THE PLAGIARISMS
Notwithstanding Madison's ignorance of the contents of the draught, and
the fallacy of the inference which he drew from the fact that Pinckney
did not adhere to all the provisions of a tentative scheme, there
remains an objection of the gravest character, susceptible of proof or
disproof which must rest on facts and not be deduced by inferences. The
objection that Pinckney framed a provision at one time and disapproved
of it at another is easily superable: the objection that "there is in
the paper a similarity in some cases and an identity in others with
details, expressions and definitions, the results of critical discussion
and modification in the Convention _which could not have been
anticipated_," is insuperable--if it be well founded. That is to say if
there are "details, expressions and definitions" in the State Department
copy of the draught which were "the results of critical discussion and
modification in the Convention which could not have been anticipated,"
then the presumption must be well nigh irrefutable that these "details,
expressions and definitions" in the questionable instrument were taken
from the Constitution; and in the absence of extraordinary explanation,
we shall be compelled to agree with Madison that the evidence is
"irresistible"--unless indeed it should appear that the expressions and
definitions which at first sight appear to have been begun and created
in the Convention had previously existed in the Articles of
Confederation or in a State Constitution, or in the resolutions of the
Continental Congress or in some source open to all parties.
To a right understanding of the circumstances and conditions of the
subject of investigation, we must bear in mind, when we begin the
inquiry whether there are "details, expressions and definitions" in the
Pinckney draught which were "the results of critical discussion and
modification in the Convention," that the Constitution passed through
four germinal stages:
The first began with Randolph's 15 resolutions, on the 29th of May, and
ended on the 26th of July with the 23 resolutions of the Convention. The
15 resolutions had been considered and discussed and modified and
expanded into the 19 resolutions of the Committee of the Whole, June
13th; and the 19 resolutions had also been considered and discussed and
modified and enlarged into the 23 resolutions of the Convention, July
26th. Never in the history of nations did a deliberative public body
strive so philosophically, so wisely and well to possess itself of the
subjects to be considered--to comprehend its task--to know what it was
doing and to do.
"At the beginning, propositions for consideration and discussion were
tentatively placed before the Convention in an _abstract_ form. These
propositions were embodied in 15 resolutions, which were immediately
referred to the Committee of the Whole. They were taken up one by one,
and considered and discussed and amended or rejected or adopted or
postponed for later consideration. The abstract of a part of a single
day's proceedings will give a clear idea of the way in which the
Convention worked:
"Tuesday, June 5. Mr. Randolph's _ninth_ proposition--_The national
judiciary to be chosen by the national legislature_--Disagreed to--_To
hold office during good behavior and to receive a fixed
compensation_--Agreed to _To have jurisdiction over offenses at sea,
captures, cases of foreigners and citizens of different States, of
national revenue, impeachment of national officers, and questions of
national peace and harmony_--Postponed.
* * * * *
"At the end of two weeks of such consideration and discussion, June 13,
the Committee of the Whole reported the conclusions which had so far
been reached in the form of 19 resolutions. But everything was still
abstract and tentative. No line of the Constitution had yet been
written; no provision had yet been agreed upon. The 19 resolutions in
like manner were taken up, one by one, and in like manner considered and
discussed, and amended or rejected or adopted or postponed. Other
propositions coming from other sources were also considered; and so the
work went on until July 26, when the conclusions of the Convention were
referred to the Committee of Detail, and the work of reducing the
abstract to the concrete began. The Convention then adjourned to August
6, to enable the committee to 'prepare and report the Constitution.'
"On August 6, the Committee of Detail reported and furnished every
member with a printed copy of the proposed Constitution. Again the work
of consideration began, and went on as before, section by section, line
by line. Vexed questions were referred to committees representing every
State,--"grand committees" they were called,--amendments were offered,
changes were made, the Committee of Detail incorporated new and
additional matters in their draught, until, on September 8, the work of
construction stopped. But not even then did the labors of the Convention
cease. On that day a committee was appointed, "by ballot, to revise the
style of, and arrange, the articles which had been agreed to." This
committee was afterward known as the Committee of Style. It reported on
the 12th of September, and the work of revision again went on until
Saturday, the 15th. On Monday, the 17th, the end was reached, and the
members of the Convention signed the Constitution. Well might Franklin
exclaim in his farewell words to the Convention: 'It astonishes me, sir,
to find the system approaching so near to perfection as it does!' He had
been overruled more than once in the Convention; provisions which he had
proposed had been rejected; provisions which he had opposed had been
retained; but he was a great man and saw that a great work had been
accomplished." The Immutability of the Constitution. Encyclopædia
Americana.
