CHAPTER VII
THE PLAGIARISMS
Notwithstanding Madison's ignorance of the contents of the draught, and the fallacy of the inference which he drew from the fact that Pinckney did not adhere to all the provisions of a tentative scheme, there remains an objection of the gravest character, susceptible of proof or disproof which must rest on facts and not be deduced by inferences. The objection that Pinckney framed a provision at one time and disapproved of it at another is easily superable: the objection that "there is in the paper a similarity in some cases and an identity in others with details, expressions and definitions, the results of critical discussion and modification in the Convention which could not have been anticipated," is insuperable—if it be well founded. That is to say if there are "details, expressions and definitions" in the State Department copy of the draught which were "the results of critical discussion and modification in the Convention which could not have been anticipated," then the presumption must be well nigh irrefutable that these "details, expressions and definitions" in the questionable instrument were taken from the Constitution; and in the absence of extraordinary explanation, we shall be compelled to agree with Madison that the evidence is "irresistible"—unless indeed it should appear that the expressions and definitions which at first sight appear to have been begun and created in the Convention had previously existed in the Articles of Confederation or in a State Constitution, or in the resolutions of the Continental Congress or in some source open to all parties.
To a right understanding of the circumstances and conditions of the subject of investigation, we must bear in mind, when we begin the inquiry whether there are "details, expressions and definitions" in the Pinckney draught which were "the results of critical discussion and modification in the Convention," that the Constitution passed through four germinal stages:
The first began with Randolph's 15 resolutions, on the 29th of May, and ended on the 26th of July with the 23 resolutions of the Convention. The 15 resolutions had been considered and discussed and modified and expanded into the 19 resolutions of the Committee of the Whole, June 13th; and the 19 resolutions had also been considered and discussed and modified and enlarged into the 23 resolutions of the Convention, July 26th. Never in the history of nations did a deliberative public body strive so philosophically, so wisely and well to possess itself of the subjects to be considered—to comprehend its task—to know what it was doing and to do.
"At the beginning, propositions for consideration and discussion were tentatively placed before the Convention in an abstract form. These propositions were embodied in 15 resolutions, which were immediately referred to the Committee of the Whole. They were taken up one by one, and considered and discussed and amended or rejected or adopted or postponed for later consideration. The abstract of a part of a single day's proceedings will give a clear idea of the way in which the Convention worked:
"Tuesday, June 5. Mr. Randolph's ninth proposition—The national judiciary to be chosen by the national legislature—Disagreed to—To hold office during good behavior and to receive a fixed compensation—Agreed to To have jurisdiction over offenses at sea, captures, cases of foreigners and citizens of different States, of national revenue, impeachment of national officers, and questions of national peace and harmony—Postponed.