT OF A FEDERAL GOVERNMENT 295 + +DRAUGHT OF THE COMMITTEE OF DETAIL 306 + +INDEX 325 + + + + +THE MYSTERY OF THE PINCKNEY DRAUGHT + + + + +CHAPTER I + +STATEMENT OF THE CASE + + +When I began the studies which have resulted in this book someone asked +me what I was doing, and I chanced to answer that I was looking into the +mystery of Pinckney's draught of the Constitution. Afterwards I received +a letter from Professor J. Franklin Jameson in which he spoke of the +uncertainties attending the draught as "mysteries"; and later I found +that Jared Sparks, back in 1831, had been engaged in the same study and +had used the same term. With two such scholars as Professor Jameson and +Mr. Sparks recognizing the knowable but unknown element which we call +mystery, I retain the term which I chanced to use. + +"A true mystery, instead of ending discussion, calls for more." "What +constitutes a mystery is the unknown which is certainly connected with +the known. A mystery therefore is unfinished knowledge."[1] + +[Footnote 1: Dr. William Hanna Thomson, Brain and Personality, p. 278.] + +At the opening of the Convention which framed the Constitution, Charles +Pinckney of South Carolina presented a draught of a constitution that +was referred to the Committee of the Whole. This draught was not a +subject of notice or comment by any speaker or writer of the time. One +might infer from the silence of all records and writers that it was the +fanciful scheme of an individual which exercised no influence whatever +on the Convention and did not contribute a single line or sentence to +the Constitution. + +On the adjournment of the Convention its records and papers were placed +under seal and the obligation of secrecy was set upon its members. When +ultimately the seals were broken and the package was opened, more than +thirty years afterwards, the draught of Pinckney was not found. John +Quincy Adams then Secretary of State applied to Pinckney for a copy; and +he on the 30th of December 1818, sent to the Secretary of State the +duplicate or copy of the draught now in the Department of State. The +document was published and remained unquestioned until in 1830, six +years after the death of Pinckney, it came, or was brought, to the +attention of Madison; and he at different times wrote to at least four +persons concerning it and also prepared a statement which was +subsequently published with it in Gilpin's edition of Madison's Journal, +and in Elliot's Debates; and then the Pinckney draught slept unnoticed +in constitutional publications until a review in the columns of the +Nation awakened an interest in Mr. Worthington C. Ford and he in 1895 +published the letter which accompanied the draught when it was placed in +the State Department. Nevertheless, if the copy in the Department is +identical in terms, or substantially identical in terms, with the paper +which Pinckney presented to the Convention, then Charles Pinckney +contributed more of words and provisions to the Constitution of the +United States than any other man. And this draught so prepared by him +was so largely adopted in a silent way that the law student who might +chance to read it, not knowing of the comment of Madison and its +rejection by all commentators, would be tempted to speak of the +Constitution of the United States as the constitution of Pinckney. + +The reason why the Pinckney draught has received so little attention, +and he has received no credit at all for what apparently is an +extraordinary piece of constitutional work can be readily explained. + +The statement of Madison is written in temperate and guarded terms; and +it is manifest that he was careful to speak with courtesy of Pinckney +and to furnish an explanation in the nature of a bridge over which the +friends of Pinckney, then deceased, might retreat. But what he does say +instantly brings the reader's mind to the conclusion that the paper in +the State Department is not the paper--that it is not a substantial copy +of the paper, which was before the Convention. Story had been appointed +by Madison and it was not for Story to accept what Madison rejected; and +Story was so great a man, so great a judge and commentator, that it was +not for lesser men to reverse him. Madison's comment and Story's +silence have united to condemn the draught so effectively that while +printed and reprinted it has been as unnoted as if it had never been +written. The final, judicial edict of George Bancroft expressed the +general judgment when he wrote of the original draught which was +actually before the Convention, "No part of it was used, and no copy of +it has been preserved." + +Moreover Madison is too great an authority to be lightly questioned, the +highest authority that exists concerning the proceedings of the +Convention; and he asserts and undertakes to demonstrate that the one +paper can not be a true copy of the other. He designates provisions +which he says originated in the Convention and could not have been +predetermined by Pinckney; and still more conclusively, as he thinks, he +points to the fact that the paper in the Department contains provisions +to which Pinckney was himself opposed, provisions against which he spoke +and voted in the Convention. Here Madison builds his bridge. Mr. +Pinckney, he suggests, furnished this copy many years after the event +(nearly 32 years), after he had become an old man and the record of +events had faded in his memory; and probably as the work of the +Convention went on he had used a copy of his draught as a memorandum and +had interlined in it provisions which the Convention framed; and when he +sent the copy to the Secretary of State he had forgotten this, or had +gradually come to regard the interlined matter as his own. A writer like +Story with the training of a lawyer and a judge on finding the +authenticity of the copy impeached in part would be almost certain to +exclude it wholly from the consideration of the jury. Historical +analysis and research may, nevertheless, render that clear which is +obscure and show us where the work of Pinckney begins and ends. + +There are some extrinsic facts which hitherto unknown should be noted. + +In the first place this letter of Pinckney anticipates one of Madison's +criticisms and explains away his strongest point. + +"It may be necessary to remark," he says, "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 safest to refuse the first altogether and to vest the latter in +Congress." Hunt's Madison, III, p. 22. + +As to one of these things concerning which Pinckney says he changed his +mind after the Convention met, the power of Congress to revise the laws +of the States, the assertion is not sustained by Madison's record of the +proceedings. He undoubtedly did change his mind but not until after the +adjournment of the Convention. There was however another provision in +his draught to which his assertion would apply. Concerning it he did +change his mind and "avowed candidly the change of his opinion" and did +so "very soon after the Convention met." This is the provision which +declares that members of the lower house shall be chosen by the _people_ +of the several States. Article 3. As early as the 6th of June he +proposed that they should be chosen by the _legislatures_ of the several +States. Writing 32 years after the event and when the record had faded +in his memory, the two things, to use Madison's words, "were not +separated by his recollection." + +The letter is a contemporaneous declaration, given at the moment when he +produced the document and placed it on file in the Department of State, +that the copy, like the original, contained provisions which he opposed +in the Convention. With this contemporaneous notice to the Secretary of +State one of Madison's objections which at first seemed insuperable, if +it does not fall to the ground, at least becomes susceptible of +explanation; and the retention in the copy of the draught of these +apparently inconsistent things, accompanied at the time, as they were, +by Pinckney's declaration, not only removes the objection of Madison but +tells strongly in favor of the draught being what Pinckney represented +it to be. + +In the second place Pinckney speaks of having "several rough draughts of +the Constitution" ("4 or 5 draughts" he says) and he adds "that they are +all substantially the same, differing only in words and the arrangement +of the articles." Pinckney had preserved them certainly until the end of +the year 1818, and "numerous notes and papers which he had retained +relating to the Federal Convention." He also says that "with the aid of +the journal of the Convention and the numerous notes and memorandums I +have preserved, it would now be in my power to give a view of the almost +insuperable difficulties the Convention had to encounter, and of the +conflicting opinions of the members; and I believe I should have +attempted it had I not always understood Mr. Madison intended it. He +alone possessed and retained more numerous and particular notes of their +proceedings than myself." These "numerous notes and memorandums, more +numerous and particular" than those preserved by any other person, +Madison "alone" excepted, and with them the "several rough draughts," +which he found with the other papers on his return to Charleston in +1818, existed when Pinckney wrote his letter and placed his copy of the +draught in the State Department. They existed both to refresh his memory +and to refute him if he was not acting in good faith. He acknowledged +Madison to be his superior in "notes and memorandums" and a particular +knowledge of the proceedings of the Convention; and Madison was still +living, and Pinckney by placing his copy of the draught in the State +Department invited Madison and all the world to examine it. That was the +time when Madison should have spoken. It is most unfortunate that he +waited fourteen years, and until after Pinckney's death and the death of +every other member of the Convention, before he spoke. + +Like many another young lawyer I came upon Pinckney's draught in +Elliot's Debates and was astounded by finding so large a part of the +Constitution apparently written by the hand of a man whom I had never +heard extolled as a framer of the Constitution; and like many another +young lawyer, I accepted the reasons of Madison and the silence of Story +as conclusive. But the discovery and publication of Pinckney's letter in +1895 threw new light upon the subject and made it plain that Madison's +objections should not be taken as final and that his premises needed +corroboration. I therefore prepared the following inquiries in the hope +that I could persuade some historical scholar to take up this work of +Constitutional investigation. + +1. Does the draught in the State Department upon its face appear to be +an author's draught--a, "rough draught," as Pinckney called it--with +his corrections, erasures, interlineations and alterations or does it +appear to be a duplicate or a fair copy of an original or "rough" +draught? It is in the handwriting of Pinckney; does it appear to be his +original piece of work, or an engrossed copy made by him of another +paper? + +2. If upon the face of the instrument it appears to be an engrossed +copy, though in Pinckney's handwriting, that is a copy of the rough +draught with its alterations and corrections engrossed therein, then the +historical critic must proceed to try the issue of Pinckney's +truthfulness. He tells the Secretary of State at the time when he +produces the paper that "it is impossible for me now to say which of the +4 or 5 draughts I have is the one. But enclosed I send you the one I +believe was it. I repeat, however, that they are substantially the same, +differing only in form and unessentials." If this language be taken +literally it means that he is about to place in the archives of the +Department of State one of those "original" "4 or 5 draughts" and as he +believes the very one of which he prepared an engrossed copy for the +use of the Convention. If the language be not taken literally, it at +least means that he sends a true copy of one of the original rough +draughts. Is there anything in the draught to refute either +representation? Does it contain words, phrases, clauses, provisions +which certainly did originate in the Convention; which were ground out +there, and which could not possibly have been anticipated by Pinckney as +he sat in his study early in 1787 making draught after draught for the +consideration of the coming Convention? + +3. Finally, it will be apparent on reflection that even if all of the +foregoing issues should be decided against Pinckney; that is to say, if +it should be found that the paper in the State Department is not an +original draught--is not one of the four or five draughts to which +Pinckney alludes, or that it contains interlineations of which Pinckney +could not have been the author, even then after deciding all doubtful +points against him a great deal will remain which must have been his; +and historical criticism and careful analysis will be able to measure +this residuum and give us a fair estimate of its value, so that we can +know with tolerable certainty how much of the Constitution was the work +of Pinckney. + +As I have not been able to persuade any competent scholar to take up +this inquiry which seems to me to be an inquiry due to the truthfulness +of our Constitutional history and to the memory of a framer of the +Constitution whose work was not questioned until after his death, I have +felt that the work has become a duty and that the duty has been imposed +on me. + + + + +CHAPTER II + +THE DRAUGHT IN THE STATE DEPARTMENT + + +The Pinckney draught in the Department of State is written on unruled +paper larger than common foolscap, hand made, and with untrimmed edges. +The interlineations are few and trivial and clerical, the insertion of +an omitted word and the like. There are two exceptions to this. In +article 3 the draught says, "The House of Delegates shall consist of +---- to be chosen from the different States in the following +proportions: For New Hampshire ---- for Massachusetts ----" etc., etc. +But the names of the States are not set forth in the body of the +instrument as they stand in all editions, being written on the margin +and the place where they should have been inserted being noted by a +mark. + +The second exception is in the last line of article 5. The subject of +the paragraph is the veto power; and the clause "all bills sent to the +President and not returned by him within ---- days shall be Laws, +unless the legislature, by their adjournment, prevent their return" was +originally written, "unless the legislature by their adjournment prevent +its return, in which case it shall not be the law." The words "its" and +"it" are erased with the pen and the words "their" and "they" written +over them and the article "a" and a final "s" are stricken out so that +the clause as corrected reads as printed. + +In at least two particulars the draught is erroneously printed in almost +all editions. Pinckney did not write "Art. I," "Art. II," etc. Above the +first article of the draught in the middle of the line, is written +"Article 1." Over all the other articles, and likewise in the middle of +the line, are simply the arabic figures "2," "3," "4," etc., without the +word "article." The second particular, in which many printed copies are +erroneous, is in article 3. The printer has there run together two parts +of distinct sentences. The true reading is that each member of the House +of Delegates shall be "a resident in the State he is chosen for," the +sentence closing with the word "for." A new sentence then begins: +"Until a census of the people shall be taken in the manner hereinafter +mentioned, the House of Delegates shall consist of ---- to be chosen +from the different States in the following proportions," etc. But in +some we find that a delegate shall be "a resident of the State he is +chosen for until a census of the people shall be taken in the manner +hereinafter mentioned," which makes the intended provision senseless. + +The first of the foregoing inquiries (p. 12 ante), Does the draught in +the State Department upon its face appear to be an author's draught, a +rough draught with his corrections, erasures, interlineations and +alterations, or does it appear to be an engrossed copy made by him of +another paper, has been answered decisively by Mr. Gaillard Hunt in his +edition of the Writings of Madison: + +"The penmanship of all three papers (the draught and the letter to the +Secretary of State and a previous letter to the Secretary December 8, +1818) is contemporaneous, and the letter of December 30 and the draught +were written with the same pen and ink. This may possibly admit of a +difference of opinion because the draught is in a somewhat larger +chirography than the letter, having been, as befitted its importance, +written more carefully. But the letter and the draught are written upon +the same paper, and this paper was not made when the Convention sat in +1787. There are several sheets of the draught and one of the letter, and +all bear the same watermark, 'Russell and Co. 1798.'" Vol. III, p. 16. + +The draught, as before shown, contains a few verbal corrections, one or +two trivial erasures, two or three obviously necessary interlineations +but no alteration. That is to say it contains no alteration of +substance--nothing which indicates on the part of the writer an intent +to change or add to the substance of what he has written--there is no +additional provision interlined, no obscure expression amplified, no +omitted thought supplied--the corrections are one and all clerical. The +document, therefore upon its face does not appear to be a "rough +draught." + +When the Secretary of State had written to Pinckney "I now take the +liberty of addressing you, to inquire _if you have a copy of the +Draught_ proposed by you, and if you can without inconvenience furnish +me at an early day, _with a copy of it_" and Pinckney replied that among +his notes and papers he had "found several rough draughts of the +Constitution" and that "I send you the one I believe was it," and with +the letter sent a document which obviously was not a rough draught, the +fair and reasonable interpretation of his language (apart from an intent +to defraud) is that he was sending what the Secretary of State had asked +for, viz., "a copy" of the "copy of the draught proposed by you" to the +Convention; and that what he meant to say was, "I send you 'a fair copy +made by myself of the one I believe was it.'" + +What a rough draught is may be seen by referring to the literal reprint +of the Journal of Madison in the Documentary History of the Constitution +by the Department of State. It is something which requires an editor to +put the author's changes and amendments in their proper places. A +constructive piece of work as long as the Pinckney draught, must have +been cut, transposed, changed, added to over and over again. To be +intelligible it would require editing, and the Secretary had informed +Pinckney that he wanted the "copy" for publication, and that he wanted +it "at an early day": and no man would have parted with such an +important paper and confided the editing of it to some unknown clerk in +an executive department. In a word Pinckney did what any man similarly +circumstanced would have done, he kept the original paper in his +possession, and sent to the Secretary of State what he had asked for, "a +copy of it." + +If we turn now to the printed copy of the draught and note the extent of +article 6, containing the enumeration of the powers of Congress, and the +extent of the second paragraph of article 8, setting forth the powers +and duties of the President, and if we remember that all this matter is +to be found in the Constitution, it becomes instantly apparent that +absorption of all these provisions by interlineation as suggested by +Madison was absolutely impossible. In a word the bridge which Madison +built breaks down. Therefore we must face the inexorable alternative: +either Pinckney gave to the Convention a draught substantially like +that in the State Department or he fraudulently fabricated that draught +after the Secretary of State had called upon him for a copy. + + + + +CHAPTER III + +OF THE ISSUE OF FRAUD + + +On this issue of fraud we must first look at the circumstances as they +existed in December, 1818. + +Pinckney had been a Senator of the United States, Governor of South +Carolina, Minister to Spain and had just been elected to the important +Congress which was to grapple with the National questions involved in +the Missouri Compromise. He may have been a vain man as Madison thought +him--(most men of great ability and prominence are egotistical; it is +egotism ordinarily which impels them to the front) but no one has +intimated that Pinckney could have been guilty of an act which from +moral and historical points of view was little better than a crime. Some +one contributed the many provisions which are to be found in the +Constitution, and it would have been infamous to filch the honor from +the real author. The most felicitous sentence in the Constitution, "The +citizens of each State shall be entitled to all privileges and +immunities of citizens in the several States," if it was Pinckney's, +passed through the Committee of Detail, the Committee of Style and the +Convention without the change of a single word. It was one of those rare +sentences of which everybody approved; and it is not lightly to be +assumed that in 1818 Pinckney would steal such a conspicuous sentence +from the Constitution and place it at the head of one of his own +articles. + +Moreover if the draught was a tissue of fraud detection was always +possible; and detection would have blasted the life of Pinckney nowhere +with greater severity than in his own State. In 1818 sixteen other +members of the Convention were still living, and three of them had been +members of the Committee of Style, and two of them (Charles Cotesworth +Pinckney and Pierce Butler), had been delegates from South Carolina. +Letters too from members might disclose the fatal truth. A son of some +member might come forward with his father's draught of some of these +provisions. Autobiographies, diaries and personal reminiscences of +members might exist. Detection was possible, and in the ordinary course +of human events, certain. Conversely it is proper here to note the fact +that in all these years not a line of writing has been found to thrown a +shade of discredit upon the Pinckney draught. + +The temptation, too, was relatively small. The Constitution was not then +in the estimation of the American people what it is now. No one then had +proclaimed it to be "the greatest work ever thrown off by the brain and +purpose of man." In 1818 the first work on the Constitution (Rawle's) +had not yet been written. Monroe was President, and the country was just +emerging from the poverty which followed the war of 1812-15. +Pennsylvania and Georgia had defied the federal power and the latter had +passed a statute making it a crime punishable with death to enforce the +process of the Supreme Court of the United States. State feeling was +always stronger in the South than in the North and out of State feeling +had grown the doctrine of State rights. The South at that time could +cherish no warm regard for the man who had first written "all acts made +by the legislature of the United States, pursuant to this Constitution, +and all treaties made under the authority of the United States shall be +the supreme law of the land." + +It must also be noted that Pinckney was not a volunteer in this +matter--that he did not thrust his draught upon the Secretary of +State--that he never came before the public claiming to have contributed +this or anything to the Constitution. The subject was introduced by Mr. +Adams and not by Pinckney; and the draught was produced in response to +Mr. Adams' inquiries concerning it. Pinckney showed no great solicitude +about it then. His letter is slovenly and careless and manifestly not +written for posterity, and it contains no indication of his regarding it +as any thing more than a personal explanation. It was due to Mr. Adams +to tell him that this draught which he inclosed was not a literal +duplicate of the one which he had placed before the Convention; and it +was due to himself to say that it contained provisions of which he had +subsequently disapproved and which he had opposed in the Convention. +Pinckney certainly did not suppose that he was writing history or +biography when he wrote that letter. + +The letter demonstrates how inadequately Pinckney estimated the +greatness of the Constitution and overestimated his own part in the +work, and how poorly the Constitution was then esteemed. At the +beginning it had been but an experiment and in the opinion of many men +an experiment that would fail. Under the moulding hands of Jay and +Marshall it had become to Southern statesmen more and more an object of +distrust and dislike. It seemed then a growing menace to the rights of +the South and the sovereignty of South Carolina. For Pinckney to have +asserted publicly that he was the chief author of the instrument and of +its most offensive provisions would have inclined his fellow citizens in +Charleston to say that instead of boasting of his work he ought to be +ashamed of it; that where State rights were involved it was at best +ambiguous; and that, if he was the author of the draught, he more than +any other man had enabled the judges to interpret the Constitution in +favor of Federal supremacy. + +Certainly if this issue of fraud had been involved in a criminal case +Pinckney would have been able to establish two things--good character, +and the absence of a motive to defraud. + + + + +CHAPTER IV + +MADISON AS A WITNESS + + +Having now seen what Pinckney said in 1818 and what he did and where he +stood, let us turn to the other party in the controversy, Madison, and +examine the testimony which he gave and the evidence on which he relied. + +His journal (as edited by Gilpin) after setting forth the speech of +Randolph on the 29th of May, and the reference of the 15 resolutions of +the Virginia delegates, to the Committee of the Whole, contains this +record: + + "Mr. Charles Pinckney laid before the house a draught of a + federal government to be agreed upon between the free and + independent states of America." + + "Ordered that the same be referred to the Committee of the + Whole appointed to consider the state of the American + Union." + +But Yates's Minutes give us one thing more: "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's report of Pinckney's speech on the 25th of June stops with the +subject of State governments and the propriety of having but one general +system. But Yates gives in a condensed form the conclusion of Pinckney's +speech and contains the following sentences: + +"I am led to form the second branch (of the legislature) differently +from the report. I have considered the subject with great attention and +I propose this plan (reads it) and if no better plan is proposed I will +then move its adoption." + +Once while reflecting upon the extraordinary, the seemingly inexplicable +course which Madison pursued in relation to the Pinckney +draught--positive and yet evasive; alleging but never testifying--my eye +happened to fall on this minute of Yates and it suggested the fact of +these repeated omissions of Madison's to state the contents of the +Pinckney draught, and I asked myself the question, is it possible that +Madison never knew what the draught contained? In an examination of the +facts relating to this question I found that the entry in the journal, +above quoted, "Mr. Charles Pinckney laid before the house a draught" +etc. had been taken word for word from the entry of the Secretary of the +Convention in the official Journal. I found also that at four different +times in the course of the debates Madison designated the draught by +four different terms; as Mr. Pinckney's "plan" as Mr. Pinckney's +"resolutions" as Mr. Pinckney's "motion" as Mr. Pinckney's +"propositions," not one of which expressed the idea of a formulated +Constitution. It is therefore evident that Madison did not hear Pinckney +read his draught as Yates did, and did not hear him say as Yates did, +"that he had reduced his ideas of a new government to a system." My +inference then was and still is, that Madison was temporarily absent +from the hall when Pinckney produced and read his draught and that on +hearing of it he went to the Secretary's desk and copied the entry in +the official journal--an entry which is also silent as to Pinckney +having read the draught and which describes it in language entirely +different from Yates's and entirely different from Pinckney's, for +Pinckney's draught does not profess to be an agreement "between the free +and independent States of America," but is avowedly an act of the people +of the United States. It therefore appears both positively and +negatively that Madison was not present when Pinckney presented his +draught; that he could not have heard Pinckney's designation of it as a +"system" and could not have heard Pinckney read it to the Convention. He +regrets in another place that he did not take a copy of it because of +its length and it may be inferred from what may be termed his unfailing +ignorance of its contents that he did not read it because of its length. + +Madison had a poor opinion of Pinckney, a very poor opinion; and he held +fast to it all through his life. During the sitting of the Convention +the draught was referred to repeatedly in discussions and motions and +references. Madison recorded what was said, and the more important of +the motions and references, but his opinion of Pinckney was so poor that +he did not put himself to the trouble of stepping to the Secretary's +desk and reading the draught, much less of taking a copy of it. In +October 1787, after the dissolution of the Convention, he wrote from New +York to Washington and Jefferson, the following letters: + + +James Madison to General Washington. + +NEW YORK, Octr. 14, 1787. + + * * * * * + +"I add to it a pamphlet which Mr. Pinckney has submitted to the public, +or rather as he professes, to the perusal of his friends, and a printed +sheet containing his ideas on a very delicate subject, too delicate in +my opinion to have been properly confided to the press. He conceives +that his precautions against any further circulation of the piece than +he himself authorizes, are so effectual as to justify the step. I wish +he may not be disappointed. In communicating a copy to you, I fulfill +his wishes only." + +(Gaillard Hunt's Writings of Madison, Vol. V., p. 9.) + +Madison to Jefferson. + +NEW YORK, Octr. 24, 1787. + + * * * * * + +"To these papers I add a speech of Mr. C. P. on the Mississippi +business. It is printed under precautions of secrecy, but surely could +not have been properly exposed to so much risk of publication." + +(Id., p. 39.) + +Madison to General Washington. + +NEW YORK, Oct. 28, 1787. + + * * * * * + +"Mr. Charles Pinckney's character is, as you observe well marked by the +publications which I enclosed. His printing the secret paper at this +time could have no motive but the appetite for expected praise; for the +subject to which it relates has been dormant a considerable time, and +seems likely to remain so." + +(Id., p. 43.) + +In the memorandum "For Mr. Paulding" written shortly before April 6, +1831, reappears Madison's poor opinion of Pinckney. "It has occurred to +me that a copy (of the Observations) may be attainable at the printing +office, if still kept up, or in some of the libraries or historical +collections in the city. When you can snatch a moment, in your walks +with other views, for a call at such places, you will promote an object +of some little interest as well as _delicacy_ by ascertaining whether +the article in question can be met with." + +On the 25th of November, 1831, he wrote to Jared Sparks, "I lodged in +the same house with him, and he was fond of conversing on the subject. +As you will have less occasion than you expected to speak of the +Convention of 1787, may it not be best to say nothing of this _delicate_ +topic relating to Mr. Pinckney, on which you cannot use all the lights +that exist and that may be added?" + +On the 6th of January, 1834, he wrote to Thomas S. Grimke: + +"There are a number of other points in the published draught, some +conforming most literally to the adopted Constitution, which, it is +ascertainable, could not have been the same in the draught laid before +the Convention. The conformity, and even identity of the draught in the +Journal, with