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. Encyclopædia
Americana.

       *       *       *       *       *

The second germinal stage began July 26th with the appointment of a
committee--the Committee of Detail "for the purpose of reporting a
Constitution," and continued until August 6th when "Mr. Rutledge
delivered in the report of the Committee of Detail--a printed copy being
at the same time furnished to each member."

The Committee had retired from the Convention with instructions couched
in the 23 resolutions, and they returned to it with more than half of
the Constitution, arranged in the form of articles and sections
substantially as we have them in the Constitution. The number of
provisions contained in the draught greatly exceeded the number of
specific instructions set forth in the resolutions, but the excess was
not wholly an excess of authority for it had been resolved:

"That the national legislature ought to possess the legislative rights
vested in Congress by the Confederation: and moreover to legislate in
all the cases for the general interests of the Union, and also in those
to which the States are separately incompetent or in which the harmony
of the United States may be interrupted by the exercise of individual
legislation."

When the paper which Rutledge held in his hand, as he rose to address
the Convention on the 6th of August, was placed on the table before
Washington, the moment witnessed the birth of the Constitution.
Provisions which it contained were to be stricken out, and some of the
great compromises were yet to be forged and inscribed upon the scroll,
but the written Constitution was now in being. And yet this is but
figurative language. The great state paper which passed from the hand of
Rutledge to the hand of Washington was not engrossed on parchment, like
a second Magna Charta; it was not attested by signature or date; it was
not even in writing; a few pages of printer's paper, plain and
unpretentious; a mere copy, one of a number of printed copies, as we
gather from the record. But it was to receive the severest scrutiny of
some of the great men of the world, of Washington, Franklin, Madison,
Ellsworth, Wilson, Rutledge, Hamilton.

The printed document found in the box which holds the few records of the
Convention is not unworthy of a great state paper. It is on stately,
heavy, hand-made paper, 10 by 15-1/2 inches in size. The printed matter
is 5-1/4 inches by 12-1/2. There are seven pages carrying from 27 to 53
lines on each. The workmanship is faultless; the type clear, the
impression uniform, the ink unfaded, the punctuation careful, the
spacing perfect. There are but two typographical errors, one of which is
a misnumbering of the articles. In Pinckney's draught the first article
has inscribed over it "Article 1" and the following articles have only
their numbers 2, 3, etc. The printer followed the same form, the only
difference being that Pinckney, writing the draught with his own hand,
used arabic figures, for which the printer substituted Roman numerals.
When he reached the seventh article he repeated VI. and when he reached
the eighth he entitled it VII. and continued the error through the
remaining articles. Notwithstanding this blemish I have never seen so
faultless a public document.

The copy bears this endorsement:

      "Printed Draught of the Constitution, received from the
      President of the United States, March 19th, 1796 by

                                "TIMOTHY PICKERING

                                "Sec'y of State"

The name of the printer who did his confidential work so well, I regret
to say, is not upon the paper.

It has been supposed and said that this copy of the draught was
Jackson's, the inefficient Secretary of the Convention, and that he used
it to save himself the trouble of writing out the proceedings in the
journal by noting amendments on the margin. This like much other
imaginary history is erroneous.

When I first saw the draught of the committee, I observed that the notes
on the margin were written in two different hands. I also observed that
one of these though not familiar was a hand which I had seen before. On
calling the attention of Mr. S. B. Crandall of the Bureau of Rolls to
it, he instantly recognized this writing as Washington's. A further
examination showed that 115 notes and interlineations were written by
Washington and 7 by Jackson. _This copy of the draught was Washington's
own copy!_

Whether he placed the copy among the papers of the Convention on
September 17, 1787 when the Secretary brought them to him; or whether he
transferred his own copy to the Secretary of State in 1796 is unknown
and probably unascertainable, but the indorsement makes it certain that
the paper came to the Department directly from Washington; and the 115
carefully made emendations in his handwriting are for us the highest
evidence in the world of its authenticity.

The notes by Jackson are easily explicable; they are lengthy amendments
which Washington could not take down from hearing them read; and he
handed his printed copy to the Secretary to have them correctly and
fully written out.[1]

[Footnote 1: For the benefit of those persons who are so fortunate as to
have a copy of the Documentary History of the Constitution (Department
of State, 1894) I will add that the marginal notes which are in the
writing of Jackson are those of Art. V, Sec. I; Art. VI, Sec. 3; Sec.
13, Art. VII; Sec. 1, Art. XI; Sec. 4, Art. XV; (see Doc. Hist.,
Constitution Vol. I, p. 285).]

If the Committee of Detail--Rutledge of South Carolina, Randolph of
Virginia, Gorham of Massachusetts, Ellsworth of Connecticut and Wilson
of Pennsylvania--intended to keep their work a profound secret, and the
secret to be buried with themselves, they could not have planned better
than they did. The work was done in secret; they employed no secretary;
their report was not in writing. After the committee was discharged no
hint or word seems to have escaped them. No man boasted of his own part
or disparaged another's. There is no journal which tells us how they
worked. No son or daughter or grandchild has revealed a word that any
member subsequently said. In 1813 when Edmund Randolph died, the secret
of the members of the Committee of Detail died with him.

The third germinal stage was based on the draught of the Committee of
Detail and extended from the 6th of August to the 12th of September. The
draught of the Committee constituted the divide in the march of the
framers. Behind them was the plain of philosophical disquisition on
which there had been many contests, but exclusively as to what might be
and might not be. Before them were many hills of difficulty to be
surmounted in the practical application of abstract propositions by
incorporating them in provisions and conditions to be written into the
Constitution. But the work of the Convention and the debates of the
members were in connection with the draughted Constitution of the
Committee of Detail, or in connection with amendments thereof or
additions thereto. There were indeed new provisions framed sometimes by
grand committees, sometimes by special committees, sometimes by the
Convention itself--provisions concerning which the Convention had not at
first sufficiently instructed the Committee of Detail--provisions which
the Convention had not then considered and determined even in the form
of abstract propositions. The most difficult of the compromises, that
between the large and the small States in the choosing of the President,
was effected; and the method first proposed by Wilson and rejected by
the Convention, June 2nd, that the choice should be made through the
agency of electoral colleges was reconsidered and adopted. The power to
try officers impeached by the House of Representatives was taken from
the Supreme Court and given to the Senate; the power to appoint
ambassadors, and judges of the Supreme Court, was taken from the Senate
and given to the President; the power to appoint the Treasurer of the
United States was taken from the Legislative branch and given to the
Executive; and the important treaty-making power which at first was
lodged exclusively in the Senate was transferred to the Executive
subject to the ratification of the Senate. But all that was considered
and agreed upon was attached to the draught of the Committee of Detail.

The fourth stage began on the 12th of September with the revised
Constitution reported by the Committee appointed "to revise the style of
and arrange the articles" which had been agreed upon, commonly termed
the "Committee of Style," but which more correctly might have been
termed the Committee of Revision. During that and the next three days
the Constitution was modified by a number of amendments chiefly of the
nature of corrections. The Committee of Style made no changes other than
those of arrangement and language. The correction of the language of the
Constitution was masterly and is ascribed by Madison to Gouverneur
Morris. On Saturday the 15th of September the labors of the Convention
ended. On Monday the 17th, the engrossed Constitution was signed.

In his "Note to the Plan," Madison specifies some of the "details,
expressions and definitions" which were framed in the Convention, the
"results of critical discussions" that "could not have been anticipated"
by Pinckney. "Examples" of these "similarities" and "identities" he
says, "may be noticed in article VIII, which is remarkable also for the
circumstance that whilst it specifies the functions of the President, no
provision is contained in the paper for the election of such an
officer." These are all the specifications of provisions or of language
plagiarised from the Constitution by Pinckney which Madison has filed.
Specifying nothing else, we may assume that the plagiarisms contained in
article VIII. were the plagiarisms which dwelt in his own mind and upon
which he rested his conclusions.

These specific charges of plagiarism may be struck down by a single
blow:--

_Not one of the provisions contained in Pinckney's article VIII was
framed in the Convention, and all were brought before the Convention by
the draught of the Committee of Detail. All the provisions of the
Constitution which were framed by the Convention were framed
subsequently to the 6th of August and belong to the 3d and 4th germinal
periods. All the provisions which are contained in the draught of the
Committee of Detail were framed before the 6th of August and existed
before the constructive work of the Convention began._

When the sequence of events is observed the matter is cleared and the
"phenomenon" of Madison becomes a simple link in the chain of events.
Pinckney presented his draught to the Convention on its first business
day before there had been a single "critical discussion." The Convention
immediately referred the draught to the Committee of the Whole, which
made it accessible to every member of the Convention. When a committee
was appointed to draught a Constitution, the draught of Pinckney was
taken from the Committee of the Whole and referred to the Committee of
Detail. The committee found in the draught matter which they needed and
they used it as the basis of their own draught as any committee would
have done. And thus the draught of the Committee of Detail became the
vehicle by means of which these provisions and expressions of Pinckney
were carried into the Constitution.

If all this were not a matter of record it would be well nigh
unbelievable that Madison of all men could have pursued the course he
did. The most diligent member of the Convention, the chronicler of its
transactions, the sole survivor of its members and, consequently, a
witness who should speak with the greatest care; and yet we find him, at
one end of the line, ignorant of the contents of Pinckney's draught, and
at the other silent as to the contents and existence of the draught of
the Committee of Detail. When he wrote of "the coincidence in several
instances between that [the State Department draught] and the
_Constitution as adopted_" and cited article VIII as containing
remarkable examples of these coincidences, he gave unconsciously a
curious illustration of things "confounded in the memory" "after a lapse
of more than thirty years"--in his case, after a lapse of more than
forty-five years.

With the fall of these specifications falls the general charge of
plagiarism. The draught in the State Department ends with the draught of
the Committee of Detail; whatever coincidences there be of "details,
expressions and definitions" are coincidences in the two draughts and in
them alone. The similarities and identities which so impressed Madison
were merely similarities and identities between the two draughts. He
doubtless selected article VIII as "remarkable" because he recognized
in it provisions and expressions which he knew were in the Constitution.
But there are others in article VIII which are not in the Constitution
and which are inconsistent with it. The retention of these is sufficient
to refute the idea that Pinckney changed his draught to make it conform
to the work of the Convention. Article VIII provides that the title of
the President "shall be his Excellency." There is no such provision in
the Constitution. Article VIII makes exceptions to the appointing power;
"ambassadors, other ministers and judges of the Supreme Court" are not
to be appointed by the President but by the Senate. This was not one of
the "results" arrived at in the Convention. In case of the death of the
President and the death of the President of the Senate, "the Speaker of
the House of Delegates shall exercise the duties of the office." Here
all that Pinckney had to do to make his draught conform was to run his
pen through the supplementary clause vesting the succession in the
Speaker. The President may be removed from office on impeachment by the
House of Delegates and "conviction in the Supreme Court." Here all that
Pinckney had to do was to erase "Supreme Court" and insert "Senate."
Finally it is to be noted that those expressions and provisions in
article VIII which caught the eye of Madison and were characterized as
"remarkable" were not "results of critical discussion and modification
in the Convention that could not have been anticipated," but were
provisions and expressions which had been taken by Pinckney from the
constitutions of New York and Massachusetts, generally word for word.
The article provides that the President "shall from time to time give
information to the legislature of the state of the Union," and
"recommend to their consideration" the measures he may think necessary;
that "he shall take care that the laws be duly executed"; that "he shall
commission all officers"; and "shall nominate and with the consent of
the Senate" appoint officers; that "he shall have power to grant pardons
and reprieves"; and that "he shall be commander in chief of the army and
navy"; but each of these provisions was taken from the constitution of
New York. The article also provides that at "entering on the duties of
his office he shall take an oath faithfully to execute the duties" of
President; and that he "shall be removed from his office on impeachment
by the House of Delegates"; but these provisions were taken from the
constitution of Massachusetts. The article also provides that "in case
of his removal by death, resignation or disability, the President of the
Senate shall exercise the duties of his office"; but this is taken from
the constitution of New York. In a word when we trace these provisions
and expressions to their respective sources there is nothing left of the
article. Article VIII is indeed remarkable; but it is for reversing the
deductions of Madison; for demonstrating with mathematical certainty (so
far as it goes), that Pinckney did not make his draught conform to
"results" which had been reached in the Convention, and which "could not
have been anticipated."




CHAPTER VIII.

THE IMPROBABILITIES


The most incisive reason given by Madison against the authenticity of
the draught in the Department of State, the reason which he most
reiterated, if not the one upon which he most relied, was that the
draught was presented to the Convention on the 29th May and a week
later, June 6th, Pinckney moved "that the first branch of the national
legislature be elected by the State legislatures and not by the people."
This objection is not only plausible but it rests on two
incontrovertible facts each of which is a matter of record--that the
draught was presented to the Convention on the 29th of May; that his
inconsistent motion was made on the 6th of June. But the conclusiveness
of these facts disappears when the circumstances and changed conditions
of the case appear.

In the first place Pinckney had forestalled the point made by Madison by
declaring in his letter to the Secretary of State that there were
provisions in the draught which on further reflection he had opposed in
the Convention. This declaration, it must be remembered, was made before
the publication of Madison's Journal, before it was known that it would
be published, before Pinckney knew or could have known what the Journal
would show. In other words it was he himself who first revealed his own
inconsistency in having presented a plan for one thing in May and in
having contended for another thing in June. The explanation is not an
afterthought or a defence, but an avowal made in due time.

In the second place the draught was presented on the 29th of May, but it
was not written then. It must have been written weeks before this in
Pinckney's study in Charleston. When he wrote it he had before him, as
every American of that day had, the Constitution of Great Britain, the
constitution under which he had grown up, the merits and virtues and
wisdom and excellencies of which he had read and re-read in Blackstone.
It was a matter of course for him, when dealing with the legislative
power, to have his Congress consist of two houses. As to this there
would not be a doubt or a thought. The next thing would be to have the
members of the first house, like the members of the House of Commons,
elected by the people. So far he had no reason to pause and reflect. But
when he came to the second house, he had no nobility at hand of which it
might be composed. Here his invention began, and he avowedly so
contrived his Senate that it should in fact though not in form,
represent not nobility but wealth. It is probable that when he was
draughting his constitution, it never entered his head that the lower
house of the American parliament could be chosen by any other means than
the means by which the House of Commons was chosen and the lower house
of every American State.

In the third place between the 29th of May and the 6th of June the
subject had come before the Convention and had been discussed and South
Carolina had taken a position against it.

Gerry of Massachusetts said that "the evils we experience flow from the
excess of democracy"; and that "he did not like the election by the
people." Butler, of South Carolina, "thought an election by the people
an impracticable mode." Rutledge, the strongest man in the State,
seconded the motion to have the first branch elected by the State
legislatures. Charles Cotesworth Pinckney, the most esteemed citizen of
the State and Pinckney's kinsman, brought South Carolina before the
Convention as an illustration and even went so far as to say "an
election of either branch by the people, scattered as they are in many
States, particularly in South Carolina, is totally impracticable."

Pinckney was the youngest member of the delegation--much the youngest.
He was not yet 30; and, with the exception of Dayton and Mercer was the
youngest member of the Convention. It would have been natural for him as
a Southerner "to go with his State"--and as a young man to defer to his
seniors. And after hearing the debate on the 31st of May and the reasons
of his fellow delegates from South Carolina, it was proper for him to
change his mind and advocate election by the State legislatures as a
better mode. It would have been a matter of wonder if he had not!

But there is a letter of George Read which should be considered, for it
suggests the question whether this change of Pinckney did not take place
before the 29th of May; that is to say before he presented his draught
to the Convention.

On the 20th of May 1787 Mr. Read wrote from Philadelphia to John
Dickinson:

"I am in possession of a copied draught of a federal system intended to
be proposed if something nearly similar shall not precede it. Some of
its principal features are taken from the New York system of government.
A house of delegates and senate for a general legislature, as to the
great business of the Union. The first of them to be chosen by the
legislature of each State, in proportion to its number of white
inhabitants, and three-fifths of all others, fixing a number for sending
each representative. The second, to-wit the senate, to be elected by the
delegates so returned, either from themselves or the people at large, in
four great districts, into which the United States are to be divided for
the purpose of forming this senate from which, when so formed, is to be
divided into four classes for the purpose of an annual rotation of a
fourth of the members. A president having only executive powers for
seven years." (Read's Life of George Read of Delaware p. 443.)

This letter is very far from being conclusive. In the first place it
does not appear that Mr. Read had seen the original of this "copied
draught" or that Pinckney had given him the copy or had told him what
his plan was or that any person who had seen the original draught had
told him what it contained. In the second place the existence of an
unauthenticated copy on the 20th of May does not conclusively prove that
a different version of the same draught was not presented to the
Convention on the 29th of May. Still this letter undoubtedly refers to
Pinckney's draught and compels a more searching examination of the
question raised than would otherwise be necessary.

In a paper which will be called, briefly, "the Observations" written by
Pinckney before he left Charleston he sets forth at length a description
of his plan of government. In the opening paragraph of this paper he
says that he will "give each article" of his draught "that either
materially varies" from the present government "or is new." He then
goes on to say that "the first important alteration is that of the
principle of representation." "Representation is a sign of the reality.
Upon this principle, however abused, the Parliament of Great Britain is
formed, and it has been universally adopted by the States in the
formation of their legislatures." This is all which Pinckney, writing
before the Convention began its work, had to say concerning the lower
house of Congress. His Senate was new and concerning it he had much more
to say, and he described it. But of the lower house, the popular body,
he had nothing to say save that there would be such a house, and that it
would rest upon the principle of representation "universally adopted by
the States in the formation of their legislatures." The Virginia
resolutions undoubtedly expressed the opinion of substantially all
Americans when they said, "Resolved that the members of the first branch
of the national legislature ought to be elected by the people of the
several States." Assuredly if the draught which Pinckney was then
describing had contained the extraordinary and novel proposition that
the popular branch of the national legislature, the body which should
represent the people, was not to be chosen by the people he would have
had something "new" to lay before the Convention--something which did
not exist in the government of any English speaking people in the
world--something which "materially varied" from the belief and usage and
history and traditions of the people who were to ordain this
Constitution. Knowing Pinckney as we do--his general views, his
adherence to the general principles of the British constitution, his
attentive study of State constitutions, his outspokenness, his belief in
his own devices, we know that if his draught had then contained so
radical a departure from all existing constitutions as that which he
subsequently proposed in the Convention, and if he had worked himself
into a belief at the time when he wrote the Observations that the
election of their representatives by the people was "theoretical
nonsense", he could not have refrained from saying so. What is said in
the Observations harmonized with the constitutions of every State in the
Confederation and with the Virginia resolutions and with the views of
every member of the Convention excepting the five great land owners
from South Carolina.

The Observations, therefore (written before the Convention and published
afterwards), sustain the draught in the State Department.

The words "the people" appear directly and necessarily in article 3 of
the draught: "The Members of the House of Delegates shall be chosen
every ---- year by the people of the several States; and the
qualifications of the electors shall be the same as those of the
electors in the several States for their Legislatures." They reappear
casually and needlessly in article 5: "Each State shall prescribe the
time and manner of holding elections _by the people_ for the House of
Delegates." The draught therefore in these provisions is consistent with
itself.

In the draught of the Committee of Detail the words of Pinckney's
article 3 again appear with some amplification, but in the same order
with the same context and with the same intent. Such agreements come not
by chance.

And if such agreements come not by chance, could Pinckney while he was
copying the committee's draught for his own article 3 have written
these two troublesome words "the people" without taking heed of their
significance, without realizing what he was doing, without remembering
that his own draught had said "the _legislatures_ of the several
States." He could not! For there is another provision in the draught in
the State Department which was not taken from the committee's
draught--which did not exist in the committee's draught--which must have
been deliberately framed by Pinckney--the provision before quoted from
article 5, "Each State shall prescribe the time and manner of holding
elections _by the people_ for the House of Delegates." That is to say if
Pinckney unintentionally abstracted his article 3 from the committee's
draught in 1818, he, nevertheless, must have fabricated designedly his
article 5 at the same time; for there is nothing in the committee's
draught to suggest it.

Then the question immediately arises, What motive could Pinckney have
had for falsifying his draught and making this change from the election
of delegates by State legislatures to their election by the people of
the several States. The answer of the superficial of course will be,
"So that the world should believe that he had always been in favor of
the election of representatives by the people." No other reason can well
be assigned; yet there could not have been such a motive. Pinckney knew
that his draught was to be soon published and that with it would be
published the official Journal of the Convention and that the
publication would disclose to the world this record:

                                "Wednesday, June 6, 1787
                                "Mr. Gorham in the Chair.

      "It was moved by Mr. Pinckney, seconded by Mr. Rutledge to
      strike the word 'people' out of the 4th resolution
      submitted by Mr. Randolph, and to insert in its place the
      word

      'Legislatures' so as to read 'resolved that the Members of
      the first branch of the national legislature ought to be
      elected by the Legislatures of the several States'

      "and on the question to strike out "it passed in the
      negative.""

If Pinckney's article 3 had really provided that members of the first
house should be chosen _by the legislatures_ of the several States,
certainly his article 5 would not have provided that "each State shall
prescribe the time and manner of holding elections by _the people_."
Article 3 laid down the basic principle that representatives were to be
chosen by the people, and article 5 provided for the time and manner
when and whereby the people should elect their representatives; and
article 4 provided that Senators should be chosen, not by the people or
the legislatures of the several States, but by the House of Delegates.
In all these provisions we again see that the draught in the State
Department is consistent with itself.

It is possible that the person who gave the "copied draught" to Mr. Read
was Pinckney himself; and it is probable that by the 20th of May he had
changed his mind concerning the election of delegates by the people and
had determined to make his draught conform to the views of his fellow
delegates from South Carolina. We know, as will hereafter appear, that
he contemplated making many amendments to his draught before presenting
it to the Convention; and that he hastily and prematurely presented it
on the 29th of May so that it should go with the Virginia resolutions
to the Committee of the Whole. The change we are considering may not
have been made in the written instrument which he laid upon the
Secretary's desk, though he made the change in his own mind. But be that
as it may, it is as certain as existing knowledge goes that no man saw
the original draught with the words "by the people" twice stricken out
and the words "by the legislatures of the several States" twice written
in; and until this change in the original draught is shown by positive
testimony, unequivocal in terms and above suspicion in character, the
circumstantial evidence that the draught went to the Convention with the
words "the people" in the 3d and 5th articles is overwhelming.

There are some other things specified in the Note not of great
importance, but which serve to show how eagerly Madison clutched at
anything that would operate as a makeweight against Pinckney and his
draught.

Article VIII "is remarkable also for the circumstance that whilst it
specifies the functions of the President, no provision is contained in
the paper for the election of such an officer." This is not a complete
statement of the case. The article declares that "the executive power"
shall be vested in a President and that "he shall be elected for ----
years." The provisions relating to the President were on their face
incomplete. There are virtually two blanks left in the provision, the
one relating to the length of the President's term of office, the other
to the manner in which he should be chosen. The 12th resolution filled
these blanks for a time by saying "seven years" for the one and by "the
National legislature" for the other. Here were "results" arrived at in
the Convention. That Pinckney did not fill these blanks in the
Department copy--blanks so obvious and so easily filled--goes a great
way to show that he did not in any place complete his draught by writing
into it "results" arrived at in the Convention. It is a strained,
artificial conclusion which calls an omission "remarkable" when the
instrument is avowedly nothing but an incomplete, tentative draught
prepared for the future consideration of its author as well as other
persons.

Madison notes "variances" between the draught in the Department and the
propositions and arguments of Pinckney in the Convention. "Thus in
article VIII" he says, Pinckney provides for the impeachment of the
President but on the 20th of July he was opposed to "any impeachability
of the Executive." "He was sure they _ought not to issue from the
legislature who would in that case hold them as a rod over the
Executive_." But the draught says much more than Madison repeats. "He
shall be removed from his office on impeachment by the House of
Delegates _and conviction in the Supreme Court_." Pinckney did not
oppose that in the Convention. Madison on his own record clearly had no
right to say that Pinckney "was opposed to any impeachability of the
Executive." He did not oppose such an impeachability as his draught
provided for viz., by the Supreme Court, and his reasons quoted by
Madison do not apply to the impeachability provided in his draught.

"In article III it is required that all money-bills shall originate in
the first branch of the legislature; which he strenuously opposed on the
8th of August and again on the 11th." Here Madison overlooked the
significance of these dates. They are subsequent to the report of the
Committee of Detail by which report Pinckney's plan for the organization
of the Senate had been rejected. Pinckney alluded to this on the 11th
when he said, "The rule of representation in the first branch was the
true condition to that in the second branch." Neither does it appear in
Madison's Journal that he "_strenuously_ opposed." On the 11th he "was
sorry to oppose reopening the question," but "he considered it a mere
waste of time." On the 8th his opposition had been couched in three
lines, "If the Senate can be trusted with the many great powers
proposed, it surely can be trusted with that of originating
money-bills." Pinckney's real position in regard to this was clearly
stated by himself and thus recorded by Madison on Wednesday, June 13th;
"Mr. Pinckney thinks the question premature. If the Senate should be
formed on the same proportional representation, as it stands at present,
they should have equal power. Otherwise a different principle should be
introduced." How did the Senate "stand at present," on June 13th. This
is shown by the resolutions of the Committee of the Whole of the same
day. "That the right of suffrage in the second branch of the national
legislature ought to be according to the rule established for the first
branch." Resolution 8. The Senate therefore was "at present," a very
different representative body than the Senate of Pinckney's draught; and
to say on these changed conditions and on the record of what he did say
that he "strenuously opposed" the very thing which he had adopted in his
draught is a wild use of terms.

"In article V, members of each house are made ineligible to as well as
incapable of holding any office" a provision, Madison continues, which
"was highly disapproved of by him on the 14th of August."

What was this disapproval? Article V provides that the members of each
house shall not be eligible to office during the time for which they
have been respectively elected, "nor the members of the Senate for one
year after." This idea that a member of Congress should not hold, during
his legislative term of office, an executive office which he had helped
to create or the emoluments of which he had helped to increase,
undoubtedly existed in many minds. But under the scheme embodied in the
Pinckney draught there was a peculiar reason why the ineligibility of
Senators should continue after their legislative terms of office had
expired. That reason was because (Art. VIII), the Senate was to be an
appointing power. It was to "have sole and exclusive power to" "appoint
ambassadors, and other ministers to foreign nations, and judges of the
Supreme Court." Under this scheme it was obvious that a Senator should
not be allowed to step out of office at the expiration of his term on
one day and be appointed by his late colleagues to an important office
on the next day. It is, therefore, not a surprising thing to find this
provision in the draught and to find it applied only to the Senate.

