The Mystery of the Pinckney Draught
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Title: The Mystery of the Pinckney Draught
Author: Charles C. Nott
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*** START OF THE PROJECT GUTENBERG EBOOK THE MYSTERY OF THE PINCKNEY DRAUGHT ***
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
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