the adopted Constitution, on points and details the +results of conflicts and compromises of opinion apparent in the Journal, +have excited an embarrassing curiosity often expressed to myself or in +my presence. The subject is in several respects a _delicate_ one; and +it is my wish that what is now said of it may be understood as yielded +to your earnest request, and as entirely confined to yourself. I knew +Mr. Pinckney well, and was always on a footing of friendship with him. +But this consideration ought not to weigh against justice to others, as +well as against truth on a subject like that of the Constitution of the +United States." + +And on the 5th of June, 1835, he wrote to William A. Duer: + +"I have marked this letter 'confidential,' and wish it to be considered +for yourself only. In my present condition enfeebled by age and crippled +by disease, I may well be excused for wishing not to be in any way +brought to public view on subjects involving considerations of a +_delicate_ nature." + +Madison wrote with characteristic caution and courtesy but there is +something very suggestive in the way he uses the word "delicate." +Neither Mr. Paulding nor Mr. Sparks nor Mr. Grimke nor Judge Duer could +have doubted that there was something wrong in the draught--something so +wrong that Madison did not wish to speak of it. + +It is manifest that when Madison first read the draught in the State +Department, he was surprised. He does not say so, and is very guarded in +what he does say; yet it is perfectly plain that the magnitude of this +contribution to the Constitution was something absolutely new to him. He +better than any other man was supposed to know, the work and workings of +the Convention, and lo, here was a document of more importance than any +given in his journal, or found among the records of the Convention, and +of its contents he had been ignorant until the document was laid before +the world by the State Department! + +Between 1818 and 1836, the magnitude of this and its importance as an +historical document was forced upon Madison's attention from time to +time by younger men who took a warmer interest in the Constitution and +its history and its framers than their fathers had taken; and it is +apparent that he was astounded at the historical importance of the +document. Marshall was then drawing near to the end of his majestic +judicial reign, and though assailed and thwarted by the cavilings and +dissents of lesser men, had placed his imperishable impress upon the +Constitution and revealed to his countrymen its greatness and +consistency and power of nationality. The growing interest in the great +instrument would not be quieted. Madison would fain have kept silent, as +he advised his two most trusted correspondents to do. But he could not! +He was the greatest of authorities, living or dead, in all that +pertained to the making of the Constitution; the last living member of +the Convention; the sole chronicler of its secret history. It is as +plain now as it was then that he must speak. What could he say? + +Madison was not able to say, "I read the Pinckney draught when it was +before the Convention, I studied it, I knew the contents well; the paper +in the State Department is not a substantial duplicate of that paper." +There remained then but this alternative; he must confess that he knew +no more about the Pinckney draught than did the men who were +interrogating him or he must do precisely what he did do, he must attack +it on documentary evidence as an advocate, and must remain silent as a +witness. If he had testified as a witness; if he had said of his own +knowledge that the paper which Pinckney placed in the State Department +was not a copy of the paper which he had laid before the Convention and +was not a substantial duplicate worthy of consideration, that would have +been the end of the matter. Certainly I should never have felt called +upon to make the present investigation. But Madison did not so testify. +Under the pressure of steadily increasing interest in the Constitution, +inquirer after inquirer came to him to explain how a man whom they did +not regard as a wise statesman could have contributed so much to the +Constitution, which they had regarded as the composite work of a number +of great men. They did not come to him for reasons or advice or +references to documentary evidence, but because he was the one survivor +of the men who could have testified, the only chronicler of what had +happened in the Convention from first to last, and they sought his +personal knowledge. They asked him to tell them what he knew concerning +the Pinckney draught, the original draught, the one which was before the +Convention; and he answered not a word! We must reject Madison as a +witness because he rejected himself. + + + + +CHAPTER V + +MADISON AS AN ADVOCATE + + +At this day Madison is regarded as one of the chief statesmen in the +group of leading framers of the Constitution; but his best appreciated +work was his keeping the only record which we have of that august +assembly. He, who dealt with the great questions of the hour, may not +have been aware how much good work the Pinckney draught was doing in an +unnoticed way. Madison spared no effort to make his journal complete, +and no little time in doing so. He copied and inserted in it the +Virginia resolutions and the New Jersey resolutions; and he also +inserted Pinckney's long speech of the 25th of June; and yet he did not +procure and apparently did not even read and certainly did not insert in +his journal Pinckney's plan or draught. He seems to have felt sadly a +certain self-conviction of this, and to have realized the fact that the +omission of the Pinckney draught from his record was an irretrievable +error. To a man holding the author of the draught in contempt, it must +have seemed preposterous in 1831 for the shade of Pinckney to stalk upon +the historic stage and say, I formulated the Constitution. It was my +hand that sketched its outline, leaving it to the members of the +Convention, myself among the number, to change its provisions and modify +its terms. My draught was changed and modified, and the conflicting +views of the framers were welded together by notable compromises and +persuasive arguments, but nevertheless I contributed more of form and +substance, more of detail and language to the instrument known as the +Constitution of the United States than any other man. + +Accordingly, Madison, while he closed his lips as a witness, rallied his +failing forces as an advocate and proceeded to give from time to time +first to one correspondent and then to another and finally to the people +of the United States, in a "Note" to accompany his Journal when +published, all the reasons he could marshal from the written record of +the case why the draught in the State Department was an impossible +verity. + +At what time the Pinckney draught was first brought to Madison's +attention I have not been able to discover; but on the 5th of May, 1830, +Mr. Jared Sparks had been spoken or written to on the subject, for he +then replied to Madison, writing from Washington, "Since my return I +have conversed with Mr. Adams concerning Charles Pinckney's draught of a +constitution. He says it was furnished by Mr. Pinckney." Among Madison's +papers there is also a memorandum entitled, for Mr. Paulding in which he +says: + +"Much curiosity and some comment have been exerted by the marvellous +identities in a plan of government proposed by Charles Pinckney in the +convention of 1787, as published in the Journals with the text of the +constitution, as finally agreed to." + +This memorandum is not dated, but is placed chronologically before a +letter to Mr. J. K. Paulding dated April, 1831. + +On the 21st of June, 1831, he wrote to Jared Sparks: "May I ask you to +let me know the result of your correspondence with Charleston on the +subject of Mr. Pinckney's draught of a Constitution for the United +States as soon as it is ascertained?" + +On the 27th of June, he again wrote to Mr. Paulding saying that he has +"received the volume of pamphlets containing that of Mr. Charles +Pinckney." + +On the 25th of November, 1831, he again wrote to Mr. Sparks: "The simple +question is whether the draught sent by Mr. Pinckney to Mr. Adams and +printed in the Journal of the Convention could be the same with that +presented by him to the Convention on the 29th May, 1787, and I regret +to say that _the evidence that that was not the case is irresistible_." +He instances the election of members of Congress by the people, and the +debate of June 6 as "a sufficient example." "But what decides the point" +is a letter "from him to me" dated March 28, 1789--a letter quoted by +Gilpin of which I shall hereafter speak. + +Madison is guarded in all he says, but it is perfectly plain that while +he wished to impress upon Paulding and Sparks the idea that the draught +which Pinckney placed in the State Department was not the draught which +he presented to the Convention, he at the same time shrank from bringing +on a controversy and from irritating the friends of Pinckney and forcing +them into an investigation of the matter. It was, he evidently thought, +a case of "least said, soonest mended." Madison was a sagacious and an +experienced statesman who thoroughly understood his countrymen; Paulding +and Sparks were his friends and followers; what he wished to have said +passed into Gilpin's edition of the Journal and Elliot's Debates, and +gave the unquestioning world what he wished it to know and nothing more. +The bridge which he built was safely passed over by the friends of +Pinckney and his method of destroying the good name of the draught +without needlessly smirching the good name of Pinckney, and without +inciting a controversy on the subject has been so successful that for +seventy years the draught has remained silently condemned, and no man +has even thought that an investigation could possibly reverse the +accepted judgment. + +But on the 25th of April 1835, William A. Duer of New York wrote to +Madison on the same subject and making the same inquiry. Judge Duer was +an eminent and brilliant member of the New York bar and was then +President of Columbia College and had been a well known judge. For three +years the ghost of Pinckney had not been raised to disturb the serenity +of Madison's old age. Paulding and Sparks were his friends and were +publicists. To them he could say little which would mean much; and for +them his wishes and suggestions would be as binding as a law. Judge Duer +was not such a personal friend and to him Madison must speak more +freely; he was the possessor of a strong inquiring mind, and to him, +Madison must so strongly state the case that it would seem +unquestionable. He therefore, with characteristic caution lingered until +the 5th of June, and then in his reply to Judge Duer made a supreme, if +not final effort. + +In this letter, he brings up again, the election of members by "the +people" and Pinckney's speech against it on the 6th of June. "Other +discrepancies," he says, "will be found in a source also within your +reach, a pamphlet published by Mr. Pinckney soon after the close of the +Convention" (Pinckney's Observations). "A friend who has examined and +compared the two documents has pointed out the discrepancies noted +below." "One conjecture explaining the phenomenon has been that Mr. +Pinckney interwove with the draught sent to Mr. Adams passages as agreed +to in the Convention in the progress of the work and which after a lapse +of more than thirty years were not separated by his recollection." + +The "discrepancies noted below" are for the most part unimportant; and +will be examined hereafter; but there is one which should be considered +now, for it affects Madison more than it affects Pinckney. The +discrepancy referred to is this: In the Observations Pinckney says that, +"in the best instituted Legislatures of the States we find not only two +branches [of the legislature] but in some 'a council of revision'"; and +he adds that he has incorporated this "as a part of the system." The +friend says "The pamphlet refers to the following provisions which are +not found in the plan furnished to Mr. Adams as forming a part of the +plan presented to the Convention: The executive term of service 7 +years. 2. A council of revision." + +The statesmen who framed the Constitution were sufficiently statesmen to +know that what we call the veto power is not really a veto power; and +that the President, unlike the Crown, is not a part of the law-making +power. The constitution of New York and not the constitution of Great +Britain furnished the framers with the needed model. By all of them it +was known that the duty imposed and intended to be imposed upon the +President was simply a duty of "revision." This has been a subject of +judicial inquiry and the history of the veto provision may be stated in +the words of the court: + + "At an early day, June 6, this question of legislative + power was determined by two decisive votes. The Convention + adopted the principle of revision, but being mindful, as + Rutledge afterwards said, that 'the judges ought never to + give their opinion on a law, till it comes before them,' + and that they 'of all men are the most unfit to be + concerned in the Revisionary Council,' struck out + Randolph's 'convenient number of the national judiciary' + and left the power of revision in the President alone. At a + later day, August 6th, Rutledge 'delivered in the Report of + the Committee of Detail,' the committee which embodied the + previously ascertained views of the Convention in a draught + of the proposed Constitution. This section was couched in + the very words of the constitution of New York: Every bill + shall be presented to the President '_for his revision_'; + 'if upon _such revision_' he approve it, he shall sign it; + 'if upon _such revision_ it shall appear to him improper + for being passed into a law,' he shall return it. On the + 15th of August, with this word _revision_ three times + repeated, 'The thirteenth section of article 6, as amended, + was then agreed to' by all the States. It is this vote + which is expressive of the final intent of the Convention. + The verbal form in which the provision stands in the + Constitution was the work of the Committee of Style. + + "This 'revisionary business,' as Madison calls it, came up + again and again; appears and reappears in his Journal from + the 6th of June to the 16th of August; was considered and + reconsidered, discussed and rediscussed. The views of + members swung between the extremes of absolute affirmative + power in Congress and absolute negative power in the + President. The proposition of Hamilton 'to give the + Executive an absolute negative on the laws,' identical with + the legislative power of the Crown, was rejected by ten + States and supported by none. The proposition of Madison to + add the judges of the Supreme Court in the 'revision' of + bills was likewise rejected. At last the deliberations + ended where they had begun. The Convention held fast to the + principle of a Council of Revision and left the duties of + the council in the President alone. He was to be the + Council of Revision. In the words of Madison, the + Convention 'gave the Executive alone, without the + judiciary, the _revisionary control_ on the laws, unless + overruled by two-thirds of each branch.'" _The United + States v. Weil_ (29 Court of Claims Reports 523; affirmed + in _La Abra Co. v. The United States_, 175 U.S.R. 423. + +Madison forgot that on the 6th of June South Carolina had voted "no" on +the motion, to make "a convenient number of the National judiciary" a +council of revision, and that the vote was unanimous; and he forgot that +he had written with his own hand only eight days after Pinckney had +presented his draught to the Convention: + +"Mr. Pinckney _had been at first_ in favor of joining the heads of the +principal departments, the Secretary of War, of foreign affairs, etc., +in the council of revision. He had however _relinquished the idea_ from +a consideration that these could be called on by the Executive +Magistrate whenever he pleased to consult them. He was opposed to an +introduction of the judges into the business." Hunt's Writings of +Madison, III., pp. 89, 111. + +According to Madison there was a discrepancy--more than a discrepancy, a +flat contradiction between the Observations and the draught in the State +Department, the one saying explicitly that in "some of the best +instituted legislatures of the States" there was "a council of revision, +consisting of their executive and principal officers of government" and +that he had "incorporated it as part of the system"; the other +containing no such provision but, like the Constitution, giving the +executive alone the revisionary control of the laws. A superficial +examination of the case would easily bring one to the conclusion that +Pinckney in 1818 omitted the council of revision from the draught for +the State Department and copied from the Constitution the provision +which the Convention framed. But the brief speech of Pinckney written +down contemporaneously by Madison himself, singularly vindicates both +the Observations and the draught and leaves the latter stronger than it +would have been if Madison's friend had not furnished "the discrepancies +noted below." + +The significance of the term "council of revision" was not known to the +friend who arrayed the Observations against the draught and may not have +been to Judge Duer. Neither did they know that in the judgment and +understanding of the Convention the President with powers and duties +defined as they were defined was in legal effect the embodiment of the +council of revision. But Madison knew it, or had known it. He too had +personally participated in the work by his repeated efforts to engraft +a council of revision on the Constitution, and his knowledge he had +written down in his own words. Certainly he had no right to attack +Pinckney through his unnamed friend. Certainly he had no right to leave +Judge Duer to infer that the discrepancies noted below had received his +scrutiny and approval. His Journal he knew would be published, he was +even then providing for it in his will, and when published it would +contradict the discrepancy noted below and sustain the copy of the +draught which he was attacking. The obvious explanation is that +Madison's failing memory failed to record his own words, "the Convention +gave the executive alone, without the judiciary, the revisionary control +of the laws," and Pinckney's express declaration as early as the 6th of +June that "he had been at first" in favor of a council of revision but +for reasons stated had changed his mind. + +And let it not be supposed that Madison deliberately intended to deceive +or that he was actuated by a malignant wish to deprive Pinckney of any +thing which he really believed was actually his due. Madison was then +an old man--a very old man--in his 85th year who had lived long and +under the strain of great labors and intense excitements and withering +anxieties. He was too old and too weary, and too strongly prejudiced to +change his mind in a minute or to reverse the judgment of many years by +an investigation de novo. + +The word "phenomenon" in his letter to Judge Duer reveals his state of +mind and well explains his acts. That the boy who had lodged in the same +house with him in Philadelphia, the youngest member of the Convention as +he believed, who was always talking about his draught, whom he disliked +and underrated, that he should appear in 1818 as the chief contributor +to, as the principal draughtsman of the Constitution of the United +States was indeed to him a phenomenon. It was something which he could +not really believe. There is a note of contrition when he writes that +"the length of the document laid before the Convention and other +circumstances prevented my taking a copy at the time." He really +believed that if he had procured and kept a copy of the draught which +Pinckney laid before the Convention, it would have blown to pieces this +wild pretentious claim which he had laid before the Secretary of State. + +And Madison made a great mistake when he represented Pinckney to Judge +Duer as an old man in 1818 whose waning recollection could not then +separate the real from the fictitious in the draught which he had found +among his papers in Charleston. For Madison in 1835, when he wrote to +Judge Duer, was twenty-five years older than Pinckney was when he sent +the draught to Mr. Adams; and twenty-five years at that end of life is +no small difference. Moreover his memory from his youth up had been +laden and taxed with great events. It was fifty-two years since he had +made this despondent note in his record of the debates in Congress: + + + "Monday, March 17, 1783. + + "A letter was received from General Washington, enclosing + two anonymous and inflammatory exhortations to the army to + assemble, for the purpose of seeking, by other means, that + justice which their country showed no disposition to afford + them. The steps taken by the general to avert the + gathering storm, and his professions of inflexible + adherence to his duty to Congress and to his country, + excited the most affectionate sentiments towards him. By + private letters from the army, and other circumstances, + there appeared good ground for suspecting that the civil + creditors were intriguing, in order to inflame the army + into such desperation as would produce a general provision + for the public debts. These papers were committed to Mr. + Gilman, Mr. Dyer, Mr. Clark, Mr. Rutledge, and Mr. Mercer. + The appointment of these gentlemen was brought about by a + few members, who wished to saddle with this embarrassment + the men who had opposed the measures necessary for + satisfying the army, viz., the half-pay and permanent + funds; against one or other of which the individuals in + question had voted. + + "This alarming intelligence from the army, added to the + critical situation to which our affairs in Europe were + reduced by the variance of our ministers with our ally, and + to the difficulty of establishing the means of fulfilling + the engagements and securing the harmony of the United + States, and to the confusions apprehended from the + approaching resignation of the superintendent of finance, + gave peculiar awe and solemnity to the present moment, and + oppressed the minds of Congress with an anxiety and + distress which had been scarcely felt in any period of the + revolution." + +It was 48 years since Madison had served as the most laborious member of +the Convention. It was 28 years since he had seen the Navy disgraced by +the surrender of the Chesapeake after firing only a single gun--a +disgrace caused by the shameful negligence and incapacity of +administrative officers at Washington while he was a member of +Jefferson's Cabinet. It was 21 years since he had seen the Army +disgraced by the negligence of his own Secretary of War and the +incapacity of a general of his own choosing, and his Capitol burnt and +himself and his Cabinet fugitives, and his heroic wife, her friends and +the military guard of "a hundred men all gone," resolutely refusing to +leave the Executive Mansion until she had taken "the precious portrait" +of Washington from its frame to save it from the ignominy of capture by +a British Army. The Pinckney draught was but a leaf blown aside in the +tumults of his troubled life. + +But there remains the documentary evidence which Madison adduced and the +specification of plagiarism which he filed; and apart from Madison and +apart from Pinckney there remains the ultimate question which every +student of the Constitution must desire to have examined, and if +possible, answered, "What provisions of the Constitution were +contributed by Pinckney"? + + + + +CHAPTER VI + +THE POSITION TAKEN BY MADISON + + +The position taken by Madison in private letters to individuals, he had +a right to modify, abandon or withdraw; and it would not be treating him +fairly to hold him to words hastily written and perhaps inspired by an +impulse of the moment. But the "Note of Mr. Madison to the Plan of +Charles Pinckney" (Elliot Vol. 5, 578) deliberately prepared by him for +future publication, and intended by him to accompany the draught of the +State Department in future publications so that it should destroy the +supposed verity of the copy, must be taken as the final expression of +his judgment. + + "Note of Mr. Madison to the Plan of Charles Pinckney, May + 29, 1787." + + "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" stricken out] + inserted in the Debates 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 was apparent that + considerable errour had crept into the paper; occasioned + ["probably" stricken out] 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 ["cannot be ascribed + to accident or anticipation" omitted] could not have been + anticipated. + + "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, etc., 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, &c.' + + "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. Pinckney to J. M. of _March + 28, 1789_, now on his files, in which he emphatically + adheres to a choice by the _State Legrs._ 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?'" + +It is plain that Madison intended that the last two paragraphs of the +foregoing, beginning with an asterisk, should take the form of an +editorial note, and he so prepared the paper even to the placing of the +asterisk at the beginning. As long before this as 1821 he had determined +in his own mind that the publication of the Journal should be as he +termed it, "a posthumous one" (letter to Thomas Ritchie September 15, +1821), and he carried out the intention by so providing in his will made +in 1835. The expected editor was Mrs. Madison; and she, he knew, would +scrupulously and intelligently carry into effect his slightest wish. She +was not able to perform the editorial task. + +When these charges of Madison are analyzed they may be reduced to three. +The first and most serious charge is that there are coincidences "in +several instances" between the draught and the Constitution--"a +similarity in some cases and an identity in others with details, +expressions and definitions" which were "the results of critical +discussion and modification in the Convention." The second is that there +are provisions in the draught inconsistent with Pinckney's known views, +with the propositions which he presented and the speeches which he made +in the Convention and that these provisions are so inconsistent with his +views and speeches that they are "conclusive evidence of error" in the +draught. The third, is that Pinckney immediately after the sittings of +the Convention printed and published a paper entitled "Observations" +which described the contents of the draught which he had presented to +the Convention and that the two are utterly irreconcilable. + + + + +CHAPTER VII + +THE PLAGIARISMS + + +Notwithstanding Madison's ignorance of the contents of the draught, and +the fallacy of the inference which he drew from the fact that Pinckney +did not adhere to all the provisions of a tentative scheme, there +remains an objection of the gravest character, susceptible of proof or +disproof which must rest on facts and not be deduced by inferences. The +objection that Pinckney framed a provision at one time and disapproved +of it at another is easily superable: the objection that "there is in +the paper a similarity in some cases and an identity in others with +details, expressions and definitions, the results of critical discussion +and modification in the Convention _which could not have been +anticipated_," is insuperable--if it be well founded. That is to say if +there are "details, expressions and definitions" in the State Department +copy of the draught which were "the results of critical discussion and +modification in the Convention which could not have been anticipated," +then the presumption must be well nigh irrefutable that these "details, +expressions and definitions" in the questionable instrument were taken +from the Constitution; and in the absence of extraordinary explanation, +we shall be compelled to agree with Madison that the evidence is +"irresistible"--unless indeed it should appear that the expressions and +definitions which at first sight appear to have been begun and created +in the Convention had previously existed in the Articles of +Confederation or in a State Constitution, or in the resolutions of the +Continental Congress or in some source open to all parties. + +To a right understanding of the circumstances and conditions of the +subject of investigation, we must bear in mind, when we begin the +inquiry whether there are "details, expressions and definitions" in the +Pinckney draught which were "the results of critical discussion and +modification in the Convention," that the Constitution passed through +four germinal stages: + +The first began with Randolph's 15 resolutions, on the 29th of May, and +ended on the 26th of July with the 23 resolutions of the Convention. The +15 resolutions had been considered and discussed and modified and +expanded into the 19 resolutions of the Committee of the Whole, June +13th; and the 19 resolutions had also been considered and discussed and +modified and enlarged into the 23 resolutions of the Convention, July +26th. Never in the history of nations did a deliberative public body +strive so philosophically, so wisely and well to possess itself of the +subjects to be considered--to comprehend its task--to know what it was +doing and to do. + +"At the beginning, propositions for consideration and discussion were +tentatively placed before the Convention in an _abstract_ form. These +propositions were embodied in 15 resolutions, which were immediately +referred to the Committee of the Whole. They were taken up one by one, +and considered and discussed and amended or rejected or adopted or +postponed for later consideration. The abstract of a part of a single +day's proceedings will give a clear idea of the way in which the +Convention worked: + +"Tuesday, June 5. Mr. Randolph's _ninth_ proposition--_The national +judiciary to be chosen by the national legislature_--Disagreed to--_To +hold office during good behavior and to receive a fixed +compensation_--Agreed to _To have jurisdiction over offenses at sea, +captures, cases of foreigners and citizens of different States, of +national revenue, impeachment of national officers, and questions of +national peace and harmony_--Postponed. + + * * * * * + +"At the end of two weeks of such consideration and discussion, June 13, +the Committee of the Whole reported the conclusions which had so far +been reached in the form of 19 resolutions. But everything was still +abstract and tentative. No line of the Constitution had yet been +written; no provision had yet been agreed upon. The 19 resolutions in +like manner were taken up, one by one, and in like manner considered and +discussed, and amended or rejected or adopted or postponed. Other +propositions coming from other sources were also considered; and so the +work went on until July 26, when the conclusions of the Convention were +referred to the Committee of Detail, and the work of reducing the +abstract to the concrete began. The Convention then adjourned to August +6, to enable the committee to 'prepare and report the Constitution.' + +"On August 6, the Committee of Detail reported and furnished every +member with a printed copy of the proposed Constitution. Again the work +of consideration began, and went on as before, section by section, line +by line. Vexed questions were referred to committees representing every +State,--"grand committees" they were called,--amendments were offered, +changes were made, the Committee of Detail incorporated new and +additional matters in their draught, until, on September 8, the work of +construction stopped. But not even then did the labors of the Convention +cease. On that day a committee was appointed, "by ballot, to revise the +style of, and arrange, the articles which had been agreed to." This +committee was afterward known as the Committee of Style. It reported on +the 12th of September, and the work of revision again went on until +Saturday, the 15th. On Monday, the 17th, the end was reached, and the +members of the Convention signed the Constitution. Well might Franklin +exclaim in his farewell words to the Convention: 'It astonishes me, sir, +to find the system approaching so near to perfection as it does!' He had +been overruled more than once in the Convention; provisions which he had +proposed had been rejected; provisions which he had opposed had been +retained; but he was a great man and saw that a great work had been +accomplished." The Immutability of the Constitution. Encyclopædia +Americana. + + * * * * * + +The second germinal stage began July 26th with the appointment of a +committee--the Committee of Detail "for the purpose of reporting a +Constitution," and continued until August 6th when "Mr. Rutledge +delivered in the report of the Committee of Detail--a printed copy being +at the same time furnished to each member." + +The Committee had retired from the Convention with instructions couched +in the 23 resolutions, and they returned to it with more than half of +the Constitution, arranged in the form of articles and sections +substantially as we have them in the Constitution. The number of +provisions contained in the draught greatly exceeded the number of +specific instructions set forth in the resolutions, but the excess was +not wholly an excess of authority for it had been resolved: + +"That the national legislature ought to possess the legislative rights +vested in Congress by the Confederation: and moreover to legislate in +all the cases for the general interests of the Union, and also in those +to which the States are separately incompetent or in which the harmony +of the United States may be interrupted by the exercise of individual +legislation." + +When the paper which Rutledge held in his hand, as he rose to address +the Convention on the 6th of August, was placed on the table before +Washington, the moment witnessed the birth of the Constitution. +Provisions which it contained were to be stricken out, and some of the +great compromises were yet to be forged and inscribed upon the scroll, +but the written Constitution was now in being. And yet this is but +figurative language. The great state paper which passed from the hand of +Rutledge to the hand of Washington was not engrossed on parchment, like +a second Magna Charta; it was not attested by signature or date; it was +not even in writing; a few pages of printer's paper, plain and +unpretentious; a mere copy, one of a number of printed copies, as we +gather from the record. But it was to receive the severest scrutiny of +some of the great men of the world, of Washington, Franklin, Madison, +Ellsworth, Wilson, Rutledge, Hamilton. + +The printed document found in the box which holds the few records of the +Convention is not unworthy of a great state paper. It is on stately, +heavy, hand-made paper, 10 by 15-1/2 inches in size. The printed matter +is 5-1/4 inches by 12-1/2. There are seven pages carrying from 27 to 53 +lines on each. The workmanship is faultless; the type clear, the +impression uniform, the ink unfaded, the punctuation careful, the +spacing perfect. There are but two typographical errors, one of which is +a misnumbering of the articles. In Pinckney's draught the first article +has inscribed over it "Article 1" and the following articles have only +their numbers 2, 3, etc. The printer followed the same form, the only +difference being that Pinckney, writing the draught with his own hand, +used arabic figures, for which the printer substituted Roman numerals. +When he reached the seventh article he repeated VI. and when he reached +the eighth he entitled it VII. and continued the error through the +remaining articles. Notwithstanding this blemish I have never seen so +faultless a public document. + +The copy bears this endorsement: + + "Printed Draught of the Constitution, received from the + President of the United States, March 19th, 1796 by + + "TIMOTHY PICKERING + + "Sec'y of State" + +The name of the printer who did his confidential work so well, I regret +to say, is not upon the paper. + +It has been supposed and said that this copy of the draught was +Jackson's, the inefficient Secretary of the Convention, and that he used +it to save himself the trouble of writing out the proceedings in the +journal by noting amendments on the margin. This like much other +imaginary history is erroneous. + +When I first saw the draught of the committee, I observed that the notes +on the margin were written in two different hands. I also observed that +one of these though not familiar was a hand which I had seen before. On +calling the attention of Mr. S. B. Crandall of the Bureau of Rolls to +it, he instantly recognized this writing as Washington's. A further +examination showed that 115 notes and interlineations were written by +Washington and 7 by Jackson. _This copy of the draught was Washington's +own copy!