On the 14th of August Pinckney had so far modified his own views that he
was then in favor of making the members of each House incapable of
holding executive salaried offices while they continued members, with a
provision that "the acceptance of such office shall vacate their seats
respectively." This having failed in Convention, he on the same day
urged a general postponement of the subject "until it should be seen
what powers should be vested in the Senate" "when," he said, "it would
be more easy to judge of the expediency of allowing officers of State to
be chosen out of that body." This postponement was agreed to nem. con.
It is manifest that the idea of the Senate being an appointing power was
still uppermost in his mind. He gave good reasons for not making
ineligibility absolute; but he consistently adhered to the idea that the
same person should not be both a Legislator and an officer of State.

On the 14th of August Pinckney proposed to make members ineligible to
hold any office by which they would receive a salary. This was merely a
restriction on the original proposition of the draught, a limiting of
its application to salaried offices but leaving members eligible and
capable of filling honorary positions. To say that his original
proposition was thereby "highly disapproved" by him is certainly an
abuse of the term "highly disapproved." The objection of Madison when
tested by his own record, the Journal, comes down to this: that three
months or more after Pinckney wrote the draught, he thought it better to
limit the Constitutional prohibition to "salaried offices." This
restriction was a trivial and a sensible modification. To infer from it
that Pinckney then "highly disapproved" his own original proposition
merely marks the nervous excitement which seems to have impelled Madison
to exaggerate every little deviation of Pinckney from the strict letter
of his draught into conclusive evidence that this draught never existed.

This brings us to the extrinsic evidence on which Madison relied, the
testimony of Pinckney against himself.




CHAPTER IX.

THE OBSERVATIONS


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

Observations
on the
PLAN OF GOVERNMENT
Submitted to the
FEDERAL CONVENTION
in Philadelphia on the 28th of May, 1787

By Mr. Charles Pinckney
Delegate from the State of South Carolina

DELIVERED AT DIFFERENT TIMES
IN THE COURSE OF THEIR DISCUSSIONS.

New York. Printed
by Francis Childs

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

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

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

      "FOR MR. PAULDING"

      "Much curiosity and some comment have been exerted by the
      marvellous identities in a plan of Government proposed by
      Charles Pinckney in the Convention of 1787 as published in
      the Journals with the text of the Constitution, as finally
      agreed to. I find among my pamphlets a copy of a small one
      entitled Observations on the Plan of Government submitted
      to the Federal Convention, in Philadelphia, on the 28th of
      May, by Mr. C. Pinckney, a Delegate from S. Carolina,
      delivered at different times in the Convention.

      "The copy is so defaced and mutilated that it is impossible
      to make out enough of the plan, as referred to in the
      Observations, for a due comparison of it with that printed
      in the Journal. The pamphlet was printed in N. York by
      Francis Childs. The year is defaced. It must have been not
      very long after the close of the Convention, and with the
      sanction, at least, of Mr. Pinckney himself. It has
      occurred to me that a copy may be attainable at the
      printing office, if still kept up, or in some of the
      libraries or historical collections in the city. When you
      can snatch a moment, in your walks with other views, for a
      call at such places, you will promote an object of some
      little interest as well as delicacy, by ascertaining
      whether the article in question can be met with. I have
      among my manuscript papers lights on the subject. The
      pamphlet of Mr. P. could not fail to add to them.

                                "April, 1831."

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

                                "June 6th, 1831.

      "DEAR SIR.--Since my letter answering yours of April 6th,
      in which I requested you to make an inquiry concerning a
      small pamphlet of Charles Pinckney printed at the close of
      the Federal Convention of 1787, it has occurred to me that
      the pamphlet might not have been put in circulation, but
      only presented to his friends, etc. In that way I may have
      become possessed of the copy to which I referred as in a
      damaged state. On this supposition the only chance of
      success must be among the books, etc., of individuals on
      the list of Mr. Pinckney's political associates and
      friends. Of those who belonged to N. York, I recollect no
      one so likely to have received a copy as Rufus King. If
      that was the case, it may remain with his representative,
      and I would suggest an informal resort to that quarter,
      with a hope that you will pardon this further tax on your
      kindness."

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

                                "June 27th, 1831.

      "DEAR SIR:--With your favor of the 20th instant I received
      the volume of pamphlets containing that of Mr. Charles
      Pinckney, for which I am indebted to your obliging
      researches. The volume shall be duly returned, and in the
      mean time duly taken care of. I have not sufficiently
      examined the pamphlet in question, but I have no doubt that
      it throws light on the subject to which it has relation."

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

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

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

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

      "There is no one, I believe, who doubts there is something
      particularly alarming in the present conjuncture. There is
      hardly a man in or out of office, who holds any other
      language. Our Government is despised--our laws are robbed
      of their respected terrors--their inaction is a subject of
      ridicule--and their exertion, of abhorrence and
      opposition--rank and office have lost their reverence and
      effect--our foreign politics are as much deranged, as our
      domestic economy--our friends are slackened in their
      affection, and our citizens loosened from their obedience.
      We know neither how to yield nor how to enforce--hardly any
      thing abroad or at home is sound and entire--disconnection
      and confusion in offices, in States and in parties, prevail
      throughout every part of the Union. These are facts
      universally admitted and lamented."

      "Be assured that however unfashionable for the moment your
      sentiments may be, yet, if your system is accommodated to
      the situation of the Union, and founded in wise and liberal
      principles, it will in time be consented to. An energetic
      government is our true policy, and it will at last be
      discovered and prevail."

      "Presuming that the question will be taken up de novo, I do
      not conceive it necessary to go into minute detail of the
      defects of the present confederation, but request
      permission to submit, with deference to the House, the
      draught of a government which I have formed for the Union.
      The defects of the present will appear in the course of the
      examination. I shall give each article that either
      materially varies or is new. I well know the science of
      government is at once a delicate and difficult one, and
      none more so than that of republics. I confess my situation
      or experience have not been such as to enable me to form
      the clearest and justest opinions. The sentiments I shall
      offer are the result of not so much reflection as I could
      have wished. The plan will admit of important amendments. I
      do not mean at once to offer it for the consideration of
      the House, but have taken the liberty of mentioning it,
      because it was my duty to do so.

      "The first important alteration is that of the principle of
      representation and the distribution of the different powers
      of government. In the federal councils, each State ought to
      have a weight in proportion to its importance; and no State
      is justly entitled to greater. A representation is a sign
      of the reality. Upon this principle, however abused, the
      Parliament of Great Britain is formed, and it had been
      universally adopted by the States in the formation of their
      legislatures."

      "In the Parliament of Great Britain as well as in most and
      the best instituted legislatures of the States, we find not
      only two branches, but in some a council of revision,
      consisting of their executive and principal officers of
      government. This I consider as an improvement in
      legislation, and have therefore incorporated it as a part
      of the system.

      "The Senate, I propose to have elected by the House of
      Delegates, upon proportionable principles, in the manner I
      have stated, which though rotative, will give a sufficient
      degree of stability and independence. The districts, into
      which the Union is to be divided; will be so apportioned as
      to give to each its due weight, and the Senate, calculated
      in this, as it ought to be in every government, to
      represent the wealth of the nation.

      "The executive should be appointed septennially, but his
      eligibility ought not to be limited: He is not a branch of
      the legislature farther, than as a part of the council of
      revision; and the suffering him to continue eligible will
      not only be the means of ensuring his good behavior, but
      serve to render the office more respectable.

      "The 4th article, respecting the extending the rights of
      the citizens of each State throughout the United States;
      the delivery of fugitives from justice upon demand, and the
      giving full faith and credit to the records and proceedings
      of each, is formed exactly upon the principles of the 4th
      article of the present confederation, except with this
      difference, that the demand of the Executive of a State for
      any fugitive criminal offender shall be complied with. It
      is now confined to treason, felony, or other high
      misdemeanor; but as there is no good reason for confining
      it to those crimes, no distinction ought to exist, and a
      State should always be at liberty to demand a fugitive from
      its justice, let his crime be what it may.

      "The 5th article, declaring that individual States shall
      not exercise certain powers, is also founded on the same
      principle as the 6th of the confederation.

      "The next is an important alteration of the Federal system,
      and is intended to give the United States in Congress, not
      only a revision of the legislative acts of each State, but
      a negative upon all such as shall appear to them improper.

      "I apprehend the true intention of the States in uniting
      is, to have a firm, national government, capable of
      effectually executing its acts, and dispensing its benefits
      and protection. In it alone can be vested those powers and
      prerogatives which more particularly distinguish a
      sovereign State. The members which compose the
      superintending government are to be considered merely as
      parts of a great whole, and only suffered to retain the
      powers necessary to the administration of their State
      systems. The idea which has been so long and falsely
      entertained of each being a sovereign State, must be given
      up; for it is absurd to suppose there can be more than one
      sovereignty within a government. The States should retain
      nothing more than that mere local legislation, which, as
      _districts_ of a general government, they can exercise more
      to the benefit of their particular inhabitants, than if it
      was vested in a Supreme Council; but in every foreign
      concern as well as in those internal regulations, which
      respecting the whole ought to be uniform and national, the
      States must not be suffered to interfere. No act of the
      Federal Government in pursuance of its constitutional
      powers ought by any means to be within the control of the
      State Legislatures; if it is, experience warrants me in
      asserting they will assuredly interfere and defeat its
      operation.

      "The next article proposes to invest a number of exclusive
      rights, delegated by the present confederation, with this
      alteration: that it is intended to give the unqualified
      power of raising troops, either in time of peace or war,
      in any manner the Union may direct. It does not confine
      them to raise troops by quotas on particular States, or to
      give them the right of appointing regimental officers, but
      enables Congress to raise troops as they shall think
      proper, and to appoint all the officers. It also contains a
      provision for empowering Congress to levy taxes upon the
      States, agreeable to the rule now in use, an enumeration of
      the white inhabitants, and three-fifths of other
      descriptions.

      "The 7th article invests the United States with the
      complete power of regulating the trade of the Union, and
      levying such imposts and duties upon the same, for the use
      of the United States, as shall in the opinion of Congress,
      be necessary and expedient.

      "The 8th article only varies so far from the present, as in
      the article of the Post Office, to give the Federal
      Government a power not only to exact as much postage as
      will bear the expense of the office, but also for the
      purpose of raising a revenue. Congress had this in
      contemplation some time since, and there can be no
      objection, as it is presumed, in the course of a few years
      the Post Office will be capable of yielding a considerable
      sum to the public treasury.

      "The 9th article, respecting the appointment of Federal
      courts for deciding territorial controversies between
      different States, is the same with that in the
      confederation; but this may with propriety be left to the
      supreme judiciary.

      "The 10th article gives Congress a right to institute all
      such offices as are necessary for managing the concerns of
      the Union; of erecting a federal judicial court for the
      purposes therein specified; and of appointing courts of
      Admiralty for the trial of maritime causes in the States
      respectively.

      "The exclusive right of coining money--regulating its
      alloy, and determining in what species of money the common
      treasury shall be supplied--is essential to assuring the
      federal funds.

      "In all those important questions, where the present
      confederation has made the assent of nine States necessary,
      I have made the assent of two-thirds of both Houses, when
      assembled in Congress, and added to the number the
      regulation of trade, and acts for levying an impost and
      raising a revenue.

      "The exclusive right of establishing regulations for the
      government of the militia of the United States, ought
      certainly to be vested in the federal council.

      "The article empowering the United States to admit new
      States into the confederacy is become indispensable, from
      the separation of certain districts from the original
      States--and the increasing population and consequence of
      the western territory. I have also _added an article_
      authorizing the United States, upon the petition from the
      majority of the citizens of any State or convention
      authorized for that purpose, and of the legislature of the
      State to which they wish to be annexed, or of the States
      among which they are willing to be divided, to consent to
      such junction or division, on the term mentioned in the
      article.

      "The Federal Government should also possess the exclusive
      right of declaring on what terms the privileges of
      citizenship and naturalization should be extended to
      foreigners.

      "The 16th article proposes to declare that if it should
      hereafter appear necessary to the United States to
      recommend the grant of any additional powers, that the
      assent of a given number of the States shall be sufficient
      to invest them and bind the Union as fully as if they had
      been confirmed by the legislatures of all the States. The
      principles of this, and the article which provides for the
      future alteration of the Constitution by its being first
      agreed to in Congress, and ratified by a certain proportion
      of the legislatures, are precisely the same.

      "There is also in the articles a provision respecting the
      attendance of the members of both Houses; it is proposed
      that they shall be the judges of their own rules and
      proceedings, _nominate their own officers_, and be obliged,
      after accepting their appointments, to attend the stated
      meetings of the legislature; the penalties under which
      their attendance is required, are such as to insure it, as
      we are to suppose no man would willingly expose himself to
      the ignominy of a disqualification.

      "The next article provides for the privilege of the writ of
      habeas corpus--the trial by jury in all cases, criminal as
      well as civil--the freedom of the press and the prevention
      of religious tests as qualifications to offices of trust
      or emolument.

      "There is also an authority to the national legislature,
      permanently to fix the seat of the general government, to
      secure to authors the exclusive right to their performances
      and discoveries, and to establish a Federal University.

      "There are other articles, but of subordinate
      consideration. In opening the subject, the limits of my
      present observations would only permit me to touch the
      outlines; in these I have endeavored to unite and apply, as
      far as the nature of our Union would permit, the
      excellencies of such of the States' Constitutions as have
      been most approved.

      "I ought again to apologize for presuming to intrude my
      sentiments upon a subject of such difficulty and
      importance. It is one that I have for a considerable time
      attended to. I am doubtful whether the convention will, at
      first be inclined to proceed as far as I have intended; but
      this I think may be safely asserted, that upon a clear and
      comprehensive view of the relative situation of the Union,
      and its members, we shall be convinced of the policy of
      concentring in the federal head, a complete supremacy in
      the affairs of government; leaving only to the States such
      powers as may be necessary for the management of their
      internal concerns."

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Madison in his "Note to the Plan" regarded article VIII as "remarkable
also for the circumstance that whilst it specifies the functions of the
President, no provision is contained in the paper for the election of
such an officer." The plain unquestionable purpose of Madison when so
writing was to impress upon the American mind the improbability, the
almost impossibility, of Pinckney's having neglected to provide for the
election of the President while actually establishing the office and
defining the functions of the officer; and hence that the paper which is
so remarkable for the omission cannot be a true copy of the one
presented to the Convention; and the inevitable inference from this is
that the real draught, the one presented to the Convention on the 29th
of May contained and must have contained, and could not have overlooked
the needed provision declaring how the President should be chosen.

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

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

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

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

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

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

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

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

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

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

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




CHAPTER X

THE SILENCE OF MADISON


Up to this point the draught in the State Department has been considered
precisely as Madison desired it should be considered; that is to say
upon his objections. The inquiry moreover has been confined to the final
indictment which he drew up, to-wit, the "Note of Mr. Madison to the
Plan of Charles Pinckney," and to the evidence which he adduced to
sustain it, to-wit Pinckney's Observations and letter and Madison's
Journal of the Convention. But there is another chapter which must be
considered, a chapter of facts and circumstances forming an unseen part
of the strategy which his cautious policy supplied.

In his letters to Sparks and the others as in the final "Note," there is
a studious comparison instituted between the draught in the State
Department and the Constitution itself. There is also an argument
implied that the draught in the Department cannot possibly be identical
with the draught presented to the Convention because it contains some
provisions which Pinckney opposed in the Convention. A student whose
inquiries were limited to early editions of Madison's Writings might
draw from them two extenuating inferences, the first of which would be
that the weakened memory of age and infirmity had failed to bring before
Madison the proper instrument for comparison, the draught of the
Committee of Detail; the second that he had never heard of Pinckney's
letter to the Secretary of State and knew not that Pinckney had notified
the Secretary that the copy which he sent was not a literal reproduction
of the lost draught and that it, like the original, contained provisions
which on further reflection he had opposed in the Convention.

In the spring of 1830 Mr. Jared Sparks passed a week with Madison at
Montpelier and on his return to Washington sent to him the following
letter:

                                "WASHINGTON, May 5th, 1830.

      "Since my return I have conversed with Mr. Adams
      concerning Charles Pinckney's draught of a constitution. He
      says it was furnished by Mr. Pinckney, and that he has
      never been able to hear of another copy. It was accompanied
      by a long letter (written in 1819) now in the Department of
      State, in which Mr. Pinckney claims to himself great merit
      for the part he took in framing the constitution. A copy of
      this letter may doubtless be procured from Mr. Brent,
      should you desire to see it. Mr. Adams mentioned the
      draught once to Mr. Rufus King, who said he remembered such
      a draught, but that it went to a committee with other
      papers, and was never heard of afterwards. Mr. King's views
      of the subject, as far as I could collect them from Mr.
      Adams, were precisely such as you expressed."

Here it may be noted that what Mr. Adams heard from Mr. King is recorded
in his Memoirs, May 4, 1830, Vol. VIII, p. 225. It is only what Sparks
reported to Madison. Mr. King had not seen the draught, and had not
heard any one narrate what its provisions were. Indeed his doubts and
suspicions seem to have been founded on no other fact than that he did
not hear it talked about. Like Madison, he was a witness who could
testify to nothing, not even to hearsay.

On the 24th of May, 1831, Mr. Sparks, who was then at work on his life
of Gouveneur Morris, again wrote to Madison.

                                "BOSTON, May 24, 1831.

      "In touching on the Convention, I shall state the matter
      relating to Mr. Pinckney's draught, as I have heard it from
      you, and from Mr. Adams as reported to him by Mr. King.
      Justice and truth seem to me to require this exposition. I
      shall write to Charleston, and endeavor to have the draught
      inspected, which was left by Mr. Pinckney. Your
      explanation, that he probably added particulars as they
      arose in debate, and at last forgot which was original and
      what superadded, is the only plausible way of accounting
      for the mystery, and it may pass for what it is worth.
      Should anything occur to you, which you may think proper to
      communicate to me on the subject, I shall be well pleased
      to receive it."

Madison felt so solicitous about the inquiry in Charleston that on the
21st of June he wrote to Sparks, asking to be informed of the result "as
soon as it is ascertained."

But on the 16th of June Sparks had written to Madison the following
letter which could not have reached him when he wrote on the 21st.

                                "BOSTON, June 16th, 1831.

      "I have procured from the Department of State a copy of the
      letter from Mr. Charles Pinckney to Mr. Adams, when he sent
      his draught for publication. This letter is so conclusive
      on the subject that I do not think it necessary to make any
      further inquiry. It is evident, that the draught, which he
      forwarded, was a compilation made at the time from loose
      sketches and notes. The letter should have been printed in
      connexion with the draught. I imagine Mr. Pinckney expected
      it. He does not pretend that this draught was absolutely
      the one he handed into the Convention. He only 'believes'
      it was the one, but is not certain.

      "Should you have leisure, I beg you will favor me with your
      views of this letter. It touches upon several matters
      respecting the history and progress of the Convention. Do
      these accord with your recollection? I would not weary or
      trouble you, but when you recollect that there is no other
      fountain to which I can go for information, I trust you
      will pardon my importunity."

When Sparks wrote his hasty letter of June 16th he was evidently writing
under two misapprehensions. The first was that he supposed the question
involved was whether the draught on file was an exact copy of the lost
original; the second was that its verity depended entirely on Pinckney's
accompanying letter. To his inquiry what did Madison think of that
letter, Madison made no reply.

But in the course of the next five months Sparks cleared his mind of the
above misapprehensions and freed himself from the authority of Madison's
opinion; and his strong and well trained mind analysed the facts
involved and grasped the real problem of the case. This analysis and
this problem he set clearly before Madison in the following letter.

                                "BOSTON, November 14th, 1831.

      "My mind has got into a new perplexity about Pinckney's
      Draught of a Constitution. By a rigid comparison of that
      instrument with a Draught of the Committee reported August
      6th they are proved to be essentially, and almost
      identically, the same thing. It is impossible to resist the
      conviction, that they proceeded from one and the same
      source.

      "This being established, the only question is, whether it
      originated with the committee, or with Mr. Pinckney, and I
      confess that judging only from the face of the thing my
      impressions incline to the latter. Here are my reasons.

      "1. All the papers referred to the committee were
      Randolph's Resolutions as amended, and Patterson's
      Resolutions and Pinckney's Draught without having been
      altered or considered. The committee had them in hand nine
      days. Their Report bears no resemblance in form to either
      of the sets of resolutions, and contains several important
      provisions not found in either of them. Is it probable that
      they would have deserted these, particularly the former,
      which had been examined seriatim in the convention, and
      struck out an entirely new scheme (in its form) of which no
      hints had been given in the debates?

      "2. The language and arrangement of the Report are an
      improvement upon Pinckney's Draught. Negligent expressions
      are corrected, words changed and sentences broken for the
      better. In short, I think any person examining the two for
      the first time, without a knowledge of circumstances, or of
      the bearing of the question, would pronounce the
      Committee's Report to be a copy of the Draught, with
      amendments in style, and a few unimportant additions.

      "3. If this conclusion be not sound, it will follow that
      Mr. Pinckney sketched his draught from the Committee's
      Report, and in so artful a manner as to make it seem the
      original, a suspicion I suppose not to be admitted against
      a member of the Convention for forming the Constitution of
      the United States.

      "Will you have the goodness to let me know your opinion? If
      I am running upon a wrong track I should be glad to get out
      of it, for I like not devious ways, and would fain have
      light rather than darkness.

      "P.S.--You may be assured, Sir, that I have no intention of
      printing anything on this subject, nor of using your
      authority in any manner respecting it. I am aware of the
      delicate situation in which such a step would place you,
      and you may rely upon my discretion. I am greatly puzzled,
      however, in respect to the extraordinary coincidence
      between the two draughts. Notwithstanding my reasons above
      given, I cannot account for the committee's following any
      draught so servilely, especially with Randolph's
      Resolutions before them, and Randolph himself one of their
      number.--I doubt whether any clear light can be gained,
      till Pinckney's original draught shall be found, which is
      probably among the papers of one of the committee. It seems
      to me that your secretary of the convention was a very
      stupid secretary, not to take care of these things better,
      and to make a better Journal than the dry bones that now go
      by that name."

This letter set forth the real elements of the case, elements
incontrovertible and absolutely certain--that Pinckney's draught was
referred to the Committee of Detail; that it was never considered in
the Convention; that the period within which the Committee framed their
draught was a brief one; that the Committee's draught bears no
resemblance in form to the resolutions of the Convention and contains
provisions not found in them; that the Committee so departed from the
resolutions, though Randolph himself was one of their number, and struck
out an entirely new scheme in form of which no hint had been given in
the debates and that the Committee's draught in form, language and
arrangement appears to be a copy of Pinckney's with amendments and
additions.

From these sure premises Sparks deduced two alternative conclusions; "I
think any person examining the two [draughts] for the first time without
a knowledge of the circumstances or of the bearing of the question would
pronounce the Committee's report to be a copy of the draught with
amendments in style and a few unimportant additions," "or that _Mr.
Pinckney sketched his draught from the Committee's, and in so artful a
manner as to make it seem the original, a suspicion I suppose not to be
admitted against a member of the convention_."

In the second clause of the latter alternative Sparks with admirable
sagacity applied the most delicate test that could be applied to the
matter. He brings the dilemma down to this: The Committee must have used
Pinckney's draught or Pinckney must have sketched his draught from the
Committee's; and more than that, he must have sketched it "_in so artful
a manner as to make it seem the original_."

When one instrument is fashioned after another the natural and even
unconscious action of the mind is to correct and improve. It is a going
forward toward a desirable result. To fashion the second instrument
after the first but in such a manner that in many details there would be
an unfailing inferiority would be a going backward. This inferiority in
detail runs through the Pinckney draught as has repeatedly been shown
before. When Sparks wrote the word "artful" he used the right word, the
word which controlled the situation--"in so artful a manner as to make
it seem the original" most accurately defines what Pinckney did in
Charleston in 1818 if he then fabricated a new draught.

Of course such a fabrication was possible but it would have required a
literary forger with a genius for literary forgery to have taken the
Committee's draught and given these artless imperfections--these
delicate touches of inferiority to the copy for the State Department.

To the specific charge that Pinckney must have sketched his draught "in
so artful a manner as to make it seem the original" if it was not what
he had represented it to be, Madison made no reply. Sparks had narrowed
the issue to this, "Did the Committee follow Pinckney's draught or did
Pinckney use the Committee's?" But Madison evaded the issue. Sparks had
shown that the Committee did not confine themselves to results arrived
at after discussion in the Convention; but that they had incorporated in
their draught "important provisions not found in either" set of
resolutions, and he called Madison's attention "to the extraordinary
coincidence between the two draughts;" and he added that he could not
"account for the Committee following any draught so servilely,
especially with Randolph's resolutions before them, and Randolph himself
one of their number." It was for Madison then to meet this issue and
show definitely where the Committee got the many new provisions of their
draught, important and unimportant, if they did not get them from the
Pinckney draught.

On the 25th of November, 1831, Madison replied at length to Sparks'
letter but he said not a word about the draught of the Committee or of
Pinckney's letter to the Secretary of State. His answer was in effect,
"Impossible!"

Sparks did not acknowledge the receipt of the letter until the 17th of
January, 1832, and then the acknowledgment was called out by a letter
from Madison of January 7th. He yielded a reluctant assent, manifestly
in deference to Madison, that "this letter seems to me conclusive, but"
(he immediately adds), "I am still a good deal at a loss about the first
draught of the Committee. The history of the composition of the draught
would be a curious item in the proceedings of the Convention." Here
Sparks again put his finger on one of the things that needed
explanation, "the composition of the draught." His sagacious mind
grasped the fact that the structure of the draught of the
Constitution--of the Constitution itself, would indeed be a "curious
item in the proceedings of the Convention." It was original work in
style, order, details and arrangement; "a curious item" indeed! Whose
was the hand that sketched it? When Sparks was so near the end of the
matter and on the path which led to the end, it seems almost incredible
that he did not take one step forward. If he had he would have solved
the problem and dispelled the mystery.

Madison's letter of November 25th seems to have been written for
posterity as well as for the man to whom it was sent. Its untold object
manifestly was to divert attention from the draught of the Committee and
to direct comparison to the Constitution itself. Three years later in
his letter to Judge Duer he reiterated what he had said to Sparks, and
again he said nothing upon the point which Sparks had plainly placed
before him. Finally when he prepared his Note to the Plan, he for a
third time, was silent on the primary issue in the case, Did the
Committee follow Pinckney's draught or did Pinckney surreptitiously use
the Committee's?