* * * * *
The second germinal stage began July 26th with the appointment of a
committee--the Committee of Detail "for the purpose of reporting a
Constitution," and continued until August 6th when "Mr. Rutledge
delivered in the report of the Committee of Detail--a printed copy being
at the same time furnished to each member."
The Committee had retired from the Convention with instructions couched
in the 23 resolutions, and they returned to it with more than half of
the Constitution, arranged in the form of articles and sections
substantially as we have them in the Constitution. The number of
provisions contained in the draught greatly exceeded the number of
specific instructions set forth in the resolutions, but the excess was
not wholly an excess of authority for it had been resolved:
"That the national legislature ought to possess the legislative rights
vested in Congress by the Confederation: and moreover to legislate in
all the cases for the general interests of the Union, and also in those
to which the States are separately incompetent or in which the harmony
of the United States may be interrupted by the exercise of individual
legislation."
When the paper which Rutledge held in his hand, as he rose to address
the Convention on the 6th of August, was placed on the table before
Washington, the moment witnessed the birth of the Constitution.
Provisions which it contained were to be stricken out, and some of the
great compromises were yet to be forged and inscribed upon the scroll,
but the written Constitution was now in being. And yet this is but
figurative language. The great state paper which passed from the hand of
Rutledge to the hand of Washington was not engrossed on parchment, like
a second Magna Charta; it was not attested by signature or date; it was
not even in writing; a few pages of printer's paper, plain and
unpretentious; a mere copy, one of a number of printed copies, as we
gather from the record. But it was to receive the severest scrutiny of
some of the great men of the world, of Washington, Franklin, Madison,
Ellsworth, Wilson, Rutledge, Hamilton.
The printed document found in the box which holds the few records of the
Convention is not unworthy of a great state paper. It is on stately,
heavy, hand-made paper, 10 by 15-1/2 inches in size. The printed matter
is 5-1/4 inches by 12-1/2. There are seven pages carrying from 27 to 53
lines on each. The workmanship is faultless; the type clear, the
impression uniform, the ink unfaded, the punctuation careful, the
spacing perfect. There are but two typographical errors, one of which is
a misnumbering of the articles. In Pinckney's draught the first article
has inscribed over it "Article 1" and the following articles have only
their numbers 2, 3, etc. The printer followed the same form, the only
difference being that Pinckney, writing the draught with his own hand,
used arabic figures, for which the printer substituted Roman numerals.
When he reached the seventh article he repeated VI. and when he reached
the eighth he entitled it VII. and continued the error through the
remaining articles. Notwithstanding this blemish I have never seen so
faultless a public document.
The copy bears this endorsement:
"Printed Draught of the Constitution, received from the
President of the United States, March 19th, 1796 by
"TIMOTHY PICKERING
"Sec'y of State"
The name of the printer who did his confidential work so well, I regret
to say, is not upon the paper.
It has been supposed and said that this copy of the draught was
Jackson's, the inefficient Secretary of the Convention, and that he used
it to save himself the trouble of writing out the proceedings in the
journal by noting amendments on the margin. This like much other
imaginary history is erroneous.
When I first saw the draught of the committee, I observed that the notes
on the margin were written in two different hands. I also observed that
one of these though not familiar was a hand which I had seen before. On
calling the attention of Mr. S. B. Crandall of the Bureau of Rolls to
it, he instantly recognized this writing as Washington's. A further
examination showed that 115 notes and interlineations were written by
Washington and 7 by Jackson. _This copy of the draught was Washington's
own copy!_
Whether he placed the copy among the papers of the Convention on
September 17, 1787 when the Secretary brought them to him; or whether he
transferred his own copy to the Secretary of State in 1796 is unknown
and probably unascertainable, but the indorsement makes it certain that
the paper came to the Department directly from Washington; and the 115
carefully made emendations in his handwriting are for us the highest
evidence in the world of its authenticity.