_ + +Whether he placed the copy among the papers of the Convention on +September 17, 1787 when the Secretary brought them to him; or whether he +transferred his own copy to the Secretary of State in 1796 is unknown +and probably unascertainable, but the indorsement makes it certain that +the paper came to the Department directly from Washington; and the 115 +carefully made emendations in his handwriting are for us the highest +evidence in the world of its authenticity. + +The notes by Jackson are easily explicable; they are lengthy amendments +which Washington could not take down from hearing them read; and he +handed his printed copy to the Secretary to have them correctly and +fully written out.[1] + +[Footnote 1: For the benefit of those persons who are so fortunate as to +have a copy of the Documentary History of the Constitution (Department +of State, 1894) I will add that the marginal notes which are in the +writing of Jackson are those of Art. V, Sec. I; Art. VI, Sec. 3; Sec. +13, Art. VII; Sec. 1, Art. XI; Sec. 4, Art. XV; (see Doc. Hist., +Constitution Vol. I, p. 285).] + +If the Committee of Detail--Rutledge of South Carolina, Randolph of +Virginia, Gorham of Massachusetts, Ellsworth of Connecticut and Wilson +of Pennsylvania--intended to keep their work a profound secret, and the +secret to be buried with themselves, they could not have planned better +than they did. The work was done in secret; they employed no secretary; +their report was not in writing. After the committee was discharged no +hint or word seems to have escaped them. No man boasted of his own part +or disparaged another's. There is no journal which tells us how they +worked. No son or daughter or grandchild has revealed a word that any +member subsequently said. In 1813 when Edmund Randolph died, the secret +of the members of the Committee of Detail died with him. + +The third germinal stage was based on the draught of the Committee of +Detail and extended from the 6th of August to the 12th of September. The +draught of the Committee constituted the divide in the march of the +framers. Behind them was the plain of philosophical disquisition on +which there had been many contests, but exclusively as to what might be +and might not be. Before them were many hills of difficulty to be +surmounted in the practical application of abstract propositions by +incorporating them in provisions and conditions to be written into the +Constitution. But the work of the Convention and the debates of the +members were in connection with the draughted Constitution of the +Committee of Detail, or in connection with amendments thereof or +additions thereto. There were indeed new provisions framed sometimes by +grand committees, sometimes by special committees, sometimes by the +Convention itself--provisions concerning which the Convention had not at +first sufficiently instructed the Committee of Detail--provisions which +the Convention had not then considered and determined even in the form +of abstract propositions. The most difficult of the compromises, that +between the large and the small States in the choosing of the President, +was effected; and the method first proposed by Wilson and rejected by +the Convention, June 2nd, that the choice should be made through the +agency of electoral colleges was reconsidered and adopted. The power to +try officers impeached by the House of Representatives was taken from +the Supreme Court and given to the Senate; the power to appoint +ambassadors, and judges of the Supreme Court, was taken from the Senate +and given to the President; the power to appoint the Treasurer of the +United States was taken from the Legislative branch and given to the +Executive; and the important treaty-making power which at first was +lodged exclusively in the Senate was transferred to the Executive +subject to the ratification of the Senate. But all that was considered +and agreed upon was attached to the draught of the Committee of Detail. + +The fourth stage began on the 12th of September with the revised +Constitution reported by the Committee appointed "to revise the style of +and arrange the articles" which had been agreed upon, commonly termed +the "Committee of Style," but which more correctly might have been +termed the Committee of Revision. During that and the next three days +the Constitution was modified by a number of amendments chiefly of the +nature of corrections. The Committee of Style made no changes other than +those of arrangement and language. The correction of the language of the +Constitution was masterly and is ascribed by Madison to Gouverneur +Morris. On Saturday the 15th of September the labors of the Convention +ended. On Monday the 17th, the engrossed Constitution was signed. + +In his "Note to the Plan," Madison specifies some of the "details, +expressions and definitions" which were framed in the Convention, the +"results of critical discussions" that "could not have been anticipated" +by Pinckney. "Examples" of these "similarities" and "identities" he +says, "may be noticed in article VIII, 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." These are all the specifications of provisions or of language +plagiarised from the Constitution by Pinckney which Madison has filed. +Specifying nothing else, we may assume that the plagiarisms contained in +article VIII. were the plagiarisms which dwelt in his own mind and upon +which he rested his conclusions. + +These specific charges of plagiarism may be struck down by a single +blow:-- + +_Not one of the provisions contained in Pinckney's article VIII was +framed in the Convention, and all were brought before the Convention by +the draught of the Committee of Detail. All the provisions of the +Constitution which were framed by the Convention were framed +subsequently to the 6th of August and belong to the 3d and 4th germinal +periods. All the provisions which are contained in the draught of the +Committee of Detail were framed before the 6th of August and existed +before the constructive work of the Convention began._ + +When the sequence of events is observed the matter is cleared and the +"phenomenon" of Madison becomes a simple link in the chain of events. +Pinckney presented his draught to the Convention on its first business +day before there had been a single "critical discussion." The Convention +immediately referred the draught to the Committee of the Whole, which +made it accessible to every member of the Convention. When a committee +was appointed to draught a Constitution, the draught of Pinckney was +taken from the Committee of the Whole and referred to the Committee of +Detail. The committee found in the draught matter which they needed and +they used it as the basis of their own draught as any committee would +have done. And thus the draught of the Committee of Detail became the +vehicle by means of which these provisions and expressions of Pinckney +were carried into the Constitution. + +If all this were not a matter of record it would be well nigh +unbelievable that Madison of all men could have pursued the course he +did. The most diligent member of the Convention, the chronicler of its +transactions, the sole survivor of its members and, consequently, a +witness who should speak with the greatest care; and yet we find him, at +one end of the line, ignorant of the contents of Pinckney's draught, and +at the other silent as to the contents and existence of the draught of +the Committee of Detail. When he wrote of "the coincidence in several +instances between that [the State Department draught] and the +_Constitution as adopted_" and cited article VIII as containing +remarkable examples of these coincidences, he gave unconsciously a +curious illustration of things "confounded in the memory" "after a lapse +of more than thirty years"--in his case, after a lapse of more than +forty-five years. + +With the fall of these specifications falls the general charge of +plagiarism. The draught in the State Department ends with the draught of +the Committee of Detail; whatever coincidences there be of "details, +expressions and definitions" are coincidences in the two draughts and in +them alone. The similarities and identities which so impressed Madison +were merely similarities and identities between the two draughts. He +doubtless selected article VIII as "remarkable" because he recognized +in it provisions and expressions which he knew were in the Constitution. +But there are others in article VIII which are not in the Constitution +and which are inconsistent with it. The retention of these is sufficient +to refute the idea that Pinckney changed his draught to make it conform +to the work of the Convention. Article VIII provides that the title of +the President "shall be his Excellency." There is no such provision in +the Constitution. Article VIII makes exceptions to the appointing power; +"ambassadors, other ministers and judges of the Supreme Court" are not +to be appointed by the President but by the Senate. This was not one of +the "results" arrived at in the Convention. In case of the death of the +President and the death of the President of the Senate, "the Speaker of +the House of Delegates shall exercise the duties of the office." Here +all that Pinckney had to do to make his draught conform was to run his +pen through the supplementary clause vesting the succession in the +Speaker. The President may be removed from office on impeachment by the +House of Delegates and "conviction in the Supreme Court." Here all that +Pinckney had to do was to erase "Supreme Court" and insert "Senate." +Finally it is to be noted that those expressions and provisions in +article VIII which caught the eye of Madison and were characterized as +"remarkable" were not "results of critical discussion and modification +in the Convention that could not have been anticipated," but were +provisions and expressions which had been taken by Pinckney from the +constitutions of New York and Massachusetts, generally word for word. +The article provides that the President "shall from time to time give +information to the legislature of the state of the Union," and +"recommend to their consideration" the measures he may think necessary; +that "he shall take care that the laws be duly executed"; that "he shall +commission all officers"; and "shall nominate and with the consent of +the Senate" appoint officers; that "he shall have power to grant pardons +and reprieves"; and that "he shall be commander in chief of the army and +navy"; but each of these provisions was taken from the constitution of +New York. The article also provides that at "entering on the duties of +his office he shall take an oath faithfully to execute the duties" of +President; and that he "shall be removed from his office on impeachment +by the House of Delegates"; but these provisions were taken from the +constitution of Massachusetts. The article also provides that "in case +of his removal by death, resignation or disability, the President of the +Senate shall exercise the duties of his office"; but this is taken from +the constitution of New York. In a word when we trace these provisions +and expressions to their respective sources there is nothing left of the +article. Article VIII is indeed remarkable; but it is for reversing the +deductions of Madison; for demonstrating with mathematical certainty (so +far as it goes), that Pinckney did not make his draught conform to +"results" which had been reached in the Convention, and which "could not +have been anticipated." + + + + +CHAPTER VIII. + +THE IMPROBABILITIES + + +The most incisive reason given by Madison against the authenticity of +the draught in the Department of State, the reason which he most +reiterated, if not the one upon which he most relied, was that the +draught was presented to the Convention on the 29th May and a week +later, June 6th, Pinckney moved "that the first branch of the national +legislature be elected by the State legislatures and not by the people." +This objection is not only plausible but it rests on two +incontrovertible facts each of which is a matter of record--that the +draught was presented to the Convention on the 29th of May; that his +inconsistent motion was made on the 6th of June. But the conclusiveness +of these facts disappears when the circumstances and changed conditions +of the case appear. + +In the first place Pinckney had forestalled the point made by Madison by +declaring in his letter to the Secretary of State that there were +provisions in the draught which on further reflection he had opposed in +the Convention. This declaration, it must be remembered, was made before +the publication of Madison's Journal, before it was known that it would +be published, before Pinckney knew or could have known what the Journal +would show. In other words it was he himself who first revealed his own +inconsistency in having presented a plan for one thing in May and in +having contended for another thing in June. The explanation is not an +afterthought or a defence, but an avowal made in due time. + +In the second place the draught was presented on the 29th of May, but it +was not written then. It must have been written weeks before this in +Pinckney's study in Charleston. When he wrote it he had before him, as +every American of that day had, the Constitution of Great Britain, the +constitution under which he had grown up, the merits and virtues and +wisdom and excellencies of which he had read and re-read in Blackstone. +It was a matter of course for him, when dealing with the legislative +power, to have his Congress consist of two houses. As to this there +would not be a doubt or a thought. The next thing would be to have the +members of the first house, like the members of the House of Commons, +elected by the people. So far he had no reason to pause and reflect. But +when he came to the second house, he had no nobility at hand of which it +might be composed. Here his invention began, and he avowedly so +contrived his Senate that it should in fact though not in form, +represent not nobility but wealth. It is probable that when he was +draughting his constitution, it never entered his head that the lower +house of the American parliament could be chosen by any other means than +the means by which the House of Commons was chosen and the lower house +of every American State. + +In the third place between the 29th of May and the 6th of June the +subject had come before the Convention and had been discussed and South +Carolina had taken a position against it. + +Gerry of Massachusetts said that "the evils we experience flow from the +excess of democracy"; and that "he did not like the election by the +people." Butler, of South Carolina, "thought an election by the people +an impracticable mode." Rutledge, the strongest man in the State, +seconded the motion to have the first branch elected by the State +legislatures. Charles Cotesworth Pinckney, the most esteemed citizen of +the State and Pinckney's kinsman, brought South Carolina before the +Convention as an illustration and even went so far as to say "an +election of either branch by the people, scattered as they are in many +States, particularly in South Carolina, is totally impracticable." + +Pinckney was the youngest member of the delegation--much the youngest. +He was not yet 30; and, with the exception of Dayton and Mercer was the +youngest member of the Convention. It would have been natural for him as +a Southerner "to go with his State"--and as a young man to defer to his +seniors. And after hearing the debate on the 31st of May and the reasons +of his fellow delegates from South Carolina, it was proper for him to +change his mind and advocate election by the State legislatures as a +better mode. It would have been a matter of wonder if he had not! + +But there is a letter of George Read which should be considered, for it +suggests the question whether this change of Pinckney did not take place +before the 29th of May; that is to say before he presented his draught +to the Convention. + +On the 20th of May 1787 Mr. Read wrote from Philadelphia to John +Dickinson: + +"I am in possession of a copied draught of a federal system intended to +be proposed if something nearly similar shall not precede it. Some of +its principal features are taken from the New York system of government. +A house of delegates and senate for a general legislature, as to the +great business of the Union. The first of them to be chosen by the +legislature of each State, in proportion to its number of white +inhabitants, and three-fifths of all others, fixing a number for sending +each representative. The second, to-wit the senate, to be elected by the +delegates so returned, either from themselves or the people at large, in +four great districts, into which the United States are to be divided for +the purpose of forming this senate from which, when so formed, is to be +divided into four classes for the purpose of an annual rotation of a +fourth of the members. A president having only executive powers for +seven years." (Read's Life of George Read of Delaware p. 443.) + +This letter is very far from being conclusive. In the first place it +does not appear that Mr. Read had seen the original of this "copied +draught" or that Pinckney had given him the copy or had told him what +his plan was or that any person who had seen the original draught had +told him what it contained. In the second place the existence of an +unauthenticated copy on the 20th of May does not conclusively prove that +a different version of the same draught was not presented to the +Convention on the 29th of May. Still this letter undoubtedly refers to +Pinckney's draught and compels a more searching examination of the +question raised than would otherwise be necessary. + +In a paper which will be called, briefly, "the Observations" written by +Pinckney before he left Charleston he sets forth at length a description +of his plan of government. In the opening paragraph of this paper he +says that he will "give each article" of his draught "that either +materially varies" from the present government "or is new." He then +goes on to say that "the first important alteration is that of the +principle of representation." "Representation is a sign of the reality. +Upon this principle, however abused, the Parliament of Great Britain is +formed, and it has been universally adopted by the States in the +formation of their legislatures." This is all which Pinckney, writing +before the Convention began its work, had to say concerning the lower +house of Congress. His Senate was new and concerning it he had much more +to say, and he described it. But of the lower house, the popular body, +he had nothing to say save that there would be such a house, and that it +would rest upon the principle of representation "universally adopted by +the States in the formation of their legislatures." The Virginia +resolutions undoubtedly expressed the opinion of substantially all +Americans when they said, "Resolved that the members of the first branch +of the national legislature ought to be elected by the people of the +several States." Assuredly if the draught which Pinckney was then +describing had contained the extraordinary and novel proposition that +the popular branch of the national legislature, the body which should +represent the people, was not to be chosen by the people he would have +had something "new" to lay before the Convention--something which did +not exist in the government of any English speaking people in the +world--something which "materially varied" from the belief and usage and +history and traditions of the people who were to ordain this +Constitution. Knowing Pinckney as we do--his general views, his +adherence to the general principles of the British constitution, his +attentive study of State constitutions, his outspokenness, his belief in +his own devices, we know that if his draught had then contained so +radical a departure from all existing constitutions as that which he +subsequently proposed in the Convention, and if he had worked himself +into a belief at the time when he wrote the Observations that the +election of their representatives by the people was "theoretical +nonsense", he could not have refrained from saying so. What is said in +the Observations harmonized with the constitutions of every State in the +Confederation and with the Virginia resolutions and with the views of +every member of the Convention excepting the five great land owners +from South Carolina. + +The Observations, therefore (written before the Convention and published +afterwards), sustain the draught in the State Department. + +The words "the people" appear directly and necessarily in article 3 of +the draught: "The Members of the House of Delegates shall be chosen +every ---- year by the people of the several States; and the +qualifications of the electors shall be the same as those of the +electors in the several States for their Legislatures." They reappear +casually and needlessly in article 5: "Each State shall prescribe the +time and manner of holding elections _by the people_ for the House of +Delegates." The draught therefore in these provisions is consistent with +itself. + +In the draught of the Committee of Detail the words of Pinckney's +article 3 again appear with some amplification, but in the same order +with the same context and with the same intent. Such agreements come not +by chance. + +And if such agreements come not by chance, could Pinckney while he was +copying the committee's draught for his own article 3 have written +these two troublesome words "the people" without taking heed of their +significance, without realizing what he was doing, without remembering +that his own draught had said "the _legislatures_ of the several +States." He could not! For there is another provision in the draught in +the State Department which was not taken from the committee's +draught--which did not exist in the committee's draught--which must have +been deliberately framed by Pinckney--the provision before quoted from +article 5, "Each State shall prescribe the time and manner of holding +elections _by the people_ for the House of Delegates." That is to say if +Pinckney unintentionally abstracted his article 3 from the committee's +draught in 1818, he, nevertheless, must have fabricated designedly his +article 5 at the same time; for there is nothing in the committee's +draught to suggest it. + +Then the question immediately arises, What motive could Pinckney have +had for falsifying his draught and making this change from the election +of delegates by State legislatures to their election by the people of +the several States. The answer of the superficial of course will be, +"So that the world should believe that he had always been in favor of +the election of representatives by the people." No other reason can well +be assigned; yet there could not have been such a motive. Pinckney knew +that his draught was to be soon published and that with it would be +published the official Journal of the Convention and that the +publication would disclose to the world this record: + + "Wednesday, June 6, 1787 + "Mr. Gorham in the Chair. + + "It was moved by Mr. Pinckney, seconded by Mr. Rutledge to + strike the word 'people' out of the 4th resolution + submitted by Mr. Randolph, and to insert in its place the + word + + 'Legislatures' so as to read 'resolved that the Members of + the first branch of the national legislature ought to be + elected by the Legislatures of the several States' + + "and on the question to strike out "it passed in the + negative."" + +If Pinckney's article 3 had really provided that members of the first +house should be chosen _by the legislatures_ of the several States, +certainly his article 5 would not have provided that "each State shall +prescribe the time and manner of holding elections by _the people_." +Article 3 laid down the basic principle that representatives were to be +chosen by the people, and article 5 provided for the time and manner +when and whereby the people should elect their representatives; and +article 4 provided that Senators should be chosen, not by the people or +the legislatures of the several States, but by the House of Delegates. +In all these provisions we again see that the draught in the State +Department is consistent with itself. + +It is possible that the person who gave the "copied draught" to Mr. Read +was Pinckney himself; and it is probable that by the 20th of May he had +changed his mind concerning the election of delegates by the people and +had determined to make his draught conform to the views of his fellow +delegates from South Carolina. We know, as will hereafter appear, that +he contemplated making many amendments to his draught before presenting +it to the Convention; and that he hastily and prematurely presented it +on the 29th of May so that it should go with the Virginia resolutions +to the Committee of the Whole. The change we are considering may not +have been made in the written instrument which he laid upon the +Secretary's desk, though he made the change in his own mind. But be that +as it may, it is as certain as existing knowledge goes that no man saw +the original draught with the words "by the people" twice stricken out +and the words "by the legislatures of the several States" twice written +in; and until this change in the original draught is shown by positive +testimony, unequivocal in terms and above suspicion in character, the +circumstantial evidence that the draught went to the Convention with the +words "the people" in the 3d and 5th articles is overwhelming. + +There are some other things specified in the Note not of great +importance, but which serve to show how eagerly Madison clutched at +anything that would operate as a makeweight against Pinckney and his +draught. + +Article VIII "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." This is not a complete +statement of the case. The article declares that "the executive power" +shall be vested in a President and that "he shall be elected for ---- +years." The provisions relating to the President were on their face +incomplete. There are virtually two blanks left in the provision, the +one relating to the length of the President's term of office, the other +to the manner in which he should be chosen. The 12th resolution filled +these blanks for a time by saying "seven years" for the one and by "the +National legislature" for the other. Here were "results" arrived at in +the Convention. That Pinckney did not fill these blanks in the +Department copy--blanks so obvious and so easily filled--goes a great +way to show that he did not in any place complete his draught by writing +into it "results" arrived at in the Convention. It is a strained, +artificial conclusion which calls an omission "remarkable" when the +instrument is avowedly nothing but an incomplete, tentative draught +prepared for the future consideration of its author as well as other +persons. + +Madison notes "variances" between the draught in the Department and the +propositions and arguments of Pinckney in the Convention. "Thus in +article VIII" he says, Pinckney provides for the impeachment of the +President but on the 20th of July he was opposed to "any impeachability +of the Executive." "He was sure they _ought not to issue from the +legislature who would in that case hold them as a rod over the +Executive_." But the draught says much more than Madison repeats. "He +shall be removed from his office on impeachment by the House of +Delegates _and conviction in the Supreme Court_." Pinckney did not +oppose that in the Convention. Madison on his own record clearly had no +right to say that Pinckney "was opposed to any impeachability of the +Executive." He did not oppose such an impeachability as his draught +provided for viz., by the Supreme Court, and his reasons quoted by +Madison do not apply to the impeachability provided in his draught. + +"In article III it is required that all money-bills shall originate in +the first branch of the legislature; which he strenuously opposed on the +8th of August and again on the 11th." Here Madison overlooked the +significance of these dates. They are subsequent to the report of the +Committee of Detail by which report Pinckney's plan