This silence of Madison's is a most curious instance of his sagacious
and adroit management. It was not his business to direct attention to
this troublesome final issue and he did not. The "Note of Mr. Madison to
the Plan of Charles Pinckney" would be published; the letters of Sparks
to himself might never see the light. Indeed I can give this tribute to
his adroitness--that this book was written in the belief that Madison,
never knew of Pinckney's letter to the Secretary of State, and that his
weakened mind had overlooked the draught of the Committee of Detail; and
it was not till the book was finished that I found the letters of Sparks
above quoted and was compelled thereby to supply this chapter, and
modify what I had elsewhere written.




CHAPTER XI

THE WILSON AND RANDOLPH DRAUGHTS


Since Madison's time there have been uncovered four papers of which he
knew nothing, and they bring us into an almost new field of inquiry.
These papers are in the handwriting of James Wilson, Edmund Randolph and
John Rutledge (all members of the Committee of Detail) and they are
draughts (or sketches for draughts) of the Constitution.

The first paper, chronologically, is not a draught. It was discovered by
Professor McLaughlin and was published by him in the Nation of April 28,
1904, and is among the Wilson papers in the library of the Historical
Society of Pennsylvania. It is in Wilson's hand and was found among his
papers; but if it was drawn up by him, of which I do not feel sure, it
is questionable whether it was prepared by him for the Convention of
1787; and it is unquestionable that it was prepared before the adoption
of the 23 resolutions. A single article, or item of the paper will
demonstrate this and its worthlessness.

      "20. Means of enforcing and compelling the Payment of the
      Quota of each State."

This is all that there is concerning the rock upon which the
Confederation was already wrecked--the dependence of the general
government upon the voluntary action of the State governments for
revenue. Wilson in 1787 was too intelligent a statesman to even think of
retaining this condition of national dependency, and he was too wise a
man to talk of "enforcing and compelling" the several States to
contribute to the national treasury. He may have prepared the paper some
time before the Convention was called, when amendments to the Articles
of Confederation were all that was anticipated, but he did not draw up
this memorandum after he had become a member of the Committee of Detail.

The second paper in Wilson's hand was discovered by Professor Jameson
among the Wilson papers, and was published by him in the Annual Report
of the Historical Association, 1902, Vol. I., p. 151. This paper
contains the preamble of the Pinckney draught, and, consequently, of the
draught of the Committee. Then follow the first three articles of the
Committee's draught, with some slight variations of language; and then
under the caption of what should be article 4, come 29 paragraphs
containing provisions closely agreeing with provisions in the
Committee's but unarranged and incoherent in their order. The second
sheet of this draught is unfortunately missing; the third sheet contains
various provisions, following closely the 17th, 18th, 19th, 20th and
21st resolutions, and, near the end of the paper, the provision relating
to the veto power taken from the constitution of Massachusetts with the
term "Governour of the United States" twice used.

The third paper of Wilson was likewise discovered by Professor Jameson.
Wilson had prepared the second draught for himself, but this third or
final draught manifestly was prepared for the consideration of the other
members of the Committee. He wrote it on large foolscap in what is
called double columns, _i. e._ half of each page was left blank for the
comments and suggestions and amendments of the others. The writing is in
the clear, neat, legible hand, characteristic of Wilson, and before the
work of revision began, there was hardly a clerical error in the paper.
A remarkable contrast is stamped upon it consisting of 43 amendments in
the scrawly, slovenly, bold, illegible writing of Rutledge, who really
seems to have found pleasure in cutting and slashing the careful work,
the almost feminine neatness and niceness of Wilson's pages. This
draught unlike the second, is divided into articles, but unlike the
Committee's, is not subdivided into sections.

The fourth of these recently discovered papers is in the handwriting of
Edmund Randolph. Mr. William M. Meigs in his Growth of the Constitution
has done an excellent piece of historical work in reproducing the
draught of Randolph in facsimile. In its interlineations, erasures,
changes, omissions and marginal queries we see Randolph's doubts and
perplexities and the incompleteness of his plan and the limitations of
his mental view of a draught; and we see this as distinctly as if we
stood beside him while he wrote. A more disheveled paper was never
reproduced in facsimile. Upon its margin are annotations and suggestions
of omitted provisions which are in the hand of Rutledge. One thing, most
meritorious, appears--that Randolph carefully and conscientiously went
through the 23 resolutions and neglected no instruction which they gave.
But the chief question remains unexplained as Sparks left it, How came
the Committee of Detail to wander so far from the resolutions "with the
resolutions before them and Randolph himself one of their number"?

The draught of Randolph begins in this way:

"In the draught of a fundamental constitution two things deserve
attention:

"1. To insert essential principles only, lest the operations of
government should be clogged by rendering those provisions permanent and
unalterable which ought to be accommodated to times and events, and

"2. To use simple and precise language and general propositions
according to the example of the constitutions of the several States."

Randolph then considers the subject of a preamble and sets forth a brief
disquisition to show that a preamble is proper and what it should
contain. "We are not working," he says, "on the natural rights of men
not yet gathered into society, but upon the rights modified by society
and interwoven with what we call the rights of States." He outlines what
the preamble should set forth; his views are sound, but his intended
preamble is not the preamble reported by the Committee of Detail.

There is a curious provision in his draught relating to the compensation
of Senators: "The wages of Senators shall be paid out of the treasury of
the United States; those wages for the first six years shall be ----
dollars per diem. At the beginning of every sixth year after the first
the supreme judiciary shall cause a special jury of the most respectable
merchants and farmers to be summoned to declare what shall have been the
averaged value of wheat during the last six years, in the State where
the legislature shall be sitting; and for the six subsequent years, the
Senators shall receive per diem the averaged value of ---- bushels of
wheat."

This extraordinary provision for the benefit of Senators only
illustrates the crudity of Randolph's intentions at the time and the
incompleteness of his plan.

The annotations of Rutledge are few but they are valuable for they
authenticate the paper; they prove it was the very paper upon which
Randolph and Rutledge worked; and that it was all which they had then
prepared toward a draught of the Constitution.

These draughts of Randolph and Wilson disclose another fact of unusual
interest. When the Randolph draught was found bearing the annotations of
Rutledge, it suggested the idea that the two Southern members of the
Committee of Detail had put their heads together to draught a
constitution which would be accepted at the South, and that probably the
three Northern members had prepared another which would be accepted at
the North. But the final draught of Wilson dispels that illusion. We now
know that Rutledge gave quite as much attention to the Wilson draught
as to the Randolph draught, and that he wrote many more amendments upon
its margin. Nothing has been discovered to show that Ellsworth and
Gorham even attempted to draught a constitution; and after finding that
the other members used and utilized and amended the Pinckney draught we
know that there was nothing left for Ellsworth and Gorham to draught.
They were not constructive men in the Convention, though being
critically minded they may have rendered good service in the way of
revision, but they contributed nothing to the draught of the Committee.
Every provision in it is traceable to Pinckney, Wilson, Randolph and
Rutledge, and they were its authors.

The second and third draughts of Wilson appear in neatness and
completeness to be copies. There is nothing indicative in them of an
author's perturbations. The writing is small and finished. If it were
not known to be Wilson's hand one could easily believe it to be that of
a secretary, giving good work for wages, undisturbed by the cross
currents of thought and composition. But on the back of a sheet of the
second draught is a paragraph which is unmistakably a rough draught,
which is unquestionably author's work, warped and altered in the
uncertainties of construction and composition; and this piece of work is
a preamble.

As first written, before erasures and interlineations began, it stood as
follows:

      "We the people of the States of New Hampshire etc. do agree
      upon ordain and establish the following Frame of Government
      as the Constitution of the United States of America
      according to which we and our Posterity shall be governed
      under the Name and Stile of the United States of America."

Wilson then amplified the first part of this draught, and the
amplifications well illustrate the bent of his mind toward details and
particulars; and he next reduced it by omitting the clauses which relate
to the government of ourselves and our posterity, and to the "Name and
Stile" of the future nation so that it reads as follows:

      "We the People of the States of New Hampshire etc. already
      confederated under and known by the Stile of the United
      States of America do ordain declare and establish the
      following Frame of Government as the Constitution of the
      said United States."

Neither of these versions is the preamble reported by the Committee.
Each lacks the bold simplicity and comprehensiveness and directness of
Pinckney's: "We the People of New Hampshire" etc. "do ordain declare and
establish the following Constitution for the government of ourselves and
posterity."

The preamble is in words and structure a small thing. Two persons having
the tasks set them of preparing a preamble with that of Massachusetts
before them as material out of which each should be made, could hardly
avoid, one would think, evolving out of it two sentences which would be
in terms almost identical. But even in this small thing the different
traits and methods and style of the two men appear. Pinckney takes the
Massachusetts preamble and reduces it until he gets what he wants
without a superfluous word. Wilson cannot resist amplifying even while
he is condensing. When we get through with what is unquestionably
Wilson's work, the preamble for the Committee remained to be
written--unless it was already written in the Pinckney draught.

In the investigation of the charges of Madison against Pinckney it was
found that whenever the evidence was subjected to a rigorous examination
the case broke down. These draughts of Wilson and Randolph though not
intended as a charge against Pinckney may be treated as such--the charge
of appropriating Wilson's work and representing it to be his own.
Accordingly I have in like manner, examined the evidence and have again
found that it does not sustain the charge. A few illustrations will make
this plain.

The preamble in the Committee's draught is in Wilson's, word for word.
When we find that this preamble is in the preliminary draught of Wilson
(a member of the committee), and in the finished product (the draught of
the committee), we easily infer that Wilson was the author, the
originator of the preamble, and when we find that the same preamble is
in the draught of Pinckney and know that he possessed a copy of the
Committee's draught we are in danger of taking another step on the
pathway of assumption and reaching the conclusion that Pinckney must
have taken his preamble from the Committee's draught. This makes a case
against Pinckney which is entitled to explanation or examination.

The preamble to the Constitution of the United States was suggested by
the Articles of Confederation and the constitutions of eleven of the
thirteen States. Its language was taken by Pinckney or by Wilson, or by
both, from the Constitution of Massachusetts by much condensing.
Wilson's draught is identical in terms with Pinckney's save for the
insertion of a single word, "our," in the last line; "for the government
of ourselves and our posterity."

This word "our" is here a word of limitation, a word which taken
literally would confine the blessings and government of the Constitution
to the men who made it and their posterity. But at the time when these
early constitutions were framed the growth of the country it was
foreseen would depend chiefly on immigration. The Constitution of
Massachusetts does not use the word "citizen," and throws the door of
the elective franchise open to "every male person" "resident in any
particular town" and to "the inhabitants of each town." "And to remove
all doubts concerning the meaning of the word 'inhabitant' in this
constitution, every person shall be considered as an inhabitant, for the
purpose of electing and being elected into any office or place within
the State in that town, district or plantation where he dwelleth or has
his home." The draughtsmen of the Massachusetts Constitution therefore
with logical exactitude, left the word "posterity" unrestricted, and
broad enough to extend to the posterity of all men who thereafter might
become inhabitants within the State.

Two things must now be noted. The first is that every word in Pinckney's
preamble, save one, was taken from the preamble of the constitution of
Massachusetts; the second, that Pinckney's draught adheres to the
unrestricted "posterity" of the constitution, and does not follow the
restricted "posterity" of the Wilson draught. The charge that Pinckney's
preamble was "necessarily" derived from the Committee's draught is
therefore doubly refuted. There was a source to which Pinckney could go
for his preamble, the constitution of Massachusetts, and he went there;
there was a deviation from the constitution of Massachusetts in the
Wilson draught, and Pinckney did not follow it.

Wilson probably inserted the word "our," in his preamble for a
rhetorical reason; for he was one of the signers of an instrument which
rang with its own concluding words "OUR LIVES, OUR FORTUNES AND OUR
SACRED HONOR."

The insertion of one word (our) in one of these preambles is a slender
strand of circumstantial evidence. But circumstantial evidence is made
up generally of slender strands; and circumstantial evidence is least
suspicious when the strands are severally insignificant. With the
Declaration of Independence and the Articles of Confederation and eleven
of the State constitutions containing preambles, it is inconceivable
that Pinckney would have framed his draught without a preamble; and if
Pinckney framed the preamble, as he must have done, it is inconceivable
that he would have thrown it aside in 1818 and substituted another
man's, for he was never ashamed of his own work. And it must be taken
as a fixed fact that Pinckney had a preamble, for the structure of the
draught required it; the first article would be meaningless without one,
"The stile of _this government_"--the government announced in the
preamble. Therefore having the necessity of a preamble, and the
production of one in 1818, and the strict adherence in words and intent
to the constitution of Massachusetts and Pinckney's familiarity with
that constitution, the severally slender strands become a cord of
circumstantial evidence which must satisfy an unprejudiced mind that
Pinckney was the author of the preamble in his draught. There are too
many clews here to be disregarded, and they all lead one way. The
unquestionable sketches of a preamble in Wilson's and Randolph's
handwriting show only three attempts and three failures.

Let us now consider a second illustrative case:

As we have seen in a previous chapter (Chap. XI) the 3d of the 23
resolutions declared that the members of the House of Representatives
"ought" to receive an adequate compensation for their services; and the
4th resolution, that the members of the Senate "ought" "to receive a
compensation for the devotion of their time to the public service." The
term "adequate" implied and required the exercise of some discretionary
power, which must necessarily be national. For if Senators and
Representatives were to be paid by the States which sent them to
Congress, the members of Congress could not well turn around and dictate
to the States what they should be paid. This was understood at the time.
For on the 22d and 26th of June when the Convention refused to retain
the words "to be paid out of the National Treasury" in the 3d
resolution, "Massachusetts concurred" as Madison says, "not because they
thought the State Treasury ought to be substituted; but because they
thought nothing should be said on the subject, in which case it wd.
silently devolve on the Nat. Treasury to support the National
Legislature."

Furthermore this thing was not done in a corner and the consideration of
it was not confined to an hour. On the 12th of June the Committee of the
Whole had resolved that the Representatives in Congress "ought to be
paid out of the National Treasury," and again on the same day that
Senators "ought" "to be paid out of the National Treasury"; and on the
13th of June the committee had voted to report these resolutions to the
Convention; and on the 22d of June the Convention had refused to change
this to payment by the States. Moreover the proposition that members be
paid by the States had been condemned by the strongest men in the
Convention. "Those who pay are the masters of those who are paid,"
Hamilton had said; and Gorham, Randolph, King, Wilson, and Madison had
said as much.

Nevertheless the Committee of Detail reported a provision that the
members should be paid by the States; and, not only this, but also, that
the compensation should be "ascertained" "by the State in which they
shall be chosen."

The only reason for or explanation of the Committee's act so far as we
know is that working hurriedly, they overlooked one of the details of
the 3d and 4th resolution, and, using Pinckney's draught as their copy,
inadvertently allowed this provision of his to stand unchanged.

In these newly found papers of Wilson this provision making the
compensation of the national legislators dependent upon the action of
the State legislators appears just as it stands in the draught of the
Committee of Detail. Did Wilson originate this or did he get it from the
Pinckney draught?

There is good reason for believing that such a provision would be found
in Pinckney's draught. On the 22nd of June when the clause of the 3d
resolution declaring that members "ought to be paid out of the public
treasury" had been advocated by some of the strongest men in the
Convention, and the Convention apparently were about to adopt it, their
immediate action was blocked by South Carolina; "The determination of
the House on the whole proposition was, on motion of the Deputies of the
State of South Carolina, postponed until to-morrow," says the Journal. A
State had this right under the Rules of the Convention, and the Deputies
of South Carolina exercised it, Pinckney being one of them. On the
following day they succeeded in defeating the adoption of the clause.
On the 26th of June General Pinckney "proposed that no salary should be
allowed" to Senators. "This branch" he said "was meant to represent
wealth; it ought to be composed of persons of wealth." And "on the
question for payment of the Senate to be left to the States" South
Carolina voted "aye."

But there is no good reason why we might expect to find this provision
in Wilson's draught. The resolutions did not so direct; and there had
not been a single vote of the Convention which committed this matter of
compensation to the States; and Wilson's personal bias could not have
misled him for he condemned it. On the 22nd of June he had said in the
Convention that "he thought it of great moment that the members of the
National Government should be left as independent as possible of the
State Governments in all respects," and during the same debate he had
moved that the salaries of the 1st branch "be ascertained by the
National Legislature." The explanation is that Wilson working with
Pinckney's draught before him gave his attention to improving its
phraseology; and that the other members of the Committee confiding in
Wilson's scrupulous carefulness and particularity overlooked his
mistake.

We have before us a third illustration:

The Constitution of New York provided, "The supreme legislative power
within this State shall be vested in two separate and distinct bodies of
men; the one to be called the Assembly of the State of New York; the
other to be called the Senate of the State of New York; who together
shall form the legislature, and meet once at least in every year for the
despatch of business."

The draught of Pinckney varies slightly; "The legislative power shall be
vested in a Congress, to consist of two separate houses; one to be
called the house of Delegates; and the other the Senate, who shall meet
on the ---- day of ---- in every year."

The draught of Wilson also follows this with little variation:

"The Legislative power of the United States shall be vested in two
separate and distinct Bodies of Men, the one to be called the House of
Representatives of the People of the United States, the other the Senate
of the United States."

So far we have in these three instruments the same earmark: "the one to
be called the Assembly of the State of New York; the other to be called
the Senate." "One to be called the House of Delegates and the other the
Senate." "The one to be called the House of Representatives, the other
the Senate." But the draught of the Committee of Detail departs both in
words and structure from this form: "The Legislative Power shall be
vested in a Congress to consist of two separate and distinct bodies of
men, a House of Representatives and a Senate; each of which shall in all
cases have a negative upon the other."

Here it was possible that Wilson followed the Pinckney draught, which
was in his possession, but it was not possible that Pinckney copied
Wilson's draught which was then unpublished and unknown. The words that
Pinckney and Wilson both used, "the one to be called the House, the
other the Senate" are clews which lead from Pinckney directly to the
Constitution of New York. The Committee changed the words and changed
the structure of the sentence and thereby rendered it certain that
Pinckney did not derive his provision from their draught.

Let us take another illustrative case:

Luther Martin's resolution of July 17th provided, "The legislative acts
of the United States" "and all treaties" "shall be the supreme law of
the respective States." (The 7th of the 23 resolutions.) Article VIII.
of the draught of the Committee of Detail varied the phraseology in one
word "shall be the supreme law of the _several_ States." The committee
of Style gave us the provision as it stands in the Constitution: (Art.
VI.) "This Constitution and the Laws of the United States which shall be
made in pursuance thereof; and all treaties which shall be made under
the Authority of the United States shall be the supreme law of the
_land_."

Turning back from the Constitution to Pinckney's draught, avowedly drawn
up before the work of the Convention had even begun, we find in his
Article VI. "All acts made by the legislature of the United States
pursuant to this Constitution, and all treaties made under the
authority of the United States shall be the supreme law of the land."

This assuredly seems to be an instance which confirms Madison; that is
to say an instance where as Madison said there are to be found in the
draught in the State Department, "the results of critical discussion and
modification in the Convention." Must we also add, with Madison "which
could not have been anticipated"? Moreover if Pinckney obtained this
provision by purloining it, he must have taken it from the Constitution
itself. The language in his draught apparently involves and combines
three distinct acts of the Convention; the adoption of the resolution of
Martin on the 17th of July; the acceptance of the Committee's draught of
the 6th of August; the revision by the Committee of Style, just before
the dissolution of the Convention. This makes a dark charge against
Pinckney--far darker and more specific than any charge that Madison
preferred against him. At first sight it seems as if at last Pinckney
was taken in the toils of his own weaving, as if there were no escape
for him and that he must be convicted. But the simple explanation is
that Pinckney took his provision and its verbiage from the Congress of
the Confederated States in the resolution of March 21st 1787. Luther
Martin did not adhere to the language of the resolution; and he did not
intend to; for his resolution was a compromise, an alternate for a
proposed power in Congress to negative the laws of the States, and he
intended that his resolution should bear directly and explicitly upon
"the respective States." The subject was one of great importance, of
surpassing interest and had but recently been disposed of by compromise
in the Convention, and the Committee properly adhered to Martin's
resolution, correcting only one word by the substitution of another,
"several" for "respective," "shall be the supreme law of the several
States."

Pinckney had been a member of the Congress when the resolution of March
21st was passed; he may have draughted it himself; and certainly it
covered a matter in which he was interested above all other things, the
supremacy of the National Government. The Committee of Style may have
taken the concluding phrase from the resolution of Congress or they may
have placed it in the Constitution on their own motion; for _Trevett_ v.
_Weeden_ had been heard and adjudicated by the Supreme Court of Rhode
Island on September 25th, 26th, 1786, and the words "THE LAW OF THE
LAND" were in the air; and the term had received a judicial significance
which has never been adequately appreciated. It meant an authority
higher than a statute.

There are three important articles in Wilson's draught which are not
Wilson's. These appear on the margin in the handwriting of Rutledge and
answer to article XIV, XV and XVI of the Committee's draught. As they
are in almost the precise language of Pinckney's articles 12 and 13 the
much repeated question again arises, did Rutledge take them from the
Pinckney draught; were they then in the Pinckney draught to be taken; or
did Pinckney abstract them from the Committee's draught? The question is
easily and decisively answered: _these articles are described in the
Observations; Pinckney's title to them cannot be questioned; Wilson and
Rutledge had his draught before them, and used it, when Rutledge wrote
these articles upon the margin_.

The veto power was cast by the Convention in their resolutions with
those of the Executive. Pinckney had placed it in his draught among the
legislative, though he is careful to say in the Observations that the
Executive "is not a branch of the Legislature farther than as a part of
the council of revision." Nevertheless he placed the veto at the end of
his article 5--an article relating to the choosing of members of the
lower house; to the privileges of Representatives and Senators; to the
business proceedings of both houses. Wilson more clearly perceived that
the American veto would lack the finality of the _Le roy, avisera_ of
the Crown, and that it would be neither a legislative nor an executive
power though having the properties of both; and he properly made of the
veto power an entire and independent article, article 7 of his draught.
There were members of the Convention who regarded the veto power as a
bulwark against the encroachments of the legislative power; and Wilson
himself had said that, "the Executive ought to have an absolute
negative"; that "without such a self-defence the Legislature can at any
moment sink it into non-existence." Unquestionably the veto provision
ought to have been placed in the Committee's draught as Wilson placed it
in his own. But it was not. On the contrary it appears there as it
appears in Pinckney's, as an incongruous paragraph at the end of an
article which deals with the House of Representatives, with the business
of both Houses and with the privileges of the members of each. The one
thing certain here is absolutely certain--that the Committee in this did
not follow Wilson's draught though it was correct and did follow some
other draught though it was incorrect.

It is comprehensible that if the provision of the veto power had started
wrong as it did in Pinckney's draught, it might have continued wrong,
and its misplacement might have remained unnoticed; but it is
incomprehensible how the error could have been known to at least the two
leading members of the Committee and have been actually and plainly
corrected by one of them and the provision then have relapsed into the
condition in which Pinckney left it, unless the Committee found about
the end say of the seventh day that they must forego either the
completion of Wilson's carefully prepared work or their bringing into
the convention printed copies for the use of members, and that they then
determined to use Pinckney's draught as copy for the printer, letting
Wilson work into it, so far as he could, the corrections that he had
embodied in his own and the changes which the Committee had agreed upon.
The incompleteness with which this was done shows very plainly that
toward the end of the ten days the Committee worked in haste. There are
too many errors in the draught which would be both inexcusable and
inexplicable if the Committee had had ordinary time to do their
extraordinary work.

There is a curious omission in Wilson's draught which indirectly brings
to the light the composite authorship of one section of the
Constitution.

In 1777 the punishment of treason had been a delicate subject in the
United States more likely to be avoided than discussed. In 1787 the
members of the Convention had not forgotten that within a dozen years
they had had a personal interest in that subject. Pinckney in article 6
had given Congress twenty-two specific unrestricted powers but when he
came to the power to declare the punishment of treason he paused and
defined what treason should consist in and provided that no person
should be convicted of the restricted crime but by the testimony of two
witnesses. He threw all this into a distinct paragraph which ultimately,
with additional restrictions, became section 2 of article VII of the
Committee's draught. But neither the paragraph of Pinckney nor the
section of the Committee is in the draught of Wilson.

Wilson did not overlook the subject, "The Legislature of the United
States shall have the power," his draught says, "to declare what shall
be treason against the United States," and, having attached no
restriction to the power, he properly placed it among the specified
powers immediately after the one "To declare the law and punishment of
piracies and felonies committed on the high seas and the punishment of
counterfeiting the coin of the United States, and of offences against
the law of nations."

But Rutledge did not consent to this. He and Pinckney seem to have
vaguely feared that the law of treason might yet be administered in the
United States by George III and he scrawled with his ruthless hand on
the margin of Wilson's carefully written page, "Not to work corruption
of Blood or Forfeit except during the life of the party"; and Wilson
thereupon erased his own provision and struck it out from among the
specific, unrestricted powers.

Here the significant fact to be noted is that the words written on the
margin of Wilson's draught were not taken from Pinckney's. That is to
say the restrictions proposed by Rutledge were additional to those set
forth by Pinckney. What Pinckney wrote and what Rutledge wrote and
nothing more make the second section of the Committee's draught
compounded and rearranged. The material was supplied by Pinckney and
Rutledge; the reconstruction, judging by the careful and logical way the
work was done was by Wilson: 1 the definition of the crime; 2 the power
to punish the crime defined; 3 the restriction upon judicial
proceedings, on the testimony of two witnesses; 4 the restriction upon
the result of conviction, that it should not work corruption of blood,
or forfeiture except during the life of the person attainted. It is also
to be noted that no draught of this section 2 has been found. For
reasons subsequently to be stated (chap. XII) it must be inferred that
it was framed on the margin of the Pinckney draught.

In article 8 of Wilson's draught immediately following his treason
clause is this provision:

"To regulate the discipline of the militia of the several States."

In article 6 of Pinckney's draught the same power is given:

"To pass laws for arming organizing and disciplining the militia of the
United States."

