CHAPTER XII

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.

CHAPTER XIII

WHAT BECAME OF THE DRAUGHT

A question of much interest follows the foregoing investigation; to-wit, why was not the Pinckney draught found among the records and papers of the Convention?

It was the only draught of a constitution which had been before the Convention; it had been referred to the Committee of the Whole and referred to the committee charged with the duty of preparing a draught of the Constitution; and that committee had used it for that purpose. It was a paper of unique character and unquestionable importance and one of the records of the Convention. Why was it not found in the sealed package of the Convention's records?

And there was another paper, which should have been found but was not. This was the report of the Committee of Detail, containing, or accompanying, their draught of a Constitution. The absence of any other paper that should have been placed in the package might be strange, yet not significant. But these two papers, if there were two, related to the same subject, contained more or less the same provisions, had been used for the same most important purpose by the same men, and were on the 6th of August, 1787, if they then existed, in the possession and official custody of the Committee of Detail. When Rutledge on the morning of that day "delivered in" the most important report ever laid before the Convention he should have laid upon the Secretary's desk those two papers, if there were such to lay there. Yet neither Pinckney's draught of the Constitution, nor the Committee's draught of the Constitution, was found in the sealed package; nothing was found but one printed copy of the Committee's draught.

The draught of the Committee of Detail was the most important of all the papers of the Convention, for the reason that it was the embodiment of all that had been done during the first period of the Convention's work, the abstract stage, and was to be the foundation of all that was yet to be done in bringing the Constitution to its concrete and final form. For purposes of construction and interpretation the draught is the most valuable paper that exists or that ever did exist, inasmuch as it sets forth in a tangible, practical, unmistakable form the results so far attained and the views which a majority of the members held, and the conclusions which a majority of the States had reached when the work of abstract consideration ceased, and the work of changing their abstract ideas into the concrete provisions of the Constitution began. There was no other report, draught or document which should have been so watchfully guarded and carefully kept as the report of the Committee of Detail, if there were indeed such a document to preserve.

To comprehend and appreciate the significance of the disappearance of these two papers, it is necessary that we understand the conditions of the case—the circumstances which tended toward their destruction, and those which should have secured their preservation.

The first of these conditions was secrecy. The Convention early determined "That nothing spoken in the House be printed or otherwise published or communicated without leave." No reporter was present at the sittings of the Convention; no stenographer, typewriter or amanuensis served the members; no clerical force aided the Committee of Detail. The secrets of the Convention were in the custody of the members, and from the 29th of May to the 17th of September not one was revealed to the expectant, inquisitive, anxious American world.

As the work of the Convention drew toward its close, it was determined that the obligation of secrecy should be continued into the indefinite future. The records were to be placed under seal and the custodian was to be Washington himself. Washington asked what should be done with the records; and the Convention answered that "he retain the Journal and other papers subject to the orders of Congress, if ever formed under the Constitution." For thirty years and more the seals remained unbroken; and for thirty years and more no member of the Convention spoke.

Let the reader imagine, if he can, what would be the public feeling now, if a convention should be sitting from the 29th of May to the 17th of September to frame a new constitution for the United States which should sit with closed doors, and whose members should disclose no act, speak no word, drop no hint from the beginning to the end; and who, when the end was reached, should say absolutely nothing of what had been said and done in the secret proceedings of the Convention. We owe much to the framers of the Constitution; they were not common men.

The first and highest instance of this sense of obligation is where we should expect to find it, in the personal journal of Washington.

And for this reason, no member of the Committee wrote. The unfortunate Observations of Pinckney were the only publication that gave a glimmer of what had been done, or might have been done in the Convention—of what had been said or might have been said. The Journal of Madison was not published until after Congress had released the secrets of the Convention. The members had taken no solemn oath, nor clasped hands nor pledged their honor to each other, but they kept silence.

A single incident fortunately preserved by William Pierce of Georgia will show how the obligation was regarded during the sitting of the Convention. It grandly displays the personal majesty of Washington, and the value which he set upon the secrecy of the Convention's deliberations. To a better appreciation of what took place it must be remembered that the Convention as a mark of respect for their great presiding officer established this rule: "When the House shall adjourn, every member shall stand in his place until the President pass him."