for the organization +of the Senate had been rejected. Pinckney alluded to this on the 11th +when he said, "The rule of representation in the first branch was the +true condition to that in the second branch." Neither does it appear in +Madison's Journal that he "_strenuously_ opposed." On the 11th he "was +sorry to oppose reopening the question," but "he considered it a mere +waste of time." On the 8th his opposition had been couched in three +lines, "If the Senate can be trusted with the many great powers +proposed, it surely can be trusted with that of originating +money-bills." Pinckney's real position in regard to this was clearly +stated by himself and thus recorded by Madison on Wednesday, June 13th; +"Mr. Pinckney thinks the question premature. If the Senate should be +formed on the same proportional representation, as it stands at present, +they should have equal power. Otherwise a different principle should be +introduced." How did the Senate "stand at present," on June 13th. This +is shown by the resolutions of the Committee of the Whole of the same +day. "That the right of suffrage in the second branch of the national +legislature ought to be according to the rule established for the first +branch." Resolution 8. The Senate therefore was "at present," a very +different representative body than the Senate of Pinckney's draught; and +to say on these changed conditions and on the record of what he did say +that he "strenuously opposed" the very thing which he had adopted in his +draught is a wild use of terms. + +"In article V, members of each house are made ineligible to as well as +incapable of holding any office" a provision, Madison continues, which +"was highly disapproved of by him on the 14th of August." + +What was this disapproval? Article V provides that the members of each +house shall not be eligible to office during the time for which they +have been respectively elected, "nor the members of the Senate for one +year after." This idea that a member of Congress should not hold, during +his legislative term of office, an executive office which he had helped +to create or the emoluments of which he had helped to increase, +undoubtedly existed in many minds. But under the scheme embodied in the +Pinckney draught there was a peculiar reason why the ineligibility of +Senators should continue after their legislative terms of office had +expired. That reason was because (Art. VIII), the Senate was to be an +appointing power. It was to "have sole and exclusive power to" "appoint +ambassadors, and other ministers to foreign nations, and judges of the +Supreme Court." Under this scheme it was obvious that a Senator should +not be allowed to step out of office at the expiration of his term on +one day and be appointed by his late colleagues to an important office +on the next day. It is, therefore, not a surprising thing to find this +provision in the draught and to find it applied only to the Senate. + +On the 14th of August Pinckney had so far modified his own views that he +was then in favor of making the members of each House incapable of +holding executive salaried offices while they continued members, with a +provision that "the acceptance of such office shall vacate their seats +respectively." This having failed in Convention, he on the same day +urged a general postponement of the subject "until it should be seen +what powers should be vested in the Senate" "when," he said, "it would +be more easy to judge of the expediency of allowing officers of State to +be chosen out of that body." This postponement was agreed to nem. con. +It is manifest that the idea of the Senate being an appointing power was +still uppermost in his mind. He gave good reasons for not making +ineligibility absolute; but he consistently adhered to the idea that the +same person should not be both a Legislator and an officer of State. + +On the 14th of August Pinckney proposed to make members ineligible to +hold any office by which they would receive a salary. This was merely a +restriction on the original proposition of the draught, a limiting of +its application to salaried offices but leaving members eligible and +capable of filling honorary positions. To say that his original +proposition was thereby "highly disapproved" by him is certainly an +abuse of the term "highly disapproved." The objection of Madison when +tested by his own record, the Journal, comes down to this: that three +months or more after Pinckney wrote the draught, he thought it better to +limit the Constitutional prohibition to "salaried offices." This +restriction was a trivial and a sensible modification. To infer from it +that Pinckney then "highly disapproved" his own original proposition +merely marks the nervous excitement which seems to have impelled Madison +to exaggerate every little deviation of Pinckney from the strict letter +of his draught into conclusive evidence that this draught never existed. + +This brings us to the extrinsic evidence on which Madison relied, the +testimony of Pinckney against himself. + + + + +CHAPTER IX. + +THE OBSERVATIONS + + +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" + + "Much curiosity and some comment have been exerted by the + marvellous identities in a plan of Government proposed by + Charles Pinckney in the Convention of 1787 as published in + the Journals with the text of the Constitution, as finally + agreed to. I find among my pamphlets a copy of a small one + entitled Observations on the Plan of Government submitted + to the Federal Convention, in Philadelphia, on the 28th of + May, by Mr. C. Pinckney, a Delegate from S. Carolina, + delivered at different times in the Convention. + + "The copy is so defaced and mutilated that it is impossible + to make out enough of the plan, as referred to in the + Observations, for a due comparison of it with that printed + in the Journal. The pamphlet was printed in N. York by + Francis Childs. The year is defaced. It must have been not + very long after the close of the Convention, and with the + sanction, at least, of Mr. Pinckney himself. It has + occurred to me that a copy may be attainable at the + printing office, if still kept up, or in some of the + libraries or historical collections in the city. When you + can snatch a moment, in your walks with other views, for a + call at such places, you will promote an object of some + little interest as well as delicacy, by ascertaining + whether the article in question can be met with. I have + among my manuscript papers lights on the subject. The + pamphlet of Mr. P. could not fail to add to them. + + "April, 1831." + +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, + + "June 6th, 1831. + + "DEAR SIR.--Since my letter answering yours of April 6th, + in which I requested you to make an inquiry concerning a + small pamphlet of Charles Pinckney printed at the close of + the Federal Convention of 1787, it has occurred to me that + the pamphlet might not have been put in circulation, but + only presented to his friends, etc. In that way I may have + become possessed of the copy to which I referred as in a + damaged state. On this supposition the only chance of + success must be among the books, etc., of individuals on + the list of Mr. Pinckney's political associates and + friends. Of those who belonged to N. York, I recollect no + one so likely to have received a copy as Rufus King. If + that was the case, it may remain with his representative, + and I would suggest an informal resort to that quarter, + with a hope that you will pardon this further tax on your + kindness." + +On the 27th of June he wrote to Mr. Paulding for the third time +regarding the Observations: + + "June 27th, 1831. + + "DEAR SIR:--With your favor of the 20th instant I received + the volume of pamphlets containing that of Mr. Charles + Pinckney, for which I am indebted to your obliging + researches. The volume shall be duly returned, and in the + mean time duly taken care of. I have not sufficiently + examined the pamphlet in question, but I have no doubt that + it throws light on the subject to which it has relation." + +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. + + "There is no one, I believe, who doubts there is something + particularly alarming in the present conjuncture. There is + hardly a man in or out of office, who holds any other + language. Our Government is despised--our laws are robbed + of their respected terrors--their inaction is a subject of + ridicule--and their exertion, of abhorrence and + opposition--rank and office have lost their reverence and + effect--our foreign politics are as much deranged, as our + domestic economy--our friends are slackened in their + affection, and our citizens loosened from their obedience. + We know neither how to yield nor how to enforce--hardly any + thing abroad or at home is sound and entire--disconnection + and confusion in offices, in States and in parties, prevail + throughout every part of the Union. These are facts + universally admitted and lamented." + + "Be assured that however unfashionable for the moment your + sentiments may be, yet, if your system is accommodated to + the situation of the Union, and founded in wise and liberal + principles, it will in time be consented to. An energetic + government is our true policy, and it will at last be + discovered and prevail." + + "Presuming that the question will be taken up de novo, I do + not conceive it necessary to go into minute detail of the + defects of the present confederation, but request + permission to submit, with deference to the House, the + draught of a government which I have formed for the Union. + The defects of the present will appear in the course of the + examination. I shall give each article that either + materially varies or is new. I well know the science of + government is at once a delicate and difficult one, and + none more so than that of republics. I confess my situation + or experience have not been such as to enable me to form + the clearest and justest opinions. The sentiments I shall + offer are the result of not so much reflection as I could + have wished. The plan will admit of important amendments. I + do not mean at once to offer it for the consideration of + the House, but have taken the liberty of mentioning it, + because it was my duty to do so. + + "The first important alteration is that of the principle of + representation and the distribution of the different powers + of government. In the federal councils, each State ought to + have a weight in proportion to its importance; and no State + is justly entitled to greater. A representation is a sign + of the reality. Upon this principle, however abused, the + Parliament of Great Britain is formed, and it had been + universally adopted by the States in the formation of their + legislatures." + + "In the Parliament of Great Britain as well as in most and + the best instituted legislatures of the States, we find not + only two branches, but in some a council of revision, + consisting of their 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 Senate, I propose to have elected by the House of + Delegates, upon proportionable principles, in the manner I + have stated, which though rotative, will give a sufficient + degree of stability and independence. The districts, into + which the Union is to be divided; 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 executive should be appointed septennially, but his + eligibility ought not to be limited: He is not a branch of + the legislature farther, than as a part of the council of + revision; and the suffering him to continue eligible will + not only be the means of ensuring his good behavior, but + serve to render the office more respectable. + + "The 4th article, respecting the extending the rights of + the citizens of each State throughout the United States; + the delivery of fugitives from justice upon demand, and the + giving full faith and credit to the records and proceedings + of each, is formed exactly upon the principles of the 4th + article of the present confederation, except with this + difference, that the demand of the Executive of a State for + any fugitive criminal offender shall be complied with. It + is now confined to treason, felony, or other high + misdemeanor; but as there is no good reason for confining + it to those crimes, no distinction ought to exist, and a + State should always be at liberty to demand a fugitive from + its justice, let his crime be what it may. + + "The 5th article, declaring that individual States shall + not exercise certain powers, is also founded on the same + principle as the 6th of the confederation. + + "The next is an important alteration of the Federal system, + and 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. + + "I apprehend the true intention of the States in uniting + is, to have a firm, national government, capable of + effectually executing its acts, and dispensing its benefits + and protection. In it alone can be vested those powers and + prerogatives which more particularly distinguish a + sovereign State. The members which compose the + superintending government are to be considered merely as + parts of a great whole, and only suffered to retain the + powers necessary to the administration of their State + systems. The idea which 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. The States should retain + nothing more than that mere local legislation, which, as + _districts_ of a general government, they can exercise more + to the benefit of their particular inhabitants, than if it + was vested in a Supreme Council; but in every foreign + concern as well as in those internal regulations, which + respecting the whole ought to be uniform and national, the + States must not be suffered to interfere. No act of the + Federal Government in pursuance of its constitutional + powers ought by any means to be within the control of the + State Legislatures; if it is, experience warrants me in + asserting they will assuredly interfere and defeat its + operation. + + "The next article proposes to invest a number of exclusive + rights, delegated by the present confederation, with this + alteration: that it is intended to give the unqualified + power of raising troops, either in time of peace or war, + in any manner the Union may direct. It does not confine + them to raise troops by quotas on particular States, or to + give them the right of appointing regimental officers, but + enables Congress to raise troops as they shall think + proper, and to appoint all the officers. It also 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. + + "The 7th article invests the United States with the + complete power of regulating the trade of the Union, and + levying such imposts and duties upon the same, for the use + of the United States, as shall in the opinion of Congress, + be necessary and expedient. + + "The 8th article only varies so far from the present, as in + the article of the Post Office, to give the Federal + Government a power not only to exact as much postage as + will bear the expense of the office, but also for the + purpose of raising a revenue. Congress had this in + contemplation some time since, and there can be no + objection, as it is presumed, in the course of a few years + the Post Office will be capable of yielding a considerable + sum to the public treasury. + + "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 judiciary. + + "The 10th article gives Congress a right to institute all + such offices as are necessary for managing the concerns of + the Union; of erecting a federal judicial court for the + purposes therein specified; and of appointing courts of + Admiralty for the trial of maritime causes in the States + respectively. + + "The exclusive right of coining money--regulating its + alloy, and determining in what species of money the common + treasury shall be supplied--is essential to assuring the + federal funds. + + "In all those important questions, where the present + confederation has made the assent of nine States necessary, + I have made the assent of two-thirds 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 exclusive right of establishing regulations for the + government of the militia of the United States, ought + certainly to be vested in the federal council. + + "The article empowering the United States to admit new + States into the confederacy is become indispensable, from + the separation of certain districts from the original + States--and the increasing population and consequence of + the western territory. I have also _added an article_ + authorizing the United States, upon the petition from the + majority of the citizens of any State or convention + authorized 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 term mentioned in the + article. + + "The Federal Government should also possess the exclusive + right of declaring on what terms the privileges of + citizenship and naturalization should be extended to + foreigners. + + "The 16th article proposes to declare that if it should + hereafter appear necessary to the United States to + recommend the grant of any additional powers, that the + assent of a given number of the States shall be sufficient + to invest them and bind the Union as fully as if they had + been confirmed by the legislatures of all the States. The + principles of this, and the article which provides for the + future alteration of the Constitution by its being first + agreed to in Congress, and ratified by a certain proportion + of the legislatures, are precisely the same. + + "There is also in the articles a provision respecting the + attendance of the members of both Houses; it is proposed + that they shall be the judges of their own rules and + proceedings, _nominate their own officers_, and be obliged, + after accepting their appointments, to attend the stated + meetings of the legislature; 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. + + "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 to offices of trust + or emolument. + + "There is also an authority to the national legislature, + permanently to fix the seat of the general government, to + secure to authors the exclusive right to their performances + and discoveries, and to establish a Federal University. + + "There are other articles, but of subordinate + consideration. In opening the subject, the limits of my + present observations would only permit me to touch the + outlines; in these I have endeavored to unite and apply, as + far as the nature of our Union would permit, the + excellencies of such of the States' Constitutions as have + been most approved. + + "I ought again to apologize for presuming to intrude my + sentiments upon a subject of such difficulty and + importance. It is one that I have for a considerable time + attended to. I am doubtful whether the convention will, at + first be inclined to proceed as far as I have intended; but + this I think may be safely asserted, that 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; leaving only to the States such + powers as may be necessary for the management of their + internal concerns." + +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. + + + + +CHAPTER X + +THE SILENCE OF MADISON + + +Up to this point the draught in the State Department has been considered +precisely as Madison desired it should be considered; that is to say +upon his objections. The inquiry moreover has been confined to the final +indictment which he drew up, to-wit, the "Note of Mr. Madison to the +Plan of Charles Pinckney," and to the evidence which he adduced to +sustain it, to-wit Pinckney's Observations and letter and Madison's +Journal of the Convention. But there is another chapter which must be +considered, a chapter of facts and circumstances forming an unseen part +of the strategy which his cautious policy supplied. + +In his letters to Sparks and the others as in the final "Note," there is +a studious comparison instituted between the draught in the State +Department and the Constitution itself. There is also an argument +implied that the draught in the Department cannot possibly be identical +with the draught presented to the Convention because it contains some +provisions which Pinckney opposed in the Convention. A student whose +inquiries were limited to early editions of Madison's Writings might +draw from them two extenuating inferences, the first of which would be +that the weakened memory of age and infirmity had failed to bring before +Madison the proper instrument for comparison, the draught of the +Committee of Detail; the second that he had never heard of Pinckney's +letter to the Secretary of State and knew not that Pinckney had notified +the Secretary that the copy which he sent was not a literal reproduction +of the lost draught and that it, like the original, contained provisions +which on further reflection he had opposed in the Convention. + +In the spring of 1830 Mr. Jared Sparks passed a week with Madison at +Montpelier and on his return to Washington sent to him the following +letter: + + "WASHINGTON, May 5th, 1830. + + "Since my return I have conversed with Mr. Adams + concerning Charles Pinckney's draught of a constitution. He + says it was furnished by Mr. Pinckney, and that he has + never been able to hear of another copy. It was accompanied + by a long letter (written in 1819) now in the Department of + State, in which Mr. Pinckney claims to himself great merit + for the part he took in framing the constitution. A copy of + this letter may doubtless be procured from Mr. Brent, + should you desire to see it. Mr. Adams mentioned the + draught once to Mr. Rufus King, who said he remembered such + a draught, but that it went to a committee with other + papers, and was never heard of afterwards. Mr. King's views + of the subject, as far as I could collect them from Mr. + Adams, were precisely such as you expressed." + +Here it may be noted that what Mr. Adams heard from Mr. King is recorded +in his Memoirs, May 4, 1830, Vol. VIII, p. 225. It is only what Sparks +reported to Madison. Mr. King had not seen the draught, and had not +heard any one narrate what its provisions were. Indeed his doubts and +suspicions seem to have been founded on no other fact than that he did +not hear it talked about. Like Madison, he was a witness who could +testify to nothing, not even to hearsay. + +On the 24th of May, 1831, Mr. Sparks, who was then at work on his life +of Gouveneur Morris, again wrote to Madison. + + "BOSTON, May 24, 1831. + + "In touching on the Convention, I shall state the matter + relating to Mr. Pinckney's draught, as I have heard it from + you, and from Mr. Adams as reported to him by Mr. King. + Justice and truth seem to me to require this exposition. I + shall write to Charleston, and endeavor to have the draught + inspected, which was left by Mr. Pinckney. Your + explanation, that he probably added particulars as they + arose in debate, and at last forgot which was original and + what superadded, is the only plausible way of accounting + for the mystery, and it may pass for what it is worth. + Should anything occur to you, which you may think proper to + communicate to me on the subject, I shall be well pleased + to receive it." + +Madison felt so solicitous about the inquiry in Charleston that on the +21st of June he wrote to Sparks, asking to be informed of the result "as +soon as it is ascertained." + +But on the 16th of June Sparks had written to Madison the following +letter which could not have reached him when he wrote on the 21st. + + "BOSTON, June 16th, 1831. + + "I have procured from the Department of State a copy of the + letter from Mr. Charles Pinckney to Mr. Adams, when he sent + his draught for publication. This letter is so conclusive + on the subject that I do not think it necessary to make any + further inquiry. It is evident, that the draught, which he + forwarded, was a compilation made at the time from loose + sketches and notes. The letter should have been printed in + connexion with the draught. I imagine Mr. Pinckney expected + it. He does not pretend that this draught was absolutely + the one he handed into the Convention. He only 'believes' + it was the one, but is not certain. + + "Should you have leisure, I beg you will favor me with your + views of this letter. It touches upon several matters + respecting the history and progress of the Convention. Do + these accord with your recollection? I would not weary or + trouble you, but when you recollect that there is no other + fountain to which I can go for information, I trust you + will pardon my importunity." + +When Sparks wrote his hasty letter of June 16th he was evidently writing +under two misapprehensions. The first was that he supposed the question +involved was whether the draught on file was an exact copy of the lost +original; the second was that its verity depended entirely on Pinckney's +accompanying letter. To his inquiry what did Madison think of that +letter, Madison made no reply. + +But in the course of the next five months Sparks cleared his mind of the +above misapprehensions and freed himself from the authority of Madison's +opinion; and his strong and well trained mind analysed the facts +involved and grasped the real problem of the case. This analysis and +this problem he set clearly before Madison in the following letter. + + "BOSTON, November 14th, 1831. + + "My mind has got into a new perplexity about Pinckney's + Draught of a Constitution. By a rigid comparison of that + instrument with a Draught of the Committee reported August + 6th they are proved to be essentially, and almost + identically, the same thing. It is impossible to resist the + conviction, that they proceeded from one and the same + source. + + "This being established, the only question is, whether it + originated with the committee, or with Mr. Pinckney, and I + confess that judging only from the face of the thing my + impressions incline to the latter. Here are my reasons. + + "1. All the papers referred to the committee were + Randolph's Resolutions as amended, and Patterson's + Resolutions and Pinckney's Draught without having been + altered or considered. The committee had them in hand nine + days. Their Report bears no resemblance in form to either + of the sets of resolutions, and contains several important + provisions not found in either of them. Is it probable that + they would have deserted these, particularly the former, + which had been examined seriatim in the convention, and + struck out an entirely new scheme (in its form) of which no + hints had been given in the debates? + + "2. The language and arrangement of the Report are an + improvement upon Pinckney's Draught. Negligent expressions + are corrected, words changed and sentences broken for the + better. In short, I think any person examining the two for + the first time, without a knowledge of circumstances, or of + the bearing of the question, would pronounce the + Committee's Report to be a copy of the Draught, with + amendments in style, and a few unimportant additions. + + "3. If this conclusion be not sound, it will follow that + Mr. Pinckney sketched his draught from the Committee's + Report, and in so artful a manner as to make it seem the + original, a suspicion I suppose not to be admitted against + a member of the Convention for forming the Constitution of + the United States. + + "Will you have the goodness to let me know your opinion? If + I am running upon a wrong track I should be glad to get out + of it, for I like not devious ways, and would fain have + light rather than darkness. + + "P.S.--You may be assured, Sir, that I have no intention of + printing anything on this subject, nor of using your + authority in any manner respecting it. I am aware of the + delicate situation in which such a step would place you, + and you may rely upon my discretion. I am greatly puzzled, + however, in respect to the extraordinary coincidence + between the two draughts. Notwithstanding my reasons above + given, I cannot account for the committee's following any + draught so servilely, especially with Randolph's + Resolutions before them, and Randolph himself one of their + number.