This grant of power to arm organize and discipline meant that control of
State troops should be taken from the States and lodged in the general
government. It was a radical departure from what had been; a change not
countenanced by the Articles of Confederation and not authorized by the
23 resolutions. During the debates no member of the Convention had so
much as suggested it; and on the 26th of July when the Convention
adjourned to enable the Committee of Detail to draught a constitution,
Pinckney alone had ventured to formulate a provision which might alarm
the States and arouse the anger and opposition of the militia. He had
done so; that we know; it is incontrovertible, for it is specifically
described in the Observations "the exclusive right of establishing
regulations for the government of the militia of the United States ought
certainly to be vested in the Federal Government."

Yet the Committee of Detail did not think so and they did not report
such a provision. Here again it is possible that Wilson took his
provision from Pinckney's draught, but it is not possible that Pinckney
took his from Wilson's.

The draught of Randolph discloses three important pieces of information
which tend positively to sustain the Pinckney draught. The first is (in
the words of Mr. Meigs) "that it was drawn up after the Convention had
agreed upon the resolutions that were referred to the Committee of
Detail on July 26th; and in numerous instances its language is modeled
upon them with even verbal accuracy." (Growth of the Constitution, p.
318.) Manifestly this draught was not written--was not even begun, until
after Randolph had become a member of the Committee. The writing of it,
the revising of it, its numerous alterations and corrections, the
submission of it to Rutledge, his examination of it and his changes and
additions must have taken time. Almost every sentence in it is checked
as if it had been compared with some other paper. In a word it indicates
that some days must have passed after the 26th of July before Randolph
and Rutledge could have written it, and revised it, and left it in its
present form; and it witnesses the important fact that only five or six
days before the finished draught of the Committee of Detail was put in
the hands of the printer at least two members of the committee were no
nearer completion of the work than this disheveled draught.

The great improbability against the Pinckney draught is that one man
alone and unassisted should have prepared so much of the Constitution.
But it is a hundred times more improbable that this Committee unassisted
by Pinckney's draught should have prepared and completed their own with
all its well selected details, with language carefully taken from many
sources, and with provisions far in excess of their instructions, than
that Pinckney should have completed his in his own time (making as he
did, four or five versions of it), thoroughly versed, as he was, in the
needs and weaknesses of the existing general government and the
constitutions of the several States, and able to confer, as he did, with
the ablest statesmen in the country.

The second thing which the Randolph draught does for us is important and
most interesting. It enables us to ascertain the fact that the section
of the Committee's draught which declares the jurisdiction of the
Supreme Court (Art. XI, sec. 3), was the work of three persons; and the
very words which each contributed.

The 16th resolution of the Convention was as follows:

"16. Resolved, That the jurisdiction of the national judiciary shall
extend to cases arising under laws passed by the general legislature,
and to such other questions as involve the national peace and harmony."

Randolph followed the resolution but enlarged the jurisdiction; and
Rutledge added two provisions in marginal notes; and their proposed
section was as follows:

"The jurisdiction of the supreme tribunal shall extent; 1, to all cases
arising under laws passed by the general Legislature; 2, to impeachments
of officers; and 3, to such cases as the national legislature shall
assign, as involving the national peace and harmony; in the collection
of the revenue; in disputes between citizens of different States (here
Rutledge has added on the margin 'in disputes between a State and a
citizen or citizens of other States'); in disputes between different
States; and disputes in which subjects or citizens of other countries
are concerned (here Rutledge has added 'in cases of admiralty
jurisdiction'). But this supreme jurisdiction, shall be appellate only;
except in cases of impeachment and in those instances, in which the
Legislature shall make it original; and the Legislature shall organize
it. The whole or a part of the jurisdiction aforesaid, according to the
discretion of the legislature, may be assigned to the inferior
tribunals as original tribunals." Meigs, p. 244.

When we pass to the draught of the Committee of Detail we find that the
latter part of this section of Randolph's was adopted, but that the
first part was rejected. This rejection however was not a curtailment of
jurisdiction, but a substitution of other language in the stead of
Randolph's. The question therefore which is now presented to us is this,
Who contributed the substitute? Who was the author of the first part of
the 3d section?

The corresponding declaration of jurisdiction in the Pinckney draught in
article 10 contains only four subjects of jurisdiction. Each of these
was suggested by other provisions of the draught. Article 8 for
instance, provides that the President may be removed "on impeachment by
the House of Delegates and conviction in the Supreme Court." Article 10
accordingly provides that the jurisdiction of the Supreme Court shall
extend to "the trial of impeachment of officers." The style is
characteristic of Pinckney; clear and terse and yet carelessly
expressed. "One of these courts," he says, "shall be termed the Supreme
Court, whose jurisdiction shall extend to all cases arising under the
laws of the United States, or affecting ambassadors, other public
ministers and consuls; to the trial and impeachment of officers of the
United States; to all cases of admiralty and maritime jurisdiction."

If we now turn to the draught of the Committee we shall find that these
lines are the first lines of section 3, and that the two draughts are
here identical. They contain the same provisions, arranged in the same
sequence, expressed in the same terms. These lines therefore form the
substitute which appears to have displaced the first part of Randolph's
section. The two things fit together with precision.

The significant fact to be noted here is that the Pinckney draught
contains the provisions and words which form the apparent substitute in
the Committee's draught, but contains nothing more. In a word not one of
the provisions which we now know were prepared by Randolph and Rutledge
are in the Pinckney draught.

Four then of the grants of jurisdiction in article XI section 3 of the
Committee's draught apparently were taken from the Pinckney draught and
the remaining four unquestionably were taken from the Randolph draught.
The section therefore is composite.

Wilson's draught here comes into the case enabling us to understand how
this combination was brought about.

Wilson was in effect rewriting the Pinckney draught. Finding the first
four subjects of jurisdiction precisely what he wanted, he retained them
as they were without change or amendment. But they were insufficient.
Randolph, Wilson and Rutledge were lawyers in practice who could foresee
controversies in the future dual system which Pinckney had not foreseen.
Accordingly Wilson took four additional subjects of jurisdiction from
Randolph's draught having Rutledge's amendments and with some revising
thus brought eight subjects of jurisdiction into his draught which
subsequently appeared in the Committee's.

To say that Pinckney was fraudulently plagiarising from the Committee's
draught 31 years afterward and that while so doing he chanced to take
one-half of the Committee's subjects of jurisdiction but not the other
half, and that the half which he chanced to take might very well be his
own, and that the half which he did not take chanced, as we now know, to
be Randolph's is to state an absurdity. There are too many things here
to be ascribed to chance; and each and all of them must have chanced to
take place to make out a case of plagiarism against Pinckney.

The third piece of information which Randolph's draught gives us is in
the nature of positive evidence and establishes directly the fact that
the Committee recognized Pinckney's draught and used it.

Under the heading, "_The following are the legislative [powers] with
certain exceptions and under certain restrictions_," Randolph set forth
the powers of Congress, for the most part taken from the Articles of
Confederation, "To raise money by taxation"; "To make war," etc., etc.
After investing the general government with these powers he turned, not
illogically, to restrictions which would prevent the States from
usurping or denying the powers so granted and placed in his draught the
following provision:

"All laws of a particular State repugnant hereto shall be void; and in
the decision thereon, which shall be vested in the supreme judiciary,
all incidents without which the general principle cannot be satisfied
shall be considered as involved in the general principle."

This section he subsequently cancelled and over it he wrote, "_Insert
the 11 article._"

Where then is this article 11 which would restrict the powers of the
States and render their laws, if repugnant to the Constitution, void?

It cannot be article XI of the Articles of Confederation; for it
provides only for the admission of Canada as one of the States of this
Union. It cannot be article XI of the draught of the Committee of Detail
for it relates only to "The judicial power of the United States"; to the
judges, to jurisdiction; to the trial of criminal offences; and there is
not a line which limits the power of a State or declares a statute void.
Moreover the restrictions upon the States in the Committee's draught are
divided and placed in two articles which are numbered XII, XIII. It
cannot be Article XI of Wilson's draught for it relates to the powers of
the Senate, the power to make treaties, to appoint ambassadors and
judges, to adjudicate controversies between two or more States, and
controversies concerning lands claimed under conflicting grants from
different States, it being article IX of the Committee's draught. There
is, however, an article 11 which places restrictions upon the States,
and meets the requirements of Randolph as exactly as if it had been
framed to effect his purpose, and it is article 11 of the Pinckney
draught. We know too that it is Pinckney's own, for it is described in
the Observations.

With the 11th article in Wilson's draught and the 11th article in the
Committee's failing to respond to the requirements of the reference, and
with Pinckney's article 11 responding fully and exactly to it, there is
but one conclusion left which is that Randolph when he wrote "Insert the
11 article" intended article 11 of the Pinckney draught.

When the fact is established that the Committee of Detail had before
them the Pinckney draught and took from it a single excerpt, though of
not more than four lines, the burden cannot rest on Pinckney to account
for identities and resemblances. The onus probandi will then be upon the
other side; and the issue being whether the Committee used the Pinckney
draught or Pinckney copied from the Committee's, the presumption must
be, until the contrary be shown, that all identical provisions in the
two draughts originated in Pinckney's.

If James Wilson were now living, and asserting that he was the true and
unassisted author of the Committee's draught these papers would be
strong, though not conclusive, evidence to maintain his claim; and if
Pinckney had never prepared a draught of the Constitution and his
draught had never been presented to the Convention, and had never been
referred to the Committee of Detail for the express purpose of assisting
them in drawing up a draught of the Constitution, these papers would
justify historical scholars in saying that Wilson should occupy the
place which Pinckney occupies, and that the alien member of the
Convention was the chief individual contributor to the Constitution of
the United States. But the defect of these papers is that we know
nothing about them, save that they are in the handwriting of Wilson and
Rutledge. That they are original matter; that they are not made up of
excerpts from Pinckney's draught: are propositions which are now
sustained only by conjectures.

Against such conjectures, there stand the consistent silences of all the
members of the Committee. Gorham lived nine years and said nothing of
his colleague's great work. Wilson lived eleven years and saw the
government which, conspicuously, he had helped to form firmly
established, and became a judge of the Supreme Court, yet while he lived
gave no intimation of having drawn up the most important document of the
Convention, and when he died left no statement showing the manner in
which the work of the Committee of Detail was done. When Wilson passed
away it behooved Ellsworth and Rutledge and Randolph to testify to
posterity, if not to the men of their own time, of the great part which
Wilson had secretly played in the drama of the Constitution, if he was
the author of the draught. But Rutledge lived two years, and Ellsworth
nine years, and Randolph fifteen years, and gave no sign.

Against such conjectures too there is the record of the other draught, a
series of incontestible facts, each consistent with those that had gone
before it and with those which were to come after it. Pinckney prepared
a draught; it was presented to the Convention; it was referred to the
Committee of the Whole, and thereby made accessible to every member of
the Convention; it was referred to the Committee of Detail and thereby
placed at the disposal of the committee and brought directly to the
notice and knowledge of every member; the Committee never returned it to
the Convention and it has not been found among the papers of any one of
them; Pinckney published a description of it within a month after the
adjournment of the Convention; and a month later republished the
description in a newspaper. In 1818 he authorized the publication of a
paper which he certified to be a substantial copy of the draught; it was
immediately published with the first publication of the secret journal
of the Convention and widely disseminated as a public document; at the
time of publication 16 members of the Convention were living who must
have desired, we must assume, to see the journal of the proceedings in
which they had personally taken part; and when they received the journal
received with it a copy of Pinckney's draught; and yet when Pinckney
died more than six years afterwards no surviving member of the
Convention had denied or questioned the verity of the published draught.

There are very few historical papers in the world which have such a
record of publicity behind them as Pinckney's draught; and it is idle to
attack such a record with one man's suspicions and another man's
inferences, and our own prejudices and conjectures. Two incontrovertible
facts are that at the time when these papers were written, Pinckney's
draught was in possession of these same men, Wilson, Randolph and
Rutledge, and that they never returned it to the Convention. This
examination brings us round a circle to the question at which we
started, Did the Committee rightly use the draught of Pinckney, or did
Pinckney fraudulently copy the Committee's draught?

The Randolph and Wilson draughts bring the case into this situation:

1. Randolph, Wilson and Rutledge were the working members of the
Committee and worked together. All that was done with the pen, so far as
we know, was done by them. Wilson was the ready writer of the Committee
and had before him, when he wrote his final draught, his own preliminary
draught and Randolph's draught and Pinckney's draught.

2. The final draught of Wilson was not begun until after his own
preliminary draught was finished. The 43 amendments of Rutledge came
later and were all subsequently considered and accepted by the
Committee.

3. From an intellectual point of view the final draught of Wilson with
the annotations of Rutledge came near to being the draught of the
Committee of Detail; but it was not the completed draught of the
Committee even from an intellectual point of view; for additional
provisions were framed and the arrangement of provisions was changed and
the articles were subdivided into sections. From a printer's point of
view the material for a written draught which was to be put into type
did not yet exist.

4. If a copy of the draught was prepared for the printer (with
Rutledge's 43 amendments and the additional provisions and the
rearrangement of articles and the subdivision of articles into sections
all engrossed therein), it is plain that Wilson, the hard worker of the
Committee, was the man who did it. Wilson saved everything that he wrote
and, consequently, saved his best. His best is his third, his final
draught, but it is not the draught of the Committee. If he had prepared
a copy for the printer, it would have been his best--by far the best
thing he did. It would have been returned to him by the printer with the
proofs; and Wilson we may confidently conclude (knowing how he saved
even scraps of his writing) would have preserved it.

5. The evidence relating to the draughts of Randolph and Wilson
therefore closes with the draught of the Committee of Detail still
undrawn and with very little time left in which it could be prepared for
the printer. When we couple together the two significant facts that the
Committee's work (_i. e._ their manual labor) ended before they had
prepared a draught for the printer, and that Pinckney's draught which
was in their possession and had been used by them, disappeared during
the same eventful week, there can be but one inference--that the
Committee used it.




CHAPTER XII

THE COMMITTEE'S USE OF THE DRAUGHT


Up to this point the subject of consideration has been the charges
preferred by Madison against the copy of the draught in the State
Department. I now propose to press the investigation in a more positive
way; to-wit, by ascertaining whether the Committee of Detail used a
draught of which this is a copy or duplicate, and to what extent and in
what manner.

In copyright cases where the issue is of plagiarism, it sometimes
happens that traces of the earlier work will be found in the later one,
be the language ever so carefully paraphrased and the plagiarism ever so
carefully hidden. Misspelled names, erroneous dates, genealogical
mistakes which originated in the one and reappear in the other are
fateful witnesses. If we find such traces in the work of the Committee
of Detail we may follow them as detectives follow clues until they find
the criminal; that is to say until we find to a certainty that the
Committee used the draught.

The first of these traces of Pinckney's hand in the Committee's draught
is a very curious one inasmuch as it discloses the fact that in one
provision the Committee followed Pinckney's leading unconsciously, and
that their action was unauthorized by the Convention, if not in
violation of their positive instructions twice repeated. The subject,
the pay of Senators and Representatives, had been much discussed; but
neither in the Committee of the Whole nor in the Convention had it ever
been voted that the compensation should be either "determined" or "paid"
by the States. The proceedings of the Convention in regard to this have
been examined at length in the preceding chapter and the details need
not be repeated here. It is enough to recall the fact that the
Convention resolved expressly that the pay of Representatives should be
"adequate," and by implication that the pay of Senators should likewise
be adequate; and that the Committee of the Whole had previously resolved
that both should be paid out of "the public treasury." How the Committee
of Detail could have so reversed the determination of the Convention as
to provide that the members of both Houses should receive a compensation
not necessarily "adequate" and "to be ascertained" as well as "paid" by
the State "in which they shall be chosen" is explicable in only one way;
to-wit:

Pinckney's draught likewise declared, also in a single provision (art.
6) that "the members shall be paid for their services by the States
which they represent." There is a verbal difference between the
Committee's draught and the copy of the Pinckney draught in the State
Department, a bettering of the English, which was done by Wilson as we
have already seen in his draught and it is certain that the Committee
reported to the Convention a provision substantially that of the
Pinckney draught, a provision which the Convention had more than once
rejected. If the Pinckney draught was used as copy for the printer, it
is plain enough that the clause of six words "by the States which they
represent" may have misled the Committee. With the many propositions
which they had to codify and the brief time within which the work must
be done; and the confused and somewhat contradictory action of the
Committee of the Whole and the Convention in June, and the divided
responsibility and scrutiny of five men, it is easily possible that the
Committee were misled by the provision in the Pinckney draught; but it
is not possible that they could have been so misled if there had been no
Pinckney draught and they had followed the 3d and 4th resolutions and
borne in mind the action of the Convention and the words of its leading
members.

A second deviation from the instructions given by the Convention relates
to the payment of the Executive. The 12th resolution says that the
Executive is "to receive a fixed compensation for the devotion of his
time to the public service to be paid out of the public treasury." The
Pinckney draught (art. 8) says that the President "shall receive a
compensation which shall not be increased or diminished during his
continuation in office" and stops there. The draught of the Committee
(art. X sec. 2) says "He shall, at stated times receive for his services
a compensation, which shall neither be increased nor diminished during
his continuance in office," and stops there. In a word we find here
Pinckney's language with a word or two of amplification, and a little
correction (the kind of deviation which one may expect to find in the
revision of a statute or legal document) and we find (as in Pinckney)
the important word "fixed" omitted, and the not "increased or
diminished" clause of Pinckney inserted, and the provision stopping as
Pinckney stops, without the concluding words of the resolution "to be
paid out of the public treasury." There is here too much resemblance to
Pinckney and too little adherence to the 12th resolution to leave a
doubt as to where the Committee's provision came from.

A more notable instance relates to the appointing and treaty-making
power of the Senate. The 14th resolution declares that the judges of the
"Supreme tribunal shall be appointed by the second branch" _i.e._ the
Senate. But the draught of the Committee says (art. IX), "The Senate of
the United States shall have power to make treaties, and appoint
Ambassadors and judges of the Supreme Court." How came the Committee to
invest the Senate with power to make treaties and appoint ambassadors
when no such authority was conferred by the resolutions and no such
determination had been reached in the Convention? Pinckney's draught
answers the question, (art. 7) the Senate, it says, shall have the sole
and exclusive power "to make treaties; and to appoint ambassadors and
other ministers to foreign nations, and judges of the Supreme Court."
Here the Committee placed the whole treaty-making power and the
diplomatic intercourse with foreign nations entirely in the hands of the
Senate and for no other reason than that Pinckney had already done so.
Such an extension of their work beyond their authority could not have
suggested itself. Evidently when adapting Pinckney's work to their own
purposes they neglected to strike out "treaties" and "ambassadors."

In Pinckney's draught is set forth (art. 3) "The House of Delegates
shall exclusively possess the power of impeachment, and shall choose its
own officers; and vacancies shall be supplied by the executive authority
of the State in the representation from which they shall happen." And in
the Committee's draught it is similarly set forth (art. IV, sec. 6, 7)
"The House of Representatives shall have the sole power of impeachment.
It shall choose its speaker and other officers. Vacancies in the House
of Representatives shall be supplied by writs of election from the
executive authority of the State in the representation from which they
shall happen" (sec. 7). These incongruous things Pinckney threw together
in a single sentence. The Committee placed two of them in one section
and the third in another, and amplified and corrected as usual; but not
one of these powers is enumerated in the twenty-three resolutions; and
let it also be noted that the peculiar and awkward phraseology, "the
executive authority of the State in the representation from which they
shall happen" is in both.

While the uses and misuses of the Pinckney draught conclusively
establish the fact that the Committee of Detail did use it and
frequently adhere to its text, a more comprehensive and just idea of the
service which Pinckney rendered and the manner in which his draught was
used in the formation of the Constitution will be obtained by placing
ourselves in the place of the Committee and using it as they must have
used it.

At the convening of the Committee the draught which had been referred by
the Convention was before them. It was the only draught of the proposed
constitution which had been prepared by anyone--the only instrument or
document, so far as our knowledge goes, which could be used by them as a
pattern or basis for their work. Unquestionably the Committee sooner or
later would take up this one instrument of its kind and ascertain how
far it would serve their purpose.

The preamble is the first and chief sentence in the Constitution; for it
declares the source and supremacy of its authority. "We the people of
the United States" "do ordain, declare and establish this Constitution."
The preamble goes behind State governments, asking nothing from them,
either of authority or consent, and invokes the power which established
them, the people of the United States. This supreme power, if the
Constitution should be adopted, would allow States and State governments
to continue to exist, but to exist subordinate to a new power, the
Constitution of the United States and as parts and not units. In the
first letter which Madison (then in New York) wrote to Jefferson (then
in Paris) after the adjournment of the Convention, he said:

"It was generally agreed that the object of the Union could not be
secured by any system founded on the principle of a confederation of
Sovereign States. A voluntary observance of the federal law by all the
members could never be hoped for. A compulsive one could evidently never
be reduced to practice, and if it could, involved equal calamities to
the innocent and the guilty, the necessity of a military force, both
obnoxious and dangerous, and, in general, a scene resembling much more a
civil war than the administration of a regular government.

"Hence was embraced the alternative of a government which, instead of
operating on the States, should operate without their intervention on
the individuals composing them; and hence the change in the principle
and proportion of representation."

The chief idea of the preamble is not set forth in any resolution or act
of the Convention; and no instruction so to declare the source of
authority was given to the Committee of Detail. The preamble belongs
exclusively to Pinckney, though its words as we have before seen, were
taken from the preamble of the constitution of Massachusetts. Chap. XI.

The only amendment which the Committee of Detail made, was in the last
line of Pinckney's, the insertion of a single word "our,"--"for the
government of ourselves and our posterity." With the exception of this
word the Committee took Pinckney's preamble as they found it, and so
reported it to the Convention. During the subsequent sittings of the
Convention it remained unamended and unquestioned and undiscussed until
at last it received the final touch of the Committee of Style.

In article 1 Pinckney followed in part the Articles of Confederation and
in part the Constitution of New York: "The stile of this Government
shall be the United States of America, and the Government shall consist
of supreme legislative, Executive and judicial powers."

This the Committee broke into two articles and in the first line
changed "this" to "the" but made no other change.

Article 2 relates to the legislative power and was taken by Pinckney
almost verbatim from the constitution of New York. The Committee changed
"House of Delegates" to "House of Representatives," and filled a blank
with "first Monday in December," and in place of two "houses" said two
"distinct bodies of men," and introduced a needless provision that each
house "shall in all cases have a negative upon the other."

Article 3 relates to members of the "house of delegates"; to the term of
office, to the qualifications of the electors, to the qualifications of
members, to their apportionment among the States, to their proportion
with population, to "money bills," impeachment, the choosing of their
own officers, and to vacancies. Here the Committee's method of breaking
an article into sections begins. But the seven sections of the
Committee's follow in the same order and almost in the same words, the
sentences of Pinckney. The article, like Pinckney's, begins with, "The
members of the house"; and ends, like his, "in the representation from
which they shall happen."

Article 4 relates to the Senate, and here first appear the individual
opinions of Pinckney which were shared by no one. His senators were to
be chosen by the House of Delegates. "From among the citizens
and residents of New Hampshire"--"from among those from
Massachusetts"--etc., etc. That is the representation was neither by
States nor by population but by an arbitrary assignment in the
Constitution. Pinckney believed that the Senate should represent the
wealth of the country, and he probably intended that this arbitrary
assignment should be representative of wealth. The senators from New
Hampshire, Massachusetts, Rhode Island and Connecticut were to form one
class; those from New York, New Jersey, Pennsylvania and Delaware
another; and the remaining States a third. It was to be determined by
lot which should go out of office first, which second, which third. As
their times of service expired the House of Delegates was to fill them
for a fixed and uniform term. This plan was suggested to Pinckney by
the constitution of New York. Its only merit was that it would make the
Senate a continuing body, as we now have it, one-third of the members
going out at one time. Its errors seem incredible. It would have enabled
the delegates from, say, the eastern and middle States to choose
senators who would grossly misrepresent the southern States; with every
change in the political supremacy of the House one-third of the senators
would change, and one-third of the country might be represented by new
and inexperienced men; with the people of a section of one political
faith, their senators, chosen for them by the House of Delegates, might
be of the opposite political belief. It is plain that when the Committee
came to Pinckney's Article 4 they found something which would be of no
use to them. The Convention had already marked out their work--the
senatorial system which we still have--each State represented by two
senators, each senator having an individual vote, the senators chosen by
the legislatures of the several States. Yet even this article relating
to Pinckney's senate, the Committee used, and used in a way which
indicates that they took the paper upon which it was written and made
it serve their purpose in framing their hurried draught. Art. V.

Pinckney's article begins: "The senate shall be elected, and chosen by
the;" and the Committee's begins: "The senate of the United States shall
be chosen by the." At this point the Committee struck out the equivalent
of 222 words from the Pinckney article and interlined about half the
number, 120 words. (The large imperial unruled foolscap with lines well
apart and the broad margin readily admitted of this being done.) But the
instant that the necessarily new matter was interlined, the Committee
resumed with Pinckney's words. His "Each senator shall be ---- years of
age" etc., etc., becomes their "Every member of the senate shall be of
the age of thirty years at least" etc., etc. Then follow Pinckney's
provisions concerning citizenship, concerning the prior period of a
senator's citizenship, concerning residence, the article closing as
Pinckney's closes, "The Senate shall choose its own President and other
officers." Here we have the two most dissimilar articles in the two
draughts beginning with the same words, ending with the same words,
containing the same provisions, following the same order, and differing
only where the instructions of the Convention compelled the Committee to
strike out a large and important portion of the earlier draught and to
insert a new and important substitute. If the Committee were rewriting
the article, there would be no reason for this extraordinary closeness
of adherence--for this moving pari passu--for this going always as far
and never farther over the ground traversed.

Article 5 of the Pinckney draught is notable for containing the veto
power. The Convention grouped it in the 23 resolutions with the powers
of the Executive; Wilson made of it an entire, independent article, but
Pinckney who had taken it, as we have before seen, from the constitution
of New York, retained its revisionary character and placed it at the end
of an article relating to the legislature and legislative business. The
Committee left it where Pinckney placed it (Article VI, sec. 13) as we
have seen in the preceding chapter; and in this as we have also seen in
the preceding chapter the Committee followed Pinckney and did not
follow Wilson.

