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 Constitution.
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 anticipated, 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 Association, 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 constitution of Massachusetts 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 Constitution
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 constitution 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 constitutions 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
illustrates 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 Constitution.
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
constitution 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 constitution; 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 Constitution 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 illustrate 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 Constitution 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 Constitution 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 Massachusetts
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
Massachusetts 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 illustrations 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 assumption and reaching the conclusion that Pinckney must
have taken his preamble from the Committee's draught. This makes a case
against Pinckney which is entitled to explanation or examination.
The preamble to the Constitution of the United States was suggested by
the Articles of Confederation and the constitutions of eleven of the
thirteen States. Its language was taken by Pinckney or by Wilson, or by
both, from the Constitution of Massachusetts 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 Constitution
to the men who made it and their posterity. But at the time when these
early constitutions were framed the growth of the country it was
foreseen would depend chiefly on immigration. The Constitution of
Massachusetts 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
constitution, 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 Massachusetts Constitution therefore
with logical exactitude, 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 constitution of
Massachusetts; the second, that Pinckney's draught adheres to the
unrestricted "posterity" of the constitution, 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 constitution of Massachusetts, and he went there;
there was a deviation from the constitution of Massachusetts 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 circumstantial evidence. But circumstantial evidence is made
up generally of slender strands; and circumstantial 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 constitutions 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 substituted 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 constitution of Massachusetts and Pinckney's familiarity with
that constitution, the severally slender strands become a cord of
circumstantial 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.
Let us now consider a second illustrative 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, "Massachusetts concurred" as Madison says, "not because they
thought the State Treasury ought to be substituted; 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 illustration:
The Constitution 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 Assembly 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 Assembly 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
Constitution 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 illustrative 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 Constitution: (Art.
VI.) "This Constitution 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 Constitution 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 Constitution, and all treaties made under the
authority of the United States shall be the supreme law of the land."
This assuredly 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 anticipated"? Moreover if Pinckney obtained this
provision by purloining it, he must have taken it from the Constitution
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
surpassing 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 substitution 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 passed; 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 Constitution 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 title 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
Constitution.
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 pass 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 constitution,
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 Constitution, 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 passed 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 unassisted should have prepared so much of the Constitution.
But it is a hundred times more improbable that this Committee unassisted
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
constitutions 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 passed 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 passed by the general Legislature; 2, to impeachments
of officers; and 3, to such cases as the national legislature shall
assign, 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 assigned to the inferior
tribunals as original tribunals." Meigs, p. 244.
When we pass 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 substitution of other language in the stead of
Randolph's. The question therefore which is now presented to us is this,
Who contributed the substitute? 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 ambassadors, 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
substitute which appears to have displaced the first part of Randolph's
section. The two things fit together with precision.
The significant fact to be noted here is that the Pinckney draught
contains the provisions and words which form the apparent substitute 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 Constitution, 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 ambassadors 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 identities 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 asserting that he was the true and
unassisted 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 Constitution 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 assisting
them in drawing up a draught of the Constitution, 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 Constitution 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 document 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 passed
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 Constitution, 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 document; at the
time of publication 16 members of the Convention were living who must
have desired, we must assume, 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 scraps 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.