--I doubt whether any clear light can be gained, + till Pinckney's original draught shall be found, which is + probably among the papers of one of the committee. It seems + to me that your secretary of the convention was a very + stupid secretary, not to take care of these things better, + and to make a better Journal than the dry bones that now go + by that name." + +This letter set forth the real elements of the case, elements +incontrovertible and absolutely certain--that Pinckney's draught was +referred to the Committee of Detail; that it was never considered in +the Convention; that the period within which the Committee framed their +draught was a brief one; that the Committee's draught bears no +resemblance in form to the resolutions of the Convention and contains +provisions not found in them; that the Committee so departed from the +resolutions, though Randolph himself was one of their number, and struck +out an entirely new scheme in form of which no hint had been given in +the debates and that the Committee's draught in form, language and +arrangement appears to be a copy of Pinckney's with amendments and +additions. + +From these sure premises Sparks deduced two alternative conclusions; "I +think any person examining the two [draughts] for the first time without +a knowledge of the circumstances or of the bearing of the question would +pronounce the Committee's report to be a copy of the draught with +amendments in style and a few unimportant additions," "or that _Mr. +Pinckney sketched his draught from the Committee's, and in so artful a +manner as to make it seem the original, a suspicion I suppose not to be +admitted against a member of the convention_." + +In the second clause of the latter alternative Sparks with admirable +sagacity applied the most delicate test that could be applied to the +matter. He brings the dilemma down to this: The Committee must have used +Pinckney's draught or Pinckney must have sketched his draught from the +Committee's; and more than that, he must have sketched it "_in so artful +a manner as to make it seem the original_." + +When one instrument is fashioned after another the natural and even +unconscious action of the mind is to correct and improve. It is a going +forward toward a desirable result. To fashion the second instrument +after the first but in such a manner that in many details there would be +an unfailing inferiority would be a going backward. This inferiority in +detail runs through the Pinckney draught as has repeatedly been shown +before. When Sparks wrote the word "artful" he used the right word, the +word which controlled the situation--"in so artful a manner as to make +it seem the original" most accurately defines what Pinckney did in +Charleston in 1818 if he then fabricated a new draught. + +Of course such a fabrication was possible but it would have required a +literary forger with a genius for literary forgery to have taken the +Committee's draught and given these artless imperfections--these +delicate touches of inferiority to the copy for the State Department. + +To the specific charge that Pinckney must have sketched his draught "in +so artful a manner as to make it seem the original" if it was not what +he had represented it to be, Madison made no reply. Sparks had narrowed +the issue to this, "Did the Committee follow Pinckney's draught or did +Pinckney use the Committee's?" But Madison evaded the issue. Sparks had +shown that the Committee did not confine themselves to results arrived +at after discussion in the Convention; but that they had incorporated in +their draught "important provisions not found in either" set of +resolutions, and he called Madison's attention "to the extraordinary +coincidence between the two draughts;" and he added that he could not +"account for the Committee following any draught so servilely, +especially with Randolph's resolutions before them, and Randolph himself +one of their number." It was for Madison then to meet this issue and +show definitely where the Committee got the many new provisions of their +draught, important and unimportant, if they did not get them from the +Pinckney draught. + +On the 25th of November, 1831, Madison replied at length to Sparks' +letter but he said not a word about the draught of the Committee or of +Pinckney's letter to the Secretary of State. His answer was in effect, +"Impossible!" + +Sparks did not acknowledge the receipt of the letter until the 17th of +January, 1832, and then the acknowledgment was called out by a letter +from Madison of January 7th. He yielded a reluctant assent, manifestly +in deference to Madison, that "this letter seems to me conclusive, but" +(he immediately adds), "I am still a good deal at a loss about the first +draught of the Committee. The history of the composition of the draught +would be a curious item in the proceedings of the Convention." Here +Sparks again put his finger on one of the things that needed +explanation, "the composition of the draught." His sagacious mind +grasped the fact that the structure of the draught of the +Constitution--of the Constitution itself, would indeed be a "curious +item in the proceedings of the Convention." It was original work in +style, order, details and arrangement; "a curious item" indeed! Whose +was the hand that sketched it? When Sparks was so near the end of the +matter and on the path which led to the end, it seems almost incredible +that he did not take one step forward. If he had he would have solved +the problem and dispelled the mystery. + +Madison's letter of November 25th seems to have been written for +posterity as well as for the man to whom it was sent. Its untold object +manifestly was to divert attention from the draught of the Committee and +to direct comparison to the Constitution itself. Three years later in +his letter to Judge Duer he reiterated what he had said to Sparks, and +again he said nothing upon the point which Sparks had plainly placed +before him. Finally when he prepared his Note to the Plan, he for a +third time, was silent on the primary issue in the case, Did the +Committee follow Pinckney's draught or did Pinckney surreptitiously use +the Committee's? + +This silence of Madison's is a most curious instance of his sagacious +and adroit management. It was not his business to direct attention to +this troublesome final issue and he did not. The "Note of Mr. Madison to +the Plan of Charles Pinckney" would be published; the letters of Sparks +to himself might never see the light. Indeed I can give this tribute to +his adroitness--that this book was written in the belief that Madison, +never knew of Pinckney's letter to the Secretary of State, and that his +weakened mind had overlooked the draught of the Committee of Detail; and +it was not till the book was finished that I found the letters of Sparks +above quoted and was compelled thereby to supply this chapter, and +modify what I had elsewhere written. + + + + +CHAPTER XI + +THE WILSON AND RANDOLPH DRAUGHTS + + +Since Madison's time there have been uncovered four papers of which he +knew nothing, and they bring us into an almost new field of inquiry. +These papers are in the handwriting of James Wilson, Edmund Randolph and +John Rutledge (all members of the Committee of Detail) and they are +draughts (or sketches for draughts) of the Constitution. + +The first paper, chronologically, is not a draught. It was discovered by +Professor McLaughlin and was published by him in the Nation of April 28, +1904, and is among the Wilson papers in the library of the Historical +Society of Pennsylvania. It is in Wilson's hand and was found among his +papers; but if it was drawn up by him, of which I do not feel sure, it +is questionable whether it was prepared by him for the Convention of +1787; and it is unquestionable that it was prepared before the adoption +of the 23 resolutions. A single article, or item of the paper will +demonstrate this and its worthlessness. + + "20. Means of enforcing and compelling the Payment of the + Quota of each State." + +This is all that there is concerning the rock upon which the +Confederation was already wrecked--the dependence of the general +government upon the voluntary action of the State governments for +revenue. Wilson in 1787 was too intelligent a statesman to even think of +retaining this condition of national dependency, and he was too wise a +man to talk of "enforcing and compelling" the several States to +contribute to the national treasury. He may have prepared the paper some +time before the Convention was called, when amendments to the Articles +of Confederation were all that was anticipated, but he did not draw up +this memorandum after he had become a member of the Committee of Detail. + +The second paper in Wilson's hand was discovered by Professor Jameson +among the Wilson papers, and was published by him in the Annual Report +of the Historical Association, 1902, Vol. I., p. 151. This paper +contains the preamble of the Pinckney draught, and, consequently, of the +draught of the Committee. Then follow the first three articles of the +Committee's draught, with some slight variations of language; and then +under the caption of what should be article 4, come 29 paragraphs +containing provisions closely agreeing with provisions in the +Committee's but unarranged and incoherent in their order. The second +sheet of this draught is unfortunately missing; the third sheet contains +various provisions, following closely the 17th, 18th, 19th, 20th and +21st resolutions, and, near the end of the paper, the provision relating +to the veto power taken from the constitution of Massachusetts with the +term "Governour of the United States" twice used. + +The third paper of Wilson was likewise discovered by Professor Jameson. +Wilson had prepared the second draught for himself, but this third or +final draught manifestly was prepared for the consideration of the other +members of the Committee. He wrote it on large foolscap in what is +called double columns, _i. e._ half of each page was left blank for the +comments and suggestions and amendments of the others. The writing is in +the clear, neat, legible hand, characteristic of Wilson, and before the +work of revision began, there was hardly a clerical error in the paper. +A remarkable contrast is stamped upon it consisting of 43 amendments in +the scrawly, slovenly, bold, illegible writing of Rutledge, who really +seems to have found pleasure in cutting and slashing the careful work, +the almost feminine neatness and niceness of Wilson's pages. This +draught unlike the second, is divided into articles, but unlike the +Committee's, is not subdivided into sections. + +The fourth of these recently discovered papers is in the handwriting of +Edmund Randolph. Mr. William M. Meigs in his Growth of the Constitution +has done an excellent piece of historical work in reproducing the +draught of Randolph in facsimile. In its interlineations, erasures, +changes, omissions and marginal queries we see Randolph's doubts and +perplexities and the incompleteness of his plan and the limitations of +his mental view of a draught; and we see this as distinctly as if we +stood beside him while he wrote. A more disheveled paper was never +reproduced in facsimile. Upon its margin are annotations and suggestions +of omitted provisions which are in the hand of Rutledge. One thing, most +meritorious, appears--that Randolph carefully and conscientiously went +through the 23 resolutions and neglected no instruction which they gave. +But the chief question remains unexplained as Sparks left it, How came +the Committee of Detail to wander so far from the resolutions "with the +resolutions before them and Randolph himself one of their number"? + +The draught of Randolph begins in this way: + +"In the draught of a fundamental constitution two things deserve +attention: + +"1. To insert essential principles only, lest the operations of +government should be clogged by rendering those provisions permanent and +unalterable which ought to be accommodated to times and events, and + +"2. To use simple and precise language and general propositions +according to the example of the constitutions of the several States." + +Randolph then considers the subject of a preamble and sets forth a brief +disquisition to show that a preamble is proper and what it should +contain. "We are not working," he says, "on the natural rights of men +not yet gathered into society, but upon the rights modified by society +and interwoven with what we call the rights of States." He outlines what +the preamble should set forth; his views are sound, but his intended +preamble is not the preamble reported by the Committee of Detail. + +There is a curious provision in his draught relating to the compensation +of Senators: "The wages of Senators shall be paid out of the treasury of +the United States; those wages for the first six years shall be ---- +dollars per diem. At the beginning of every sixth year after the first +the supreme judiciary shall cause a special jury of the most respectable +merchants and farmers to be summoned to declare what shall have been the +averaged value of wheat during the last six years, in the State where +the legislature shall be sitting; and for the six subsequent years, the +Senators shall receive per diem the averaged value of ---- bushels of +wheat." + +This extraordinary provision for the benefit of Senators only +illustrates the crudity of Randolph's intentions at the time and the +incompleteness of his plan. + +The annotations of Rutledge are few but they are valuable for they +authenticate the paper; they prove it was the very paper upon which +Randolph and Rutledge worked; and that it was all which they had then +prepared toward a draught of the Constitution. + +These draughts of Randolph and Wilson disclose another fact of unusual +interest. When the Randolph draught was found bearing the annotations of +Rutledge, it suggested the idea that the two Southern members of the +Committee of Detail had put their heads together to draught a +constitution which would be accepted at the South, and that probably the +three Northern members had prepared another which would be accepted at +the North. But the final draught of Wilson dispels that illusion. We now +know that Rutledge gave quite as much attention to the Wilson draught +as to the Randolph draught, and that he wrote many more amendments upon +its margin. Nothing has been discovered to show that Ellsworth and +Gorham even attempted to draught a constitution; and after finding that +the other members used and utilized and amended the Pinckney draught we +know that there was nothing left for Ellsworth and Gorham to draught. +They were not constructive men in the Convention, though being +critically minded they may have rendered good service in the way of +revision, but they contributed nothing to the draught of the Committee. +Every provision in it is traceable to Pinckney, Wilson, Randolph and +Rutledge, and they were its authors. + +The second and third draughts of Wilson appear in neatness and +completeness to be copies. There is nothing indicative in them of an +author's perturbations. The writing is small and finished. If it were +not known to be Wilson's hand one could easily believe it to be that of +a secretary, giving good work for wages, undisturbed by the cross +currents of thought and composition. But on the back of a sheet of the +second draught is a paragraph which is unmistakably a rough draught, +which is unquestionably author's work, warped and altered in the +uncertainties of construction and composition; and this piece of work is +a preamble. + +As first written, before erasures and interlineations began, it stood as +follows: + + "We the people of the States of New Hampshire etc. do agree + upon ordain and establish the following Frame of Government + as the Constitution of the United States of America + according to which we and our Posterity shall be governed + under the Name and Stile of the United States of America." + +Wilson then amplified the first part of this draught, and the +amplifications well illustrate the bent of his mind toward details and +particulars; and he next reduced it by omitting the clauses which relate +to the government of ourselves and our posterity, and to the "Name and +Stile" of the future nation so that it reads as follows: + + "We the People of the States of New Hampshire etc. already + confederated under and known by the Stile of the United + States of America do ordain declare and establish the + following Frame of Government as the Constitution of the + said United States." + +Neither of these versions is the preamble reported by the Committee. +Each lacks the bold simplicity and comprehensiveness and directness of +Pinckney's: "We the People of New Hampshire" etc. "do ordain declare and +establish the following Constitution for the government of ourselves and +posterity." + +The preamble is in words and structure a small thing. Two persons having +the tasks set them of preparing a preamble with that of Massachusetts +before them as material out of which each should be made, could hardly +avoid, one would think, evolving out of it two sentences which would be +in terms almost identical. But even in this small thing the different +traits and methods and style of the two men appear. Pinckney takes the +Massachusetts preamble and reduces it until he gets what he wants +without a superfluous word. Wilson cannot resist amplifying even while +he is condensing. When we get through with what is unquestionably +Wilson's work, the preamble for the Committee remained to be +written--unless it was already written in the Pinckney draught. + +In the investigation of the charges of Madison against Pinckney it was +found that whenever the evidence was subjected to a rigorous examination +the case broke down. These draughts of Wilson and Randolph though not +intended as a charge against Pinckney may be treated as such--the charge +of appropriating Wilson's work and representing it to be his own. +Accordingly I have in like manner, examined the evidence and have again +found that it does not sustain the charge. A few illustrations will make +this plain. + +The preamble in the Committee's draught is in Wilson's, word for word. +When we find that this preamble is in the preliminary draught of Wilson +(a member of the committee), and in the finished product (the draught of +the committee), we easily infer that Wilson was the author, the +originator of the preamble, and when we find that the same preamble is +in the draught of Pinckney and know that he possessed a copy of the +Committee's draught we are in danger of taking another step on the +pathway of assumption and reaching the conclusion that Pinckney must +have taken his preamble from the Committee's draught. This makes a case +against Pinckney which is entitled to explanation or examination. + +The preamble to the Constitution of the United States was suggested by +the Articles of Confederation and the constitutions of eleven of the +thirteen States. Its language was taken by Pinckney or by Wilson, or by +both, from the Constitution of Massachusetts by much condensing. +Wilson's draught is identical in terms with Pinckney's save for the +insertion of a single word, "our," in the last line; "for the government +of ourselves and our posterity." + +This word "our" is here a word of limitation, a word which taken +literally would confine the blessings and government of the Constitution +to the men who made it and their posterity. But at the time when these +early constitutions were framed the growth of the country it was +foreseen would depend chiefly on immigration. The Constitution of +Massachusetts does not use the word "citizen," and throws the door of +the elective franchise open to "every male person" "resident in any +particular town" and to "the inhabitants of each town." "And to remove +all doubts concerning the meaning of the word 'inhabitant' in this +constitution, every person shall be considered as an inhabitant, for the +purpose of electing and being elected into any office or place within +the State in that town, district or plantation where he dwelleth or has +his home." The draughtsmen of the Massachusetts Constitution therefore +with logical exactitude, left the word "posterity" unrestricted, and +broad enough to extend to the posterity of all men who thereafter might +become inhabitants within the State. + +Two things must now be noted. The first is that every word in Pinckney's +preamble, save one, was taken from the preamble of the constitution of +Massachusetts; the second, that Pinckney's draught adheres to the +unrestricted "posterity" of the constitution, and does not follow the +restricted "posterity" of the Wilson draught. The charge that Pinckney's +preamble was "necessarily" derived from the Committee's draught is +therefore doubly refuted. There was a source to which Pinckney could go +for his preamble, the constitution of Massachusetts, and he went there; +there was a deviation from the constitution of Massachusetts in the +Wilson draught, and Pinckney did not follow it. + +Wilson probably inserted the word "our," in his preamble for a +rhetorical reason; for he was one of the signers of an instrument which +rang with its own concluding words "OUR LIVES, OUR FORTUNES AND OUR +SACRED HONOR." + +The insertion of one word (our) in one of these preambles is a slender +strand of circumstantial evidence. But circumstantial evidence is made +up generally of slender strands; and circumstantial evidence is least +suspicious when the strands are severally insignificant. With the +Declaration of Independence and the Articles of Confederation and eleven +of the State constitutions containing preambles, it is inconceivable +that Pinckney would have framed his draught without a preamble; and if +Pinckney framed the preamble, as he must have done, it is inconceivable +that he would have thrown it aside in 1818 and substituted another +man's, for he was never ashamed of his own work. And it must be taken +as a fixed fact that Pinckney had a preamble, for the structure of the +draught required it; the first article would be meaningless without one, +"The stile of _this government_"--the government announced in the +preamble. Therefore having the necessity of a preamble, and the +production of one in 1818, and the strict adherence in words and intent +to the constitution of Massachusetts and Pinckney's familiarity with +that constitution, the severally slender strands become a cord of +circumstantial evidence which must satisfy an unprejudiced mind that +Pinckney was the author of the preamble in his draught. There are too +many clews here to be disregarded, and they all lead one way. The +unquestionable sketches of a preamble in Wilson's and Randolph's +handwriting show only three attempts and three failures. + +Let us now consider a second illustrative case: + +As we have seen in a previous chapter (Chap. XI) the 3d of the 23 +resolutions declared that the members of the House of Representatives +"ought" to receive an adequate compensation for their services; and the +4th resolution, that the members of the Senate "ought" "to receive a +compensation for the devotion of their time to the public service." The +term "adequate" implied and required the exercise of some discretionary +power, which must necessarily be national. For if Senators and +Representatives were to be paid by the States which sent them to +Congress, the members of Congress could not well turn around and dictate +to the States what they should be paid. This was understood at the time. +For on the 22d and 26th of June when the Convention refused to retain +the words "to be paid out of the National Treasury" in the 3d +resolution, "Massachusetts concurred" as Madison says, "not because they +thought the State Treasury ought to be substituted; but because they +thought nothing should be said on the subject, in which case it wd. +silently devolve on the Nat. Treasury to support the National +Legislature." + +Furthermore this thing was not done in a corner and the consideration of +it was not confined to an hour. On the 12th of June the Committee of the +Whole had resolved that the Representatives in Congress "ought to be +paid out of the National Treasury," and again on the same day that +Senators "ought" "to be paid out of the National Treasury"; and on the +13th of June the committee had voted to report these resolutions to the +Convention; and on the 22d of June the Convention had refused to change +this to payment by the States. Moreover the proposition that members be +paid by the States had been condemned by the strongest men in the +Convention. "Those who pay are the masters of those who are paid," +Hamilton had said; and Gorham, Randolph, King, Wilson, and Madison had +said as much. + +Nevertheless the Committee of Detail reported a provision that the +members should be paid by the States; and, not only this, but also, that +the compensation should be "ascertained" "by the State in which they +shall be chosen." + +The only reason for or explanation of the Committee's act so far as we +know is that working hurriedly, they overlooked one of the details of +the 3d and 4th resolution, and, using Pinckney's draught as their copy, +inadvertently allowed this provision of his to stand unchanged. + +In these newly found papers of Wilson this provision making the +compensation of the national legislators dependent upon the action of +the State legislators appears just as it stands in the draught of the +Committee of Detail. Did Wilson originate this or did he get it from the +Pinckney draught? + +There is good reason for believing that such a provision would be found +in Pinckney's draught. On the 22nd of June when the clause of the 3d +resolution declaring that members "ought to be paid out of the public +treasury" had been advocated by some of the strongest men in the +Convention, and the Convention apparently were about to adopt it, their +immediate action was blocked by South Carolina; "The determination of +the House on the whole proposition was, on motion of the Deputies of the +State of South Carolina, postponed until to-morrow," says the Journal. A +State had this right under the Rules of the Convention, and the Deputies +of South Carolina exercised it, Pinckney being one of them. On the +following day they succeeded in defeating the adoption of the clause. +On the 26th of June General Pinckney "proposed that no salary should be +allowed" to Senators. "This branch" he said "was meant to represent +wealth; it ought to be composed of persons of wealth." And "on the +question for payment of the Senate to be left to the States" South +Carolina voted "aye." + +But there is no good reason why we might expect to find this provision +in Wilson's draught. The resolutions did not so direct; and there had +not been a single vote of the Convention which committed this matter of +compensation to the States; and Wilson's personal bias could not have +misled him for he condemned it. On the 22nd of June he had said in the +Convention that "he thought it of great moment that the members of the +National Government should be left as independent as possible of the +State Governments in all respects," and during the same debate he had +moved that the salaries of the 1st branch "be ascertained by the +National Legislature." The explanation is that Wilson working with +Pinckney's draught before him gave his attention to improving its +phraseology; and that the other members of the Committee confiding in +Wilson's scrupulous carefulness and particularity overlooked his +mistake. + +We have before us a third illustration: + +The Constitution of New York provided, "The supreme legislative power +within this State shall be vested in two separate and distinct bodies of +men; the one to be called the Assembly of the State of New York; the +other to be called the Senate of the State of New York; who together +shall form the legislature, and meet once at least in every year for the +despatch of business." + +The draught of Pinckney varies slightly; "The legislative power shall be +vested in a Congress, to consist of two separate houses; one to be +called the house of Delegates; and the other the Senate, who shall meet +on the ---- day of ---- in every year." + +The draught of Wilson also follows this with little variation: + +"The Legislative power of the United States shall be vested in two +separate and distinct Bodies of Men, the one to be called the House of +Representatives of the People of the United States, the other the Senate +of the United States." + +So far we have in these three instruments the same earmark: "the one to +be called the Assembly of the State of New York; the other to be called +the Senate." "One to be called the House of Delegates and the other the +Senate." "The one to be called the House of Representatives, the other +the Senate." But the draught of the Committee of Detail departs both in +words and structure from this form: "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 upon the other." + +Here it was possible that Wilson followed the Pinckney draught, which +was in his possession, but it was not possible that Pinckney copied +Wilson's draught which was then unpublished and unknown. The words that +Pinckney and Wilson both used, "the one to be called the House, the +other the Senate" are clews which lead from Pinckney directly to the +Constitution of New York. The Committee changed the words and changed +the structure of the sentence and thereby rendered it certain that +Pinckney did not derive his provision from their draught. + +Let us take another illustrative case: + +Luther Martin's resolution of July 17th provided, "The legislative acts +of the United States" "and all treaties" "shall be the supreme law of +the respective States." (The 7th of the 23 resolutions.) Article VIII. +of the draught of the Committee of Detail varied the phraseology in one +word "shall be the supreme law of the _several_ States." The committee +of Style gave us the provision as it stands in the Constitution: (Art. +VI.) "This Constitution and the Laws of the United States which shall be +made in pursuance thereof; and all treaties which shall be made under +the Authority of the United States shall be the supreme law of the +_land_." + +Turning back from the Constitution to Pinckney's draught, avowedly drawn +up before the work of the Convention had even begun, we find in his +Article VI. "All acts made by the legislature of the United States +pursuant to this Constitution, and all treaties made under the +authority of the United States shall be the supreme law of the land." + +This assuredly seems to be an instance which confirms Madison; that is +to say an instance where as Madison said there are to be found in the +draught in the State Department, "the results of critical discussion and +modification in the Convention." Must we also add, with Madison "which +could not have been anticipated"? Moreover if Pinckney obtained this +provision by purloining it, he must have taken it from the Constitution +itself. The language in his draught apparently involves and combines +three distinct acts of the Convention; the adoption of the resolution of +Martin on the 17th of July; the acceptance of the Committee's draught of +the 6th of August; the revision by the Committee of Style, just before +the dissolution of the Convention. This makes a dark charge against +Pinckney--far darker and more specific than any charge that Madison +preferred against him. At first sight it seems as if at last Pinckney +was taken in the toils of his own weaving, as if there were no escape +for him and that he must be convicted. But the simple explanation is +that Pinckney took his provision and its verbiage from the Congress of +the Confederated States in the resolution of March 21st 1787. Luther +Martin did not adhere to the language of the resolution; and he did not +intend to; for his resolution was a compromise, an alternate for a +proposed power in Congress to negative the laws of the States, and he +intended that his resolution should bear directly and explicitly upon +"the respective States." The subject was one of great importance, of +surpassing interest and had but recently been disposed of by compromise +in the Convention, and the Committee properly adhered to Martin's +resolution, correcting only one word by the substitution of another, +"several" for "respective," "shall be the supreme law of the several +States." + +Pinckney had been a member of the Congress when the resolution of March +21st was passed; he may have draughted it himself; and certainly it +covered a matter in which he was interested above all other things, the +supremacy of the National Government. The Committee of Style may have +taken the concluding phrase from the resolution of Congress or they may +have placed it in the Constitution on their own motion; for _Trevett_ v. +_Weeden_ had been heard and adjudicated by the Supreme Court of Rhode +Island on September 25th, 26th, 1786, and the words "THE LAW OF THE +LAND" were in the air; and the term had received a judicial significance +which has never been adequately appreciated. It meant an authority +higher than a statute. + +There are three important articles in Wilson's draught which are not +Wilson's. These appear on the margin in the handwriting of Rutledge and +answer to article XIV, XV and XVI of the Committee's draught. As they +are in almost the precise language of Pinckney's articles 12 and 13 the +much repeated question again arises, did Rutledge take them from the +Pinckney draught; were they then in the Pinckney draught to be taken; or +did Pinckney abstract them from the Committee's draught? The question is +easily and decisively answered: _these articles are described in the +Observations; Pinckney's title to them cannot be questioned; Wilson and +Rutledge had his draught before them, and used it, when Rutledge wrote +these articles upon the margin_. + +The veto power was cast by the Convention in their resolutions with +those of the Executive. Pinckney had placed it in his draught among the +legislative, though he is careful to say in the Observations that the +Executive "is not a branch of the Legislature farther than as a part of +the council of revision." Nevertheless he placed the veto at the end of +his article 5--an article relating to the choosing of members of the +lower house; to the privileges of Representatives and Senators; to the +business proceedings of both houses. Wilson more clearly perceived that +the American veto would lack the finality of the _Le roy, avisera_ of +the Crown, and that it would be neither a legislative nor an executive +power though having the properties of both; and he properly made of the +veto power an entire and independent article, article 7 of his draught. +There were members of the Convention who regarded the veto power as a +bulwark against the encroachments of the legislative power; and Wilson +himself had said that, "the Executive ought to have an absolute +negative"; that "without such a self-defence the Legislature can at any +moment sink it into non-existence." Unquestionably the veto provision +ought to have been placed in the Committee's draught as Wilson placed it +in his own. But it was not. On the contrary it appears there as it +appears in Pinckney's, as an incongruous paragraph at the end of an +article which deals with the House of Representatives, with the business +of both Houses and with the privileges of the members of each. The one +thing certain here is absolutely certain--that the Committee in this did +not follow Wilson's draught though it was correct and did follow some +other draught though it was incorrect. + +It is comprehensible that if the provision of the veto power had started +wrong as it did in Pinckney's draught, it might have continued wrong, +and its misplacement might have remained unnoticed; but it is +incomprehensible how the error could have been known to at least the two +leading members of the Committee and have been actually and plainly +corrected by one of them and the provision then have relapsed into the +condition in which Pinckney left it, unless the Committee found about +the end say of the seventh day that they must forego either the +completion of Wilson's carefully prepared work or their bringing into +the convention printed copies for the use of members, and that they then +determined to use Pinckney's draught as copy for the printer, letting +Wilson work into it, so far as he could, the corrections that he had +embodied in his own and the changes which the Committee had agreed upon. +The incompleteness with which this was done shows very plainly that +toward the end of the ten days the Committee worked in haste. There are +too many errors in the draught which would be both inexcusable and +inexplicable if the Committee had had ordinary time to do their +extraordinary work. + +There is a curious omission in Wilson's draught which indirectly brings +to the light the composite authorship of one section of the +Constitution. + +In 1777 the punishment of treason had been a delicate subject in the +United States more likely to be avoided than discussed. In 1787 the +members of the Convention had not forgotten that within a dozen years +they had had a personal interest in that subject. Pinckney in article 6 +had given Congress twenty-two specific unrestricted powers but when