The notes by Jackson are easily explicable; they are lengthy amendments
which Washington could not take down from hearing them read; and he
handed his printed copy to the Secretary to have them correctly and
fully written out.[1]
[Footnote 1: For the benefit of those persons who are so fortunate as to
have a copy of the Documentary History of the Constitution (Department
of State, 1894) I will add that the marginal notes which are in the
writing of Jackson are those of Art. V, Sec. I; Art. VI, Sec. 3; Sec.
13, Art. VII; Sec. 1, Art. XI; Sec. 4, Art. XV; (see Doc. Hist.,
Constitution Vol. I, p. 285).]
If the Committee of Detail--Rutledge of South Carolina, Randolph of
Virginia, Gorham of Massachusetts, Ellsworth of Connecticut and Wilson
of Pennsylvania--intended to keep their work a profound secret, and the
secret to be buried with themselves, they could not have planned better
than they did. The work was done in secret; they employed no secretary;
their report was not in writing. After the committee was discharged no
hint or word seems to have escaped them. No man boasted of his own part
or disparaged another's. There is no journal which tells us how they
worked. No son or daughter or grandchild has revealed a word that any
member subsequently said. In 1813 when Edmund Randolph died, the secret
of the members of the Committee of Detail died with him.
The third germinal stage was based on the draught of the Committee of
Detail and extended from the 6th of August to the 12th of September. The
draught of the Committee constituted the divide in the march of the
framers. Behind them was the plain of philosophical disquisition on
which there had been many contests, but exclusively as to what might be
and might not be. Before them were many hills of difficulty to be
surmounted in the practical application of abstract propositions by
incorporating them in provisions and conditions to be written into the
Constitution. But the work of the Convention and the debates of the
members were in connection with the draughted Constitution of the
Committee of Detail, or in connection with amendments thereof or
additions thereto. There were indeed new provisions framed sometimes by
grand committees, sometimes by special committees, sometimes by the
Convention itself--provisions concerning which the Convention had not at
first sufficiently instructed the Committee of Detail--provisions which
the Convention had not then considered and determined even in the form
of abstract propositions. The most difficult of the compromises, that
between the large and the small States in the choosing of the President,
was effected; and the method first proposed by Wilson and rejected by
the Convention, June 2nd, that the choice should be made through the
agency of electoral colleges was reconsidered and adopted. The power to
try officers impeached by the House of Representatives was taken from
the Supreme Court and given to the Senate; the power to appoint
ambassadors, and judges of the Supreme Court, was taken from the Senate
and given to the President; the power to appoint the Treasurer of the
United States was taken from the Legislative branch and given to the
Executive; and the important treaty-making power which at first was
lodged exclusively in the Senate was transferred to the Executive
subject to the ratification of the Senate. But all that was considered
and agreed upon was attached to the draught of the Committee of Detail.
The fourth stage began on the 12th of September with the revised
Constitution reported by the Committee appointed "to revise the style of
and arrange the articles" which had been agreed upon, commonly termed
the "Committee of Style," but which more correctly might have been
termed the Committee of Revision. During that and the next three days
the Constitution was modified by a number of amendments chiefly of the
nature of corrections. The Committee of Style made no changes other than
those of arrangement and language. The correction of the language of the
Constitution was masterly and is ascribed by Madison to Gouverneur
Morris. On Saturday the 15th of September the labors of the Convention
ended. On Monday the 17th, the engrossed Constitution was signed.
In his "Note to the Plan," Madison specifies some of the "details,
expressions and definitions" which were framed in the Convention, the
"results of critical discussions" that "could not have been anticipated"
by Pinckney. "Examples" of these "similarities" and "identities" he
says, "may be noticed in article VIII, which is remarkable also for the
circumstance that whilst it specifies the functions of the President, no
provision is contained in the paper for the election of such an
officer." These are all the specifications of provisions or of language
plagiarised from the Constitution by Pinckney which Madison has filed.
Specifying nothing else, we may assume that the plagiarisms contained in
article VIII. were the plagiarisms which dwelt in his own mind and upon
which he rested his conclusions.
These specific charges of plagiarism may be struck down by a single
blow:--
_Not one of the provisions contained in Pinckney's article VIII was
framed in the Convention, and all were brought before the Convention by
the draught of the Committee of Detail. All the provisions of the
Constitution which were framed by the Convention were framed
subsequently to the 6th of August and belong to the 3d and 4th germinal
periods. All the provisions which are contained in the draught of the
Committee of Detail were framed before the 6th of August and existed
before the constructive work of the Convention began._
When the sequence of events is observed the matter is cleared and the
"phenomenon" of Madison becomes a simple link in the chain of events.
