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 circ.u.mstances or of the bearing of the question would p.r.o.nounce 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 a.s.sent, 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 Const.i.tution--of the Const.i.tution 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 Const.i.tution 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 surrept.i.tiously 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 Const.i.tution.

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 antic.i.p.ated, 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 a.s.sociation, 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 const.i.tution of Ma.s.sachusetts 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 Const.i.tution 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 const.i.tution 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 const.i.tutions 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 ill.u.s.trates 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 Const.i.tution.

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 const.i.tution 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 const.i.tution; 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 Const.i.tution 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 ill.u.s.trate 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 Const.i.tution 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 Const.i.tution 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 Ma.s.sachusetts 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 Ma.s.sachusetts 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 ill.u.s.trations 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 a.s.sumption and reaching the conclusion that Pinckney must have taken his preamble from the Committee's draught. This makes a case against Pinckney which is ent.i.tled to explanation or examination.

The preamble to the Const.i.tution of the United States was suggested by the Articles of Confederation and the const.i.tutions of eleven of the thirteen States. Its language was taken by Pinckney or by Wilson, or by both, from the Const.i.tution of Ma.s.sachusetts 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 Const.i.tution to the men who made it and their posterity. But at the time when these early const.i.tutions were framed the growth of the country it was foreseen would depend chiefly on immigration. The Const.i.tution of Ma.s.sachusetts 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 const.i.tution, 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 Ma.s.sachusetts Const.i.tution therefore with logical exact.i.tude, 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 const.i.tution of Ma.s.sachusetts; the second, that Pinckney's draught adheres to the unrestricted "posterity" of the const.i.tution, 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 const.i.tution of Ma.s.sachusetts, and he went there; there was a deviation from the const.i.tution of Ma.s.sachusetts 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 circ.u.mstantial evidence. But circ.u.mstantial evidence is made up generally of slender strands; and circ.u.mstantial 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 const.i.tutions 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 subst.i.tuted 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 const.i.tution of Ma.s.sachusetts and Pinckney's familiarity with that const.i.tution, the severally slender strands become a cord of circ.u.mstantial 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.