Mr. Pierce says:

"When the Convention first opened at Philadelphia, there were a number of propositions brought forward as great leading principles for the new Government to be established for the United States. A copy of these propositions was given to each Member with an injunction to keep everything a profound secret. One morning, by accident, one of the Members dropt his copy of the propositions, which being luckily picked up by General Mifflin was presented to General Washington, our President, who put it in his pocket. After the Debates of the Day were over, and the question for adjournment was called for, the General arose from his seat, and previous to his putting the question addressed the Convention in the following manner:—

"'Gentlemen: I am sorry to find some one Member of this Body, has been so neglectful of the secrets of the Convention as to drop in the State House a copy of their proceedings, which by accident was picked up and delivered to me this Morning. I must entreat, Gentlemen, to be more careful, lest our transactions get into the News Papers, and disturb the public repose by premature speculations. I know not whose paper it is, but there it is (throwing it down on the table), let him who owns it take it.' At the same time he bowed, picked up his Hat, and quitted the room with a dignity so severe that every Person seemed alarmed; for my part I was extremely so, for putting my hand to my pocket I missed my copy of the same Paper, but advancing up to the Table my fears soon dissipated; I found it to be the handwriting of another person. When I went to my lodgings in the Indian Queen, I found my copy in a coat pocket which I had pulled off that Morning. It is something remarkable that no Person ever owned the Paper." (3 Amer. Hist. Review, 324.)

The obligation of secrecy required that these two papers should not be lost—that they should not be left where they might fall into the hands of someone who would publish them, that they should not remain in the possession of a member; and the final determination of the Convention implied that these two papers should be delivered by the Committee of Detail into the hands of the Secretary of the Convention and be by him placed in the custody of Washington.

The second condition was time—the time within which the Committee's work must be done.

On Thursday, the 24th of July, the Convention appointed the Committee of Detail "for the purpose of reporting a Constitution," and on the 26th, referred to the Committee certain resolutions and "adjourned until Monday, August 6th, that the Committee of Detail might have time to prepare and report the Constitution." This adjournment gave to the Committee ten full days in which to prepare and complete their draught, two of which were Sundays. The committee moreover determined to furnish to each member of the Convention a printed copy. On Monday, the 6th of August, the Committee appeared in the Convention bringing with them the printed copies of the draught.

The draught contains about 3,600 words. A good printer in the olden days when there was not a typesetting machine in the world would have required (according to the computation of a present day printer) three days for doing the work, allowing therein a reasonable time for changes and corrections made in the proofs. It cannot be supposed that after the admonition of Washington, the Committee could be negligent in their selection of a printer. They would not carry their copy into a large printing office, if any such there was in Philadelphia, but would surely place it in the hands of some individual printer recommended to them as trustworthy by Wilson or Gouverneur Morris or some other delegate from Philadelphia, perchance by Franklin, the greatest printer in the world. In a word, the printing would not have been confided to a shop full of men but would have been given to one man and marked "confidential"; and it is safe to say that the copy must have been in the printer's hands by the close of the 7th day. Besides the typesetting, the proofs were to be examined, and the work scanned in the clearer light of printed matter by every member of the committee; and errors were to be corrected, and possibly changes made.

After these ten days of actual and constructive work the Committee appeared in the Convention bringing with them a draught containing fifty-seven articles and sections, and some 200 constitutional provisions. Some of these provisions had been prescribed by the 23 resolutions, and some had been suggested by the Articles of Confederation, but there were others declaratory of the inherent powers of a national sovereignty which had neither been directed by the Convention, nor were contained in the Articles of Confederation. No reflective person beginning the study of the Constitution can read Madison's Journal attentively through to the 26th of July without being astonished by the greater comprehensiveness and detail and breadth and completeness of the draught which the committee produced in a printed form on the morning of the 6th of August.

Besides the provisions in the draught which have passed into, and in a literal or modified form, have become parts of the Constitution, there was some work of the committee which must have involved consideration, discussion, and a waste of time. These hindrances left a perilously narrowed period within which a committee must draught the Constitution of the United States.

It was therefore no time to stand upon trifles or to pause to adjust formal niceties. Within the closed doors of Independence Hall would be impatient men who had given their time since the 25th of May and who were sitting unceasingly through the heat of the Philadelphia summer, defraying in whole or in part their own expenses, though many of them were men of narrow means, ill able to give either their time or their money. To their anxious eyes the end seemed far away, and success far from certain, and they would resent unnecessary delay. It would be just to young, ambitious Mr. Pinckney to return his draught, unsullied, to the Secretary that it might tell the story in future years, unquestioned and unquestionable, of his splendid contribution to the Constitution. It would be proper and according to parliamentary usage for the committee to hand in their draught in writing, covered by a report attested by their signatures, both of which would remain in the archives of the Convention and perhaps in the archives of a future government. But the committee could not linger for these desirable things. Pinckney's draught must be sacrificed to hasten the good work along, to save time, if it were but a day; and their own report and draught must be "delivered in" figuratively, that is to say by the mouth of their chairman and by the means of the printed copies, one for each member. The committee, so all the circumstances unite in telling us, took Pinckney's draught and considered it; some provisions they retained; some they corrected, some they amended, some they changed, some they struck out. The amendments they wrote on the broad margin of the large foolscap sheets or wrote out on separate slips of paper which they wafered to the margin. When they had finished this work Pinckney's draught had become "printer's copy." For one brief week it served a great purpose and was the most useful document in the world. Then it was scrupulously destroyed; and concerning it no man of the men who knew its contents is known to have spoken a single word.