The 6th article contains another singular instance of an oversight of
Pinckney's which the Committee followed. In it he gathers together with
care and patience from the Articles of Confederation and from State
Constitutions the incidental powers of Congress. The governing clause
is, "The Legislature of the United States shall have the power." Then
follow some 22 declarations of power, properly paragraphed: "To lay and
collect taxes, duties, imposts and excises." "To regulate commerce"
etc., etc., until in a final paragraph he sums up and closes the record
of these powers by the paragraph. "And to make all laws for carrying the
foregoing powers into execution." The power to punish treason Pinckney
placed in a distinct paragraph for reasons stated in chapter XI. But
this compelled him to rewrite the governing clause, "The Legislature of
the United States shall have the power." In the same sentence he
appended the definition of treason, "which shall consist only in levying
war against the United States" etc. And he then (following the Act of
Edward III), in a separate sentence imposed this condition upon
conviction of treason that it shall be "but by the testimony of two
witnesses." What Pinckney should have done was what Wilson did; he
should have placed this power with the others under the first governing
clause, "The Legislature of the United States shall have the power," and
have pushed the limitations upon that power over with those relating to
"the subject of religion," "the liberty of the press" and "the writ of
habeas corpus," into a bill of rights.

This oversight of Pinckney's, the Committee of Detail attempted to hide
but not to rectify. The needless duplication of the words, "The
Legislature of the United States shall have the power," they pushed out
of sight by inverting the provisions of the sentence and defining
treason first; but they retained it; and also in this article, properly
relating only to legislative powers, they retained the condition laid
upon the judiciary that "no person shall be convicted of treason unless
on the testimony of two witnesses" (Article VII, sec. 2), and in doing
these things, the Committee overruled Wilson and followed Pinckney.

It is manifest, therefore, that the two draughts, the draught in the
State Department and the draught of the Committee, are built upon the
same framework. That is to say in structure, arrangement, form and order
the two are identical, the one the basis of the other. In other words,
the Committee took the draught which had been referred to them, and
worked upon it, beginning with the preamble, and continuing to the last
sentence, "The ratification of the conventions of ---- States shall be
sufficient for organizing this Constitution." They amended, changed,
substituted, subdivided (articles into sections), and amplified; but it
was always Pinckney's draught which they worked upon. They retained
every provision of his which was authorized by the instructions of the
Convention, and some which were beyond the scope of the instructions and
a few which were contrary to the instructions; and whenever they
retained a provision, they retained, substantially, the language in
which it had been cast by Pinckney. As in mathematics it is held to be
self-evident that things which are equal to the same thing are equal to
each other, so here it may be said that this extraordinary identity of
the draught in the State Department and the draught of the Committee of
Detail demonstrates that the draught in the State Department is a true
and substantially exact duplicate of the lost draught which was referred
to the Committee.




CHAPTER XIII

WHAT BECAME OF THE DRAUGHT


A question of much interest follows the foregoing investigation; to-wit,
why was not the Pinckney draught found among the records and papers of
the Convention?

It was the only draught of a constitution which had been before the
Convention; it had been referred to the Committee of the Whole and
referred to the committee charged with the duty of preparing a draught
of the Constitution; and that committee had used it for that purpose. It
was a paper of unique character and unquestionable importance and one of
the records of the Convention. Why was it not found in the sealed
package of the Convention's records?

And there was another paper, which should have been found but was not.
This was the report of the Committee of Detail, containing, or
accompanying, their draught of a Constitution. The absence of any other
paper that should have been placed in the package might be strange, yet
not significant. But these two papers, if there were two, related to the
same subject, contained more or less the same provisions, had been used
for the same most important purpose by the same men, and were on the 6th
of August, 1787, if they then existed, in the possession and official
custody of the Committee of Detail. When Rutledge on the morning of that
day "delivered in" the most important report ever laid before the
Convention he should have laid upon the Secretary's desk those two
papers, if there were such to lay there. Yet neither Pinckney's draught
of the Constitution, nor the Committee's draught of the Constitution,
was found in the sealed package; nothing was found but one printed copy
of the Committee's draught.

The draught of the Committee of Detail was the most important of all the
papers of the Convention, for the reason that it was the embodiment of
all that had been done during the first period of the Convention's work,
the abstract stage, and was to be the foundation of all that was yet to
be done in bringing the Constitution to its concrete and final form.
For purposes of construction and interpretation the draught is the most
valuable paper that exists or that ever did exist, inasmuch as it sets
forth in a tangible, practical, unmistakable form the results so far
attained and the views which a majority of the members held, and the
conclusions which a majority of the States had reached when the work of
abstract consideration ceased, and the work of changing their abstract
ideas into the concrete provisions of the Constitution began. There was
no other report, draught or document which should have been so
watchfully guarded and carefully kept as the report of the Committee of
Detail, if there were indeed such a document to preserve.

To comprehend and appreciate the significance of the disappearance of
these two papers, it is necessary that we understand the conditions of
the case--the circumstances which tended toward their destruction, and
those which should have secured their preservation.

The first of these conditions was secrecy. The Convention early
determined "That nothing spoken in the House be printed or otherwise
published or communicated without leave." No reporter was present at the
sittings of the Convention; no stenographer, typewriter or amanuensis
served the members; no clerical force aided the Committee of Detail. The
secrets of the Convention were in the custody of the members, and from
the 29th of May to the 17th of September not one was revealed to the
expectant, inquisitive, anxious American world.

As the work of the Convention drew toward its close, it was determined
that the obligation of secrecy should be continued into the indefinite
future. The records were to be placed under seal and the custodian was
to be Washington himself. Washington asked what should be done with the
records; and the Convention answered that "he retain the Journal and
other papers subject to the orders of Congress, if ever formed under the
Constitution." For thirty years and more the seals remained unbroken;
and for thirty years and more no member of the Convention spoke.

Let the reader imagine, if he can, what would be the public feeling now,
if a convention should be sitting from the 29th of May to the 17th of
September to frame a new constitution for the United States which should
sit with closed doors, and whose members should disclose no act, speak
no word, drop no hint from the beginning to the end; and who, when the
end was reached, should say absolutely nothing of what had been said and
done in the secret proceedings of the Convention. We owe much to the
framers of the Constitution; they were not common men.

The first and highest instance of this sense of obligation is where we
should expect to find it, in the personal journal of Washington.

                                "Friday, 1st June.

      "Attending in Convention--_and nothing being suffered to
      transpire no minute of the proceedings has been, or will be
      inserted in this diary_."

And for this reason, no member of the Committee wrote. The unfortunate
Observations of Pinckney were the only publication that gave a glimmer
of what had been done, or might have been done in the Convention--of
what had been said or might have been said. The Journal of Madison was
not published until after Congress had released the secrets of the
Convention. The members had taken no solemn oath, nor clasped hands nor
pledged their honor to each other, but they kept silence.

A single incident fortunately preserved by William Pierce of Georgia
will show how the obligation was regarded during the sitting of the
Convention. It grandly displays the personal majesty of Washington, and
the value which he set upon the secrecy of the Convention's
deliberations. To a better appreciation of what took place it must be
remembered that the Convention as a mark of respect for their great
presiding officer established this rule: "_When the House shall adjourn,
every member shall stand in his place until the President pass him._"

Mr. Pierce says:

"When the Convention first opened at Philadelphia, there were a number
of propositions brought forward as great leading principles for the new
Government to be established for the United States. A copy of these
propositions was given to each Member with an injunction to keep
everything a profound secret. One morning, by accident, one of the
Members dropt his copy of the propositions, which being luckily picked
up by General Mifflin was presented to General Washington, our
President, who put it in his pocket. After the Debates of the Day were
over, and the question for adjournment was called for, the General arose
from his seat, and previous to his putting the question addressed the
Convention in the following manner:--

"'_Gentlemen_: I am sorry to find some one Member of this Body, has been
so neglectful of the secrets of the Convention as to drop in the State
House a copy of their proceedings, which by accident was picked up and
delivered to me this Morning. I must entreat, Gentlemen, to be more
careful, lest our transactions get into the News Papers, and disturb the
public repose by premature speculations. I know not whose paper it is,
but there it is (throwing it down on the table), let him who owns it
take it.' At the same time he bowed, picked up his Hat, and quitted the
room with a dignity so severe that every Person seemed alarmed; for my
part I was extremely so, for putting my hand to my pocket I missed my
copy of the same Paper, but advancing up to the Table my fears soon
dissipated; I found it to be the handwriting of another person. When I
went to my lodgings in the Indian Queen, I found my copy in a coat
pocket which I had pulled off that Morning. It is something remarkable
that no Person ever owned the Paper." (3 Amer. Hist. Review, 324.)

The obligation of secrecy required that these two papers should not be
lost--that they should not be left where they might fall into the hands
of someone who would publish them, that they should not remain in the
possession of a member; and the final determination of the Convention
implied that these two papers should be delivered by the Committee of
Detail into the hands of the Secretary of the Convention and be by him
placed in the custody of Washington.

The second condition was time--the time within which the Committee's
work must be done.

On Thursday, the 24th of July, the Convention appointed the Committee of
Detail "for the purpose of reporting a Constitution," and on the 26th,
referred to the Committee certain resolutions and "adjourned until
Monday, August 6th, that the Committee of Detail might have time to
prepare and report the Constitution." This adjournment gave to the
Committee ten full days in which to prepare and complete their draught,
two of which were Sundays. The committee moreover determined to furnish
to each member of the Convention a printed copy. On Monday, the 6th of
August, the Committee appeared in the Convention bringing with them the
printed copies of the draught.

The draught contains about 3,600 words. A good printer in the olden days
when there was not a typesetting machine in the world would have
required (according to the computation of a present day printer) three
days for doing the work, allowing therein a reasonable time for changes
and corrections made in the proofs. It cannot be supposed that after the
admonition of Washington, the Committee could be negligent in their
selection of a printer. They would not carry their copy into a large
printing office, if any such there was in Philadelphia, but would surely
place it in the hands of some individual printer recommended to them as
trustworthy by Wilson or Gouverneur Morris or some other delegate from
Philadelphia, perchance by Franklin, the greatest printer in the world.
In a word, the printing would not have been confided to a shop full of
men but would have been given to one man and marked "confidential"; and
it is safe to say that the copy must have been in the printer's hands by
the close of the 7th day. Besides the typesetting, the proofs were to be
examined, and the work scanned in the clearer light of printed matter by
every member of the committee; and errors were to be corrected, and
possibly changes made.

After these ten days of actual and constructive work the Committee
appeared in the Convention bringing with them a draught containing
fifty-seven articles and sections, and some 200 constitutional
provisions. Some of these provisions had been prescribed by the 23
resolutions, and some had been suggested by the Articles of
Confederation, but there were others declaratory of the inherent powers
of a national sovereignty which had neither been directed by the
Convention, nor were contained in the Articles of Confederation. No
reflective person beginning the study of the Constitution can read
Madison's Journal attentively through to the 26th of July without being
astonished by the greater comprehensiveness and detail and breadth and
completeness of the draught which the committee produced in a printed
form on the morning of the 6th of August.

Besides the provisions in the draught which have passed into, and in a
literal or modified form, have become parts of the Constitution, there
was some work of the committee which must have involved consideration,
discussion, and a waste of time. These hindrances left a perilously
narrowed period within which a committee must draught the Constitution
of the United States.

It was therefore no time to stand upon trifles or to pause to adjust
formal niceties. Within the closed doors of Independence Hall would be
impatient men who had given their time since the 25th of May and who
were sitting unceasingly through the heat of the Philadelphia summer,
defraying in whole or in part their own expenses, though many of them
were men of narrow means, ill able to give either their time or their
money. To their anxious eyes the end seemed far away, and success far
from certain, and they would resent unnecessary delay. It would be just
to young, ambitious Mr. Pinckney to return his draught, unsullied, to
the Secretary that it might tell the story in future years, unquestioned
and unquestionable, of his splendid contribution to the Constitution. It
would be proper and according to parliamentary usage for the committee
to hand in their draught in writing, covered by a report attested by
their signatures, both of which would remain in the archives of the
Convention and perhaps in the archives of a future government. But the
committee could not linger for these desirable things. Pinckney's
draught must be sacrificed to hasten the good work along, to save time,
if it were but a day; and their own report and draught must be
"delivered in" figuratively, that is to say by the mouth of their
chairman and by the means of the printed copies, one for each member.
The committee, so all the circumstances unite in telling us, took
Pinckney's draught and considered it; some provisions they retained;
some they corrected, some they amended, some they changed, some they
struck out. The amendments they wrote on the broad margin of the large
foolscap sheets or wrote out on separate slips of paper which they
wafered to the margin. When they had finished this work Pinckney's
draught had become "printer's copy." For one brief week it served a
great purpose and was the most useful document in the world. Then it was
scrupulously destroyed; and concerning it no man of the men who knew its
contents is known to have spoken a single word.

Apart from the inferential and conjectural statements of the preceding
paragraph, the stricter principles of law lead to or toward the same
conclusion. The draught was placed in the committee's hands to be used
but not to be destroyed. Nevertheless the right to use, like the right
of eminent domain, was commensurate with the necessities of the
situation, and the committee might use it by destroying it.

The law allows within certain limitations, the presumption of fact that
where an administrative officer had a certain, specific official duty
to perform, he performed it. The Secretary of the Convention and the
members of the Committee of Detail were not public officers but were
charged with duties which, if not official, were still public, and the
obligations and presumptions belonging to administrative officers may
properly be applied to them. The Secretary's entry in the Journal of the
Convention says, "The report was then delivered in at the Secretary's
table, and being read once throughout, and copies thereof given to the
members, it was moved and seconded to adjourn." All that there was to be
"delivered in," was placed upon the Secretary's table, and it became his
duty to preserve whatever the Committee had placed there subject to the
future commands of the Convention. The "copies thereof" were the printed
copies of the draught; and "the report" which was "then delivered in at
the Secretary's table" was one of the printed copies accompanied by the
oral explanation of the chairman.

What the Secretary did with the papers in his charge is told in the
following note and extract:

                                "MONDAY EVENING.

      "Major Jackson presents his most respectful compliments to
      General Washington....

      "Major Jackson, after burning all the loose scraps of paper
      which belong to the Convention, will this evening wait upon
      the General with the Journals and other papers which their
      vote directs to be delivered to His Excellency."


      Indorsed by Washington:

      "From MAJ'R WM. JACKSON, 17th Sept., 1787."

                                "MONDAY, 17th.

      "Met in Convention when the Constitution received the
      unanimous assent of 11 States and Col'n Hamilton's, from
      New York (the only delegate from thence in Convention) and
      was subscribed to by every Member present except Gov'r
      Randolph and Col'n Mason from Virginia--& Mr. Gerry from
      Massachusetts. The business being thus closed, the Members
      adjourned to the City Tavern, dined together and took a
      cordial leave of each other.--after which I returned to my
      lodgings--did some business with, and received the papers
      from the secretary of the Convention, and retired to
      meditate upon the momentous wk which had been executed,
      after not less than five, for a large part of the time six,
      and sometimes 7 hours sitting every day, sundays & the ten
      days' adjournment to give a Com'ee opportunity & time to
      arrange the business, for more than four months."
      WASHINGTON'S DIARY.

The Secretary of the Convention has generally been censured as
incompetent and negligent. Nevertheless the papers which he transferred
to Washington witness for him that he did preserve and keep whatever
papers came within his official custody. The Secretary of State
certified, March 19th, 1796, that in addition to the Journals then
received from Washington "were seven other papers of no consequence in
relation to the proceedings of the Convention." One of these is a
"draught of the letter from the Convention to Congress to accompany the
Constitution"; one is an order from "the directors of the Library
company of Philadelphia" to the Librarian directing him to "furnish the
gentlemen who compose the Convention now sitting with such books as
they may desire during their continuance at Philadelphia, taking
receipts for the same"; one is a letter from "one of the people called
Jews" setting forth that by the Constitution of Pennsylvania "a Jew is
deprived of holding any publick office or place of Government." The
others are even of less consequence. They make plain by their
unimportance the important fact that Major Jackson scrupulously kept
every paper which Rutledge "delivered in at the Secretary's table" on
the 6th of August. That is to say, it is made plain that on the 6th of
August, Rutledge did not deliver in at the Secretary's table either a
written report of the committee or the Pinckney draught.

Judging in the light of all the facts which the case discloses we must
conclude that the only thing which would have justified the Committee of
Detail in not returning the Pinckney draught to the Secretary of the
Convention was that it had been destroyed; the only thing which would
have justified the Committee in destroying it, was that they were
compelled to use it as printer's copy.

The Committee did well to use it. And yet if there was one thing in the
world which justified Pinckney in publishing the Observations, it was
that the Committee of Detail had destroyed his draught.




CHAPTER IV

WHAT PINCKNEY DID FOR THE CONSTITUTION


The style of the Constitution, we owe to Pinckney. Behind him, perhaps,
was Chief Justice Jay, whose hand appears in the first Constitution of
New York, but none of the men connected with the Convention, not even
Hamilton, had attained what we may term the style of the
Constitution--the clear, concise, declarative, imperative style which
seems a characteristic part of the great instrument. Pinckney
appreciated the difference between a constitution and a statute and in
maintaining this difference his hand rarely erred. The Committee of
Detail corrected Pinckney's language, occasionally, and sometimes
rendered the meaning more certain by amplification but whenever they
departed from his draught, there is an immediate falling off in style. A
flagrant instance of this is in article IX, sections 2 and 3. In the
hands of the Committee the provision relating to disputes and
controversies between States expands into a string of minor provisions
containing more than 400 words with all the involved petty
particularities of an incoherent statute. _Exempli gratia_, "The Senate
shall also assign a day for the appearance of the parties, by their
agents before that house. The agents shall be directed to appoint, by
joint consent, commissions or judges to constitute a court for hearing
and determining the matter in question. But if the agents cannot agree,
the Senate shall name three persons out of each of the several States;
and from the list of such persons, each party shall alternately strike
out one, until the number shall be reduced to thirteen; and from that
number not less than seven, nor more than nine, names, as the Senate
shall direct, shall in their presence, be drawn out by lot; and the
persons whose names shall be so drawn, or any five of them, shall be,",
etc., etc. The person who remembers that this and more like it, was
actually prepared and printed and reported to the Convention as a
proposed part of the Constitution of the United States, may well wonder
what kind of a Constitution the Committee of Detail would have framed,
if they had not had Pinckney to block out their work for them.

When dealing with the number of representatives in the first or lower
house, Pinckney provided (Art. 3) for a specific number from each State,
in the first instance, and then by one of his terse emphatic sentences,
"and the legislature shall hereafter regulate the number of delegates by
the number of inhabitants, according to the provisions hereinafter made
at the rate of one for every ---- thousand." The Committee adopted this
verbatim but they prefaced it with an extraordinary apology or
explanation, bearing some resemblance to the preamble of a statute (Art.
14, sec. 4): "As the proportions of numbers in different States will
alter from time to time; as some of the States may hereafter be divided;
as others may be enlarged by addition of territory; as two or more
states may be united; as new states will be erected within the limits of
the United States--the legislature shall, in each of these cases,
regulate the number of representatives by the number of inhabitants,
according to the provisions hereinafter made, at the rate of one for
every forty thousand."

This "as," "as," "as," "as," "as" would be slovenly work even for a
statute. It sounds little like a law, not at all like a constitution,
much like an extract from a committee's report, justifying their work,
explaining why a proposed provision may become at some unforeseen time,
necessary or desirable.

It is true that the former of these provisions was taken from the
Articles of Confederation; and that the latter is a paraphrase of the
8th resolution, but that only makes the matter worse. Their verbosity
and incongruity were thereby placed before the eyes of every member of
the Committee; and the fact that such provisions, flagrantly verbose and
inexcusably incongruous, went into a draught of the Constitution shows
that not one of the five members commanded what may be called the style
of the Constitution; while the additional fact that not one instance of
such prolixity of detail is to be found in the Pinckney draught shows
that he was the master of its style and not the Committee.

There are unquestionably clauses and sentences and provisions in the
Committee's draught which show the hand of the thoughtful statesman or
of the good lawyer. Thus to Pinckney's provisions relating to the action
of Congress on bills returned by the President with his objections, we
have, "But, in all cases, the votes of both Houses shall be determined
by yeas and nays; and the names of the persons voting for or against the
bill shall be entered on the Journal of each House respectively." And to
Pinckney's provisions concerning the conviction of treason, there is
added, "No attainder of treason shall work corruption of blood, nor
forfeiture, except during the life of the person attainted." In a word
there is manifestly more than one hand in the Committee's work. In
Pinckney's draught the warp and woof is of one texture from beginning to
end. Even when an article is made up entirely of cullings from State
constitutions and from the Articles of Confederation, the finished
fabric is unquestionably of Pinckney's weaving.

It is not to be inferred that the members of the Committee of Detail
were mediocre men or that they were negligent of the grave duty
assigned to them. Yet the work which they actually did only
demonstrates that for them to have produced a complete draught of the
Constitution--as complete as the one which they reported--entirely the
work of their own hands, in the limited time allowed them would have
been an impossibility. The reduction of the Constitution to a written
form with all its details required research, reflection, patient work
and unhurried thought. Through the wide field of State and Federal
relations, through State constitutions and the Articles of Confederation
the framer needed to search, weighing State prejudices and national
necessities, taking what was desirable, but with equal care leaving what
was objectionable. There were not five men in the world working in each
other's way, discussing each other's work, who, unassisted, could have
drawn up a constitution in which so much was embodied and so little
overlooked and have brought their patchwork contributions into one
harmonious whole within the time prescribed. The country was well filled
with men of talents, of ability, of energy, of patriotic fervor, with
men who knew the conditions of our national affairs, the difficulties
of acting, the perils of inaction, and yet the fact, undeniable, is that
only one man foresaw the coming necessity of the situation and had the
forethought to prepare a draught of the Constitution for the use of the
Convention. The more I have surveyed the situation, the greater has
appeared the necessity for some such work at the time; the more I have
studied the work of Pinckney, the more perfectly adapted to the
necessities of the situation does it appear to have been.

When Pinckney, foreseeing that a national Convention would be held and
that if it failed to frame a constitution which would give to the waning
Confederation the character and authority of nationality, the
nationality of the Confederated States might disappear, he resolutely
assigned to himself the task of framing one in which nationality should
be secure and a national government above and independent of the States
be the result. While yet a member of Congress he saw plainly these
things--that the government of the Confederated States was drifting
toward insolvency, for New York and Massachusetts alone had paid in full
their quota of the Federal expenses; that it was drifting towards war;
for at least one of the States was flagrantly violating the treaty of
peace with Great Britain; that the Congress could neither raise money
nor maintain a treaty; for the only power which it practically possessed
was to beseech the States to pay their respective shares of the Federal
expenses, and to pass as recently as March 21, 1787, resolutions urging
on the States a repeal of all laws contravening the treaty of peace with
Great Britain.

Pinckney was then in the full flush of youthful egoism, but the oldest
member of the Convention, even Franklin, could not have chosen his
method of construction more wisely. Wherever constitutional material
existed, Pinckney found it, and preferred it to his own. A single
paragraph will give an effective object lesson of his careful composite
work:

"The United States shall not grant any title of nobility" (Art.
Confederation VI). "The Legislature of the United States shall pass no
law on the subject of religion" (Constitution of New York); "nor
touching or abridging the liberty of the press" (Constitution
Massachusetts); "nor shall the privilege of the writ of habeas corpus
ever be suspended except in case of rebellion or invasion" (Constitution
Mass.).

The resolution of March 21, 1787 is as follows:

                                "WEDNESDAY, MARCH 21, 1787.

      "Resolved, That the legislatures of the several states
      cannot of right pass any act or acts, for interpreting,
      explaining, or construing a national treaty or any part or
      clause of it; nor for restraining, limiting or in any
      manner impeding, retarding or counteracting the operation
      and execution of the same, for that on being
      constitutionally made, ratified and published, they become
      in virtue of the confederation, part of the law of the
      land, and are not only independent of the will and power of
      such legislatures, but also binding and obligatory on
      them."

This becomes in the draught:

      "All acts made by the Legislature of the United States,
      pursuant to this Constitution, and all Treaties made under
      the authority of the United States, shall be the Supreme
      Law of the Land; and all Judges shall be bound to consider
      them as such in their decisions."

I have spoken of the sentence, "The citizens of each State shall be
entitled to all privileges and immunities of citizens in the several
States" as the most felicitous sentence in the Constitution, which
passed through the Committee of Detail, the Committee of Style, and the
Convention without the change of a single word. But in the Articles of
Confederation the provision stood in this prolix form:

"The better to secure and perpetuate mutual friendship and intercourse
among the people of the different States in this union, the free
inhabitants of each of these States, paupers, vagabonds, and fugitives
from Justice excepted, shall be entitled to all privileges and
immunities of free citizens in the several States; and the people of
each State shall have free ingress and egress to and from any other
State, and shall enjoy therein all the privileges of trade and commerce,
subject to the same duties, impositions and restrictions as the
inhabitants thereof respectively, provided that such restriction shall
not extend so far as to prevent the removal of property imported into
any State, to any other State of which the owner is an inhabitant."

That the work was Pinckney's we know, for the provisions set forth in
articles 12 and 13 of his draught are described in the Observations.

But though the work of Pinckney was built of the thoughts, phrases and
provisions of other men, the structure was his own; and in its details
as in its general design, he never failed in his intent that the new
republic which he was trying to found should be a nation, and that its
government should have all the powers, duties, responsibilities and
authority essential and incidental to nationality. The thought may have
been in other minds but another draughtsman by a slight change of
expression might have warped the idea and left it of no avail. It is
this comprehensive generality of treatment and expression which I am now
inclined to hold was Pinckney's greatest contribution to the
Constitution. Indeed if Marshall had laid his hand on Pinckney's
shoulder and said, "Young man, so frame your constitution that I shall
be able to interpret it according to the necessities of the Republic
and in harmony with the general requirements of our nationality,"
Pinckney would not have needed to change a single line.

