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 ident.i.ty in others with details, expressions and definitions, the results of critical discussion and modification in the Convention _which could not have been antic.i.p.ated_," 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 antic.i.p.ated,"

then the presumption must be well nigh irrefutable that these "details, expressions and definitions" in the questionable instrument were taken from the Const.i.tution; 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 Const.i.tution, or in the resolutions of the Continental Congress or in some source open to all parties.

To a right understanding of the circ.u.mstances 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 Const.i.tution pa.s.sed 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 Const.i.tution 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 Const.i.tution.'

"On August 6, the Committee of Detail reported and furnished every member with a printed copy of the proposed Const.i.tution. 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 Sat.u.r.day, the 15th. On Monday, the 17th, the end was reached, and the members of the Convention signed the Const.i.tution. 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 Const.i.tution. Encyclopaedia Americana.

The second germinal stage began July 26th with the appointment of a committee--the Committee of Detail "for the purpose of reporting a Const.i.tution," 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 Const.i.tution, arranged in the form of articles and sections substantially as we have them in the Const.i.tution. 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 Const.i.tution.

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 Const.i.tution was now in being. And yet this is but figurative language. The great state paper which pa.s.sed 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 doc.u.ment 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 s.p.a.cing 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 subst.i.tuted Roman numerals.

When he reached the seventh article he repeated VI. and when he reached the eighth he ent.i.tled it VII. and continued the error through the remaining articles. Notwithstanding this blemish I have never seen so faultless a public doc.u.ment.

The copy bears this endors.e.m.e.nt:

"Printed Draught of the Const.i.tution, 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 indors.e.m.e.nt 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 Doc.u.mentary History of the Const.i.tution (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., Const.i.tution Vol. I, p. 285).]

If the Committee of Detail--Rutledge of South Carolina, Randolph of Virginia, Gorham of Ma.s.sachusetts, 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 const.i.tuted 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 Const.i.tution. But the work of the Convention and the debates of the members were in connection with the draughted Const.i.tution 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 amba.s.sadors, 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 Const.i.tution 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 Const.i.tution 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 Const.i.tution was masterly and is ascribed by Madison to Gouverneur Morris. On Sat.u.r.day the 15th of September the labors of the Convention ended. On Monday the 17th, the engrossed Const.i.tution 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 antic.i.p.ated"

by Pinckney. "Examples" of these "similarities" and "ident.i.ties" he says, "may be noticed in article VIII, which is remarkable also for the circ.u.mstance 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 Const.i.tution by Pinckney which Madison has filed.

Specifying nothing else, we may a.s.sume 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 Const.i.tution 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 Const.i.tution, 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 Const.i.tution.

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 _Const.i.tution as adopted_" and cited article VIII as containing remarkable examples of these coincidences, he gave unconsciously a curious ill.u.s.tration 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 ident.i.ties which so impressed Madison were merely similarities and ident.i.ties 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 Const.i.tution.

But there are others in article VIII which are not in the Const.i.tution 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 t.i.tle of the President "shall be his Excellency." There is no such provision in the Const.i.tution. Article VIII makes exceptions to the appointing power; "amba.s.sadors, 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 antic.i.p.ated," but were provisions and expressions which had been taken by Pinckney from the const.i.tutions of New York and Ma.s.sachusetts, 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 const.i.tution 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 const.i.tution of Ma.s.sachusetts. 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 const.i.tution 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 antic.i.p.ated."

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 circ.u.mstances 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 Const.i.tution of Great Britain, the const.i.tution 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 n.o.bility 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 n.o.bility but wealth. It is probable that when he was draughting his const.i.tution, 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.