Apart from the inferential and conjectural statements of the preceding paragraph, the stricter principles of law lead to or toward the same conclusion. The draught was placed in the committee's hands to be used but not to be destroyed. Nevertheless the right to use, like the right of eminent domain, was commensurate with the necessities of the situation, and the committee might use it by destroying it.

The law allows within certain limitations, the presumption of fact that where an administrative officer had a certain, specific official duty to perform, he performed it. The Secretary of the Convention and the members of the Committee of Detail were not public officers but were charged with duties which, if not official, were still public, and the obligations and presumptions belonging to administrative officers may properly be applied to them. The Secretary's entry in the Journal of the Convention says, "The report was then delivered in at the Secretary's table, and being read once throughout, and copies thereof given to the members, it was moved and seconded to adjourn." All that there was to be "delivered in," was placed upon the Secretary's table, and it became his duty to preserve whatever the Committee had placed there subject to the future commands of the Convention. The "copies thereof" were the printed copies of the draught; and "the report" which was "then delivered in at the Secretary's table" was one of the printed copies accompanied by the oral explanation of the chairman.

What the Secretary did with the papers in his charge is told in the following note and extract:

The Secretary of the Convention has generally been censured as incompetent and negligent. Nevertheless the papers which he transferred to Washington witness for him that he did preserve and keep whatever papers came within his official custody. The Secretary of State certified, March 19th, 1796, that in addition to the Journals then received from Washington "were seven other papers of no consequence in relation to the proceedings of the Convention." One of these is a "draught of the letter from the Convention to Congress to accompany the Constitution"; one is an order from "the directors of the Library company of Philadelphia" to the Librarian directing him to "furnish the gentlemen who compose the Convention now sitting with such books as they may desire during their continuance at Philadelphia, taking receipts for the same"; one is a letter from "one of the people called Jews" setting forth that by the Constitution of Pennsylvania "a Jew is deprived of holding any publick office or place of Government." The others are even of less consequence. They make plain by their unimportance the important fact that Major Jackson scrupulously kept every paper which Rutledge "delivered in at the Secretary's table" on the 6th of August. That is to say, it is made plain that on the 6th of August, Rutledge did not deliver in at the Secretary's table either a written report of the committee or the Pinckney draught.

Judging in the light of all the facts which the case discloses we must conclude that the only thing which would have justified the Committee of Detail in not returning the Pinckney draught to the Secretary of the Convention was that it had been destroyed; the only thing which would have justified the Committee in destroying it, was that they were compelled to use it as printer's copy.

The Committee did well to use it. And yet if there was one thing in the world which justified Pinckney in publishing the Observations, it was that the Committee of Detail had destroyed his draught.

CHAPTER IV

WHAT PINCKNEY DID FOR THE CONSTITUTION

The style of the Constitution, we owe to Pinckney. Behind him, perhaps, was Chief Justice Jay, whose hand appears in the first Constitution of New York, but none of the men connected with the Convention, not even Hamilton, had attained what we may term the style of the Constitution—the clear, concise, declarative, imperative style which seems a characteristic part of the great instrument. Pinckney appreciated the difference between a constitution and a statute and in maintaining this difference his hand rarely erred. The Committee of Detail corrected Pinckney's language, occasionally, and sometimes rendered the meaning more certain by amplification but whenever they departed from his draught, there is an immediate falling off in style. A flagrant instance of this is in article IX, sections 2 and 3. In the hands of the Committee the provision relating to disputes and controversies between States expands into a string of minor provisions containing more than 400 words with all the involved petty particularities of an incoherent statute. Exempli gratia, "The Senate shall also assign a day for the appearance of the parties, by their agents before that house. The agents shall be directed to appoint, by joint consent, commissions or judges to constitute a court for hearing and determining the matter in question. But if the agents cannot agree, the Senate shall name three persons out of each of the several States; and from the list of such persons, each party shall alternately strike out one, until the number shall be reduced to thirteen; and from that number not less than seven, nor more than nine, names, as the Senate shall direct, shall in their presence, be drawn out by lot; and the persons whose names shall be so drawn, or any five of them, shall be,", etc., etc. The person who remembers that this and more like it, was actually prepared and printed and reported to the Convention as a proposed part of the Constitution of the United States, may well wonder what kind of a Constitution the Committee of Detail would have framed, if they had not had Pinckney to block out their work for them.