Pinckney presented his draught to the Convention on its first business
day before there had been a single "critical discussion." The Convention
immediately referred the draught to the Committee of the Whole, which
made it accessible to every member of the Convention. When a committee
was appointed to draught a Constitution, the draught of Pinckney was
taken from the Committee of the Whole and referred to the Committee of
Detail. The committee found in the draught matter which they needed and
they used it as the basis of their own draught as any committee would
have done. And thus the draught of the Committee of Detail became the
vehicle by means of which these provisions and expressions of Pinckney
were carried into the Constitution.
If all this were not a matter of record it would be well nigh
unbelievable that Madison of all men could have pursued the course he
did. The most diligent member of the Convention, the chronicler of its
transactions, the sole survivor of its members and, consequently, a
witness who should speak with the greatest care; and yet we find him, at
one end of the line, ignorant of the contents of Pinckney's draught, and
at the other silent as to the contents and existence of the draught of
the Committee of Detail. When he wrote of "the coincidence in several
instances between that [the State Department draught] and the
_Constitution as adopted_" and cited article VIII as containing
remarkable examples of these coincidences, he gave unconsciously a
curious illustration of things "confounded in the memory" "after a lapse
of more than thirty years"--in his case, after a lapse of more than
forty-five years.
With the fall of these specifications falls the general charge of
plagiarism. The draught in the State Department ends with the draught of
the Committee of Detail; whatever coincidences there be of "details,
expressions and definitions" are coincidences in the two draughts and in
them alone. The similarities and identities which so impressed Madison
were merely similarities and identities between the two draughts. He
doubtless selected article VIII as "remarkable" because he recognized
in it provisions and expressions which he knew were in the Constitution.
But there are others in article VIII which are not in the Constitution
and which are inconsistent with it. The retention of these is sufficient
to refute the idea that Pinckney changed his draught to make it conform
to the work of the Convention. Article VIII provides that the title of
the President "shall be his Excellency." There is no such provision in
the Constitution. Article VIII makes exceptions to the appointing power;
"ambassadors, other ministers and judges of the Supreme Court" are not
to be appointed by the President but by the Senate. This was not one of
the "results" arrived at in the Convention. In case of the death of the
President and the death of the President of the Senate, "the Speaker of
the House of Delegates shall exercise the duties of the office." Here
all that Pinckney had to do to make his draught conform was to run his
pen through the supplementary clause vesting the succession in the
Speaker. The President may be removed from office on impeachment by the
House of Delegates and "conviction in the Supreme Court." Here all that
Pinckney had to do was to erase "Supreme Court" and insert "Senate."
Finally it is to be noted that those expressions and provisions in
article VIII which caught the eye of Madison and were characterized as
"remarkable" were not "results of critical discussion and modification
in the Convention that could not have been anticipated," but were
provisions and expressions which had been taken by Pinckney from the
constitutions of New York and Massachusetts, generally word for word.
The article provides that the President "shall from time to time give
information to the legislature of the state of the Union," and
"recommend to their consideration" the measures he may think necessary;
that "he shall take care that the laws be duly executed"; that "he shall
commission all officers"; and "shall nominate and with the consent of
the Senate" appoint officers; that "he shall have power to grant pardons
and reprieves"; and that "he shall be commander in chief of the army and
navy"; but each of these provisions was taken from the constitution of
New York. The article also provides that at "entering on the duties of
his office he shall take an oath faithfully to execute the duties" of
President; and that he "shall be removed from his office on impeachment
by the House of Delegates"; but these provisions were taken from the
constitution of Massachusetts. The article also provides that "in case
of his removal by death, resignation or disability, the President of the
Senate shall exercise the duties of his office"; but this is taken from
the constitution of New York. In a word when we trace these provisions
and expressions to their respective sources there is nothing left of the
article. Article VIII is indeed remarkable; but it is for reversing the
deductions of Madison; for demonstrating with mathematical certainty (so
far as it goes), that Pinckney did not make his draught conform to
"results" which had been reached in the Convention, and which "could not
have been anticipated."