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 document) 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
Ambassadors and judges of the Supreme Court." How came the Committee to
invest the Senate with power to make treaties and appoint ambassadors
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 ambassadors 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 "ambassadors."
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 Constitution 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
constitution which had been prepared by anyone--the only instrument or
document, 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 Constitution; for it
declares the source and supremacy of its authority. "We the people of
the United States" "do ordain, declare and establish this Constitution."
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
Constitution should be adopted, would allow States and State governments
to continue to exist, but to exist subordinate to a new power, the
Constitution 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 constitution of Massachusetts. 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 Constitution 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 constitution 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."
Article 4 relates to the Senate, and here first appear the individual
opinions of Pinckney which were shared by no one. His senators were to
be chosen by the House of Delegates. "From among the citizens
and residents of New Hampshire"--"from among those from
Massachusetts"--etc., etc. That is the representation was neither by
States nor by population but by an arbitrary assignment in the
Constitution. Pinckney believed that the Senate should represent the
wealth of the country, and he probably intended that this arbitrary
assignment should be representative of wealth. The senators from New
Hampshire, Massachusetts, Rhode Island and Connecticut were to form one
class; those from New York, New Jersey, Pennsylvania and Delaware
another; and the remaining States a third. It was to be determined by
lot which should go out of office first, which second, which third. As
their times of service expired the House of Delegates was to fill them
for a fixed and uniform term. This plan was suggested to Pinckney by
the constitution of New York. Its only merit was that it would make the
Senate a continuing body, as we now have it, one-third of the members
going out at one time. Its errors seem incredible. It would have enabled
the delegates from, say, the eastern and middle States to choose
senators who would grossly misrepresent the southern States; with every
change in the political supremacy of the House one-third of the senators
would change, and one-third of the country might be represented by new
and inexperienced men; with the people of a section of one political
faith, their senators, chosen for them by the House of Delegates, might
be of the opposite political belief. It is plain that when the Committee
came to Pinckney's Article 4 they found something which would be of no
use to them. The Convention had already marked out their work--the
senatorial system which we still have--each State represented by two
senators, each senator having an individual vote, the senators chosen by
the legislatures of the several States. Yet even this article relating
to Pinckney's senate, the Committee used, and used in a way which
indicates that they took the paper upon which it was written and made
it serve their purpose in framing their hurried draught. Art. V.
Pinckney's article begins: "The senate shall be elected, and chosen by
the;" and the Committee's begins: "The senate of the United States shall
be chosen by the." At this point the Committee struck out the equivalent
of 222 words from the Pinckney article and interlined about half the
number, 120 words. (The large imperial unruled foolscap with lines well
apart and the broad margin readily admitted of this being done.) But the
instant that the necessarily new matter was interlined, the Committee
resumed with Pinckney's words. His "Each senator shall be ---- years of
age" etc., etc., becomes their "Every member of the senate shall be of
the age of thirty years at least" etc., etc. Then follow Pinckney's
provisions concerning citizenship, concerning the prior period of a
senator's citizenship, concerning residence, the article closing as
Pinckney's closes, "The Senate shall choose its own President and other
officers." Here we have the two most dissimilar articles in the two
draughts beginning with the same words, ending with the same words,
containing the same provisions, following the same order, and differing
only where the instructions of the Convention compelled the Committee to
strike out a large and important portion of the earlier draught and to
insert a new and important substitute. If the Committee were rewriting
the article, there would be no reason for this extraordinary closeness
of adherence--for this moving pari passu--for this going always as far
and never farther over the ground traversed.
Article 5 of the Pinckney draught is notable for containing the veto
power. The Convention grouped it in the 23 resolutions with the powers
of the Executive; Wilson made of it an entire, independent article, but
Pinckney who had taken it, as we have before seen, from the constitution
of New York, retained its revisionary character and placed it at the end
of an article relating to the legislature and legislative business. The
Committee left it where Pinckney placed it (Article VI, sec. 13) as we
have seen in the preceding chapter; and in this as we have also seen in
the preceding chapter the Committee followed Pinckney and did not
follow Wilson.
The 6th article contains another singular instance of an oversight of
Pinckney's which the Committee followed. In it he gathers together with
care and patience from the Articles of Confederation and from State
Constitutions the incidental powers of Congress. The governing clause
is, "The Legislature of the United States shall have the power." Then
follow some 22 declarations of power, properly paragraphed: "To lay and
collect taxes, duties, imposts and excises." "To regulate commerce"
etc., etc., until in a final paragraph he sums up and closes the record
of these powers by the paragraph. "And to make all laws for carrying the
foregoing powers into execution." The power to punish treason Pinckney
placed in a distinct paragraph for reasons stated in chapter XI. But
this compelled him to rewrite the governing clause, "The Legislature of
the United States shall have the power." In the same sentence he
appended the definition of treason, "which shall consist only in levying
war against the United States" etc. And he then (following the Act of
Edward III), in a separate sentence imposed this condition upon
conviction of treason that it shall be "but by the testimony of two
witnesses." What Pinckney should have done was what Wilson did; he
should have placed this power with the others under the first governing
clause, "The Legislature of the United States shall have the power," and
have pushed the limitations upon that power over with those relating to
"the subject of religion," "the liberty of the press" and "the writ of
habeas corpus," into a bill of rights.
This oversight of Pinckney's, the Committee of Detail attempted to hide
but not to rectify. The needless duplication of the words, "The
Legislature of the United States shall have the power," they pushed out
of sight by inverting the provisions of the sentence and defining
treason first; but they retained it; and also in this article, properly
relating only to legislative powers, they retained the condition laid
upon the judiciary that "no person shall be convicted of treason unless
on the testimony of two witnesses" (Article VII, sec. 2), and in doing
these things, the Committee overruled Wilson and followed Pinckney.
It is manifest, therefore, that the two draughts, the draught in the
State Department and the draught of the Committee, are built upon the
same framework. That is to say in structure, arrangement, form and order
the two are identical, the one the basis of the other. In other words,
the Committee took the draught which had been referred to them, and
worked upon it, beginning with the preamble, and continuing to the last
sentence, "The ratification of the conventions of ---- States shall be
sufficient for organizing this Constitution." They amended, changed,
substituted, subdivided (articles into sections), and amplified; but it
was always Pinckney's draught which they worked upon. They retained
every provision of his which was authorized by the instructions of the
Convention, and some which were beyond the scope of the instructions and
a few which were contrary to the instructions; and whenever they
retained a provision, they retained, substantially, the language in
which it had been cast by Pinckney. As in mathematics it is held to be
self-evident that things which are equal to the same thing are equal to
each other, so here it may be said that this extraordinary identity of
the draught in the State Department and the draught of the Committee of
Detail demonstrates that the draught in the State Department is a true
and substantially exact duplicate of the lost draught which was referred
to the Committee.