For more than 70 years, Pinckney has been a condemned and misrepresented
man, and what is strange, though not inexplicable, his disgrace was
primarily caused by the indispensable work which he unselfishly
performed for his country without honor and without reward. I began the
foregoing investigation of the authenticity and verity of the draught in
the State Department in consequence of the publication of Pinckney's
letter to the Secretary of State in 1818 in which he states frankly that
the paper sent is not a literal duplicate of the draught presented to
the Convention and that the draught contained provisions which he
subsequently condemned and openly opposed during the debates. I knew of
the worst side of Pinckney's character--his egoism, his garrulousness,
his lack of cautious common sense--and in my early study of the
Constitution the Pinckney draught had seemed too much to be the work of
one man, and the charges of Madison with the implications of Elliot and
the silence of Story and the censure of Bancroft had confirmed my
suspicion and left me with a poor opinion of the draught in the State
Department and of the man who placed it there. The most which I expected
from this investigation was that I should be able to say with tolerable
certainty that a section here or a paragraph there in the Constitution,
was the work of Pinckney. But when under the pressure of unquestionable
facts, the charges of Madison fell to pieces; and when with the
refutation of a charge, just so much of the draught would be positively
verified and affirmed; and especially when it plainly appeared, not only
that in sections and articles, and provisions and sentences, the one
instrument agreed with the other but that in form and style, and
phraseology and arrangement from the words of the preamble, "We the
people do ordain, declare, and establish the following Constitution for
the government of ourselves and posterity" to the words of the last
article, "The ratifications of ---- States shall be sufficient for
organizing this Constitution," the draught of the Committee of Detail
follows the draught in the State Department, and the Constitution
follows the draught of the Committee of Detail, I was slowly forced to
the conclusion that the young South Carolinian on whom I had placed no
high estimate, had rendered a great service at a critical time, and that
but for his needed work, the Constitution would be, at least in form, a
very different instrument from the one which we revere. My slowly formed
conclusion is that if wise and judicious forethought, and much patient
work well done, and a breadth of view commensurate with the greatness of
the subject, and the production at a critical moment of a paper which
all other men in or out of the Convention had neglected to prepare,
entitle a man to the lasting recognition of his countrymen, there is no
framer of the Constitution more entitled to be commemorated in bronze or
marble than Charles Pinckney of South Carolina.




CHAPTER XV

CONCLUSIONS ON THE WHOLE CASE


There are three reasons why the Pinckney Draught has been too readily
discredited. The first is our respect for Madison, our belief that his
knowledge far exceeded our own, and our deference to his repeatedly
expressed opinion. The second is that the draught was never before the
Convention and consequently never received the recognition of
discussion. It was referred at the beginning to the Committee of the
Whole; but it was not yet wanted, for the Committee debated only
abstract propositions couched in formal resolutions. It was referred to
the Committee of Detail; but that Committee reported only their own
draught and the Convention had before them only the Committee's. The
draught of Pinckney never came to a vote, was never discussed, and never
received the slightest consideration in the Convention.

The third reason for discrediting the draught is to be found in the
exaggerated value which has been set upon it. It has seemed to be
altogether too great an instrument to have been the work of one man. We
have felt in a vague way that to concede that one man could have
contributed so much to the great instrument would be to detract from the
work and fame of the great men whom we call the framers of the
Constitution, and from the Constitution itself.

But the fact is that the draught of Pinckney is not so great as it
seems. Coming from a man so well equipped for the work, so experienced
in the existing affairs of our mixed governments and with such a clear
comprehension of the conditions of the case, and having such a mass of
material ready to his hand, the draught is not a marvelous production.
That is to say the work considered as the work of so young a man is not
so wonderful as at first it appears to be. It may come within the range
of the improbable but not of the impossible.

Madison has himself borne witness to the fact that the subject of a
substitute for the tottering power of the Confederated States was in
every man's mind; and that every intelligent man of that day was more or
less fitted to draught a general outline of a new national government:

"The resolutions of Mr. Randolph, the basis on which the deliberations
of the Convention proceeded, were the result of a consultation among the
Virginia deputies, who thought it possible that, as Virginia had taken
so leading a part in reference to the Federal Convention, some
initiative propositions might be expected from them. They were
understood not to commit any of the members absolutely or definitively
on the tenor of them. The resolutions will be seen to present the
characteristics and features of a government as complete (in some
respects, perhaps more so) as the plan of Mr. Pinckney, though without
being thrown into a formal shape. The moment, indeed, a real
constitution was looked for as a substitute for the Confederacy, the
distribution of the Government into the usual departments became a
matter of course with all who speculated upon the prospective change."
Letter to W. A. Duer, June 5th, 1835.

The difficulty of the hour was not in draughting a constitution, but in
draughting one which would not arouse the jealous antagonism of the
several States. That difficulty did not trouble Pinckney. His plan
contemplated having the people of each State fairly, _i. e._,
proportionately represented in his House of Delegates, and in making the
several States as States unequivocally submissive to the new national
authority.

Pinckney had been for two years immediately before the sitting of the
Convention, a delegate in the Congress of the Confederation. He had been
the representative of South Carolina in the "grand committee" appointed
to consider the alteration of the Articles of Confederation. He had been
chairman of the subcommittee which draughted the committee's report of
August, 1786; and (as Professor McLaughlin has pointed out) "the
introducing phrases, as appears by reference to the manuscript papers of
the old Congress, were written in Pinckney's own hand." In witnessing
the inherent weakness and increasing degradation of the Congress, he had
learned to appreciate the incapacity of the confederate system, and the
necessity of a National government. No member of the Convention better
appreciated those two things, or was better equipped for the task which
he undertook; and there was no man in the country, except Madison, who
had been through such a preparatory course and had such a combination of
resources at his command. He was young, talented, experienced,
ambitious, wealthy, unemployed and a ceaseless worker. The index of
Madison's Journal witnesses to the immense amount of work which Pinckney
did irrespective of the draught. If we discard the draught--the original
draught, the disputed draught, and the draught described in the
Observations, the fact will remain that Pinckney was an important
contributor to the work of framing the Constitution.

Pinckney's plan of government was precisely what we might expect it to
be. He was an able but not a sagacious statesman; that is he saw clearly
what he wanted, but he did not see what other men wanted. Neither did he
anticipate as a sagacious statesman would, the ignorance, the adverse
interests and the prejudices of those who ultimately would have the
power to reject or ordain the work of the Convention. Therefore he
originated none of the compromises which reconciled antagonistic views
and made the Constitution possible. The great and difficult problems
which confronted the Convention were not solved by the Draught. Pinckney
in it provided for two legislative houses and based representation on
population, neglecting to place the small States on an equal footing
with the large States in the Senate. He provided for one Executive head
as did every government in the world, but he devised no means for
uniting harmoniously the large and small States in choosing the
Executive. The Draught was an admirable instrument for its purpose--an
admirable model for the workmen of the Convention to correct, alter and
enlarge. It was crude and unfinished but it was in well chosen words and
simple sentences, eschewing particulars and presenting in a masterly way
great declaratory principles of government. Pinckney had a few fanciful
provisions in his plan and yet he was a practical and not a fanciful
constitution-maker, not above taking the best material he could find
wherever he could find it, resorting to himself last; and not above
throwing aside his own work and beginning again and again until he had
patiently wrought out the best that his ability could do. But when in
estimating the Constitutional value of the draught, we have given credit
for the admirable construction of the plan of government and for the
clear declaratory style of the instrument, and for the preamble, and
when we have discarded his original schemes, not adopted by the
Convention, such as the plan for the Senate, we find that the remainder
of the draught is made up for the most part of details suggested by his
experience in the Congress of the Confederated States, details which
were culled by him with extraordinary care from the constitutions of New
York and Massachusetts and the Articles of Confederation.

In a word, the provisions which were rejected, such as a Senate chosen
by the House of Representatives; such as a Senate having "the sole and
exclusive power" to declare war, to make treaties, to appoint foreign
ministers and judges of the Supreme Court; such as a national
legislature having power to "revise the laws of the several States" and
"to negative and annul" those which infringed the powers delegated to
Congress--do not cause either wonder or admiration. It is the valuable
practical provisions of the draught which provoke doubts. Yet these are
for the most part the work of selection by an author thoroughly versed
in what may be called the Constitutional literature and studies of the
day, and who by experience knew precisely what was needed to transmute
the Confederated States into an efficient National government.

In our minds we picture the framers of the Constitution as remarkable
men, sage in council, experienced in affairs of state. But there were
two young men, the one 36, the other 30, who furnished the constructive
minds of the Convention. Madison was foremost in framing the Virginia
resolutions, which brought before the Convention questions for abstract
discussion and bases on which to rest principles of government. Pinckney
formulated a constitution which became a basis for the most of the
concrete work. Both had had the severe practical training of members of
the Congress of the Confederated States during the sorest period of its
humiliating helplessness, the darkening days which preceded its
dissolution. Both understood thoroughly the existing system which made
the Federal government dependent upon its States and therefore inferior
to them; and they knew by what had been to them bitter experience that
the solvency of the Federal government was dependent upon the voluntary
contributions of each and all of the States, and that a single one of
the great States by refusing to pay its quota could bring the nation to
bankruptcy. They knew too that while the general government could make
treaties, the States could violate them--that they had violated them,
and even then had brought the country to the verge of a foreign war.
Their minds recoiled, as the minds of young men naturally would, to the
opposite extreme, and each believed in the subversion of the States. How
fully they agreed a single illustration will disclose.

On Friday, June 8th,

"Mr. Pinckney moved 'that the National Legislature shd. have authority
to negative all laws which they shd. judge to be improper.' He urged
that such a universality of the power was indispensably necessary to
render it effectual; that the States must be kept in due subordination
to the nation; that if the States were left to act of themselves in any
case, it wd. be impossible to defend the national prerogatives, however
extensive they might be on paper; that the acts of Congress had been
defeated by this means; nor had foreign treaties escaped repeated
violations; that this universal negative was in fact the corner stone of
an efficient national Govt."

"Mr. Madison seconded the motion. He could not but regard an indefinite
power to negative legislative acts of the States as absolutely necessary
to a perfect System. Experience had evinced a constant tendency in the
States to encroach on the federal authority; to violate national
Treaties; to infringe the rights and interests of each other; to oppress
the weaker party within their respective jurisdictions. A negative was
the mildest expedient that could be devised for preventing these
mischiefs."

But it was for these same reasons that neither Madison nor Pinckney
attempted to frame a compromise. Each wanted a national government with
unequivocal powers. Each ignored the jealousy of the small States, the
apprehensions of the slave States, the increasing preponderence of the
free States. Both intended that these elements of distrust should be
absorbed by the overwhelming power of the new national government. For
more than 100 years the American people have kept the cardinal idea of
these youthful statesmen buried from sight or contemplation as something
impractical or dangerous but they are now beginning to ask themselves
whether an overwhelming national government is not the better agency for
the control and management of their modern, complex, national life.

Considering that Madison and Pinckney worked in such different fields,
the abstract and the concrete, it is remarkable that the work of the one
repeatedly and constantly agrees with the work of the other. Considering
that they had worked side by side for years conferring daily on the same
absorbing subject, encountering the same difficulties, thwarted by the
same obstacles, defeated by the same incapacities, their minds intent
on the same ends, it is not remarkable that an identity of purpose was
followed, though in different forms, by an identity of results and that
the work of Pinckney was little more than an embodiment of the
propositions of Madison. Together they furnished just what the
necessities of the hour required, ideas of government for consideration
and discussion; formulated constitutional provisions for amendment and
adoption. Greatly to be regretted it is that the two men who did such
valuable interserviceable work for the cause to which their lives were
then devoted, and whose names should be most closely associated in the
history of the Constitution, now appear so irretrievably antagonistic.

There are some provisions in the draught which are not sustained by the
confirmatory fact of being incorporated in the draught of the Committee
of Detail, and notably the following:

"The legislature of the United States shall have the power" "to pass
laws for arming, organizing and disciplining the militia of the United
States," Art. 6. This power to organize and discipline the militia was a
radical transfer of authority from the States to the new national
government, a power which the committee were not instructed to transfer
and which accordingly they did not incorporate in their draught. But it
is specifically set forth in the Observations as one of the provisions
of the draught; and on the 18th of August Pinckney advocated in the
Convention substantially the same thing.

The draught also provides that the legislature of the United States
shall have power, "To provide for the establishment of a seat of
government for the United States, not exceeding ---- miles square, in
which they shall have exclusive jurisdiction." Art. 6. This also was a
radical innovation which the Committee could not adopt without
authority. But it was also specifically set forth in the Observations;
and on the 18th of August Pinckney moved in the Convention;

"To fix and permanently establish the seat of government of the United
States in which they shall possess the exclusive right of soil and
jurisdiction."

The draught also provides, "nor shall the privilege of the writ of
habeas corpus ever be suspended, except in cases of rebellion or
invasion." Art. 6.

The Convention shrank from the insertion of a bill of rights in the
Constitution because, as was subsequently explained, it was feared that
it might bring up the subject of slavery, one member insisting that it
should contain a declaration against slavery, and another that it should
specifically declare that it did not extend to slaves. Accordingly the
committee did not incorporate this declaration of right in their
draught. But it is set forth in the Observations; and on the 20th of
August Pinckney proposed in the Convention a stronger and more explicit
provision.

These provisions, therefore, are sustained by the public,
contemporaneous avowal of Pinckney that they were in the draught which
he had prepared for the use of the Convention; and by the recorded facts
that when he found that the committee had not considered them as within
their jurisdiction and had not incorporated them in their draught he
brought them before the Convention and sought to have them inserted in
the Constitution. As it is certain that the ideas were his, and that he
formulated them into provisions substantially identical with those in
the State Department draught, at the time when the Convention was
considering the respective subjects, it requires very little additional
assurance to make us accept them as a part of the draught presented to
the Convention.

Conversely, there are provisions which may have been in the draught
presented to the Convention, but which are not in the draught filed in
the State Department. The most notable of these is the one relating to
patents and copyright. Pinckney says in the Observations "There is also
an authority to the national legislature" "to secure to authors the
exclusive right to their performances and discoveries;" and on the 18th
of August he moved in the Convention to insert among other powers "To
grant patents for useful inventions."

If the provision was in the original draught, the Committee of Detail
were not authorized to adopt it and did not; but the Convention did and
it became a part of the Constitution. Pinckney was constantly nursing
his draught, revising, amending, rearranging, and it is not improbable
that he inserted this provision in one copy and neglected to insert it
in the others. But he certainty seems to have been the author of it.
From one point of view it may seem a needless Constitutional provision;
for a national legislature could so legislate without it. But under the
British Constitution monopolies were a prerogative of the Crown, and a
patent was deemed a monopoly. Pinckney therefore did wisely in expressly
assigning patent-rights and copyrights to the legislative branch of the
Government, giving to the mind-work of the inventor or author the
character of property and the safeguard of the law.

Another provision is the compromise relating to slave representation. In
the State Department draught it is provided that the number of the
delegates shall be regulated "by the number of inhabitants" (Art. 3) and
that "the proportion of direct taxation shall be regulated by the whole
number of inhabitants of every description." In the Observations he says
that his plan contains a provision "for empowering Congress to levy
taxes upon the States, agreeable to the rule now in use, an enumeration
of the white inhabitants, and three-fifths of other descriptions." In
the Convention on the 12th of July, "Mr. Pinckney moved to amend Mr.
Randolph's motion so as to make 'blacks equal to the whites in the ratio
of representation.' This he urged was nothing more than justice. The
blacks are the labourers, the peasants of the Southern States: they are
as productive of pecuniary resources as those of the Northern States.
They add equally to the wealth, and, considering money as the sinews of
war, to the strength of the nation. It will also be politic with regard
to the Northern States, as taxation is to keep pace with
Representation."

This is conclusive as to Pinckney's views. It confirms the draught in
the State Department and shows too that the copy of the draught on which
the Observations were founded differed in this detail from the draught
presented to the Convention.

On a review of the entire case I have reached the following conclusions:

1. The draught in the State Department agrees so closely with the
draught of the Committee of Detail, in form, in phraseology, in
structure, in arrangement, in extent, in its beginning and its ending
that unquestionably the one draught must have followed the other. There
can be no middle ground here.

2. With the uncovering of the Committee's draught and the bringing of
the Observations into the case and the confirmatory matter in the
Randolph and Wilson draughts, it becomes evident that the suspected
fraud was an impossibility. That is to say, when Pinckney described in
the Observations the draught which he was subsequently to present to the
Convention he thereby described the draught which he was ultimately to
place in the Department of State. In a word, if a fraud was perpetrated
in 1818, it must have been begun in 1787, before the Convention met,
which is a reductio ad absurdum.

3. The Observations were printed and published during the lifetime of
every member of the Convention, including the five members of the
Committee of Detail, and Pinckney immediately republished them in the
South Carolina State Gazette. In 1819 when the copy of the draught was
published and circulated as a public document there were 16 members of
the Convention still living, among whom was Madison, the chronicler of
the Convention.

It must therefore be held that Pinckney did not conceal anything or
shrink from investigation; and that all which he did was done in due
time, in the light of day and in the most open manner. Indeed it may be
asked whether there ever was an historical document which was so doubly
published and declared both prior to and at the time when it was
produced as the Pinckney draught; or which could have been so easily
refuted, if it was really refutable? A court of justice in such a case
would say, "The plea of fraud is sustained by no evidence whatever. To
allow a document which was placed in the files of the Government at the
instance of a high officer of State to be attacked and discredited
because of the doubts and suspicions of individuals, no matter how
eminent and intelligent, would be a monstrous abuse of authority which
can not be upheld in either law or morals."

4. A question may be raised as to whether the Journal of Madison can
properly be admitted as evidence against the claim of Pinckney; and it
must be conceded that Madison occupied the position of a
controversialist; that during the whole of the period of controversy his
chronicle of the Convention was in his exclusive possession; and that it
was within his power at any moment to obliterate parts or passages
which, coming to the knowledge of the world, would weaken his own
position and vindicate Pinckney and sustain the draught. But such a
suggestion against the integrity of such a man is not to be lightly
entertained. It is no more to be believed without evidence (and evidence
of the most clear and unequivocal character) that Madison, for his own
purposes, obliterated historical evidence, than that Pinckney fabricated
it. Each was a member of the Congress of the Confederation; each was a
delegate to the great Convention; each was eminent for his zeal in the
prolonged and often hopeless work of framing the Constitution; each has
left behind him a long record of distinguished public life. The one
laboriously prepared the only draught of the Constitution that was made
for the use of the Convention; and the other laboriously prepared the
only chronicle of the framers' work which the world possesses. It is not
for the bitterness of controversy, heedlessly, to assail such men.

5. The Journal of Madison must be received as authentic history. At the
same time it must be borne in mind that it was not written with the
fulness and precision of the modern stenographer. Madison could not
transcribe the words which a speaker uttered and leave us to ascertain
the speaker's meaning from his words. All that such a reporter could do
was to record what he believed to be the speaker's meaning. It follows
that condensed passages, isolated sentences, casual turns of expression
cannot be used as admissions against Pinckney, and must be considered
with disinterested caution, if they be considered at all.

       *       *       *       *       *

Time which destroys, also discloses; and time may bring to light some
record which will change the conclusions of to-day. But as the case now
stands it must be said that the Pinckney Draught in the Department of
State is (with the exceptions before noted), all that Pinckney
represented it to be.




CHAPTER XVI

OF PINCKNEY PERSONALLY


Pinckney was in the fourth generation of a family which had been
distinguished for more than one hundred years for its public services.
He had been elected to the provincial legislature of South Carolina
before he had come of age; and he had made himself before the sitting of
the Convention a prominent member of the Congress of the Confederated
States. He had a clearer apprehension of the actual needs of American
nationality than any other member of the Convention. This may be seen in
his Observations and in his speech of the 25th of June. There is a
passage in that speech in which anticipating the Farewell Address of
Washington and the peace policy of Jefferson he looks forward through
the ensuing century of the Constitution and depicts the practical
blessings which it was to bring to the American people with a clearness
and accuracy that is extraordinary:

"Our true situation appears to me to be this--a new, extensive country,
containing within itself the materials for forming a government capable
of extending to its citizens all the blessings of civil and religious
liberty--capable of making them happy at home. This is the great end of
republican establishments. We mistake the object of our government, if
we hope or wish that it is to make us respectable abroad. Conquests or
superiority among other powers is not, or ought not ever to be, the
object of republican systems. If they are sufficiently active and
energetic to rescue us from contempt, and preserve our domestic
happiness and security, it is all we can expect from them--it is more
than almost any other government insures to its citizens."

Pinckney's experience in the Congress of the Confederation made him
despise the existing Federal Government and undervalue the local
authority of the States. He came into the Convention its most extreme
Federalist--more so even than Hamilton. As he said in the Observations:

"In the federal councils, each State ought to have a weight in
proportion to its importance; and no State is justly entitled to
greater."

"The Senatorial districts into which the Union is to be divided [in his
plan] will be so apportioned as to give to each its due weight, and the
Senate calculated in this as it ought to be in every government, to
represent the wealth of the nation."

"The next provision [in his draught] is intended to give the United
States in Congress, not only a revision of the legislative acts of each
State, but a negative upon all such as shall appear to them improper."

"The idea that has been so long and falsely entertained of each being a
sovereign State, must be given up; for it is absurd to suppose there can
be more than one sovereignty within a government."

"Upon a clear and comprehensive view of the relative situation of the
Union, and its members, we shall be convinced of the policy of
concentring in the federal head a complete supremacy in the affairs of
government."

In the Convention Pinckney moved that the members of the lower House
should be chosen by the legislatures "of the several States"; but this
was the one thing which he conceded to "the several States." The Senate
was to be chosen by the House of Delegates; and what is more
significant, the Senate was not to represent States, with the saving
clause, "Each State shall be entitled to have at least one member in the
Senate." Finally he would strike an absolutely fatal blow at State
sovereignty by providing, "the Legislature of the United States shall
have the power to revise the Laws of the several States that may be
supposed to infringe the powers exclusively delegated by this
Constitution to Congress, and to negative and annul such as do."

Knowing as we do of Pinckney's youth (he was not yet 30) and of
Madison's poor opinion of him, it is desirable that we should know, if
possible, what his contemporaries in the Convention thought of him.
William Pierce the delegate from Georgia who has left to us the anecdote
of Washington before quoted (p. 230) noted at the time his impressions
of the leading members of the Convention. From these I select his
sketches of four of the young members of the Convention who had even
then attained distinction, Edmund Randolph, Rufus King, Alexander
Hamilton and Charles Pinckney:

"Mr. Randolph is Governor of Virginia--a young gentleman in whom unite
all the accomplishments of the Scholar and the Statesman. He came
forward with the postulata or first principles on which the Convention
acted; and he supported them with a force of eloquence and reasoning
that did him great honor. He has a most harmonious voice, a fine person
and striking manners."

"Mr. King is a Man much distinguished for his eloquence and great
parliamentary talents. He was educated in Massachusetts, and is said to
have good classical as well as legal knowledge. He has served for three
years in the Congress of the United States with great and deserved
applause, and is at this time high in the confidence and approbation of
his Countrymen. This Gentleman is about thirty-three years of age, about
five feet ten Inches high, well formed, an handsome face, with a strong
expressive Eye, and a sweet high toned voice. In his public speaking
there is something peculiarly strong and rich in his expression, clear,
and convincing in his arguments, rapid and irresistible at times in his
eloquence but he is not always equal. His action is natural, swimming,
and graceful, but there is a rudeness of manner sometimes accompanying
it. But take him _tout en semble_, he may with propriety be ranked among
the Luminaries of the present age."

"Col. Hamilton is deservedly celebrated for his talents. He is a
practitioner of the Law, and reputed to be a finished Scholar. To a
clear and strong judgment he unites the ornaments of fancy, and whilst
he is able, convincing, and engaging in his eloquence the Heart and Head
sympathize in approving him. Yet there is something too feeble in his
voice to be equal to the strains of oratory;--it is my opinion that he
is a convincing Speaker, that (than) a blazing Orator. Col. Hamilton
requires time to think,--he enquires into every part of his subject with
the searchings of phylosophy, and when he comes forward he comes highly
charged with interesting matter, there is no skimming over the surface
of a subject with him, he must sink to the bottom to see what foundation
it rests on.--His language is not always equal, sometimes didactic like
Bolingbroke's, at others light and tripping like Sterne's. His eloquence
is not so defusive as to trifle with the senses, but he rambles just
enough to strike and keep up the attention. He is about 33 years old, of
small stature, and lean. His manners are tinctured with stiffness, and
sometimes with a degree of vanity that is highly disagreeable."

"Mr. Charles Pinckney is a young Gentleman of the most promising
talents. He is, altho' only 24 [29] y's of age, in possession of a very
great variety of knowledge. Government, Law, History and Phylosophy are
his favorite studies, but he is intimately acquainted with every species
of polite learning, and has a spirit of application and industry beyond
most Men. He speaks with neatness and perspicuity, and treats every
subject as fully, without running into prolixity, as it requires. He has
been a member of Congress, and served in that Body with ability and
eclat." (_William Pierce of Georgia_; 3 Amer. Hist. Review, 313.)

In this materialistic world of cause and effect there sometimes seem to
be recurring fatalities which attend individuals that needlessness has
not caused and that foresight could not have prevented--a fate of fire
or flood or shipwreck, of good fortune or of bad fortune, of successes
or of casualties of escapes or of disasters--a fate that fastens upon an
individual and cannot be shaken off. The fate assigned to Pinckney seems
to have been oblivion. Substantially everything which he prized is gone.
His house was one of the finest in Charleston, if not the finest, and it
was destroyed. He believed his library to be the most valuable library
in the South and his great gallery to hold the rarest pictures in this
country yet but a few volumes remain of the one and but two portraits of
the other. His garden was the most beautiful in the State, it was his
pride, his delight, and obliteration has indeed been its portion; even
the soil which bore him flowers and shrubbery and trees and was laden
with all the loveliness of semi-tropical vegetation is gone; for it was
carried away during the Civil War to make military defenses. At the
beginning of this investigation I began to search for the papers of
which Pinckney speaks in his letter to the Secretary of State--papers
which might throw new light on the framing of the Constitution or solve
the problem of the contents of the draught. In this search General
McCrady, of Charleston kindly and sympathetically co-operated, but I
soon received his assurance that the quest was not a new one for him,
and that neither in the Historical Society of South Carolina of which he
was President nor in the possession of his friends could a document or
paper or even a letter be found. At that time I desired to obtain a
specimen of Pinckney's early handwriting and accordingly carried my
pursuit into the circle of his direct descendants; but the sad reply
came from his great-grandson, Mr. Charles Pinckney of Claremont, South
Carolina that "all of his papers and private manuscripts were destroyed
in the great fire in Charleston in 1861," and that his descendants
possess "no remains of his handwriting except the autographs in his
books." Letters and papers of eminent men are constantly coming to the
light from unexpected hiding places and there is the official
correspondence in the State Department and papers may exist in the
public offices of South Carolina, but apart from these, my
investigation stops at a point where it must be said that not so much as
a single line of the writing of Charles Pinckney now exists.