When dealing with the number of representatives in the first or lower house, Pinckney provided (Art. 3) for a specific number from each State, in the first instance, and then by one of his terse emphatic sentences, "and the legislature shall hereafter regulate the number of delegates by the number of inhabitants, according to the provisions hereinafter made at the rate of one for every —— thousand." The Committee adopted this verbatim but they prefaced it with an extraordinary apology or explanation, bearing some resemblance to the preamble of a statute (Art. 14, sec. 4): "As the proportions of numbers in different States will alter from time to time; as some of the States may hereafter be divided; as others may be enlarged by addition of territory; as two or more states may be united; as new states will be erected within the limits of the United States—the legislature shall, in each of these cases, regulate the number of representatives by the number of inhabitants, according to the provisions hereinafter made, at the rate of one for every forty thousand."

This "as," "as," "as," "as," "as" would be slovenly work even for a statute. It sounds little like a law, not at all like a constitution, much like an extract from a committee's report, justifying their work, explaining why a proposed provision may become at some unforeseen time, necessary or desirable.

It is true that the former of these provisions was taken from the Articles of Confederation; and that the latter is a paraphrase of the 8th resolution, but that only makes the matter worse. Their verbosity and incongruity were thereby placed before the eyes of every member of the Committee; and the fact that such provisions, flagrantly verbose and inexcusably incongruous, went into a draught of the Constitution shows that not one of the five members commanded what may be called the style of the Constitution; while the additional fact that not one instance of such prolixity of detail is to be found in the Pinckney draught shows that he was the master of its style and not the Committee.

There are unquestionably clauses and sentences and provisions in the Committee's draught which show the hand of the thoughtful statesman or of the good lawyer. Thus to Pinckney's provisions relating to the action of Congress on bills returned by the President with his objections, we have, "But, in all cases, the votes of both Houses shall be determined by yeas and nays; and the names of the persons voting for or against the bill shall be entered on the Journal of each House respectively." And to Pinckney's provisions concerning the conviction of treason, there is added, "No attainder of treason shall work corruption of blood, nor forfeiture, except during the life of the person attainted." In a word there is manifestly more than one hand in the Committee's work. In Pinckney's draught the warp and woof is of one texture from beginning to end. Even when an article is made up entirely of cullings from State constitutions and from the Articles of Confederation, the finished fabric is unquestionably of Pinckney's weaving.

It is not to be inferred that the members of the Committee of Detail were mediocre men or that they were negligent of the grave duty assigned to them. Yet the work which they actually did only demonstrates that for them to have produced a complete draught of the Constitution—as complete as the one which they reported—entirely the work of their own hands, in the limited time allowed them would have been an impossibility. The reduction of the Constitution to a written form with all its details required research, reflection, patient work and unhurried thought. Through the wide field of State and Federal relations, through State constitutions and the Articles of Confederation the framer needed to search, weighing State prejudices and national necessities, taking what was desirable, but with equal care leaving what was objectionable. There were not five men in the world working in each other's way, discussing each other's work, who, unassisted, could have drawn up a constitution in which so much was embodied and so little overlooked and have brought their patchwork contributions into one harmonious whole within the time prescribed. The country was well filled with men of talents, of ability, of energy, of patriotic fervor, with men who knew the conditions of our national affairs, the difficulties of acting, the perils of inaction, and yet the fact, undeniable, is that only one man foresaw the coming necessity of the situation and had the forethought to prepare a draught of the Constitution for the use of the Convention. The more I have surveyed the situation, the greater has appeared the necessity for some such work at the time; the more I have studied the work of Pinckney, the more perfectly adapted to the necessities of the situation does it appear to have been.

When Pinckney, foreseeing that a national Convention would be held and that if it failed to frame a constitution which would give to the waning Confederation the character and authority of nationality, the nationality of the Confederated States might disappear, he resolutely assigned to himself the task of framing one in which nationality should be secure and a national government above and independent of the States be the result. While yet a member of Congress he saw plainly these things—that the government of the Confederated States was drifting toward insolvency, for New York and Massachusetts alone had paid in full their quota of the Federal expenses; that it was drifting towards war; for at least one of the States was flagrantly violating the treaty of peace with Great Britain; that the Congress could neither raise money nor maintain a treaty; for the only power which it practically possessed was to beseech the States to pay their respective shares of the Federal expenses, and to pass as recently as March 21, 1787, resolutions urging on the States a repeal of all laws contravening the treaty of peace with Great Britain.

Pinckney was then in the full flush of youthful egoism, but the oldest member of the Convention, even Franklin, could not have chosen his method of construction more wisely. Wherever constitutional material existed, Pinckney found it, and preferred it to his own. A single paragraph will give an effective object lesson of his careful composite work:

"The United States shall not grant any title of nobility" (Art. Confederation VI). "The Legislature of the United States shall pass no law on the subject of religion" (Constitution of New York); "nor touching or abridging the liberty of the press" (Constitution Massachusetts); "nor shall the privilege of the writ of habeas corpus ever be suspended except in case of rebellion or invasion" (Constitution Mass.).

The resolution of March 21, 1787 is as follows: