AMERICAN HISTORICAL ASSOCIATION. ;tudies in the history of the federal cosvention of 1787. JOHN FRANKLIN JAMESON, PROFESSOR, univp:rsity of <;hk;a«o. (From the Annual Report of the American Historical Association for 1902, Vol. I, pages 87-167.) WASHINGTON: GOVERNMENT PRINTING OFFICE. 1903. AMERICAN HISTORICAL ASSOCIATION. STUDIES IN THE HISTORY OF THE FEDERAL CONVENTION OF 1787. JOHN FRANKLIN JAMESON, PROFESSOR, UNIVERSITY OF CHICAGO. (From the Annual Report of the American Historical Association for 1902, Vol. I, pages 87-167.) WASHINGTON: GOVEENMENT PRINTING OFFICE. 1903. ■;^\<\A^^ J0Mr'04 IV —STUDIES IN THE HISTORY OF THE FEDERAL CONVENTION OF 1787. By JOHN FRANKLIN JAMESON, Profi'snor, T/nivrrsit!/ of Cliirafjo. 87 STUDIES IN THE HISTORY OF THE FEDERAL CONVENTION OF 1787. Bv Prof. John Franklin Jameson. Of the papers here printed, the first was read at the Phila- delphia meeting- of the Association. The rest owe their pres- ence here to the merciful institution known as "leave to print." Most of them are merely essays in " the lower criti- cism." But need one apologize for textual criticism in such a case? Minute and technical studies respecting transactions intrinsicall}!' unimportant msij justly be disapproved. But those persons who agree with Darwin's declaration that the Anglo-Saxon migration across the Atlantic may ver}^ likely be the most important event in human history will think that the minutiae of the Philadelphia Convention are as well de- serving of elaboration as those of the councils of Sardica and Chalcedon — not to say Nicasa and Trent. An age which every year prints some scores of pages of textual criticism of the lives of Merovingian saints can surely devote a few to the immediate origins of the American Constitution, though it be but to " settle hotPs business." The following- is a list of the papers comprising the series: J. Letters from the Federal Convention. II. Letters not heretofore printed. III. List of letters in print. IV. The text of the Virginia plan. V. The text of the Pinckney plan. VI. The text of the New Jersey plan. VII. The text of Hamilton's plan. VIII. The Wilson drafts for the committee of detail. IX. Members who did not sign. X. The action of the States. XL Journals and debates of the State conventions. Of the above papers, those numbered II and III seem to 89 90 AMEKICAN HISTORICAL ASSOCIATION. ])c necessary adjuncts of the tirst; No. VIII presents an im- portant new text; No. IX is intended to meet an apparent though small need. Of X and XI, which are bibliograph- ical in their character, no more is thought than that thej may possil)ly help some weary brother. I venture to think No. V the most important. I. T.ETTERS FROM THE FEDERAL CONVENTION. There is certainly no lack of information concerning the doings of the great Federal Convention which met in this cit}' one liundred and fifteen years ago. The proceedings of each day may be followed in the journal of the Convention and in the invaluable record of its debates kept by Madison — not the least of the many public services for which we are indebted to that methodical little man. Yet I think it not hopeless to attempt to derive some further illustrations of its histor}^ from the letters written by various of the members during the con- tinuance of its sessions. Such as they are, the}" form a record no less authentic than the official journal, and even more strictly contemporaneous than Madison's notes in the form in which the latter have been presented to us. Moreover, their num- ber is not small. About eighty have been printed, in whole or in part or in summar}"/' and through the kindness of their owners 1 have been permitted to have copies of a considerable luimber which still remain in manuscript. It is true that many, if not most of them, are insignificant for the present purpose. It is also true that their contents are vasth^ less instructive than Ihej would doubtless have been if the Con vention had not, on May 29, adopted as one of its formal rules the injunction "that nothing spoken in the House be printed or otherwise published or communicated without leave.'"' But it should be remembered that a portion, though a small portion, of the transactions of the Convention preceded this decree. In the second place, not every member, though to be sure nearly all, observed the rule with the utmost strict- ness. Gilman of New Hampshire, excusable perhaps as hav- ing arrived very late and but a few days before the elate of the « A list of the printed letters forms No. Ill of this series of studies. In the footnotes to this first paper hitters are, for the sake of brevity, referred to by their numbers on that list. ''Documentary History of the Constitution, I, 54. THE FEDERAL CONVENTIOlSr OP 1787. 