In 1787 while Pinckney was in the full possession of his youthful power
and fortune and all those things which give a man a prestige above his
fellows, fate seems to have leaned forward and touched the instrument
which was the supreme work of his life, the Draught of the Constitution
of the United States--and to have set a seal upon the lips of every man
who could testify as to its contents. If ever there was a paper of which
it might be predicted that it would survive its time and be securely
kept, that was the paper. The Convention was composed of the most
orderly, caretaking and reputable of men, and the author of the draught
was one of them. The command of the Convention was that its papers
should be preserved. The papers were placed in the custody of the most
scrupulous of men and by him transferred to the official guardianship of
a department of the Government, and there we might expect to find the
draught of Pinckney; but fate had touched the great State paper, and we
find only that it had vanished mysteriously from the earth.

       *       *       *       *       *

The following biographical sketch is by Mr. Wm. S. Elliott, of South
Carolina, a grand nephew of Pinckney:

"In the diploma, by which the degree of Doctor of Laws was conferred
upon him by the University of Princeton, New Jersey, it is expressly
declared, that it 'is conferred on account of high acquirements,
learning and ability, and particularly for his distinguished services in
Congress and the Federal Convention.' From 1787 to 1789, he was
traveling on the Continent and on his return, was elected Governor of
the State. While Governor, he was a delegate to, and made president of
the State Convention for forming the Constitution. In 1791 he was chosen
a second time, and in 1796 a third time, Governor of the State; in 1798
a Senator in Congress, where he remained until 1801, when Mr. Jefferson
appointed him Minister Plenipotentiary to Spain, with power to treat for
the purchase of Louisiana and Florida. On his return in 1806, he was a
fourth time honored with the position of Governor of the State, and he
is the only citizen who has been so frequently elevated to the executive
chair. From this period he retired from public life, until in 1818, when
he was elected under great party excitement to the United States House
of Representatives by Charleston District, and he here closed his
political life with his speech in opposition to the Missouri Compromise.

"Family tradition and genealogical history are the very reverse of
amber, which, itself a valuable substance, usually includes trifles;
whereas, these trifles being in themselves very insignificant and
trifling do, nevertheless, serve to perpetuate a great deal of what is
rare and valuable in ancient manners, and to record many curious and
minute facts, which could have been preserved and conveyed through no
other medium.

"Charles Pinckney professed an exquisite appreciation of the beautiful
in nature and in art. His collection of paintings, statuettes, medals,
etc., rendered his house almost a museum. His fine library, occupying an
entire suite of three large rooms--the floors and windows of which were
kept richly carpeted and curtained, while the ceilings were decorated
with classic representations--is supposed to have contained near twenty
thousand of the rarest and choicest books, collected from every part of
the Continent, and in every language spoken in the enlightened world."

               Thomas Pinckney,
     who settled in South Carolina in 1687,
                was the father of
                  (2)             (3)
              William,           Thomas.
          Master in Chancery.
               His Son,
          Col. Chas. Pinckney.
               His Son,
      Governor Charles Pinckney.
               His Son,
       Hon. Henry L. Pinckney.

"A life of Charles Pinckney was prepared and in the possession of the
Hon. Henry L. Pinckney for revision and addition; with it were his
valuable papers. The fire of 1861, which desolated the city of
Charleston, destroyed almost everything, and this, and the former essay,
are compiled from many stray notes, mutilated manuscripts and a few
papers, still in our possession.

"A very strange and melancholy feeling overtakes us as we search the
remains of Charles Pinckney. Here is a man upon whom Heaven appears to
have showered its gifts. Distinguished in ancestry, possessing fine
intellect, vigorous health, and large fortune, with his political
ambition fully gratified, of refined tastes and cultivation, linking his
name successfully and eminently, with his day and his race, and yet,
here are his memorials in a few tattered bits of paper, scarcely
decipherable. His ashes are in the family burying ground. The spot is
known. No stone, however, marks his final resting-place. His house in
Charleston years ago, passed into the hands of the stranger, and has
been torn down. The very earth has been removed, and now forms one of
the fortifications of White Point Battery, erected during the late war
for the defense of the city of Charleston. The library is broken and
scattered. The picture of Lady Hamilton, and his own portrait, are the
only two that we know of that remain of his once splendid gallery. The
beautiful grounds of "FEE FARM" have disappeared, and the plough runs
its furrows through the grove, and the grave-yard.". DeBow's Review,
April 2, 1866.




APPENDIX


MR. CHARLES PINCKNEY'S DRAUGHT OF A FEDERAL GOVERNMENT


We the people of the States of New Hampshire Massachusetts Rhode Island
& Providence Plantations--Connecticut New York New Jersey Pennsylvania
Delaware Maryland Virginia North Caroline South Carolina & Georgia do
ordain declare & establish the following Constitution for the Government
of Ourselves and Posterity.


Article 1:

The Stile of This Government shall be The United States of America & The
Government shall consist of supreme legislative Executive and judicial
Powers--


2

The Legislative Power shall be vested in a Congress To consist of Two
separate Houses--One to be called The House of Delegates & the other the
Senate who shall meet on the * * * day of * * * in every Year


3

The members of the House of Delegates shall be chosen every * * * Year
by the people of the several States & the qualification of the electors
shall be the same as those of the Electors in the several States for
their legislatures--each member shall have been a citizen of the United
States for * * * Years--shall be of * * * Years of age & a resident of
the State he is chosen for--until a census of the people shall be taken
in the manner herein after mentioned the House of Delegates shall
consist of * * * to be chosen from the different states in the following
proportions--for New Hampshire. * * * for Massachusetts * * * for Rhode
Island * * *. for Connecticut. * * * for New York * * * for New Jersey,
* * * for Pennsylvania. * * * for Delaware * * * for Maryld * * * for
Virginie. * * * for North Caroline * * * for South Carolina----. for
Georgia----. & the Legislature shall hereafter regulate the number of
delegates by the number of inhabitants according to the Provisions
hereinafter made, at the rate of one for every * * * thousand----all
money bills of every kind shall originate in the house of Delegates &
shall not be altered by the Senate--The House of Delegates shall
exclusively possess the power of impeachment & shall choose its own
Officers & Vacancies therein shall be supplied by the Executive
authority of the State in the representation from which they shall
happen--


4

The Senate shall be elected & chosen by the House of Delegates which
House immediately after their meeting shall choose by ballot * * *
Senators from among the Citizens & residents of New Hampshire. * * *
from among those of Massachusetts. * * * from among those of Rhode
Island. * * * from among those of Connecticut. * * * from among those of
New York. * * * from among those of New Jersey * * * from among those of
Pennsylvanie * * * from among those of Delaware-- * * * from among those
of Maryland, * * * from among those of Virginia * * * from among those
of North Caroline * * * from among those of South Caroline & * * * from
among those of Georgia--

The Senators chosen from New Hampshire Massachusetts Rhode Island &
Connecticut shall form one class--those from New York New Jersey
Pennsylvanie & Delaware one class--& those from Maryland Virginie North
Caroline South Caroline & Georgia one class--

The House of Delegates shall number these Classes one two three & fix
the times of their service by Lot--the first Class shall serve for * * *
Years--the second for * * * Years & the third for * * * Years--as their
Times of service expire the House of Delegates shall fill them up by
Elections for * * * Years & they shall fill all Vacancies that arise
from death or resignation for the Time of service remaining of the
members so dying or resigning--

Each Senator shall be * * * years of age at leest--shall have been a
Citizen of the United States at 4 Years before his Election & shall be a
resident of the state he is chosen from--

The Senate shall choose its own Officers


5

Each State shall prescribe the time & manner of holding Elections by the
People for the house of Delegates & the House of Delegates shall be the
judges of the Elections returns & Qualifications of their members.

In each house a Majority shall constitute a Quorum to do
business--Freedom of Speech & Debate in the legislature shall not be
impeached or Questioned in any place out of it & the Members of both
Houses shall in all cases except for Treason Felony or breach of the
Peace be free from arrest during their attendance at Congress & in going
to & returning from it--both houses shall keep journals of their
Proceedings & publish them except on secret occasions & the yeas and
nays may be entered thereon at the desire of one * * * of the members
present.

Neither house without the consent of the other shall adjourn for more
than * * * days nor to any Place but where they are sitting.

The members of each house shall not be eligible to or capable of holding
any office under the Union during the time for which they have been
respectively elected nor the members of the Senate for one Year after--

The members of each house shall be paid for their services by the
State's which they represent--

Every bill which shall have passed the Legislature shall be presented to
the President of the United States for his revision--if he approves it
he shall sign it--but if he does not approve it he shall return it with
his objections to the house it originated in, which house if two thirds
of the members present, notwithstanding the Presidents objections agree
to pass it, shall send it to the other house with the Presidents
Objections, where if two thirds of the members present also agree to
pass it, the same shall become a law--& all bills sent to the President
& not returned by him within * * * days shall be laws unless the
Legislature by their adjournment prevent their return in which case they
shall not be laws.


6th

The Legislature of the United States shall have the power to lay &
collect Taxes, Duties, Imposts & Excises

To regulate Commerce with all nations & among the several states--

To borrow money & emit bills of Credit

To establish Post Offices

To raise armies

To build & equip Fleets

To pass laws for arming organising & disciplining the Militia of the
United States--

To subdue a rebellion in any state on application of its legislature

To coin money & regulate the Value of all coins & fix the Standard of
weights & measures

To provide such Dock Yards & arsenals & erect such fortifications as may
be necessary for the United States, & to exercise exclusive Jurisdiction
therein

To appoint a Treasurer by ballott

To constitute Tribunals inferior to the Supreme Court

To establish Post & military roads

To establish and provide for a national University at the Seat of the
Government of the United States--

To establish uniform rules of Naturalization

To provide for the establishment of a Seat of Government for the United
States not exceeding * * * miles square in which they shall have
exclusive jurisdiction

To make rules concerning Captures from an Enemy

To declare the law & Punishment of piracies & felonies at sea & of
counterfeiting Coin & of all offences against the Laws of Nations

To call forth the aid of the Militia to execute the laws of the Union
enforce treaties suppress insurrections & repel invasions

And to make all laws for carrying the foregoing powers into execution.--

The Legislature of the United States shall have the Power to declare the
Punishment of Treason which shall consist only in levying War against
the United States or any of them or in adhering to their Enemies.--No
person shall be convicted of Treason but by the Testimony of two
Witnesses.--

The proportions of direct Taxation shall be regulated by the whole
number of inhabitants of every description which number shall within * *
* Years after the first meeting of the Legislature & within the term of
every * * * Years after be taken in the manner to be prescribed by the
legislature

No tax shall be laid on articles exported from the States--nor
capitation tax but in proportion to the Census before directed

All laws regulating Commerce shall require the assent of two thirds of
the members present in each house--

The United States shall not grant any title of Nobility--

The Legislature of the United States shall pass no Law on the subject of
Religion, nor touching or abridging the Liberty of the Press nor shall
the Privilege of the Writ of Habeas Corpus ever be suspended except in
case of Rebellion or Invasion

All acts made by the Legislature of the United States pursuant to this
Constitution & all Treaties made under the authority of the United
States shall be the Supreme Law of the Land & all Judges shall be bound
to consider them as such in their decisions


7

The Senate shall have the sole and exclusive power to declare war & to
make treaties & to appoint Ambassadors & other Ministers to Foreign
nations & Judges of the Supreme Court

They shall have the exclusive power to regulate the manner of deciding
all disputes & Controversies now subsisting or which may arise between
the States respecting Jurisdiction or Territory


8

The Executive Power of the United States shall be vested in a President
of the United States of America which shall be his stile & his title
shall be His Excellency----He shall be elected for * * * Years & shall
be re-eligible.

He shall from time give information to the Legislature of the state of
the Union & recommend to their consideration the measures he may think
necessary--he shall take care that the laws of the United States be duly
executed: he shall commission all the Officers of the United States &
except as to Ambassadors other ministers & Judges of the Supreme Court
he shall nominate & with the consent of the Senate appoint all other
Officers of the United States--He shall receive public Ministers from
foreign nations & may correspond with the Executives of the different
states--He shall have power to grant pardons and reprieves except in
impeachments--He shall be commander in chief of the army & navy of the
United States & of the Militia of the several states, & shall receive a
compensation which shall not be increased or diminished during his
continuance in office--At Entering on the Duties of his office he shall
take an Oath to faithfully execute the duties of a President of the
United States--He shall be removed from his office on impeachment by the
house of Delegates & Conviction in the supreme Court of Treason bribery
or Corruption--In case of his removal death resignation or disability
The President of the Senate shall exercise the duties of his office
until another President be chosen--& in case of the death of the
President of the Senate the Speaker of the House of Delegates shall do
so----


9

The Legislature of the United States shall have the Power & it shall be
their duty to establish such Courts of Law Equity & Admiralty as shall
be necessary--the Judges of these Courts shall hold their Offices during
good behavior & receive a compensation which shall not be increased or
diminished during their continuance in office--One of these Courts shall
be termed the Supreme Court whose Jurisdiction shall extend to all cases
arising under the laws of the United States or affecting ambassadors
other public Ministers & Consuls--To the trial of impeachments of
Officers of the United States--To all cases of Admiralty & maritime
jurisdiction--In cases of impeachment affecting Ambassadors and other
public Ministers the Jurisdiction shall be original & in all the other
cases appellate--

All Criminal offences (except in cases of impeachment) shall be tried in
the state where they shall be committed--the trial shall be open &
public & be by Jury--


10

Immediately after the first census of the people of United States the
House of Delegates shall apportion the Senate by electing for each State
out of the Citizens resident therein one Senator for every * * *
members such state shall have in the house of Delegates--Each State
however shall be entitled to have at least one member in the
Senate------


11

No State shall grant Letters of marque & reprisal or enter into treaty
or alliance or confederation nor grant any title of nobility nor without
the Consent of the Legislature of the United States lay any impost on
imports--nor keep Troops or Ships of War in Time of peace--nor enter
into compacts with other states or foreign powers or emit bills of
Credit or make anything but Gold Silver or Copper a Tender in payment of
debts nor engage in War except for self defence when actually invaded or
the danger of invasion is so great as not to admit of delay until the
Government of the United States can be informed thereof--& to render
these prohibitions effectual the Legislature of the United States shall
have the power to revise the laws of the several states that may be
supposed to infringe the Powers exclusively delegated by the
Constitution to Congress & to negative & annul such as do


12

The Citizens of each state shall be entitled to all privileges &
immunities of Citizens in the several states--

Any person charged with Crimes in any State fleeing from Justice in
another shall on demand of the Executive of the State from which he
fled be delivered up & removed to the State having jurisdiction of the
Offence--


13

Full faith shall be given in each State to the acts of the Legislature &
to the records & judicial Proceedings of the Courts & Magistrates of
every State


14

The Legislature shall have power to admit new States into the Union on
the same terms with the original States provided two thirds of the
members present in both houses agree


15

On the application of the legislature of a State the United States shall
protect it against domestic insurrections


16

If Two Thirds of the Legislatures of the States apply for the same The
Legislature of the United States shall call a Convention for the purpose
of amending the Constitution--Or should Congress with the Consent of Two
thirds of each house propose to the States amendments to the same--the
agreement of Two Thirds of the Legislatures of the States shall be
sufficient to make the said amendments Parts of the Constitution

The Ratifications of the * * * Conventions of * * * States shall be
sufficient for organizing this Constitution.--

       *       *       *       *       *

DRAUGHT OF THE COMMITTEE OF DETAIL.


We the People of the States of New Hampshire, Massachusetts,
Rhode-Island, and Providence Plantations, Connecticut, New York, New
Jersey, Pennsylvania, Delaware, Maryland, Virginia, North-Carolina,
South-Carolina, and Georgia, do ordain, declare and establish the
following Constitution for the Government of Ourselves and our
Posterity.


Article I

The stile of this Government shall be, "The United States of America."


II

The Government shall consist of supreme legislative, executive and
judicial powers.


III

The legislative power shall be vested in a Congress, to consist of two
separate and distinct bodies of men, a House of Representatives, and a
Senate; each of which shall in all cases, have a negative on the other.
The Legislature shall meet on the first Monday in December in every
year.


IV

_Sect. 1._ The Members of the House of Representatives shall be chosen
every second year, by the people of the several States comprehended
within this Union. The qualifications of the electors shall be the same,
from time to time, as those of the electors in the several States, of
the most numerous branch of their own legislatures.

_Sect. 2._ Every Member of the House of Representatives shall be of the
age of twenty-five years at least; shall have been a citizen in the
United States for at least three years before his election; and shall
be, at the time of his election, a resident of the State in which he
shall be chosen.

_Sect. 3._ The House of Representatives shall, at its first formation,
and until the number of citizens and inhabitants shall be taken in the
manner herein after described, consist of sixty-five Members, of whom
three shall be chosen in New Hampshire, eight in Massachusetts, one in
Rhode-Island and Providence Plantations, five in Connecticut, six in New
York, four in New Jersey, eight in Pennsylvania, one in Delaware, six in
Maryland, ten in Virginia, five in North-Carolina, five in
South-Carolina, and three in Georgia.

_Sect. 4._ As the proportions of numbers in the different States will
alter from time to time; as some of the States may hereafter be divided;
as others may be enlarged by addition of territory; as two or more
States may be united; as new States will be erected within the limits of
the United States, the Legislature shall, in each of these cases,
regulate the number of representatives by the number of inhabitants,
according to the provisions herein after made, at the rate of one for
every forty thousand.

_Sect. 5._ All bills for raising or appropriating money, and for fixing
the salaries of the officers of government, shall originate in the House
of Representatives, and shall not be altered or amended by the Senate.
No money shall be drawn from the public Treasury, but in pursuance of
appropriations that shall originate in the House of Representatives.

_Sect. 6._ The House of Representatives shall have the sole power of
impeachment. It shall choose its Speaker and other officers.

_Sect. 7._ Vacancies in the House of Representatives shall be supplied
by writs of election from the executive authority of the State, in the
representation from which they shall happen.


V

_Sect. 1._ The Senate of the United States shall be chosen by the
Legislatures of the several States. Each Legislature shall chuse two
members. Vacancies may be supplied by the Executive until the next
meeting of the Legislature. Each member shall have one vote.

_Sect. 2._ The Senators shall be chosen for six years; but immediately
after the first election they shall be divided, by lot, into three
classes, as nearly as may be, numbered one, two and three. The seats of
the members of the first class shall be vacated at the expiration of the
second year, of the second class at the expiration of the fourth year,
of the third class at the expiration of the sixth year, so that a third
part of the members may be chosen every second year.

_Sect. 3._ Every member of the Senate shall be of the age of thirty
years at least; shall have been a citizen in the United States for at
least four years before his election; and shall be, at the time of his
election, a resident of the State for which he shall be chosen.

_Sect. 4._ The Senate shall chuse its own President and other officers.


VI

_Sect. 1._ The times and places and the manner of holding the elections
of the members of each House shall be prescribed by the Legislature of
each State; but their provisions concerning them may, at any time, be
altered by the Legislature of the United States.

_Sect. 2._ The Legislature of the United States shall have authority to
establish such uniform qualifications of the members of each House, with
regard to property, as to the said Legislature shall seem expedient.

_Sect. 3._ In each House a majority of the members shall constitute a
quorum to do business; but a smaller number may adjourn from day to day.

_Sect. 4._ Each House shall be the judge of the elections, returns and
qualifications of its own members.

_Sect. 5._ Freedom of speech and debate in the Legislature shall not be
impeached or questioned in any court or place out of the Legislature;
and the members of each House shall, in all cases, except treason,
felony and breach of the peace, be privileged from arrest during their
attendance at Congress, and in going to and returning from it.

_Sect. 6._ Each House may determine the rules of its proceedings; may
punish its members for disorderly behaviour; and may expel a member.

_Sect. 7._ The House of Representatives, and the Senate, when it shall
be acting in a legislative capacity, shall keep a journal of their
proceedings, and shall, from time to time, publish them: and the yeas
and nays of the members of each House, on any question, shall, at the
desire of one-fifth part of the members present, be entered on the
journal.

_Sect. 8._ Neither House, without the consent of the other, shall
adjourn for more than three days nor to any other place than that at
which the two Houses are sitting. But this regulation shall not extend
to the Senate, when it shall exercise the powers mentioned in the * * *
article.

_Sect. 9._ The members of each House shall be ineligible to, and
incapable of holding any office under the authority of the United
States, during the time for which they shall respectively be elected:
and the members of the Senate shall be ineligible to, and incapable of
holding any such office for one year afterwards.

_Sect. 10._ The members of each House shall receive a compensation for
their services, to be ascertained and paid by the State, in which they
shall be chosen.

_Sect. 11._ The enacting stile of the laws of the United States shall
be. "Be it enacted, and it is hereby enacted by the House of
Representatives, and by the Senate of the United States, in Congress
assembled."

_Sect. 12._ Each House shall possess the right of originating bills,
except in the cases beforementioned.

_Sect. 13._ Every bill, which shall have passed the House of
Representatives and the Senate, shall, before it become a law, be
presented to the President of the United States for his revision: if,
upon such revision, he approve of it, he shall signify his approbation
by signing it: But if, upon such revision, it shall appear to him
improper for being passed into a law, he shall return it, together with
his objections against it, to that House in which it shall have
originated, who shall enter the objections at large on their Journal,
and proceed to reconsider the bill. But, if after such reconsideration,
two thirds of that House shall, notwithstanding the objections of the
President, agree to pass it, it shall, together with his objections, be
sent to the other House, by which it shall likewise be reconsidered,
and, if approved by two thirds of the other House also, it shall become
a law. But, in all such cases, the votes of both Houses shall be
determined by Yeas and Nays; and the names of the persons voting for or
against the bill shall be entered in the Journal of each House
respectively. If any bill shall not be returned by the President within
seven days after it shall have been presented to him, it shall be a law,
unless the Legislature, by their adjournment, prevent its return; in
which case it shall not be a law.


VII

_Sect. 1._ The Legislature of the United States shall have the power to
lay and collect taxes, duties, imposts and excises;

To regulate commerce with foreign nations, and among the several States;

To establish an uniform rule of naturalization throughout the United
States;

To coin money;

To regulate the value of foreign coin;

To fix the standard of weights and measures;

To establish post-offices;

To borrow money, and emit bills on the credit of the United States;

To appoint a Treasurer by ballot;

To constitute tribunals inferior to the supreme court;

To make rules concerning captures on land and water;

To declare the law and punishment of piracies and felonies committed on
the high seas; and the punishment of counterfeiting the coin of the
United States, and of offences against the law of nations;

To subdue a rebellion in any State, on the application of its
Legislature;

To make war;

To raise armies;

To build and equip fleets;

To call forth the aid of the militia, in order to execute the laws of
the Union, enforce treaties, suppress insurrections, and repel
invasions;

And to make all laws that shall be necessary and proper for carrying
into execution the foregoing powers, and all other powers vested, by
this Constitution, in the government of the United States, or in any
department or officer thereof,

_Sect. 2._ Treason against the United States shall consist only in
levying war against the United States, or any of them, and in adhering
to the enemies of the United States, or any of them. The Legislature of
the United States shall have power to declare the punishment of treason.
No person shall be convicted of treason, unless on the testimony of two
witnesses. No attainder of treason shall work corruption of blood, nor
forfeiture, except during the life of the person attainted.

_Sect. 3._ The proportions of direct taxation shall be regulated by the
whole number of white and other free citizens and inhabitants, of every
age, sex and condition, including those bound to servitude for a term of
years, and three fifths of all other persons not comprehended in the
foregoing description, (except Indians not paying taxes) which number
shall, within six years after the first meeting of the Legislature, and
within the term of every ten years afterwards, be taken in such manner
as the said Legislature shall direct.

_Sect. 4._ No tax or duty shall be laid by the Legislature on articles
exported from any State; nor on the migration or importation of such
persons as the several States shall think proper to admit; nor shall
such migration or importation be prohibited.

_Sect. 5._ No capitation tax shall be laid, unless in proportion to the
census hereinbefore directed to be taken.

_Sect. 6._ No navigation act shall be passed without the assent of two
thirds of the members present in each House.

_Sect. 7._ The United States shall not grant any title of nobility.


VIII

The acts of the Legislature of the United States made in pursuance of
this Constitution, and all treaties made under the authority of the
United States shall be the supreme law of the several States, and of
their citizens and inhabitants; and the judges in the several States
shall be bound thereby in their decisions; anything in the Constitutions
or laws of the several States to the contrary notwithstanding.


VIIII

_Sect. 1._ The Senate of the United States shall have power to make
treaties, and to appoint ambassadors and judges of the supreme court.

_Sect. 2._ In all disputes and controversies now subsisting, or that
may hereafter subsist between two or more States, respecting
jurisdiction or territory, the Senate shall possess the following
powers. Whenever the Legislature, or the Executive authority, or the
lawful agent of any State, in controversy with another, shall, by
memorial to the Senate, state the matter in question, and apply for a
hearing; notice of such memorial and application shall be given, by
order of the Senate, to the Legislature or the Executive Authority of
the other State in controversy. The Senate shall also assign a day for
the appearance of the parties, by their agents, before that House. The
agents shall be directed to appoint, by joint consent, commissioners or
judges to constitute a court for hearing and determining the matter in
question. But if the agents cannot agree, the Senate shall name three
persons out of each of the several States, and from the list of such
persons each party shall alternately strike out one, until the number
shall be reduced to thirteen; and from that number not less than seven
nor more than nine names, as the Senate shall direct, shall, in their
presence, be drawn out by lot; and the persons, whose names shall be so
drawn, or any five of them shall be commissioners or judges to hear and
finally determine the controversy; provided a majority of the judges,
who shall hear the cause, agree in the determination. If either party
shall neglect to attend at the day assigned, without shewing sufficient
reasons for not attending, or, being present, shall refuse to strike,
the Senate shall proceed to nominate three persons out of each State,
and the clerk of the Senate shall strike in behalf of the party absent
or refusing. If any of the parties shall refuse to submit to the
authority of such court; or shall not appear to prosecute or defend
their claim or cause, the court shall nevertheless proceed to pronounce
judgment. The judgment shall be final and conclusive. The proceedings
shall be transmitted to the President of the Senate, and shall be lodged
among the public records for the security of the parties concerned.
Every commissioner shall, before he sit in judgment, take an oath, to be
administered by one of the judges of the supreme or superior court of
the State where the cause shall be tried, "well and truly to hear and
determine the matter in question, according to the best of his judgment,
without favour, affection, or hope of reward."

_Sect. 3._ All controversies concerning lands claimed under different
grants of two or more States whose jurisdictions, as they respect such
lands, shall have been decided or adjusted subsequent to such grants, or
any of them, shall, on application to the Senate, be finally determined,
as near as may be, in the same manner as is before prescribed for
deciding controversies between different States.


