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

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

The section therefore is composite.

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

Wilson was in effect rewriting the Pinckney draught. Finding the first four subjects of jurisdiction precisely what he wanted, he retained them as they were without change or amendment. But they were insufficient.

Randolph, Wilson and Rutledge were lawyers in practice who could foresee controversies in the future dual system which Pinckney had not foreseen.

Accordingly Wilson took four additional subjects of jurisdiction from Randolph's draught having Rutledge's amendments and with some revising thus brought eight subjects of jurisdiction into his draught which subsequently appeared in the Committee's.

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

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

Under the heading, "_The following are the legislative [powers] with certain exceptions and under certain restrictions_," Randolph set forth the powers of Congress, for the most part taken from the Articles of Confederation, "To raise money by taxation"; "To make war," etc., etc.

After investing the general government with these powers he turned, not illogically, to restrictions which would prevent the States from usurping or denying the powers so granted and placed in his draught the following provision:

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

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

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

It cannot be article XI of the Articles of Confederation; for it provides only for the admission of Canada as one of the States of this Union. It cannot be article XI of the draught of the Committee of Detail for it relates only to "The judicial power of the United States"; to the judges, to jurisdiction; to the trial of criminal offences; and there is not a line which limits the power of a State or declares a statute void.

Moreover the restrictions upon the States in the Committee's draught are divided and placed in two articles which are numbered XII, XIII. It cannot be Article XI of Wilson's draught for it relates to the powers of the Senate, the power to make treaties, to appoint amba.s.sadors and judges, to adjudicate controversies between two or more States, and controversies concerning lands claimed under conflicting grants from different States, it being article IX of the Committee's draught. There is, however, an article 11 which places restrictions upon the States, and meets the requirements of Randolph as exactly as if it had been framed to effect his purpose, and it is article 11 of the Pinckney draught. We know too that it is Pinckney's own, for it is described in the Observations.

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

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

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

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

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

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

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

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

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

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

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

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

CHAPTER XII

THE COMMITTEE'S USE OF THE DRAUGHT

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

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

The first of these traces of Pinckney's hand in the Committee's draught is a very curious one inasmuch as it discloses the fact that in one provision the Committee followed Pinckney's leading unconsciously, and that their action was unauthorized by the Convention, if not in violation of their positive instructions twice repeated. The subject, the pay of Senators and Representatives, had been much discussed; but neither in the Committee of the Whole nor in the Convention had it ever been voted that the compensation should be either "determined" or "paid"

by the States. The proceedings of the Convention in regard to this have been examined at length in the preceding chapter and the details need not be repeated here. It is enough to recall the fact that the Convention resolved expressly that the pay of Representatives should be "adequate," and by implication that the pay of Senators should likewise be adequate; and that the Committee of the Whole had previously resolved that both should be paid out of "the public treasury." How the Committee of Detail could have so reversed the determination of the Convention as to provide that the members of both Houses should receive a compensation not necessarily "adequate" and "to be ascertained" as well as "paid" by the State "in which they shall be chosen" is explicable in only one way; to-wit:

Pinckney's draught likewise declared, also in a single provision (art.

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

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

A more notable instance relates to the appointing and treaty-making power of the Senate. The 14th resolution declares that the judges of the "Supreme tribunal shall be appointed by the second branch" _i.e._ the Senate. But the draught of the Committee says (art. IX), "The Senate of the United States shall have power to make treaties, and appoint Amba.s.sadors and judges of the Supreme Court." How came the Committee to invest the Senate with power to make treaties and appoint amba.s.sadors when no such authority was conferred by the resolutions and no such determination had been reached in the Convention? Pinckney's draught answers the question, (art. 7) the Senate, it says, shall have the sole and exclusive power "to make treaties; and to appoint amba.s.sadors and other ministers to foreign nations, and judges of the Supreme Court."

Here the Committee placed the whole treaty-making power and the diplomatic intercourse with foreign nations entirely in the hands of the Senate and for no other reason than that Pinckney had already done so.

Such an extension of their work beyond their authority could not have suggested itself. Evidently when adapting Pinckney's work to their own purposes they neglected to strike out "treaties" and "amba.s.sadors."

In Pinckney's draught is set forth (art. 3) "The House of Delegates shall exclusively possess the power of impeachment, and shall choose its own officers; and vacancies shall be supplied by the executive authority of the State in the representation from which they shall happen." And in the Committee's draught it is similarly set forth (art. IV, sec. 6, 7) "The House of Representatives shall have the sole power of impeachment.

It shall choose its speaker and other officers. Vacancies in the House of Representatives shall be supplied by writs of election from the executive authority of the State in the representation from which they shall happen" (sec. 7). These incongruous things Pinckney threw together in a single sentence. The Committee placed two of them in one section and the third in another, and amplified and corrected as usual; but not one of these powers is enumerated in the twenty-three resolutions; and let it also be noted that the peculiar and awkward phraseology, "the executive authority of the State in the representation from which they shall happen" is in both.

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

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

The preamble is the first and chief sentence in the Const.i.tution; for it declares the source and supremacy of its authority. "We the people of the United States" "do ordain, declare and establish this Const.i.tution."

The preamble goes behind State governments, asking nothing from them, either of authority or consent, and invokes the power which established them, the people of the United States. This supreme power, if the Const.i.tution should be adopted, would allow States and State governments to continue to exist, but to exist subordinate to a new power, the Const.i.tution of the United States and as parts and not units. In the first letter which Madison (then in New York) wrote to Jefferson (then in Paris) after the adjournment of the Convention, he said:

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

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

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

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

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

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

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

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