he +came to the power to declare the punishment of treason he paused and +defined what treason should consist in and provided that no person +should be convicted of the restricted crime but by the testimony of two +witnesses. He threw all this into a distinct paragraph which ultimately, +with additional restrictions, became section 2 of article VII of the +Committee's draught. But neither the paragraph of Pinckney nor the +section of the Committee is in the draught of Wilson. + +Wilson did not overlook the subject, "The Legislature of the United +States shall have the power," his draught says, "to declare what shall +be treason against the United States," and, having attached no +restriction to the power, he properly placed it among the specified +powers immediately after the one "To declare the law and punishment of +piracies and felonies committed on the high seas and the punishment of +counterfeiting the coin of the United States, and of offences against +the law of nations." + +But Rutledge did not consent to this. He and Pinckney seem to have +vaguely feared that the law of treason might yet be administered in the +United States by George III and he scrawled with his ruthless hand on +the margin of Wilson's carefully written page, "Not to work corruption +of Blood or Forfeit except during the life of the party"; and Wilson +thereupon erased his own provision and struck it out from among the +specific, unrestricted powers. + +Here the significant fact to be noted is that the words written on the +margin of Wilson's draught were not taken from Pinckney's. That is to +say the restrictions proposed by Rutledge were additional to those set +forth by Pinckney. What Pinckney wrote and what Rutledge wrote and +nothing more make the second section of the Committee's draught +compounded and rearranged. The material was supplied by Pinckney and +Rutledge; the reconstruction, judging by the careful and logical way the +work was done was by Wilson: 1 the definition of the crime; 2 the power +to punish the crime defined; 3 the restriction upon judicial +proceedings, on the testimony of two witnesses; 4 the restriction upon +the result of conviction, that it should not work corruption of blood, +or forfeiture except during the life of the person attainted. It is also +to be noted that no draught of this section 2 has been found. For +reasons subsequently to be stated (chap. XII) it must be inferred that +it was framed on the margin of the Pinckney draught. + +In article 8 of Wilson's draught immediately following his treason +clause is this provision: + +"To regulate the discipline of the militia of the several States." + +In article 6 of Pinckney's draught the same power is given: + +"To pass laws for arming organizing and disciplining the militia of the +United States." + +This grant of power to arm organize and discipline meant that control of +State troops should be taken from the States and lodged in the general +government. It was a radical departure from what had been; a change not +countenanced by the Articles of Confederation and not authorized by the +23 resolutions. During the debates no member of the Convention had so +much as suggested it; and on the 26th of July when the Convention +adjourned to enable the Committee of Detail to draught a constitution, +Pinckney alone had ventured to formulate a provision which might alarm +the States and arouse the anger and opposition of the militia. He had +done so; that we know; it is incontrovertible, for it is specifically +described in the Observations "the exclusive right of establishing +regulations for the government of the militia of the United States ought +certainly to be vested in the Federal Government." + +Yet the Committee of Detail did not think so and they did not report +such a provision. Here again it is possible that Wilson took his +provision from Pinckney's draught, but it is not possible that Pinckney +took his from Wilson's. + +The draught of Randolph discloses three important pieces of information +which tend positively to sustain the Pinckney draught. The first is (in +the words of Mr. Meigs) "that it was drawn up after the Convention had +agreed upon the resolutions that were referred to the Committee of +Detail on July 26th; and in numerous instances its language is modeled +upon them with even verbal accuracy." (Growth of the Constitution, p. +318.) Manifestly this draught was not written--was not even begun, until +after Randolph had become a member of the Committee. The writing of it, +the revising of it, its numerous alterations and corrections, the +submission of it to Rutledge, his examination of it and his changes and +additions must have taken time. Almost every sentence in it is checked +as if it had been compared with some other paper. In a word it indicates +that some days must have passed after the 26th of July before Randolph +and Rutledge could have written it, and revised it, and left it in its +present form; and it witnesses the important fact that only five or six +days before the finished draught of the Committee of Detail was put in +the hands of the printer at least two members of the committee were no +nearer completion of the work than this disheveled draught. + +The great improbability against the Pinckney draught is that one man +alone and unassisted should have prepared so much of the Constitution. +But it is a hundred times more improbable that this Committee unassisted +by Pinckney's draught should have prepared and completed their own with +all its well selected details, with language carefully taken from many +sources, and with provisions far in excess of their instructions, than +that Pinckney should have completed his in his own time (making as he +did, four or five versions of it), thoroughly versed, as he was, in the +needs and weaknesses of the existing general government and the +constitutions of the several States, and able to confer, as he did, with +the ablest statesmen in the country. + +The second thing which the Randolph draught does for us is important and +most interesting. It enables us to ascertain the fact that the section +of the Committee's draught which declares the jurisdiction of the +Supreme Court (Art. XI, sec. 3), was the work of three persons; and the +very words which each contributed. + +The 16th resolution of the Convention was as follows: + +"16. Resolved, That the jurisdiction of the national judiciary shall +extend to cases arising under laws passed by the general legislature, +and to such other questions as involve the national peace and harmony." + +Randolph followed the resolution but enlarged the jurisdiction; and +Rutledge added two provisions in marginal notes; and their proposed +section was as follows: + +"The jurisdiction of the supreme tribunal shall extent; 1, to all cases +arising under laws passed by the general Legislature; 2, to impeachments +of officers; and 3, to such cases as the national legislature shall +assign, as involving the national peace and harmony; in the collection +of the revenue; in disputes between citizens of different States (here +Rutledge has added on the margin 'in disputes between a State and a +citizen or citizens of other States'); in disputes between different +States; and disputes in which subjects or citizens of other countries +are concerned (here Rutledge has added 'in cases of admiralty +jurisdiction'). But this supreme jurisdiction, shall be appellate only; +except in cases of impeachment and in those instances, in which the +Legislature shall make it original; and the Legislature shall organize +it. The whole or a part of the jurisdiction aforesaid, according to the +discretion of the legislature, may be assigned to the inferior +tribunals as original tribunals." Meigs, p. 244. + +When we pass to the draught of the Committee of Detail we find that the +latter part of this section of Randolph's was adopted, but that the +first part was rejected. This rejection however was not a curtailment of +jurisdiction, but a substitution of other language in the stead of +Randolph's. The question therefore which is now presented to us is this, +Who contributed the substitute? Who was the author of the first part of +the 3d section? + +The corresponding declaration of jurisdiction in the Pinckney draught in +article 10 contains only four subjects of jurisdiction. Each of these +was suggested by other provisions of the draught. Article 8 for +instance, provides that the President may be removed "on impeachment by +the House of Delegates and conviction in the Supreme Court." Article 10 +accordingly provides that the jurisdiction of the Supreme Court shall +extend to "the trial of impeachment of officers." The style is +characteristic of Pinckney; clear and terse and yet carelessly +expressed. "One of these courts," he says, "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 and consuls; to the trial and impeachment of officers of the +United States; to all cases of admiralty and maritime jurisdiction." + +If we now turn to the draught of the Committee we shall find that these +lines are the first lines of section 3, and that the two draughts are +here identical. They contain the same provisions, arranged in the same +sequence, expressed in the same terms. These lines therefore form the +substitute which appears to have displaced the first part of Randolph's +section. The two things fit together with precision. + +The significant fact to be noted here is that the Pinckney draught +contains the provisions and words which form the apparent substitute in +the Committee's draught, but contains nothing more. In a word not one of +the provisions which we now know were prepared by Randolph and Rutledge +are in the Pinckney draught. + +Four then of the grants of jurisdiction in article XI section 3 of the +Committee's draught apparently were taken from the Pinckney draught and +the remaining four unquestionably were taken from the Randolph draught. +The section therefore is composite. + +Wilson's draught here comes into the case enabling us to understand how +this combination was brought about. + +Wilson was in effect rewriting the Pinckney draught. Finding the first +four subjects of jurisdiction precisely what he wanted, he retained them +as they were without change or amendment. But they were insufficient. +Randolph, Wilson and Rutledge were lawyers in practice who could foresee +controversies in the future dual system which Pinckney had not foreseen. +Accordingly Wilson took four additional subjects of jurisdiction from +Randolph's draught having Rutledge's amendments and with some revising +thus brought eight subjects of jurisdiction into his draught which +subsequently appeared in the Committee's. + +To say that Pinckney was fraudulently plagiarising from the Committee's +draught 31 years afterward and that while so doing he chanced to take +one-half of the Committee's subjects of jurisdiction but not the other +half, and that the half which he chanced to take might very well be his +own, and that the half which he did not take chanced, as we now know, to +be Randolph's is to state an absurdity. There are too many things here +to be ascribed to chance; and each and all of them must have chanced to +take place to make out a case of plagiarism against Pinckney. + +The third piece of information which Randolph's draught gives us is in +the nature of positive evidence and establishes directly the fact that +the Committee recognized Pinckney's draught and used it. + +Under the heading, "_The following are the legislative [powers] with +certain exceptions and under certain restrictions_," Randolph set forth +the powers of Congress, for the most part taken from the Articles of +Confederation, "To raise money by taxation"; "To make war," etc., etc. +After investing the general government with these powers he turned, not +illogically, to restrictions which would prevent the States from +usurping or denying the powers so granted and placed in his draught the +following provision: + +"All laws of a particular State repugnant hereto shall be void; and in +the decision thereon, which shall be vested in the supreme judiciary, +all incidents without which the general principle cannot be satisfied +shall be considered as involved in the general principle." + +This section he subsequently cancelled and over it he wrote, "_Insert +the 11 article._" + +Where then is this article 11 which would restrict the powers of the +States and render their laws, if repugnant to the Constitution, void? + +It cannot be article XI of the Articles of Confederation; for it +provides only for the admission of Canada as one of the States of this +Union. It cannot be article XI of the draught of the Committee of Detail +for it relates only to "The judicial power of the United States"; to the +judges, to jurisdiction; to the trial of criminal offences; and there is +not a line which limits the power of a State or declares a statute void. +Moreover the restrictions upon the States in the Committee's draught are +divided and placed in two articles which are numbered XII, XIII. It +cannot be Article XI of Wilson's draught for it relates to the powers of +the Senate, the power to make treaties, to appoint ambassadors and +judges, to adjudicate controversies between two or more States, and +controversies concerning lands claimed under conflicting grants from +different States, it being article IX of the Committee's draught. There +is, however, an article 11 which places restrictions upon the States, +and meets the requirements of Randolph as exactly as if it had been +framed to effect his purpose, and it is article 11 of the Pinckney +draught. We know too that it is Pinckney's own, for it is described in +the Observations. + +With the 11th article in Wilson's draught and the 11th article in the +Committee's failing to respond to the requirements of the reference, and +with Pinckney's article 11 responding fully and exactly to it, there is +but one conclusion left which is that Randolph when he wrote "Insert the +11 article" intended article 11 of the Pinckney draught. + +When the fact is established that the Committee of Detail had before +them the Pinckney draught and took from it a single excerpt, though of +not more than four lines, the burden cannot rest on Pinckney to account +for identities and resemblances. The onus probandi will then be upon the +other side; and the issue being whether the Committee used the Pinckney +draught or Pinckney copied from the Committee's, the presumption must +be, until the contrary be shown, that all identical provisions in the +two draughts originated in Pinckney's. + +If James Wilson were now living, and asserting that he was the true and +unassisted author of the Committee's draught these papers would be +strong, though not conclusive, evidence to maintain his claim; and if +Pinckney had never prepared a draught of the Constitution and his +draught had never been presented to the Convention, and had never been +referred to the Committee of Detail for the express purpose of assisting +them in drawing up a draught of the Constitution, these papers would +justify historical scholars in saying that Wilson should occupy the +place which Pinckney occupies, and that the alien member of the +Convention was the chief individual contributor to the Constitution of +the United States. But the defect of these papers is that we know +nothing about them, save that they are in the handwriting of Wilson and +Rutledge. That they are original matter; that they are not made up of +excerpts from Pinckney's draught: are propositions which are now +sustained only by conjectures. + +Against such conjectures, there stand the consistent silences of all the +members of the Committee. Gorham lived nine years and said nothing of +his colleague's great work. Wilson lived eleven years and saw the +government which, conspicuously, he had helped to form firmly +established, and became a judge of the Supreme Court, yet while he lived +gave no intimation of having drawn up the most important document of the +Convention, and when he died left no statement showing the manner in +which the work of the Committee of Detail was done. When Wilson passed +away it behooved Ellsworth and Rutledge and Randolph to testify to +posterity, if not to the men of their own time, of the great part which +Wilson had secretly played in the drama of the Constitution, if he was +the author of the draught. But Rutledge lived two years, and Ellsworth +nine years, and Randolph fifteen years, and gave no sign. + +Against such conjectures too there is the record of the other draught, a +series of incontestible facts, each consistent with those that had gone +before it and with those which were to come after it. Pinckney prepared +a draught; it was presented to the Convention; it was referred to the +Committee of the Whole, and thereby made accessible to every member of +the Convention; it was referred to the Committee of Detail and thereby +placed at the disposal of the committee and brought directly to the +notice and knowledge of every member; the Committee never returned it to +the Convention and it has not been found among the papers of any one of +them; Pinckney published a description of it within a month after the +adjournment of the Convention; and a month later republished the +description in a newspaper. In 1818 he authorized the publication of a +paper which he certified to be a substantial copy of the draught; it was +immediately published with the first publication of the secret journal +of the Convention and widely disseminated as a public document; at the +time of publication 16 members of the Convention were living who must +have desired, we must assume, to see the journal of the proceedings in +which they had personally taken part; and when they received the journal +received with it a copy of Pinckney's draught; and yet when Pinckney +died more than six years afterwards no surviving member of the +Convention had denied or questioned the verity of the published draught. + +There are very few historical papers in the world which have such a +record of publicity behind them as Pinckney's draught; and it is idle to +attack such a record with one man's suspicions and another man's +inferences, and our own prejudices and conjectures. Two incontrovertible +facts are that at the time when these papers were written, Pinckney's +draught was in possession of these same men, Wilson, Randolph and +Rutledge, and that they never returned it to the Convention. This +examination brings us round a circle to the question at which we +started, Did the Committee rightly use the draught of Pinckney, or did +Pinckney fraudulently copy the Committee's draught? + +The Randolph and Wilson draughts bring the case into this situation: + +1. Randolph, Wilson and Rutledge were the working members of the +Committee and worked together. All that was done with the pen, so far as +we know, was done by them. Wilson was the ready writer of the Committee +and had before him, when he wrote his final draught, his own preliminary +draught and Randolph's draught and Pinckney's draught. + +2. The final draught of Wilson was not begun until after his own +preliminary draught was finished. The 43 amendments of Rutledge came +later and were all subsequently considered and accepted by the +Committee. + +3. From an intellectual point of view the final draught of Wilson with +the annotations of Rutledge came near to being the draught of the +Committee of Detail; but it was not the completed draught of the +Committee even from an intellectual point of view; for additional +provisions were framed and the arrangement of provisions was changed and +the articles were subdivided into sections. From a printer's point of +view the material for a written draught which was to be put into type +did not yet exist. + +4. If a copy of the draught was prepared for the printer (with +Rutledge's 43 amendments and the additional provisions and the +rearrangement of articles and the subdivision of articles into sections +all engrossed therein), it is plain that Wilson, the hard worker of the +Committee, was the man who did it. Wilson saved everything that he wrote +and, consequently, saved his best. His best is his third, his final +draught, but it is not the draught of the Committee. If he had prepared +a copy for the printer, it would have been his best--by far the best +thing he did. It would have been returned to him by the printer with the +proofs; and Wilson we may confidently conclude (knowing how he saved +even scraps of his writing) would have preserved it. + +5. The evidence relating to the draughts of Randolph and Wilson +therefore closes with the draught of the Committee of Detail still +undrawn and with very little time left in which it could be prepared for +the printer. When we couple together the two significant facts that the +Committee's work (_i. e._ their manual labor) ended before they had +prepared a draught for the printer, and that Pinckney's draught which +was in their possession and had been used by them, disappeared during +the same eventful week, there can be but one inference--that the +Committee used it. + + + + +CHAPTER XII + +THE COMMITTEE'S USE OF THE DRAUGHT + + +Up to this point the subject of consideration has been the charges +preferred by Madison against the copy of the draught in the State +Department. I now propose to press the investigation in a more positive +way; to-wit, by ascertaining whether the Committee of Detail used a +draught of which this is a copy or duplicate, and to what extent and in +what manner. + +In copyright cases where the issue is of plagiarism, it sometimes +happens that traces of the earlier work will be found in the later one, +be the language ever so carefully paraphrased and the plagiarism ever so +carefully hidden. Misspelled names, erroneous dates, genealogical +mistakes which originated in the one and reappear in the other are +fateful witnesses. If we find such traces in the work of the Committee +of Detail we may follow them as detectives follow clues until they find +the criminal; that is to say until we find to a certainty that the +Committee used the draught. + +The first of these traces of Pinckney's hand in the Committee's draught +is a very curious one inasmuch as it discloses the fact that in one +provision the Committee followed Pinckney's leading unconsciously, and +that their action was unauthorized by the Convention, if not in +violation of their positive instructions twice repeated. The subject, +the pay of Senators and Representatives, had been much discussed; but +neither in the Committee of the Whole nor in the Convention had it ever +been voted that the compensation should be either "determined" or "paid" +by the States. The proceedings of the Convention in regard to this have +been examined at length in the preceding chapter and the details need +not be repeated here. It is enough to recall the fact that the +Convention resolved expressly that the pay of Representatives should be +"adequate," and by implication that the pay of Senators should likewise +be adequate; and that the Committee of the Whole had previously resolved +that both should be paid out of "the public treasury." How the Committee +of Detail could have so reversed the determination of the Convention as +to provide that the members of both Houses should receive a compensation +not necessarily "adequate" and "to be ascertained" as well as "paid" by +the State "in which they shall be chosen" is explicable in only one way; +to-wit: + +Pinckney's draught likewise declared, also in a single provision (art. +6) that "the members shall be paid for their services by the States +which they represent." There is a verbal difference between the +Committee's draught and the copy of the Pinckney draught in the State +Department, a bettering of the English, which was done by Wilson as we +have already seen in his draught and it is certain that the Committee +reported to the Convention a provision substantially that of the +Pinckney draught, a provision which the Convention had more than once +rejected. If the Pinckney draught was used as copy for the printer, it +is plain enough that the clause of six words "by the States which they +represent" may have misled the Committee. With the many propositions +which they had to codify and the brief time within which the work must +be done; and the confused and somewhat contradictory action of the +Committee of the Whole and the Convention in June, and the divided +responsibility and scrutiny of five men, it is easily possible that the +Committee were misled by the provision in the Pinckney draught; but it +is not possible that they could have been so misled if there had been no +Pinckney draught and they had followed the 3d and 4th resolutions and +borne in mind the action of the Convention and the words of its leading +members. + +A second deviation from the instructions given by the Convention relates +to the payment of the Executive. The 12th resolution says that the +Executive is "to receive a fixed compensation for the devotion of his +time to the public service to be paid out of the public treasury." The +Pinckney draught (art. 8) says that the President "shall receive a +compensation which shall not be increased or diminished during his +continuation in office" and stops there. The draught of the Committee +(art. X sec. 2) says "He shall, at stated times receive for his services +a compensation, which shall neither be increased nor diminished during +his continuance in office," and stops there. In a word we find here +Pinckney's language with a word or two of amplification, and a little +correction (the kind of deviation which one may expect to find in the +revision of a statute or legal document) and we find (as in Pinckney) +the important word "fixed" omitted, and the not "increased or +diminished" clause of Pinckney inserted, and the provision stopping as +Pinckney stops, without the concluding words of the resolution "to be +paid out of the public treasury." There is here too much resemblance to +Pinckney and too little adherence to the 12th resolution to leave a +doubt as to where the Committee's provision came from. + +A more notable instance relates to the appointing and treaty-making +power of the Senate. The 14th resolution declares that the judges of the +"Supreme tribunal shall be appointed by the second branch" _i.e._ the +Senate. But the draught of the Committee says (art. IX), "The Senate of +the United States shall have power to make treaties, and appoint +Ambassadors and judges of the Supreme Court." How came the Committee to +invest the Senate with power to make treaties and appoint ambassadors +when no such authority was conferred by the resolutions and no such +determination had been reached in the Convention? Pinckney's draught +answers the question, (art. 7) the Senate, it says, shall have the sole +and exclusive power "to make treaties; and to appoint ambassadors and +other ministers to foreign nations, and judges of the Supreme Court." +Here the Committee placed the whole treaty-making power and the +diplomatic intercourse with foreign nations entirely in the hands of the +Senate and for no other reason than that Pinckney had already done so. +Such an extension of their work beyond their authority could not have +suggested itself. Evidently when adapting Pinckney's work to their own +purposes they neglected to strike out "treaties" and "ambassadors." + +In Pinckney's draught is set forth (art. 3) "The House of Delegates +shall exclusively possess the power of impeachment, and shall choose its +own officers; and vacancies shall be supplied by the executive authority +of the State in the representation from which they shall happen." And in +the Committee's draught it is similarly set forth (art. IV, sec. 6, 7) +"The House of Representatives shall have the sole power of impeachment. +It shall choose its speaker and other officers. 