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diff --git a/40904.txt b/40904.txt deleted file mode 100644 index 5a00bf2..0000000 --- a/40904.txt +++ /dev/null @@ -1,7353 +0,0 @@ -Project Gutenberg's The Mystery of the Pinckney Draught, by Charles C. Nott - -This eBook is for the use of anyone anywhere at no cost and with -almost no restrictions whatsoever. You may copy it, give it away or -re-use it under the terms of the Project Gutenberg License included -with this eBook or online at www.gutenberg.org - - -Title: The Mystery of the Pinckney Draught - -Author: Charles C. Nott - -Release Date: October 1, 2012 [EBook #40904] - -Language: English - -Character set encoding: ASCII - -*** START OF THIS PROJECT GUTENBERG EBOOK MYSTERY OF THE PINCKNEY DRAUGHT *** - - - - -Produced by Robert Cicconetti, Josephine Paolucci and the -Online Distributed Proofreading Team at http://www.pgdp.net. -(This file was produced from images generously made -available by the Library of Congress.) - - - - - - - -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. Encyclopaedia -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. 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