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.