X

_Sect. 1._ The Executive Power of the United States shall be vested in a
single person. His stile shall be, "The President of the United States
of America;" and his title shall be, "His Excellency". He shall be
elected by ballot by the Legislature. He shall hold his office during
the term of seven years; but shall not be elected a second time.

_Sect. 2._ He shall, from time to time, give information to the
Legislature, of the State of the Union: he may recommend to their
consideration such measures as he shall judge necessary, and expedient:
he may convene them on extraordinary occasions. In case of disagreement
between the two Houses, with regard to the time of adjournment, he may
adjourn them to such time as he shall think proper: he shall take care
that the laws of the United States be duly and faithfully executed: he
shall commission all the officers of the United States; and shall
appoint officers in all cases not otherwise provided for by this
Constitution. He shall receive Ambassadors, and may correspond with the
Supreme Executives of the several States. He shall have power to grant
reprieves and pardons; but his pardon shall not be pleadable in bar of
an impeachment. He shall be Commander in Chief of the Army and Navy of
the United States, and of the Militia of the several States. He shall,
at stated times, receive for his services, a compensation, which shall
neither be increased nor diminished during his continuance in office.
Before he shall enter on the duties of his department, he shall take the
following Oath or Affirmation, "I * * * solemnly swear, (or affirm) that
I will faithfully execute the Office of President of the United States
of America." He shall be removed from his office on impeachment by the
House of Representatives, and conviction in the Supreme Court, of
treason, bribery, or corruption. In case of his removal as aforesaid,
death, resignation, or disability to discharge the powers and duties of
his office, the President of the Senate shall exercise those powers and
duties until another President of the United States be chosen, or until
the disability of the President be removed.


XI

_Sect. 1._ The Judicial Power of the United States shall be vested in
one Supreme Court, and in such Inferior Courts as shall, when necessary,
from time to time, be constituted by the Legislature of the United
States.

_Sect. 2._ The Judges of the Supreme Court, and of the Inferior courts,
shall hold their offices during good behaviour. They shall, at stated
times, receive for their services, a compensation, which shall not be
diminished during their continuance in office.

_Sect. 3._ The Jurisdiction of the Supreme Court shall extend to all
cases arising under laws passed by the Legislature of the United States;
to all cases affecting Ambassadors, other Public Ministers and Consuls;
to the trial of impeachments of Officers of the United States; to all
cases of Admiralty and Maritime Jurisdiction; to Contriversies between
two or more States (except such as shall regard Territory or
Jurisdiction) between a State and citizens of another State, between
citizens of different States, and between a State or the citizens
thereof and foreign States, citizens or subjects. In cases of
Impeachment, cases affecting Ambassadors, other Public Ministers and
Consuls, and those in which a State shall be a party, this Jurisdiction
shall be original. In all the other cases before mentioned it shall be
appellate, with such exceptions and under such regulations as the
Legislature shall make. The Legislature may assign any part of the
jurisdiction above mentioned (except the trial of the President of the
United States) in the manner and under the limitations which it shall
think proper, to such Inferior Courts as it shall constitute from time
to time.

_Sect. 4._ The trial of all criminal offences (except in cases of
impeachments) shall be in the State where they shall be committed; and
shall be by jury.

_Sect. 5._ Judgment, in cases of Impeachment, shall not extend further
than to removal from office, and disqualification to hold and enjoy any
office of honour, trust or profit under the United States. But the party
convicted shall nevertheless be liable and subject to indictment, trial,
judgment and punishment, according to law.


XII

No State shall coin money; nor grant letters of marque and reprisal; nor
enter into any treaty, alliance, or confederation; nor grant any title
of nobility.


XIII

No State, without the consent of the Legislature of the United States,
shall emit bills of credit, or make anything but specie a tender in
payment of debts; lay imposts or duties on imports; nor keep troops or
ships of war in time of peace; nor enter into any agreement or compact
with another State, or with any foreign power; nor engage in any war,
unless it shall be actually invaded by enemies, or the danger of
invasion be so imminent, as not to admit of a delay, until the
Legislature of the United States can be consulted.


XIIII

The citizens of each State shall be entitled to all privileges and
immunities of citizens in the several States.


XV

Any person charged with treason, felony, or high misdemeanor in any
State, who shall flee from justice, and shall be found in any other
State, shall, on demand of the Executive Power of the State from which
he fled, be delivered up and removed to the State having jurisdiction of
the offence.


XVI

Full faith shall be given in each State to the acts of the Legislatures,
and to the records and judicial proceedings of the courts and
magistrates of every other State.


XVII

New States lawfully constituted or established within the limits of the
United States, may be admitted, by the Legislature, into this
government; but to such admission the consent of two thirds of the
Members present in each House shall be necessary. If a new State shall
arise within the limits of any of the present States, the consent of the
Legislatures of such States shall be also necessary to its admission. If
the admission be consented to, the new States shall be admitted on the
same terms with the original States. But the Legislature may make
conditions with the new States concerning the public debt, which shall
be then subsisting.


XVIII

The United States shall guaranty to each State a Republican form of
government; and shall protect each State against foreign invasions, and,
on the application of its Legislature, against domestic violence.


XVIIII

On the application of the Legislatures of two thirds of the States in
the Union, for an amendment of this Constitution, the Legislature of the
United States shall call a Convention for that purpose.


XX

The Members of the Legislatures, and the executive and judicial officers
of the United States, and of the several States, shall be bound by oath
to support this Constitution.


XXI

The ratification of the Conventions of * * * States shall be sufficient
for organizing this Constitution.


XXII

This Constitution shall be laid before the United States in Congress
assembled, for their approbation; and it is the opinion of this
Convention, that it should be afterwards submitted to a Convention
chosen in each State, under the recommendation of its legislature, in
order to receive the ratification of such Convention.


XXIII

To introduce this government, it is the opinion of this Convention, that
each assenting Convention should notify its assent and ratification to
the United States in Congress assembled; that Congress, after receiving
the assent and ratification of the Conventions of States, should appoint
and publish a day, as early as may be, and appoint a place for
commencing proceedings under this Constitution; that after such
publication, the Legislatures of the several States should elect Members
of the Senate, and direct the election of Members of the House of
Representatives; and that the Members of the Legislature should meet at
the time and place assigned by Congress, and should, as soon as may be,
after their meeting, choose the President of the United States, and
proceed to execute this Constitution.




INDEX


Adams, Secretary J. Q.
  Applies to Pinckney for draught, p. 4, 26
  Interview with Rufus King, p. 145

Ambassadors
  To be appointed by the Senate, p. 82, 102, 210

Article III of Pinckney's Draught
  Relied upon by Madison, p. 61, 62, 93, 99, 100

Article V of Pinckney's Draught
  Relied upon by Madison, p. 61, 101

Article VIII of Pinckney's Draught
  Relied upon by Madison, p. 60, 78, 79, 82, 84, 97
  Sustained by the Observations, p. 134


Bancroft, George,
  Expresses the general judgment, p. 7

Bill of Rights
  Not adopted by the Committee or the convention, p. 270
  But is, in Pinckney's draughts and Observations, p. 270

Bridge which Madison built
  For Pinckney's friends, p. 6, 7, 21, 44

Butler Pierce of South Carolina
  Thinks election by the people impracticable, p. 87


Charges of Madison
  Analysed, p. 58, 62, 63

Chesapeak, the frigate,
  Surrender of, p. 56

Citizens.
  The clause securing privileges and immunities, p. 252

City Tavern,
  Members of the Convention dinner at, p. 239

Committee of Detail
  Appointed to prepare the Constitution, p. 69, 232
  Report of the Committee, p. 69
  Names of the Committee, p. 75
  Secrecy of the Committee, p. 75, 76
  Report exceeds instructions, p. 70
  Consistent silences of the Committee until death, p. 200
  How the Committee followed Pinckney, p. 213
  The printing of the draught, p. 233, 234

Committee of Style
  Appointed, p. 69
  Really Committee of Revision, p. 78
  Correction of language, masterly, p. 78

Compensation of Members
  Adequate, p. 173
  Resolution of the Committee of the Whole, p. 173
  Report of the committee of detail, p. 174
  In the Pinckney and Wilson draughts, p. 175
  Deviation from instructions explained, p. 207, 209

Compensation of the President.
  Committee's draught disregards the 12th Resolution, p. 209
  Follows Pinckney's draught, p. 210

Compromises, The, of the Constitution.
  Neither Madison nor Pinckney attempted a compromise, p. 265

Conclusions.
  Final conclusions on the whole case, p. 273

Confederated States.
  Bankrupt and drifting towards war, p. 249
  Helpless as against the States, p. 251
  Dependent upon voluntary contributions, p. 265
  Could not enforce treaties on States, p. 265

Congress.
  See Election and Eligibility.

Constitution, The.
  Its four germinal stages, p. 66
  Methods for consideration of, p. 67, 68
  Birth of, p. 71
  References to Committees, p. 69, 70, 78
  The work of the Committee of Style, p. 78
  Estimate of in 1818, p. 25, 27

Convention, The.
  Surviving members of, p. 24, 202
  Philosophical methods of, p. 67
  First days of the, p. 128, 129, 130
  The first business day, p. 135
  The secrecy of the convention, p. 227, 229, 232, 237
  A lost paper, p. 230
  Its careful preservation of papers, p. 287

Copyright and Patents.
  Not in the Department copy of the draught, p. 271
  But Pinckney the author of those constitutional provisions, p. 271
  Copyright cases, p. 206

Council of Revision.
  Considered, p. 46, 47, 50, 51
  Pinckney's action regarding it, p. 50


Delicate.
  The word as used by Madison, p. 36

Draught of Committee of Detail.
  Reported by committee, p. 70
  Description of, p. 71, 72, 234
  Washington's copy of, p. 74
  The notes by Major Jackson, p. 74
  Agreement with Pinckney's draught, p. 79, 81, 255, 273
  The "divide" in the march of the framers, p. 76
  The compromises subsequent to the draught, p. 77
  Sparks' analysis of it, p. 149
  Sparks' test, p. 153, 156
  Madison's non-reply to Sparks, p. 155, 156
  The misplacing of veto power, p. 183, 220
  The treason provisions, p. 185, 221
  The Supreme Court jurisdiction clause, p. 191
  The draught not yet written, p. 203
  The preamble taken from Pinckney, p. 214
  How the committee followed Pinckney, p. 215
  The committee overrule Wilson, p. 222
  Limit of time for preparing, p. 232, 235, 248
  Engrossed on Pinckney's as copy for printer, p. 236, 241
  "Delivered in" figuratively, p. 236
  The most important document of the convention, p. 226
  Printing of the draught, p. 233
  The real authors of the draught, p. 165

Draught of Pinckney
  Presented to the convention, p. 429
  Lost, p. 4, 224
  The Department copy, p. 4
  Description of, p. 16
  Madison's Note to the, p. 58
  When written, p. 86
  The term, "The law of the land," p. 179
  Provisions described in the Observations, p. 182
  The misplacing of the veto power, p. 183, 220
  The militia, p. 188
  Randolph recognizes and uses, Art 11, p. 196
  Article 11 described in the Observations, p. 198
  Publicity attending Pinckney's draught, p. 201, 274
  Used as printers' copy and destroyed, p. 236
  Never discussed in convention, p. 257
  Exaggerated value set upon it, p. 258
  Provisions not adopted by the committee, p. 268
  Provisions not in the Department case, p. 271
  Provisions rejected, p. 263
  Its inferiority in detail to the committee's, p. 153

Draught of Randolph.
  Description of, p. 161
  The annotations of Rutledge, p. 164
  Compensation of Senators, p. 163
  The joint work of Randolph and Rutledge, p. 165
  A disheveled draught, p. 190
  Jurisdiction of the Supreme Court in, p. 191
  Recognizes and uses Pinckney's Art. 11, p. 196

Draughts of Wilson.
  His three draughts, p. 160
  Description of his 3d, p. 161
  The annotations of Rutledge, p. 161
  Wilson's preamble, p. 166,
  Charges against Pinckney, p. 168
  The word "our," p. 169, 171
  Articles which are not Wilson's, p. 182
  The proper placing of the veto power, p. 183, 220
  The treason provisions, p. 185, 221
  The militia provisions, p. 188

Draught, rough.
  What it is, p. 20
  Pinckney's not a rough draught, p. 10, 11
  Wilson's rough draught, p. 166

Duer, William A.
  Madison's letter to, p. 36, 45
  His position in New York, p. 45


Election of Representatives
  By the people, p. 9, 85, 91, 93, 94, 95, 97
  Pinckney's change of mind, p. 85, 87, 94, 96
  Agreement of Articles III and V with Observations, p. 90, 93
  Vote of convention, p. 95

Election of the President.
  Madison's strictures on the draught, p. 60
  Article VIII does not provide a method, p. 97
  The omission not remarkable, p. 98
  Choosing by the electoral colleges, p. 77, 133
  Observations sustain Article VIII, p. 134

Eligibility of Representatives, etc.
  Pinckney on the question, p. 101, 103

Elliott, W. S.
  A grandnephew of Pinckney, p. 288
  His sketch of Pinckney's life and home; of his library, picture gallery
and garden, p. 288

Ellsworth, Oliver
  Did not draught a constitution, p. 165
  Contributed nothing to draught of the committee, p. 165

Estoppel.
  Characterized by Coke, p. 132
  Does not extend to historical students, p. 132


Federalists.
  Hamilton and Pinckney were, p. 279
  Pinckney the most extreme federalist in the convention, p. 279

Ford, Worthington C.
  Publishes Pinckney's letter, p. 5

Framers of the Constitution.
  Two of the youngest and their work, p. 264

Franklin, Doctor.
  His farewell words to the convention, p. 70

Fraud and Plagiarism.
  The question of inexorable, p. 21
  Detection probable, p. 24
  Temptation small, p. 25
  The absence of motive, p. 27, 28
  Specifications of plagiarisms, p. 78
  Failure of specified charges, p. 79
  Not sustained by evidence, p. 275
  The charge reduced to an absurdity, p. 195


Gerry of Massachusetts
  Opposes election by the people, p. 87

Gilpin, Henry D.
  Edits Madison's Journal, p. 5, 29

Gorham of Massachusetts.
  A member of the committee of detail, p. 75
  Did not attempt to draught a constitution, p. 165

Grimke, Thomas S.
  Madison's letter to, p. 35


Habeas Corpus.
  The writ of, not to be suspended is in the draught, p. 269
  Why the committee did not adopt, p. 270

Hamilton, Alexander.
  "Those who pay are the masters," p. 174
  His not the style of the Constitution, p. 243
  Pierce's description of Hamilton, p. 283

Historical Questions.
  Concerning the draught in the State Department, p. 12

Historical Society of N. Y.
  Possesses Pinckney's Observations, p. 105
  Referred to by Madison, p. 110

Hunt, Gaillard.
  Description of the draught, p. 18


Immigration.
  Expected and relied upon, p. 170
  Massachusetts constitution encourages, p. 169

Impeachment.
  In Pinckney draught, p. 211
  In the committee draught, p. 211


Jackson, Major Wm.
  Elected secretary of the convention, p. 129
  His notes on draught, p. 74, 75
  His letter to Washington, p. 239
  Delivers papers of the convention to Washington, p. 239, 241

Jameson, Professor, J. Franklin.
  He discovers two of the Wilson draughts, p. 159, 160

Jay, Chief Justice.
  His hand appears in the constitution of New York, p. 243

Jefferson, President.
  Madison's letter to, p. 33, 129

Jews.
  "The people called Jews" address the convention, p. 241

Journal, The, of Madison.
  Its completeness, p. 40
  Omission of Pinckney's draught, p. 40
  Publication of, p. 52, 63
  His best appreciated work, p. 40
  To be edited by Mrs. Madison, p. 63
  Edited by Henry D. Gilpin, p. 5, 29
  Madison method of writing, p. 122
  Is the journal evidence against Pinckney, p. 275
  It must be received as history, p. 277


King, Rufus.
  Mr. Adams' conversation with King, p. 145
  King considered as a witness, p. 146
  Pierce's description of King, p. 282

Knox, General Henry.
  Washington's letter to him, p. 128


Law of the Land.
  See Supreme Law of the Land.

Library company of Philadelphia.
  Order to the librarian directing him to "furnish the gentlemen" of the
convention with books, p. 240


McLaughlin, Professor,
  Discovers a draught of Wilson, p. 158
  Discovers report in confederated congress, August, 1786, "written in
Pinckney's own hand," p. 260

Madison, President.
  His troubled life, p. 54
  His failing memory, p. 52, 54, 81
  His only alternative, p. 38
  His age, p. 53, 54
  His failure to testify, p. 38
  His ignorance of the draught, p. 30, 38, 40, 53
  His "Note" to the "Plan," p. 58
  His "editorial footnote" to the "Note," p. 62, 63
  His charges against the draught, p. 63
  His objections to Pinckney's draught, p. 5, 6, 7, 43, 45, 46
  His poor opinion of Pinckney, p. 32, 53
  Most diligent member of convention, p. 80
  His letters, p. 33, 34, 35, 36, 42, 43, 45, 54, 63, 107, 108, 109, 110,
    129, 214
  His comparison of the draught with the Constitution, p. 143, 156, 157
  His silence on the primary issue, p. 156
  His adroit management, p. 43, 157
  Madison on the "object of the Union," p. 214
  His and Pinckney's the constructive minds of the convention, p. 264
  They agreed as to State legislation, p. 265, 267
  They did not attempt to frame a compromise, p. 266
  The work of one agrees with the work of the other, p. 267
  Their names should be closely associated, p. 268

Madison's Journal. See Journal.

Mrs. Madison
  Her rescue of Washington's portrait, p. 56
  Intended editor of the Journal, p. 63

Marshall, Chief Justice.
  Moulded the Constitution, p. 27
  His majestic judicial reign, p. 37

Martin Luther.
  His resolution relating to the "Supreme law of the respective States," p. 179
  His language a compromise, p. 181

Massachusetts
  Constitution furnishes provisions for Pinckney's draught, p. 83, 84, 250

Massachusetts and New York alone paid in full their quota, p. 249
  Preamble of the Constitution derived from constitution of
    Massachusetts, p. 169
  The word "posterity" unrestricted, p. 170

Meigs, William M.
  His "Growth of the Constitution," p. 161
  Reproduces the Randolph draught in facsimile, p. 161
  Growth of the Constitution
  cited and quoted, p. 189, 192

Militia, The.
  Pinckney's draught a radical departure, p. 188
  Not authorized by the convention, p. 188
  Pinckney's draught followed by Wilson rejected by the committee, p. 189

Money Bills.
  Madison refers to them, p. 99
  Pinckney's position regarding them, p. 100

Morris, Gouverneur.
  His correction of the language of the Constitution, p. 78

Mystery.
  The name, p. 1
  Its definition, p. 2


New York, the Constitution of,
  Furnishes the veto power, p. 47, 48
  Furnishes other provisions, p. 83, 84, 216, 218, 250
  New York and Massachusetts alone pay in full their quota, p. 249

Notes and Memoranda
  Of Pinckney and Madison, p. 11
  "Note" of Madison to plan of Pinckney, p. 58
  Editorial footnote to same, p. 62, 63


Observations, The Pamphlet.
  Cited by Madison, p. 33, 34, 43, 46, 50, 62
  Cited by Pinckney, p. 90
  When written, p. 93, 130
  Description of, p. 105
  Madison interest in, p. 107
  Extracts from, p. 111
  The Observations, a speech never made, p. 122, 126, 139
  Madison and Yates evidence, p. 122
  Contradictions in it, p. 126
  Significant error in date, p. 127
  Considered as a speech, p. 131
  Considered as evidence, p. 132
  Confirm Articles III, V, VIII, p. 132, 135
  Explanation of Pinckney's publication, p. 135
  Why speech was not delivered, p. 137
  Why published, p. 138
  Why Observations were not cited in Madison's "Note," p. 140
  The Observations fateful, p. 141
  They sustain the copy in the State department, p. 139
  Articles in the draught described in the Observations cannot be
    questioned, p. 182, 189, 198, 253, 269, 270
  Article 11 referred to by Randolph described in the Observations, p. 198


Patents. See Copyright.

Paulding, James Kirke.
  Memorandum for, p. 34, 42, 107
  Letters to, p. 43, 108
  Friend of Madison, p. 44, 45

Phenomenon, The, of Madison, p. 46, 53, 80

Pinckney, Charles.
  His official life, p. 23
  His age, p. 88
  Why he presented the Observations, p. 135
  His strategic purpose, p. 137
  Why he published the Observations, p. 138, 142
  Desired the supremacy of the national government, p. 181, 279
  He alone formulated a constitution before the convention met, p. 189
  His misplacement of the veto power, p. 183
  The style of the Constitution, p. 243, 245
  His draught the only one, p. 249
  His method of construction, p. 250
  His composite work, p. 250, 251, 252
  His generality of treatment and expression, p. 253
  A condemned and misrepresented man, p. 254
  His training and preparation, p. 261, 264
  What he did and failed to o, p. 261
  His co-operation with Madison, p. 264, 265, 267
  His family, position, etc., p. 278
  His speech of June 25, p. 278
  The extremist federalist in the convention, p. 279
  Pierce's description and estimate of him, p. 281, 284
  The destruction of everything which Pinckney possessed, p. 285

Pinckney, Charles Cotesworth,
  Opposes election by the people, p. 88
  Proposes that no salary be allowed to Senators, p. 176
  Living in 1818, p. 24
  The most esteemed citizen in S. C., p. 88

Pinckney's Letters
  To Secretary of State, p. 8, 12, 26, 27
  Contemporary declaration, p. 10
  Letter to Madison, p. 62

Pierce, William.
  His narrative of a lost paper in the convention, p. 230
  His description of Randolph, King, Hamilton and Pinckney, p. 281

Preamble of the Constitution.
  Suggested by the Articles of Confederation, p. 169.
  Derived from Constitution of Massachusetts, p. 169
  Randolph attempted draught of preamble, p. 162
  Wilson attempted draught of preamble, p. 166
  The preamble in the committee's draught, p. 168
  It declared the source and supremacy of authority, p. 213
  Ignored State governments, p. 213
  The preamble unquestioned in the convention, p. 215

President, The.
  See Election of.

Printers--Copy.
  Pinckney draught used as printers' copy. p. 188, 208, 237


Randolph, Edmund.
  The Virginia resolutions cited as his, p. 68
  Opens the main business of the convention, p. 130, 136
  His draught of the Constitution, p. 158, 161

Read, George.
  Letter to Dickinson on Pinckney's draught, p. 89

Ritchie, Thomas.
  Madison's letter to, p. 63

Rutledge, John.
  Present in the convention, May 29, p. 135
  Seconds Pinckney motion to strike out the word people and
    insert Legislatures, p. 95
  Chairman of the Committee of Detail, p. 75
  "Delivers in" the report of the committee, p. 70
  His annotations on the other draughts, p. 162, 164, 182
  He co-operates with Wilson and Randolph, p. 164
  Used Pinckney draught when annotating, p. 182
  His ruthless slashing of Wilson's, p. 161
  His 43 amendments, p. 161, 204
  Strongest man in the State, p. 88


Secrecy.
  The resolution of the convention, p. 228
  Secrecy to continue after the dissolution of the convention, p. 228
  Silence of members from May 29 to September 17, p. 229
  Washington recognition of the obligation, p. 229
  The obligation required that the draught be not lost, p. 232
  Pinckney draught used as printers' copy and scrupulously destroyed, p. 237
  Legal presumption that it was destroyed, p. 237
  Secrecy of Committee of Detail, p. 75, 200, 237

Senate.
  Pinckney's Senate, p. 91, 217
  To appoint ambassadors and judges, p. 102

South Carolina.
  The State postpones action in the convention, p. 175

South Carolina Gazette.
  Draught republished in, p. 274

Sparks, Jared.
  Writes to Madison, p. 42, 43, 144, 146, 147, 149
  Madison to Sparks, p. 35, 42, 43, 110
  His opinion of the draught, 148, 152
  His correct analysis, p. 152
  His most delicate test, p. 153

Story, Mr. Justice.
  Ignores the Draught, p. 6, 8, 12

"Supreme Law of the Land."
  History of the term. p. 179.
  The case of Trevatt v. Weeden gives judicial significance to it, p. 182
  Derived from resolution of Congress, p. 251


Thomson, Doctor William H.
  Definition of mystery, p. 2

Time.
  The second condition imposed on the committee, p. 232
  Two of these days were Sundays, p. 233
  Three days required for printing, p. 234
  200 constitutional provisions framed and printed within
    the limited time, p. 234

Treason.
  The punishment of treason, p. 185
  How defined, etc., in the three draughts, p. 186
  Caution of Rutledge and Pinckney, p. 186
  Their provisions combined in the Constitution, p. 187

The Treaty Making Power.
  Lodged in the Senate exclusively, p. 210
  Not authorized by the convention, p. 211
  Committee of detail followed Pinckney erroneously, p. 211


Veto Power, The.
  Taken from the constitution of New York, p. 47
  Misplaced by Pinckney and by the committee, p. 183, 220
  Correctly placed by Wilson, p. 183


Washington, General, The.
  Madison's letters to, p. 33, 34
  His copy of the committee's draught, p. 74
  Letter to Congress, p. 54
  His illness, and the illness of his mother, p. 128
  His journey to Fredericksburg, p. 128
  His arrival in Philadelphia, p. 129
  President of the convention, p. 129
  Letter to General Knox, p. 128
  Made custodian of the records, p. 228, 239
  His sense of the obligation of secrecy, p. 229
  Extracts from his diary, p. 229
  His admonition to the convention, p. 230
  The convention's daily mark of respect, p. 230
  Extracts from his diary of September 17, p. 239

Washington, City.
  Capture of, 56
  Burning of the Capitol, p. 56

Wilson, James.
  His draughts of the Constitution, p. 158
  Intelligent and wise, p. 159
  Opposed the payment of representatives by the States, p. 175, 176
  His proper treatment of the veto power, p. 183
  His careful and logical work, p. 165, 187
  Alien member of the convention, p. 199
  A judge of the Supreme Court, p. 200
  The hard-worker of the convention, p. 204
  A signer of the Declaration, p. 171
  He first suggests the Electoral Colleges, p. 77


Yates, Robert.
  Entry in his minutes, p. 29, 122
  Report of Pinckney's speech, p. 30
  His age, position and experience, p. 124
  Value of his minutes, p. 125