Let us now consider a second ill.u.s.trative 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, "Ma.s.sachusetts concurred" as Madison says, "not because they thought the State Treasury ought to be subst.i.tuted; 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 ill.u.s.tration:

The Const.i.tution 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 a.s.sembly 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 a.s.sembly 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 Const.i.tution 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 ill.u.s.trative 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 Const.i.tution: (Art.

VI.) "This Const.i.tution 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 Const.i.tution 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 Const.i.tution, and all treaties made under the authority of the United States shall be the supreme law of the land."

This a.s.suredly 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 antic.i.p.ated"? Moreover if Pinckney obtained this provision by purloining it, he must have taken it from the Const.i.tution 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 surpa.s.sing 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 subst.i.tution 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 pa.s.sed; 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 Const.i.tution 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 t.i.tle 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 Const.i.tution.

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

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

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

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

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

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

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

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

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

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

The draught of Randolph discloses three important pieces of information which tend positively to sustain the Pinckney draught. The first is (in the words of Mr. Meigs) "that it was drawn up after the Convention had agreed upon the resolutions that were referred to the Committee of Detail on July 26th; and in numerous instances its language is modeled upon them with even verbal accuracy." (Growth of the Const.i.tution, p.

318.) Manifestly this draught was not written--was not even begun, until after Randolph had become a member of the Committee. The writing of it, the revising of it, its numerous alterations and corrections, the submission of it to Rutledge, his examination of it and his changes and additions must have taken time. Almost every sentence in it is checked as if it had been compared with some other paper. In a word it indicates that some days must have pa.s.sed after the 26th of July before Randolph and Rutledge could have written it, and revised it, and left it in its present form; and it witnesses the important fact that only five or six days before the finished draught of the Committee of Detail was put in the hands of the printer at least two members of the committee were no nearer completion of the work than this disheveled draught.

The great improbability against the Pinckney draught is that one man alone and una.s.sisted should have prepared so much of the Const.i.tution.

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

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

The 16th resolution of the Convention was as follows:

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

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

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

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

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

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