The fourth stage began on the 12th of September with the revised Constitution reported by the Committee appointed "to revise the style of and arrange the articles" which had been agreed upon, commonly termed the "Committee of Style," but which more correctly might have been termed the Committee of Revision. During that and the next three days the Constitution was modified by a number of amendments chiefly of the nature of corrections. The Committee of Style made no changes other than those of arrangement and language. The correction of the language of the Constitution was masterly and is ascribed by Madison to Gouverneur Morris. On Saturday the 15th of September the labors of the Convention ended. On Monday the 17th, the engrossed Constitution was signed.
In his "Note to the Plan," Madison specifies some of the "details, expressions and definitions" which were framed in the Convention, the "results of critical discussions" that "could not have been anticipated" by Pinckney. "Examples" of these "similarities" and "identities" he says, "may be noticed in article VIII, which is remarkable also for the circumstance that whilst it specifies the functions of the President, no provision is contained in the paper for the election of such an officer." These are all the specifications of provisions or of language plagiarised from the Constitution by Pinckney which Madison has filed. Specifying nothing else, we may assume that the plagiarisms contained in article VIII. were the plagiarisms which dwelt in his own mind and upon which he rested his conclusions.
These specific charges of plagiarism may be struck down by a single blow:—
Not one of the provisions contained in Pinckney's article VIII was framed in the Convention, and all were brought before the Convention by the draught of the Committee of Detail. All the provisions of the Constitution which were framed by the Convention were framed subsequently to the 6th of August and belong to the 3d and 4th germinal periods. All the provisions which are contained in the draught of the Committee of Detail were framed before the 6th of August and existed before the constructive work of the Convention began.
When the sequence of events is observed the matter is cleared and the "phenomenon" of Madison becomes a simple link in the chain of events. Pinckney presented his draught to the Convention on its first business day before there had been a single "critical discussion." The Convention immediately referred the draught to the Committee of the Whole, which made it accessible to every member of the Convention. When a committee was appointed to draught a Constitution, the draught of Pinckney was taken from the Committee of the Whole and referred to the Committee of Detail. The committee found in the draught matter which they needed and they used it as the basis of their own draught as any committee would have done. And thus the draught of the Committee of Detail became the vehicle by means of which these provisions and expressions of Pinckney were carried into the Constitution.
If all this were not a matter of record it would be well nigh unbelievable that Madison of all men could have pursued the course he did. The most diligent member of the Convention, the chronicler of its transactions, the sole survivor of its members and, consequently, a witness who should speak with the greatest care; and yet we find him, at one end of the line, ignorant of the contents of Pinckney's draught, and at the other silent as to the contents and existence of the draught of the Committee of Detail. When he wrote of "the coincidence in several instances between that [the State Department draught] and the Constitution as adopted" and cited article VIII as containing remarkable examples of these coincidences, he gave unconsciously a curious illustration of things "confounded in the memory" "after a lapse of more than thirty years"—in his case, after a lapse of more than forty-five years.
With the fall of these specifications falls the general charge of plagiarism. The draught in the State Department ends with the draught of the Committee of Detail; whatever coincidences there be of "details, expressions and definitions" are coincidences in the two draughts and in them alone. The similarities and identities which so impressed Madison were merely similarities and identities between the two draughts. He doubtless selected article VIII as "remarkable" because he recognized in it provisions and expressions which he knew were in the Constitution. But there are others in article VIII which are not in the Constitution and which are inconsistent with it. The retention of these is sufficient to refute the idea that Pinckney changed his draught to make it conform to the work of the Convention. Article VIII provides that the title of the President "shall be his Excellency." There is no such provision in the Constitution. Article VIII makes exceptions to the appointing power; "ambassadors, other ministers and judges of the Supreme Court" are not to be appointed by the President but by the Senate. This was not one of the "results" arrived at in the Convention. In case of the death of the President and the death of the President of the Senate, "the Speaker of the House of Delegates shall exercise the duties of the office." Here all that Pinckney had to do to make his draught conform was to run his pen through the supplementary clause vesting the succession in the Speaker. The President may be removed from office on impeachment by the House of Delegates and "conviction in the Supreme Court." Here all that Pinckney had to do was to erase "Supreme Court" and insert "Senate." Finally it is to be noted that those expressions and provisions in article VIII which caught the eye of Madison and were characterized as "remarkable" were not "results of critical discussion and modification in the Convention that could not have been anticipated," but were provisions and expressions which had been taken by Pinckney from the constitutions of New York and Massachusetts, generally word for word. The article provides that the President "shall from time to time give information to the legislature of the state of the Union," and "recommend to their consideration" the measures he may think necessary; that "he shall take care that the laws be duly executed"; that "he shall commission all officers"; and "shall nominate and with the consent of the Senate" appoint officers; that "he shall have power to grant pardons and reprieves"; and that "he shall be commander in chief of the army and navy"; but each of these provisions was taken from the constitution of New York. The article also provides that at "entering on the duties of his office he shall take an oath faithfully to execute the duties" of President; and that he "shall be removed from his office on impeachment by the House of Delegates"; but these provisions were taken from the constitution of Massachusetts. The article also provides that "in case of his removal by death, resignation or disability, the President of the Senate shall exercise the duties of his office"; but this is taken from the constitution of New York. In a word when we trace these provisions and expressions to their respective sources there is nothing left of the article. Article VIII is indeed remarkable; but it is for reversing the deductions of Madison; for demonstrating with mathematical certainty (so far as it goes), that Pinckney did not make his draught conform to "results" which had been reached in the Convention, and which "could not have been anticipated."