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" (sec. 7). These incongruous things Pinckney threw together +in a single sentence. The Committee placed two of them in one section +and the third in another, and amplified and corrected as usual; but not +one of these powers is enumerated in the twenty-three resolutions; and +let it also be noted that the peculiar and awkward phraseology, "the +executive authority of the State in the representation from which they +shall happen" is in both. + +While the uses and misuses of the Pinckney draught conclusively +establish the fact that the Committee of Detail did use it and +frequently adhere to its text, a more comprehensive and just idea of the +service which Pinckney rendered and the manner in which his draught was +used in the formation of the Constitution will be obtained by placing +ourselves in the place of the Committee and using it as they must have +used it. + +At the convening of the Committee the draught which had been referred by +the Convention was before them. It was the only draught of the proposed +constitution which had been prepared by anyone--the only instrument or +document, so far as our knowledge goes, which could be used by them as a +pattern or basis for their work. Unquestionably the Committee sooner or +later would take up this one instrument of its kind and ascertain how +far it would serve their purpose. + +The preamble is the first and chief sentence in the Constitution; for it +declares the source and supremacy of its authority. "We the people of +the United States" "do ordain, declare and establish this Constitution." +The preamble goes behind State governments, asking nothing from them, +either of authority or consent, and invokes the power which established +them, the people of the United States. This supreme power, if the +Constitution should be adopted, would allow States and State governments +to continue to exist, but to exist subordinate to a new power, the +Constitution of the United States and as parts and not units. In the +first letter which Madison (then in New York) wrote to Jefferson (then +in Paris) after the adjournment of the Convention, he said: + +"It was generally agreed that the object of the Union could not be +secured by any system founded on the principle of a confederation of +Sovereign States. A voluntary observance of the federal law by all the +members could never be hoped for. A compulsive one could evidently never +be reduced to practice, and if it could, involved equal calamities to +the innocent and the guilty, the necessity of a military force, both +obnoxious and dangerous, and, in general, a scene resembling much more a +civil war than the administration of a regular government. + +"Hence was embraced the alternative of a government which, instead of +operating on the States, should operate without their intervention on +the individuals composing them; and hence the change in the principle +and proportion of representation." + +The chief idea of the preamble is not set forth in any resolution or act +of the Convention; and no instruction so to declare the source of +authority was given to the Committee of Detail. The preamble belongs +exclusively to Pinckney, though its words as we have before seen, were +taken from the preamble of the constitution of Massachusetts. Chap. XI. + +The only amendment which the Committee of Detail made, was in the last +line of Pinckney's, the insertion of a single word "our,"--"for the +government of ourselves and our posterity." With the exception of this +word the Committee took Pinckney's preamble as they found it, and so +reported it to the Convention. During the subsequent sittings of the +Convention it remained unamended and unquestioned and undiscussed until +at last it received the final touch of the Committee of Style. + +In article 1 Pinckney followed in part the Articles of Confederation and +in part the Constitution of New York: "The stile of this Government +shall be the United States of America, and the Government shall consist +of supreme legislative, Executive and judicial powers." + +This the Committee broke into two articles and in the first line +changed "this" to "the" but made no other change. + +Article 2 relates to the legislative power and was taken by Pinckney +almost verbatim from the constitution of New York. The Committee changed +"House of Delegates" to "House of Representatives," and filled a blank +with "first Monday in December," and in place of two "houses" said two +"distinct bodies of men," and introduced a needless provision that each +house "shall in all cases have a negative upon the other." + +Article 3 relates to members of the "house of delegates"; to the term of +office, to the qualifications of the electors, to the qualifications of +members, to their apportionment among the States, to their proportion +with population, to "money bills," impeachment, the choosing of their +own officers, and to vacancies. Here the Committee's method of breaking +an article into sections begins. But the seven sections of the +Committee's follow in the same order and almost in the same words, the +sentences of Pinckney. The article, like Pinckney's, begins with, "The +members of the house"; and ends, like his, "in the representation from +which they shall happen." + +Article 4 relates to the Senate, and here first appear the individual +opinions of Pinckney which were shared by no one. His senators were to +be chosen by the House of Delegates. "From among the citizens +and residents of New Hampshire"--"from among those from +Massachusetts"--etc., etc. That is the representation was neither by +States nor by population but by an arbitrary assignment in the +Constitution. Pinckney believed that the Senate should represent the +wealth of the country, and he probably intended that this arbitrary +assignment should be representative of wealth. The senators from New +Hampshire, Massachusetts, Rhode Island and Connecticut were to form one +class; those from New York, New Jersey, Pennsylvania and Delaware +another; and the remaining States a third. It was to be determined by +lot which should go out of office first, which second, which third. As +their times of service expired the House of Delegates was to fill them +for a fixed and uniform term. This plan was suggested to Pinckney by +the constitution of New York. Its only merit was that it would make the +Senate a continuing body, as we now have it, one-third of the members +going out at one time. Its errors seem incredible. It would have enabled +the delegates from, say, the eastern and middle States to choose +senators who would grossly misrepresent the southern States; with every +change in the political supremacy of the House one-third of the senators +would change, and one-third of the country might be represented by new +and inexperienced men; with the people of a section of one political +faith, their senators, chosen for them by the House of Delegates, might +be of the opposite political belief. It is plain that when the Committee +came to Pinckney's Article 4 they found something which would be of no +use to them. The Convention had already marked out their work--the +senatorial system which we still have--each State represented by two +senators, each senator having an individual vote, the senators chosen by +the legislatures of the several States. Yet even this article relating +to Pinckney's senate, the Committee used, and used in a way which +indicates that they took the paper upon which it was written and made +it serve their purpose in framing their hurried draught. Art. V. + +Pinckney's article begins: "The senate shall be elected, and chosen by +the;" and the Committee's begins: "The senate of the United States shall +be chosen by the." At this point the Committee struck out the equivalent +of 222 words from the Pinckney article and interlined about half the +number, 120 words. (The large imperial unruled foolscap with lines well +apart and the broad margin readily admitted of this being done.) But the +instant that the necessarily new matter was interlined, the Committee +resumed with Pinckney's words. His "Each senator shall be ---- years of +age" etc., etc., becomes their "Every member of the senate shall be of +the age of thirty years at least" etc., etc. Then follow Pinckney's +provisions concerning citizenship, concerning the prior period of a +senator's citizenship, concerning residence, the article closing as +Pinckney's closes, "The Senate shall choose its own President and other +officers." Here we have the two most dissimilar articles in the two +draughts beginning with the same words, ending with the same words, +containing the same provisions, following the same order, and differing +only where the instructions of the Convention compelled the Committee to +strike out a large and important portion of the earlier draught and to +insert a new and important substitute. If the Committee were rewriting +the article, there would be no reason for this extraordinary closeness +of adherence--for this moving pari passu--for this going always as far +and never farther over the ground traversed. + +Article 5 of the Pinckney draught is notable for containing the veto +power. The Convention grouped it in the 23 resolutions with the powers +of the Executive; Wilson made of it an entire, independent article, but +Pinckney who had taken it, as we have before seen, from the constitution +of New York, retained its revisionary character and placed it at the end +of an article relating to the legislature and legislative business. The +Committee left it where Pinckney placed it (Article VI, sec. 13) as we +have seen in the preceding chapter; and in this as we have also seen in +the preceding chapter the Committee followed Pinckney and did not +follow Wilson. + +The 6th article contains another singular instance of an oversight of +Pinckney's which the Committee followed. In it he gathers together with +care and patience from the Articles of Confederation and from State +Constitutions the incidental powers of Congress. The governing clause +is, "The Legislature of the United States shall have the power." Then +follow some 22 declarations of power, properly paragraphed: "To lay and +collect taxes, duties, imposts and excises." "To regulate commerce" +etc., etc., until in a final paragraph he sums up and closes the record +of these powers by the paragraph. "And to make all laws for carrying the +foregoing powers into execution." The power to punish treason Pinckney +placed in a distinct paragraph for reasons stated in chapter XI. But +this compelled him to rewrite the governing clause, "The Legislature of +the United States shall have the power." In the same sentence he +appended the definition of treason, "which shall consist only in levying +war against the United States" etc. And he then (following the Act of +Edward III), in a separate sentence imposed this condition upon +conviction of treason that it shall be "but by the testimony of two +witnesses." What Pinckney should have done was what Wilson did; he +should have placed this power with the others under the first governing +clause, "The Legislature of the United States shall have the power," and +have pushed the limitations upon that power over with those relating to +"the subject of religion," "the liberty of the press" and "the writ of +habeas corpus," into a bill of rights. + +This oversight of Pinckney's, the Committee of Detail attempted to hide +but not to rectify. The needless duplication of the words, "The +Legislature of the United States shall have the power," they pushed out +of sight by inverting the provisions of the sentence and defining +treason first; but they retained it; and also in this article, properly +relating only to legislative powers, they retained the condition laid +upon the judiciary that "no person shall be convicted of treason unless +on the testimony of two witnesses" (Article VII, sec. 2), and in doing +these things, the Committee overruled Wilson and followed Pinckney. + +It is manifest, therefore, that the two draughts, the draught in the +State Department and the draught of the Committee, are built upon the +same framework. That is to say in structure, arrangement, form and order +the two are identical, the one the basis of the other. In other words, +the Committee took the draught which had been referred to them, and +worked upon it, beginning with the preamble, and continuing to the last +sentence, "The ratification of the conventions of ---- States shall be +sufficient for organizing this Constitution." They amended, changed, +substituted, subdivided (articles into sections), and amplified; but it +was always Pinckney's draught which they worked upon. They retained +every provision of his which was authorized by the instructions of the +Convention, and some which were beyond the scope of the instructions and +a few which were contrary to the instructions; and whenever they +retained a provision, they retained, substantially, the language in +which it had been cast by Pinckney. As in mathematics it is held to be +self-evident that things which are equal to the same thing are equal to +each other, so here it may be said that this extraordinary identity of +the draught in the State Department and the draught of the Committee of +Detail demonstrates that the draught in the State Department is a true +and substantially exact duplicate of the lost draught which was referred +to the Committee. + + + + +CHAPTER XIII + +WHAT BECAME OF THE DRAUGHT + + +A question of much interest follows the foregoing investigation; to-wit, +why was not the Pinckney draught found among the records and papers of +the Convention? + +It was the only draught of a constitution which had been before the +Convention; it had been referred to the Committee of the Whole and +referred to the committee charged with the duty of preparing a draught +of the Constitution; and that committee had used it for that purpose. It +was a paper of unique character and unquestionable importance and one of +the records of the Convention. Why was it not found in the sealed +package of the Convention's records? + +And there was another paper, which should have been found but was not. +This was the report of the Committee of Detail, containing, or +accompanying, their draught of a Constitution. The absence of any other +paper that should have been placed in the package might be strange, yet +not significant. But these two papers, if there were two, related to the +same subject, contained more or less the same provisions, had been used +for the same most important purpose by the same men, and were on the 6th +of August, 1787, if they then existed, in the possession and official +custody of the Committee of Detail. When Rutledge on the morning of that +day "delivered in" the most important report ever laid before the +Convention he should have laid upon the Secretary's desk those two +papers, if there were such to lay there. Yet neither Pinckney's draught +of the Constitution, nor the Committee's draught of the Constitution, +was found in the sealed package; nothing was found but one printed copy +of the Committee's draught. + +The draught of the Committee of Detail was the most important of all the +papers of the Convention, for the reason that it was the embodiment of +all that had been done during the first period of the Convention's work, +the abstract stage, and was to be the foundation of all that was yet to +be done in bringing the Constitution to its concrete and final form. +For purposes of construction and interpretation the draught is the most +valuable paper that exists or that ever did exist, inasmuch as it sets +forth in a tangible, practical, unmistakable form the results so far +attained and the views which a majority of the members held, and the +conclusions which a majority of the States had reached when the work of +abstract consideration ceased, and the work of changing their abstract +ideas into the concrete provisions of the Constitution began. There was +no other report, draught or document which should have been so +watchfully guarded and carefully kept as the report of the Committee of +Detail, if there were indeed such a document to preserve. + +To comprehend and appreciate the significance of the disappearance of +these two papers, it is necessary that we understand the conditions of +the case--the circumstances which tended toward their destruction, and +those which should have secured their preservation. + +The first of these conditions was secrecy. The Convention early +determined "That nothing spoken in the House be printed or otherwise +published or communicated without leave." No reporter was present at the +sittings of the Convention; no stenographer, typewriter or amanuensis +served the members; no clerical force aided the Committee of Detail. The +secrets of the Convention were in the custody of the members, and from +the 29th of May to the 17th of September not one was revealed to the +expectant, inquisitive, anxious American world. + +As the work of the Convention drew toward its close, it was determined +that the obligation of secrecy should be continued into the indefinite +future. The records were to be placed under seal and the custodian was +to be Washington himself. Washington asked what should be done with the +records; and the Convention answered that "he retain the Journal and +other papers subject to the orders of Congress, if ever formed under the +Constitution." For thirty years and more the seals remained unbroken; +and for thirty years and more no member of the Convention spoke. + +Let the reader imagine, if he can, what would be the public feeling now, +if a convention should be sitting from the 29th of May to the 17th of +September to frame a new constitution for the United States which should +sit with closed doors, and whose members should disclose no act, speak +no word, drop no hint from the beginning to the end; and who, when the +end was reached, should say absolutely nothing of what had been said and +done in the secret proceedings of the Convention. We owe much to the +framers of the Constitution; they were not common men. + +The first and highest instance of this sense of obligation is where we +should expect to find it, in the personal journal of Washington. + + "Friday, 1st June. + + "Attending in Convention--_and nothing being suffered to + transpire no minute of the proceedings has been, or will be + inserted in this diary_." + +And for this reason, no member of the Committee wrote. The unfortunate +Observations of Pinckney were the only publication that gave a glimmer +of what had been done, or might have been done in the Convention--of +what had been said or might have been said. The Journal of Madison was +not published until after Congress had released the secrets of the +Convention. The members had taken no solemn oath, nor clasped hands nor +pledged their honor to each other, but they kept silence. + +A single incident fortunately preserved by William Pierce of Georgia +will show how the obligation was regarded during the sitting of the +Convention. It grandly displays the personal majesty of Washington, and +the value which he set upon the secrecy of the Convention's +deliberations. To a better appreciation of what took place it must be +remembered that the Convention as a mark of respect for their great +presiding officer established this rule: "_When the House shall adjourn, +every member shall stand in his place until the President pass him._" + +Mr. Pierce says: + +"When the Convention first opened at Philadelphia, there were a number +of propositions brought forward as great leading principles for the new +Government to be established for the United States. A copy of these +propositions was given to each Member with an injunction to keep +everything a profound secret. One morning, by accident, one of the +Members dropt his copy of the propositions, which being luckily picked +up by General Mifflin was presented to General Washington, our +President, who put it in his pocket. After the Debates of the Day were +over, and the question for adjournment was called for, the General arose +from his seat, and previous to his putting the question addressed the +Convention in the following manner:-- + +"'_Gentlemen_: I am sorry to find some one Member of this Body, has been +so neglectful of the secrets of the Convention as to drop in the State +House a copy of their proceedings, which by accident was picked up and +delivered to me this Morning. I must entreat, Gentlemen, to be more +careful, lest our transactions get into the News Papers, and disturb the +public repose by premature speculations. I know not whose paper it is, +but there it is (throwing it down on the table), let him who owns it +take it.' At the same time he bowed, picked up his Hat, and quitted the +room with a dignity so severe that every Person seemed alarmed; for my +part I was extremely so, for putting my hand to my pocket I missed my +copy of the same Paper, but advancing up to the Table my fears soon +dissipated; I found it to be the handwriting of another person. When I +went to my lodgings in the Indian Queen, I found my copy in a coat +pocket which I had pulled off that Morning. It is something remarkable +that no Person ever owned the Paper." (3 Amer. Hist. Review, 324.) + +The obligation of secrecy required that these two papers should not be +lost--that they should not be left where they might fall into the hands +of someone who would publish them, that they should not remain in the +possession of a member; and the final determination of the Convention +implied that these two papers should be delivered by the Committee of +Detail into the hands of the Secretary of the Convention and be by him +placed in the custody of Washington. + +The second condition was time--the time within which the Committee's +work must be done. + +On Thursday, the 24th of July, the Convention appointed the Committee of +Detail "for the purpose of reporting a Constitution," and on the 26th, +referred to the Committee certain resolutions and "adjourned until +Monday, August 6th, that the Committee of Detail might have time to +prepare and report the Constitution." This adjournment gave to the +Committee ten full days in which to prepare and complete their draught, +two of which were Sundays. The committee moreover determined to furnish +to each member of the Convention a printed copy. On Monday, the 6th of +August, the Committee appeared in the Convention bringing with them the +printed copies of the draught. + +The draught contains about 3,600 words. A good printer in the olden days +when there was not a typesetting machine in the world would have +required (according to the computation of a present day printer) three +days for doing the work, allowing therein a reasonable time for changes +and corrections made in the proofs. It cannot be supposed that after the +admonition of Washington, the Committee could be negligent in their +selection of a printer. They would not carry their copy into a large +printing office, if any such there was in Philadelphia, but would surely +place it in the hands of some individual printer recommended to them as +trustworthy by Wilson or Gouverneur Morris or some other delegate from +Philadelphia, perchance by Franklin, the greatest printer in the world. +In a word, the printing would not have been confided to a shop full of +men but would have been given to one man and marked "confidential"; and +it is safe to say that the copy must have been in the printer's hands by +the close of the 7th day. Besides the typesetting, the proofs were to be +examined, and the work scanned in the clearer light of printed matter by +every member of the committee; and errors were to be corrected, and +possibly changes made. + +After these ten days of actual and constructive work the Committee +appeared in the Convention bringing with them a draught containing +fifty-seven articles and sections, and some 200 constitutional +provisions. Some of these provisions had been prescribed by the 23 +resolutions, and some had been suggested by the Articles of +Confederation, but there were others declaratory of the inherent powers +of a national sovereignty which had neither been directed by the +Convention, nor were contained in the Articles of Confederation. No +reflective person beginning the study of the Constitution can read +Madison's Journal attentively through to the 26th of July without being +astonished by the greater comprehensiveness and detail and breadth and +completeness of the draught which the committee produced in a printed +form on the morning of the 6th of August. + +Besides the provisions in the draught which have passed into, and in a +literal or modified form, have become parts of the Constitution, there +was some work of the committee which must have involved consideration, +discussion, and a waste of time. These hindrances left a perilously +narrowed period within which a committee must draught the Constitution +of the United States. + +It was therefore no time to stand upon trifles or to pause to adjust +formal niceties. Within the closed doors of Independence Hall would be +impatient men who had given their time since the 25th of May and who +were sitting unceasingly through the heat of the Philadelphia summer, +defraying in whole or in part their own expenses, though many of them +were men of narrow means, ill able to give either their time or their +money. To their anxious eyes the end seemed far away, and success far +from certain, and they would resent unnecessary delay. It would be just +to young, ambitious Mr. Pinckney to return his draught, unsullied, to +the Secretary that it might tell the story in future years, unquestioned +and unquestionable, of his splendid contribution to the Constitution. It +would be proper and according to parliamentary usage for the committee +to hand in their draught in writing, covered by a report attested by +their signatures, both of which would remain in the archives of the +Convention and perhaps in the archives of a future government. But the +committee could not linger for these desirable things. Pinckney's +draught must be sacrificed to hasten the good work along, to save time, +if it were but a day; and their own report and draught must be +"delivered in" figuratively, that is to say by the mouth of their +chairman and by the means of the printed copies, one for each member. +The committee, so all the circumstances unite in telling us, took +Pinckney's draught and considered it; some provisions they retained; +some they corrected, some they amended, some they changed, some they +struck out. The amendments they wrote on the broad margin of the large +foolscap sheets or wrote out on separate slips of paper which they +wafered to the margin. When they had finished this work Pinckney's +draught had become "printer's copy." For one brief week it served a +great purpose and was the most useful document in the world. Then it was +scrupulously destroyed; and concerning it no man of the men who knew its +contents is known to have spoken a single word. + +Apart from the inferential and conjectural statements of the preceding +paragraph, the stricter principles of law lead to or toward the same +conclusion. The draught was placed in the committee's hands to be used +but not to be destroyed. Nevertheless the right to use, like the right +of eminent domain, was commensurate with the necessities of the +situation, and the committee might use it by destroying it. + +The law allows within certain limitations, the presumption of fact that +where an administrative officer had a certain, specific official duty +to perform, he performed it. The Secretary of the Convention and the +members of the Committee of Detail were not public officers but were +charged with duties which, if not official, were still public, and the +obligations and presumptions belonging to administrative officers may +properly be applied to them. The Secretary's entry in the Journal of the +Convention says, "The report was then delivered in at the Secretary's +table, and being read once throughout, and copies thereof given to the +members, it was moved and seconded to adjourn." All that there was to be +"delivered in," was placed upon the Secretary's table, and it became his +duty to preserve whatever the Committee had placed there subject to the +future commands of the Convention. The "copies thereof" were the printed +copies of the draught; and "the report" which was "then delivered in at +the Secretary's table" was one of the printed copies accompanied by the +oral explanation of the chairman. + +What the Secretary did with the papers in his charge is told in the +following note and extract: + + "MONDAY EVENING. + + "Major Jackson presents his most respectful compliments to + General Washington.... + + "Major Jackson, after burning all the loose scraps of paper + which belong to the Convention, will this evening wait upon + the General with the Journals and other papers which their + vote directs to be delivered to His Excellency." + + + Indorsed by Washington: + + "From MAJ'R WM. JACKSON, 17th Sept., 1787." + + "MONDAY, 17th. + + "Met in Convention when the Constitution received the + unanimous assent of 11 States and Col'n Hamilton's, from + New York (the only delegate from thence in Convention) and + was subscribed to by every Member present except Gov'r + Randolph and Col'n Mason from Virginia--& Mr. Gerry from + Massachusetts. The business being thus closed, the Members + adjourned to the City Tavern, dined together and took a + cordial leave of each other.--after which I returned to my + lodgings--did some business with, and received the papers + from the secretary of the Convention, and retired to + meditate upon the momentous wk which had been executed, + after not less than five, for a large part of the time six, + and sometimes 7 hours sitting every day, sundays & the ten + days' adjournment to give a Com'ee opportunity & time to + arrange the business, for more than four months." + WASHINGTON'S DIARY. + +The Secretary of the Convention has generally been censured as +incompetent and negligent. Nevertheless the papers which he transferred +to Washington witness for him that he did preserve and keep whatever +papers came within his official custody. The Secretary of State +certified, March 19th, 1796, that in addition to the Journals then +received from Washington "were seven other papers of no consequence in +relation to the proceedings of the Convention." One of these is a +"draught of the letter from the Convention to Congress to accompany the +Constitution"; one is an order from "the directors of the Library +company of Philadelphia" to the Librarian directing him to "furnish the +gentlemen who compose the Convention now sitting with such books as +they may desire during their continuance at Philadelphia, taking +receipts for the same"; one is a letter from "one of the people called +Jews" setting forth that by the Constitution of Pennsylvania "a Jew is +deprived of holding any publick office or place of Government." The +others are even of less consequence. They make plain by their +unimportance the important fact that Major Jackson scrupulously kept +every paper which Rutledge "delivered in at the Secretary's table" on +the 6th of August. That is to say, it is made plain that on the 6th of +August, Rutledge did not deliver in at the Secretary's table either a +written report of the committee or the Pinckney draught. + +Judging in the light of all the facts which the case discloses we must +conclude that the only thing which would have justified the Committee of +Detail in not returning the Pinckney draught to the Secretary of the +Convention was that it had been destroyed; the only thing which would +have justified the Committee in destroying it, was that they were +compelled to use it as printer's copy. + +The Committee did well to use it. And yet if there was one thing in the +world which justified Pinckney in publishing the Observations, it was +that the Committee of Detail had destroyed his draught. + + + + +CHAPTER IV + +WHAT PINCKNEY DID FOR THE CONSTITUTION + + +The style of the Constitution, we owe to Pinckney. Behind him, perhaps, +was Chief Justice Jay, whose hand appears in the first Constitution 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 +Constitution--the clear, concise, declarative, imperative style which +seems a characteristic part of the great instrument. Pinckney +appreciated the difference between a constitution 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 assign 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 constitute 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 Constitution of the United States, may well wonder +what kind of a Constitution 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 constitution, +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 Constitution shows +that not one of the five members commanded what may be called the style +of the Constitution; 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 +constitutions 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 +assigned to them. Yet the work which they actually did only +demonstrates that for them to have produced a complete draught of the +Constitution--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 Constitution 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 constitutions 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, unassisted, could have +drawn up a constitution 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 Constitution 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 constitution which would give to the waning +Confederation the character and authority of nationality, the +nationality of the Confederated States might disappear, he resolutely +assigned 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 Massachusetts 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 pass 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 constitutional 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 title of nobility" (Art. +Confederation VI). "The Legislature of the United States shall pass no +law on the subject of religion" (Constitution of New York); "nor +touching or abridging the liberty of the press" (Constitution +Massachusetts); "nor shall the privilege of the writ of habeas corpus +ever be suspended except in case of rebellion or invasion" (Constitution +Mass.). + +The resolution of March 21, 1787 is as follows: + + "WEDNESDAY, MARCH 21, 1787. + + "Resolved, That the legislatures of the several states + cannot of right pass 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, retarding or counteracting the operation + and execution of the same, for that on being + constitutionally 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 Constitution, 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 +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. + +_Sect. 11._ The enacting stile of the laws of the United States shall +be. "Be it enacted, and it is hereby enacted by the House of +Representatives, and by the Senate of the United States, in Congress +assembled." + +_Sect. 12._ Each House shall possess the right of originating bills, +except in the cases beforementioned. + +_Sect. 13._ Every bill, which shall have passed the House of +Representatives and the Senate, shall, before it become a law, be +presented to the President of the United States for his revision: if, +upon such revision, he approve of it, he shall signify his approbation +by signing it: But if, upon such revision, it shall appear to him +improper for being passed into a law, he shall return it, together with +his objections against it, to that House in which it shall have +originated, who shall enter the objections at large on their Journal, +and proceed to reconsider the bill. But, if after such reconsideration, +two thirds of that House shall, notwithstanding the objections of the +President, agree to pass it, it shall, together with his objections, be +sent to the other House, by which it shall likewise be reconsidered, +and, if approved by two thirds of the other House also, it shall become +a law. But, in all such 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 in the Journal of each House +respectively. If any bill shall not be returned by the President within +seven days after it shall have been presented to him, it shall be a law, +unless the Legislature, by their adjournment, prevent its return; in +which case it shall not be a law. + + +VII + +_Sect. 1._ The Legislature of the United States shall have the power to +lay and collect taxes, duties, imposts and excises; + +To regulate commerce with foreign nations, and among the several States; + +To establish an uniform rule of naturalization throughout the United +States; + +To coin money; + +To regulate the value of foreign coin; + +To fix the standard of weights and measures; + +To establish post-offices; + +To borrow money, and emit bills on the credit of the United States; + +To appoint a Treasurer by ballot; + +To constitute tribunals inferior to the supreme court; + +To make rules concerning captures on land and water; + +To declare the law and punishment of piracies and felonies committed on +the high seas; and the punishment of counterfeiting the coin of the +United States, and of offences against the law of nations; + +To subdue a rebellion in any State, on the application of its +Legislature; + +To make war; + +To raise armies; + +To build and equip fleets; + +To call forth the aid of the militia, in order to execute the laws of +the Union, enforce treaties, suppress insurrections, and repel +invasions; + +And to make all laws that shall be necessary and proper for carrying +into execution the foregoing powers, and all other powers vested, by +this Constitution, in the government of the United States, or in any +department or officer thereof, + +_Sect. 2._ Treason against the United States shall consist only in +levying war against the United States, or any of them, and in adhering +to the enemies of the United States, or any of them. The Legislature of +the United States shall have power to declare the punishment of treason. +No person shall be convicted of treason, unless on the testimony of two +witnesses. No attainder of treason shall work corruption of blood, nor +forfeiture, except during the life of the person attainted. + +_Sect. 3._ The proportions of direct taxation shall be regulated by the +whole number of white and other free citizens and inhabitants, of every +age, sex and condition, including those bound to servitude for a term of +years, and three fifths of all other persons not comprehended in the +foregoing description, (except Indians not paying taxes) which number +shall, within six years after the first meeting of the Legislature, and +within the term of every ten years afterwards, be taken in such manner +as the said Legislature shall direct. + +_Sect. 4._ No tax or duty shall be laid by the Legislature on articles +exported from any State; nor on the migration or importation of such +persons as the several States shall think proper to admit; nor shall +such migration or importation be prohibited. + +_Sect. 5._ No capitation tax shall be laid, unless in proportion to the +census hereinbefore directed to be taken. + +_Sect. 6._ No navigation act shall be passed without the assent of two +thirds of the members present in each House. + +_Sect. 7._ The United States shall not grant any title of nobility. + + +VIII + +The acts of the Legislature of the United States made in pursuance of +this Constitution, and all treaties made under the authority of the +United States shall be the supreme law of the several States, and of +their citizens and inhabitants; and the judges in the several States +shall be bound thereby in their decisions; anything in the Constitutions +or laws of the several States to the contrary notwithstanding. + + +VIIII + +_Sect. 1._ The Senate of the United States shall have power to make +treaties, and to appoint ambassadors and judges of the supreme court. + +_Sect. 2._ In all disputes and controversies now subsisting, or that +may hereafter subsist between two or more States, respecting +jurisdiction or territory, the Senate shall possess the following +powers. Whenever the Legislature, or the Executive authority, or the +lawful agent of any State, in controversy with another, shall, by +memorial to the Senate, state the matter in question, and apply for a +hearing; notice of such memorial and application shall be given, by +order of the Senate, to the Legislature or the Executive Authority of +the other State in controversy. The Senate shall also assign a day for +the appearance of the parties, by their agents, before that House. The +agents shall be directed to appoint, by joint consent, commissioners or +judges to constitute 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 commissioners or judges to hear and +finally determine the controversy; provided a majority of the judges, +who shall hear the cause, agree in the determination. If either party +shall neglect to attend at the day assigned, without shewing sufficient +reasons for not attending, or, being present, shall refuse to strike, +the Senate shall proceed to nominate three persons out of each State, +and the clerk of the Senate shall strike in behalf of the party absent +or refusing. If any of the parties shall refuse to submit to the +authority of such court; or shall not appear to prosecute or defend +their claim or cause, the court shall nevertheless proceed to pronounce +judgment. The judgment shall be final and conclusive. The proceedings +shall be transmitted to the President of the Senate, and shall be lodged +among the public records for the security of the parties concerned. +Every commissioner shall, before he sit in judgment, take an oath, to be +administered by one of the judges of the supreme or superior court of +the State where the cause shall be tried, "well and truly to hear and +determine the matter in question, according to the best of his judgment, +without favour, affection, or hope of reward." + +_Sect. 3._ All controversies concerning lands claimed under different +grants of two or more States whose jurisdictions, as they respect such +lands, shall have been decided or adjusted subsequent to such grants, or +any of them, shall, on application to the Senate, be finally determined, +as near as may be, in the same manner as is before prescribed for +deciding controversies between different States. + + +X + +_Sect. 1._ The Executive Power of the United States shall be vested in a +single person. His stile shall be, "The President of the United States +of America;" and his title shall be, "His Excellency". He shall be +elected by ballot by the Legislature. He shall hold his office during +the term of seven years; but shall not be elected a second time. + +_Sect. 2._ He shall, from time to time, give information to the +Legislature, of the State of the Union: he may recommend to their +consideration such measures as he shall judge necessary, and expedient: +he may convene them on extraordinary occasions. In case of disagreement +between the two Houses, with regard to the time of adjournment, he may +adjourn them to such time as he shall think proper: he shall take care +that the laws of the United States be duly and faithfully executed: he +shall commission all the officers of the United States; and shall +appoint officers in all cases not otherwise provided for by this +Constitution. He shall receive Ambassadors, and may correspond with the +Supreme Executives of the several States. He shall have power to grant +reprieves and pardons; but his pardon shall not be pleadable in bar of +an impeachment. He shall be Commander in Chief of the Army and Navy of +the United States, and of the Militia of the several States. He shall, +at stated times, receive for his services, a compensation, which shall +neither be increased nor diminished during his continuance in office. +Before he shall enter on the duties of his department, he shall take the +following Oath or Affirmation, "I * * * solemnly swear, (or affirm) that +I will faithfully execute the Office of President of the United States +of America." He shall be removed from his office on impeachment by the +House of Representatives, and conviction in the Supreme Court, of +treason, bribery, or corruption. In case of his removal as aforesaid, +death, resignation, or disability to discharge the powers and duties of +his office, the President of the Senate shall exercise those powers and +duties until another President of the United States be chosen, or until +the disability of the President be removed. + + +XI + +_Sect. 1._ The Judicial Power of the United States shall be vested in +one Supreme Court, and in such Inferior Courts as shall, when necessary, +from time to time, be constituted by the Legislature of the United +States. + +_Sect. 2._ The Judges of the Supreme Court, and of the Inferior courts, +shall hold their offices during good behaviour. They shall, at stated +times, receive for their services, a compensation, which shall not be +diminished during their continuance in office. + +_Sect. 3._ The Jurisdiction of the Supreme Court shall extend to all +cases arising under laws passed by the Legislature of the United States; +to all cases affecting Ambassadors, other Public Ministers and Consuls; +to the trial of impeachments of Officers of the United States; to all +cases of Admiralty and Maritime Jurisdiction; to Contriversies between +two or more States (except such as shall regard Territory or +Jurisdiction) between a State and citizens of another State, between +citizens of different States, and between a State or the citizens +thereof and foreign States, citizens or subjects. In cases of +Impeachment, cases affecting Ambassadors, other Public Ministers and +Consuls, and those in which a State shall be a party, this Jurisdiction +shall be original. In all the other cases before mentioned it shall be +appellate, with such exceptions and under such regulations as the +Legislature shall make. The Legislature may assign any part of the +jurisdiction above mentioned (except the trial of the President of the +United States) in the manner and under the limitations which it shall +think proper, to such Inferior Courts as it shall constitute from time +to time. + +_Sect. 4._ The trial of all criminal offences (except in cases of +impeachments) shall be in the State where they shall be committed; and +shall be by jury. + +_Sect. 5._ Judgment, in cases of Impeachment, shall not extend further +than to removal from office, and disqualification to hold and enjoy any +office of honour, trust or profit under the United States. But the party +convicted shall nevertheless be liable and subject to indictment, trial, +judgment and punishment, according to law. + + +XII + +No State shall coin money; nor grant letters of marque and reprisal; nor +enter into any treaty, alliance, or confederation; nor grant any title +of nobility. + + +XIII + +No State, without the consent of the Legislature of the United States, +shall emit bills of credit, or make anything but specie a tender in +payment of debts; lay imposts or duties on imports; nor keep troops or +ships of war in time of peace; nor enter into any agreement or compact +with another State, or with any foreign power; nor engage in any war, +unless it shall be actually invaded by enemies, or the danger of +invasion be so imminent, as not to admit of a delay, until the +Legislature of the United States can be consulted. + + +XIIII + +The citizens of each State shall be entitled to all privileges and +immunities of citizens in the several States. + + +XV + +Any person charged with treason, felony, or high misdemeanor in any +State, who shall flee from justice, and shall be found in any other +State, shall, on demand of the Executive Power of the State from which +he fled, be delivered up and removed to the State having jurisdiction of +the offence. + + +XVI + +Full faith shall be given in each State to the acts of the Legislatures, +and to the records and judicial proceedings of the courts and +magistrates of every other State. + + +XVII + +New States lawfully constituted or established within the limits of the +United States, may be admitted, by the Legislature, into this +government; but to such admission the consent of two thirds of the +Members present in each House shall be necessary. If a new State shall +arise within the limits of any of the present States, the consent of the +Legislatures of such States shall be also necessary to its admission. If +the admission be consented to, the new States shall be admitted on the +same terms with the original States. But the Legislature may make +conditions with the new States concerning the public debt, which shall +be then subsisting. + + +XVIII + +The United States shall guaranty to each State a Republican form of +government; and shall protect each State against foreign invasions, and, +on the application of its Legislature, against domestic violence. + + +XVIIII + +On the application of the Legislatures of two thirds of the States in +the Union, for an amendment of this Constitution, the Legislature of the +United States shall call a Convention for that purpose. + + +XX + +The Members of the Legislatures, and the executive and judicial officers +of the United States, and of the several States, shall be bound by oath +to support this Constitution. + + +XXI + +The ratification of the Conventions of * * * States shall be sufficient +for organizing this Constitution. + + +XXII + +This Constitution shall be laid before the United States in Congress +assembled, for their approbation; and it is the opinion of this +Convention, that it should be afterwards submitted to a Convention +chosen in each State, under the recommendation of its legislature, in +order to receive the ratification of such Convention. + + +XXIII + +To introduce this government, it is the opinion of this Convention, that +each assenting Convention should notify its assent and ratification to +the United States in Congress assembled; that Congress, after receiving +the assent and ratification of the Conventions of States, should appoint +and publish a day, as early as may be, and appoint a place for +commencing proceedings under this Constitution; that after such +publication, the Legislatures of the several States should elect Members +of the Senate, and direct the election of Members of the House of +Representatives; and that the Members of the Legislature should meet at +the time and place assigned by Congress, and should, as soon as may be, +after their meeting, choose the President of the United States, and +proceed to execute this Constitution. + + + + +INDEX + + +Adams, Secretary J. Q. + Applies to Pinckney for draught, p. 4, 26 + Interview with Rufus King, p. 145 + +Ambassadors + To be appointed by the Senate, p. 82, 102, 210 + +Article III of Pinckney's Draught + Relied upon by Madison, p. 61, 62, 93, 99, 100 + +Article V of Pinckney's Draught + Relied upon by Madison, p. 61, 101 + +Article VIII of Pinckney's Draught + Relied upon by Madison, p. 60, 78, 79, 82, 84, 97 + Sustained by the Observations, p. 134 + + +Bancroft, George, + Expresses the general judgment, p. 7 + +Bill of Rights + Not adopted by the Committee or the convention, p. 270 + But is, in Pinckney's draughts and Observations, p. 270 + +Bridge which Madison built + For Pinckney's friends, p. 6, 7, 21, 44 + +Butler Pierce of South Carolina + Thinks election by the people impracticable, p. 87 + + +Charges of Madison + Analysed, p. 58, 62, 63 + +Chesapeak, the frigate, + Surrender of, p. 56 + +Citizens. + The clause securing privileges and immunities, p. 252 + +City Tavern, + Members of the Convention dinner at, p. 239 + +Committee of Detail + Appointed to prepare the Constitution, p. 69, 232 + Report of the Committee, p. 69 + Names of the Committee, p. 75 + Secrecy of the Committee, p. 75, 76 + Report exceeds instructions, p. 70 + Consistent silences of the Committee until death, p. 200 + How the Committee followed Pinckney, p. 213 + The printing of the draught, p. 233, 234 + +Committee of Style + Appointed, p. 69 + Really Committee of Revision, p. 78 + Correction of language, masterly, p. 78 + +Compensation of Members + Adequate, p. 173 + Resolution of the Committee of the Whole, p. 173 + Report of the committee of detail, p. 174 + In the Pinckney and Wilson draughts, p. 175 + Deviation from instructions explained, p. 207, 209 + +Compensation of the President. + Committee's draught disregards the 12th Resolution, p. 209 + Follows Pinckney's draught, p. 210 + +Compromises, The, of the Constitution. + Neither Madison nor Pinckney attempted a compromise, p. 265 + +Conclusions. + Final conclusions on the whole case, p. 273 + +Confederated States. + Bankrupt and drifting towards war, p. 249 + Helpless as against the States, p. 251 + Dependent upon voluntary contributions, p. 265 + Could not enforce treaties on States, p. 265 + +Congress. + See Election and Eligibility. + +Constitution, The. + Its four germinal stages, p. 66 + Methods for consideration of, p. 67, 68 + Birth of, p. 71 + References to Committees, p. 69, 70, 78 + The work of the Committee of Style, p. 78 + Estimate of in 1818, p. 25, 27 + +Convention, The. + Surviving members of, p. 24, 202 + Philosophical methods of, p. 67 + First days of the, p. 128, 129, 130 + The first business day, p. 135 + The secrecy of the convention, p. 227, 229, 232, 237 + A lost paper, p. 230 + Its careful preservation of papers, p. 287 + +Copyright and Patents. + Not in the Department copy of the draught, p. 271 + But Pinckney the author of those constitutional provisions, p. 271 + Copyright cases, p. 206 + +Council of Revision. + Considered, p. 46, 47, 50, 51 + Pinckney's action regarding it, p. 50 + + +Delicate. + The word as used by Madison, p. 36 + +Draught of Committee of Detail. + Reported by committee, p. 70 + Description of, p. 71, 72, 234 + Washington's copy of, p. 74 + The notes by Major Jackson, p. 74 + Agreement with Pinckney's draught, p. 79, 81, 255, 273 + The "divide" in the march of the framers, p. 76 + The compromises subsequent to the draught, p. 77 + Sparks' analysis of it, p. 149 + Sparks' test, p. 153, 156 + Madison's non-reply to Sparks, p. 155, 156 + The misplacing of veto power, p. 183, 220 + The treason provisions, p. 185, 221 + The Supreme Court jurisdiction clause, p. 191 + The draught not yet written, p. 203 + The preamble taken from Pinckney, p. 214 + How the committee followed Pinckney, p. 215 + The committee overrule Wilson, p. 222 + Limit of time for preparing, p. 232, 235, 248 + Engrossed on Pinckney's as copy for printer, p. 236, 241 + "Delivered in" figuratively, p. 236 + The most important document of the convention, p. 226 + Printing of the draught, p. 233 + The real authors of the draught, p. 165 + +Draught of Pinckney + Presented to the convention, p. 429 + Lost, p. 4, 224 + The Department copy, p. 4 + Description of, p. 16 + Madison's Note to the, p. 58 + When written, p. 86 + The term, "The law of the land," p. 179 + Provisions described in the Observations, p. 182 + The misplacing of the veto power, p. 183, 220 + The militia, p. 188 + Randolph recognizes and uses, Art 11, p. 196 + Article 11 described in the Observations, p. 198 + Publicity attending Pinckney's draught, p. 201, 274 + Used as printers' copy and destroyed, p. 236 + Never discussed in convention, p. 257 + Exaggerated value set upon it, p. 258 + Provisions not adopted by the committee, p. 268 + Provisions not in the Department case, p. 271 + Provisions rejected, p. 263 + Its inferiority in detail to the committee's, p. 153 + +Draught of Randolph. + Description of, p. 161 + The annotations of Rutledge, p. 164 + Compensation of Senators, p. 163 + The joint work of Randolph and Rutledge, p. 165 + A disheveled draught, p. 190 + Jurisdiction of the Supreme Court in, p. 191 + Recognizes and uses Pinckney's Art. 11, p. 196 + +Draughts of Wilson. + His three draughts, p. 160 + Description of his 3d, p. 161 + The annotations of Rutledge, p. 161 + Wilson's preamble, p. 166, + Charges against Pinckney, p. 168 + The word "our," p. 169, 171 + Articles which are not Wilson's, p. 182 + The proper placing of the veto power, p. 183, 220 + The treason provisions, p. 185, 221 + The militia provisions, p. 188 + +Draught, rough. + What it is, p. 20 + Pinckney's not a rough draught, p. 10, 11 + Wilson's rough draught, p. 166 + +Duer, William A. + Madison's letter to, p. 36, 45 + His position in New York, p. 45 + + +Election of Representatives + By the people, p. 9, 85, 91, 93, 94, 95, 97 + Pinckney's change of mind, p. 85, 87, 94, 96 + Agreement of Articles III and V with Observations, p. 90, 93 + Vote of convention, p. 95 + +Election of the President. + Madison's strictures on the draught, p. 60 + Article VIII does not provide a method, p. 97 + The omission not remarkable, p. 98 + Choosing by the electoral colleges, p. 77, 133 + Observations sustain Article VIII, p. 134 + +Eligibility of Representatives, etc. + Pinckney on the question, p. 101, 103 + +Elliott, W. S. + A grandnephew of Pinckney, p. 288 + His sketch of Pinckney's life and home; of his library, picture gallery +and garden, p. 288 + +Ellsworth, Oliver + Did not draught a constitution, p. 165 + Contributed nothing to draught of the committee, p. 165 + +Estoppel. + Characterized by Coke, p. 132 + Does not extend to historical students, p. 132 + + +Federalists. + Hamilton and Pinckney were, p. 279 + Pinckney the most extreme federalist in the convention, p. 279 + +Ford, Worthington C. + Publishes Pinckney's letter, p. 5 + +Framers of the Constitution. + Two of the youngest and their work, p. 264 + +Franklin, Doctor. + His farewell words to the convention, p. 70 + +Fraud and Plagiarism. + The question of inexorable, p. 21 + Detection probable, p. 24 + Temptation small, p. 25 + The absence of motive, p. 27, 28 + Specifications of plagiarisms, p. 78 + Failure of specified charges, p. 79 + Not sustained by evidence, p. 275 + The charge reduced to an absurdity, p. 195 + + +Gerry of Massachusetts + Opposes election by the people, p. 87 + +Gilpin, Henry D. + Edits Madison's Journal, p. 5, 29 + +Gorham of Massachusetts. + A member of the committee of detail, p. 75 + Did not attempt to draught a constitution, p. 165 + +Grimke, Thomas S. + Madison's letter to, p. 35 + + +Habeas Corpus. + The writ of, not to be suspended is in the draught, p. 269 + Why the committee did not adopt, p. 270 + +Hamilton, Alexander. + "Those who pay are the masters," p. 174 + His not the style of the Constitution, p. 243 + Pierce's description of Hamilton, p. 283 + +Historical Questions. + Concerning the draught in the State Department, p. 12 + +Historical Society of N. Y. + Possesses Pinckney's Observations, p. 105 + Referred to by Madison, p. 110 + +Hunt, Gaillard. + Description of the draught, p. 18 + + +Immigration. + Expected and relied upon, p. 170 + Massachusetts constitution encourages, p. 169 + +Impeachment. + In Pinckney draught, p. 211 + In the committee draught, p. 211 + + +Jackson, Major Wm. + Elected secretary of the convention, p. 129 + His notes on draught, p. 74, 75 + His letter to Washington, p. 239 + Delivers papers of the convention to Washington, p. 239, 241 + +Jameson, Professor, J. Franklin. + He discovers two of the Wilson draughts, p. 159, 160 + +Jay, Chief Justice. + His hand appears in the constitution of New York, p. 243 + +Jefferson, President. + Madison's letter to, p. 33, 129 + +Jews. + "The people called Jews" address the convention, p. 241 + +Journal, The, of Madison. + Its completeness, p. 40 + Omission of Pinckney's draught, p. 40 + Publication of, p. 52, 63 + His best appreciated work, p. 40 + To be edited by Mrs. Madison, p. 63 + Edited by Henry D. Gilpin, p. 5, 29 + Madison method of writing, p. 122 + Is the journal evidence against Pinckney, p. 275 + It must be received as history, p. 277 + + +King, Rufus. + Mr. Adams' conversation with King, p. 145 + King considered as a witness, p. 146 + Pierce's description of King, p. 282 + +Knox, General Henry. + Washington's letter to him, p. 128 + + +Law of the Land. + See Supreme Law of the Land. + +Library company of Philadelphia. + Order to the librarian directing him to "furnish the gentlemen" of the +convention with books, p. 240 + + +McLaughlin, Professor, + Discovers a draught of Wilson, p. 158 + Discovers report in confederated congress, August, 1786, "written in +Pinckney's own hand," p. 260 + +Madison, President. + His troubled life, p. 54 + His failing memory, p. 52, 54, 81 + His only alternative, p. 38 + His age, p. 53, 54 + His failure to testify, p. 38 + His ignorance of the draught, p. 30, 38, 40, 53 + His "Note" to the "Plan," p. 58 + His "editorial footnote" to the "Note," p. 62, 63 + His charges against the draught, p. 63 + His objections to Pinckney's draught, p. 5, 6, 7, 43, 45, 46 + His poor opinion of Pinckney, p. 32, 53 + Most diligent member of convention, p. 80 + His letters, p. 33, 34, 35, 36, 42, 43, 45, 54, 63, 107, 108, 109, 110, + 129, 214 + His comparison of the draught with the Constitution, p. 143, 156, 157 + His silence on the primary issue, p. 156 + His adroit management, p. 43, 157 + Madison on the "object of the Union," p. 214 + His and Pinckney's the constructive minds of the convention, p. 264 + They agreed as to State legislation, p. 265, 267 + They did not attempt to frame a compromise, p. 266 + The work of one agrees with the work of the other, p. 267 + Their names should be closely associated, p. 268 + +Madison's Journal. See Journal. + +Mrs. Madison + Her rescue of Washington's portrait, p. 56 + Intended editor of the Journal, p. 63 + +Marshall, Chief Justice. + Moulded the Constitution, p. 27 + His majestic judicial reign, p. 37 + +Martin Luther. + His resolution relating to the "Supreme law of the respective States," p. 179 + His language a compromise, p. 181 + +Massachusetts + Constitution furnishes provisions for Pinckney's draught, p. 83, 84, 250 + +Massachusetts and New York alone paid in full their quota, p. 249 + Preamble of the Constitution derived from constitution of + Massachusetts, p. 169 + The word "posterity" unrestricted, p. 170 + +Meigs, William M. + His "Growth of the Constitution," p. 161 + Reproduces the Randolph draught in facsimile, p. 161 + Growth of the Constitution + cited and quoted, p. 189, 192 + +Militia, The. + Pinckney's draught a radical departure, p. 188 + Not authorized by the convention, p. 188 + Pinckney's draught followed by Wilson rejected by the committee, p. 189 + +Money Bills. + Madison refers to them, p. 99 + Pinckney's position regarding them, p. 100 + +Morris, Gouverneur. + His correction of the language of the Constitution, p. 78 + +Mystery. + The name, p. 1 + Its definition, p. 2 + + +New York, the Constitution of, + Furnishes the veto power, p. 47, 48 + Furnishes other provisions, p. 83, 84, 216, 218, 250 + New York and Massachusetts alone pay in full their quota, p. 249 + +Notes and Memoranda + Of Pinckney and Madison, p. 11 + "Note" of Madison to plan of Pinckney, p. 58 + Editorial footnote to same, p. 62, 63 + + +Observations, The Pamphlet. + Cited by Madison, p. 33, 34, 43, 46, 50, 62 + Cited by Pinckney, p. 90 + When written, p. 93, 130 + Description of, p. 105 + Madison interest in, p. 107 + Extracts from, p. 111 + The Observations, a speech never made, p. 122, 126, 139 + Madison and Yates evidence, p. 122 + Contradictions in it, p. 126 + Significant error in date, p. 127 + Considered as a speech, p. 131 + Considered as evidence, p. 132 + Confirm Articles III, V, VIII, p. 132, 135 + Explanation of Pinckney's publication, p. 135 + Why speech was not delivered, p. 137 + Why published, p. 138 + Why Observations were not cited in Madison's "Note," p. 140 + The Observations fateful, p. 141 + They sustain the copy in the State department, p. 139 + Articles in the draught described in the Observations cannot be + questioned, p. 182, 189, 198, 253, 269, 270 + Article 11 referred to by Randolph described in the Observations, p. 198 + + +Patents. See Copyright. + +Paulding, James Kirke. + Memorandum for, p. 34, 42, 107 + Letters to, p. 43, 108 + Friend of Madison, p. 44, 45 + +Phenomenon, The, of Madison, p. 46, 53, 80 + +Pinckney, Charles. + His official life, p. 23 + His age, p. 88 + Why he presented the Observations, p. 135 + His strategic purpose, p. 137 + Why he published the Observations, p. 138, 142 + Desired the supremacy of the national government, p. 181, 279 + He alone formulated a constitution before the convention met, p. 189 + His misplacement of the veto power, p. 183 + The style of the Constitution, p. 243, 245 + His draught the only one, p. 249 + His method of construction, p. 250 + His composite work, p. 250, 251, 252 + His generality of treatment and expression, p. 253 + A condemned and misrepresented man, p. 254 + His training and preparation, p. 261, 264 + What he did and failed to o, p. 261 + His co-operation with Madison, p. 264, 265, 267 + His family, position, etc., p. 278 + His speech of June 25, p. 278 + The extremist federalist in the convention, p. 279 + Pierce's description and estimate of him, p. 281, 284 + The destruction of everything which Pinckney possessed, p. 285 + +Pinckney, Charles Cotesworth, + Opposes election by the people, p. 88 + Proposes that no salary be allowed to Senators, p. 176 + Living in 1818, p. 24 + The most esteemed citizen in S. C., p. 88 + +Pinckney's Letters + To Secretary of State, p. 8, 12, 26, 27 + Contemporary declaration, p. 10 + Letter to Madison, p. 62 + +Pierce, William. + His narrative of a lost paper in the convention, p. 230 + His description of Randolph, King, Hamilton and Pinckney, p. 281 + +Preamble of the Constitution. + Suggested by the Articles of Confederation, p. 169. + Derived from Constitution of Massachusetts, p. 169 + Randolph attempted draught of preamble, p. 162 + Wilson attempted draught of preamble, p. 166 + The preamble in the committee's draught, p. 168 + It declared the source and supremacy of authority, p. 213 + Ignored State governments, p. 213 + The preamble unquestioned in the convention, p. 215 + +President, The. + See Election of. + +Printers--Copy. + Pinckney draught used as printers' copy. p. 188, 208, 237 + + +Randolph, Edmund. + The Virginia resolutions cited as his, p. 68 + Opens the main business of the convention, p. 130, 136 + His draught of the Constitution, p. 158, 161 + +Read, George. + Letter to Dickinson on Pinckney's draught, p. 89 + +Ritchie, Thomas. + Madison's letter to, p. 63 + +Rutledge, John. + Present in the convention, May 29, p. 135 + Seconds Pinckney motion to strike out the word people and + insert Legislatures, p. 95 + Chairman of the Committee of Detail, p. 75 + "Delivers in" the report of the committee, p. 70 + His annotations on the other draughts, p. 162, 164, 182 + He co-operates with Wilson and Randolph, p. 164 + Used Pinckney draught when annotating, p. 182 + His ruthless slashing of Wilson's, p. 161 + His 43 amendments, p. 161, 204 + Strongest man in the State, p. 88 + + +Secrecy. + The resolution of the convention, p. 228 + Secrecy to continue after the dissolution of the convention, p. 228 + Silence of members from May 29 to September 17, p. 229 + Washington recognition of the obligation, p. 229 + The obligation required that the draught be not lost, p. 232 + Pinckney draught used as printers' copy and scrupulously destroyed, p. 237 + Legal presumption that it was destroyed, p. 237 + Secrecy of Committee of Detail, p. 75, 200, 237 + +Senate. + Pinckney's Senate, p. 91, 217 + To appoint ambassadors and judges, p. 102 + +South Carolina. + The State postpones action in the convention, p. 175 + +South Carolina Gazette. + Draught republished in, p. 274 + +Sparks, Jared. + Writes to Madison, p. 42, 43, 144, 146, 147, 149 + Madison to Sparks, p. 35, 42, 43, 110 + His opinion of the draught, 148, 152 + His correct analysis, p. 152 + His most delicate test, p. 153 + +Story, Mr. Justice. + Ignores the Draught, p. 6, 8, 12 + +"Supreme Law of the Land." + History of the term. p. 179. + The case of Trevatt v. Weeden gives judicial significance to it, p. 182 + Derived from resolution of Congress, p. 251 + + +Thomson, Doctor William H. + Definition of mystery, p. 2 + +Time. + The second condition imposed on the committee, p. 232 + Two of these days were Sundays, p. 233 + Three days required for printing, p. 234 + 200 constitutional provisions framed and printed within + the limited time, p. 234 + +Treason. + The punishment of treason, p. 185 + How defined, etc., in the three draughts, p. 186 + Caution of Rutledge and Pinckney, p. 186 + Their provisions combined in the Constitution, p. 187 + +The Treaty Making Power. + Lodged in the Senate exclusively, p. 210 + Not authorized by the convention, p. 211 + Committee of detail followed Pinckney erroneously, p. 211 + + +Veto Power, The. + Taken from the constitution of New York, p. 47 + Misplaced by Pinckney and by the committee, p. 183, 220 + Correctly placed by Wilson, p. 183 + + +Washington, General, The. + Madison's letters to, p. 33, 34 + His copy of the committee's draught, p. 74 + Letter to Congress, p. 54 + His illness, and the illness of his mother, p. 128 + His journey to Fredericksburg, p. 128 + His arrival in Philadelphia, p. 129 + President of the convention, p. 129 + Letter to General Knox, p. 128 + Made custodian of the records, p. 228, 239 + His sense of the obligation of secrecy, p. 229 + Extracts from his diary, p. 229 + His admonition to the convention, p. 230 + The convention's daily mark of respect, p. 230 + Extracts from his diary of September 17, p. 239 + +Washington, City. + Capture of, 56 + Burning of the Capitol, p. 56 + +Wilson, James. + His draughts of the Constitution, p. 158 + Intelligent and wise, p. 159 + Opposed the payment of representatives by the States, p. 175, 176 + His proper treatment of the veto power, p. 183 + His careful and logical work, p. 165, 187 + Alien member of the convention, p. 199 + A judge of the Supreme Court, p. 200 + The hard-worker of the convention, p. 204 + A signer of the Declaration, p. 171 + He first suggests the Electoral Colleges, p. 77 + + +Yates, Robert. + Entry in his minutes, p. 29, 122 + Report of Pinckney's speech, p. 30 + His age, position and experience, p. 124 + Value of his minutes, p. 125 + + + + + +End of the Project Gutenberg EBook of The Mystery of the Pinckney Draught, by +Charles C. Nott + +*** END OF THE PROJECT GUTENBERG EBOOK 40904 *** |