91 letter quoted, writes to his cousin Joseph, with an astonish- ing- misconception of a very stringent rule — As secrecy is not otherwise enjoined than as prudence may dictate to each individual, in a letter to my brother John, of the 28th instant, I gave him (for the satisfaction of two or three who will not make it public) a hint respecting the general principles of the plan of National Government that will probably be handed out — which will not be submitted to the leg- islatures, but after the approbation of Congress to an assembly or assem- blies of representatives recommended by the several legislatures, to be expressly chosen by the people to consider and decide thereon. « (The letter to John Taylor Gihnan seems not to be extant.) Other members felt the obligation of the rule to be somewhat re- laxed during- the later portion of the Convention's proceedings, when the great questions had been settled, and communicated to their anxious friends some notion of the stage which had been reached in the transactions, and even in a few cases some hints of the contents of the instrument which they were framing. Even the cautious and punctilious Madison, -writing on the 6th of September, feels free to describe the Constitution in out- line to his correspondent, because that correspondent is Jeffer- son in Paris and the Convention is evidently within a few days of adjournment.* Finall3^ it is worth noting that a certain number of the letters are addressed by members remaining in Philadelphia to members who have gone home, or vice versa, and in these we lind, as we might expect, a greater freedom of utterance.'' A notable example is a most striking letter of Washington to Hamilton, written at the crisis of the Conven- tion.'^ But of this later. Naturally it is the outward aspects of the Convention which are most largely illustrated by these letters. Some of them exhibit the slowness of the members in arriving at Philadel- phia — the tedious dela3^s in securing a quorum.'' Others relate the comings and goings of such as did not remain throughout the entire four months.-^ It would in most cases be possible by their use to explain the absence of those members whose names are not signed to the instrument, yet who are not "No. 54. &No. 75. c Letters of members to members are: Nos. G, 8, 19, 24, 32, 39, 49, 55, G3, 67, G9, 70, 77. rfNo. 39. «Nos. 1, 4, 5, G, 9-13, 54. No. 17 gives a list of members. /Nos. 24, 27, 37, 42, 43, 4«, 49, 50, 55, 5G, 02, 63, G6, 68. 92 AMEEICAJSr HISTORICAL ASSOCIATION. named as among those who refused their signatures/' The most interesting of the letters of the absent is that in which Hamilton explains to Rufus King that he had written to his recalcitrant colleagues informing them that if either of them would come down he would accompanj^ him to New York. ''So much,*'' he says, "for the sake of propriety and public opinion." ''In the meantime," he adds, "if any material alteration should happen to be made in the plan now before the Convention, I will be obliged to you for a communication of it. 1 will also be obliged to you to let me know when 3'our conclusion is at hand, for I would choose to be present at that time,""^ Later he writes inquiring into the truth of the rumor, current in New York, that some late changes in the scheme have taken place "which give it a higher tone." "^ Interest- ing also are those letters which show that one of Major Pierce's reasons for absence was the expectation of fighting a duel, in which Hamilton was second to his adversarj^'' Some of the earlier letters show the anxieties and difficulties of the members as to quarters.^ Some of them went into lodgings, some to taverns. Washington was entertained at the house of Robert Morris. Mason put up at the old Indian Queen, in Fourth street, above Chestnut, where, says he — we are very well accommodated, have a j^ood room to ourselves, and arc^ charged only twenty-five Pennsylvania currency per day, including our servants and horses, exclusive of club in liquors and extra charges; so that I hope I shall be able to defray my expenses with my public allowance, and more than that I do not wish./ As time went on, however, and the proceedings bade fair to })e prolonged far beyond the time originally expected, not a few of the members found their public allowance far from sufficient, and letters to the executives of the States asking for remittances to meet unexpected expenses are not infre- quent.^ They are not themselves dissatisfied that the work is "This has been attempted, by means of these letters and other sources of information, in No. IX of this series of papers, pp. 157-160, infra. (>No. 63. ••No. 69. dNos. 48, 49, 50. e Nos. 4, 6, 8. /No. 4. That Pierce lodged at this same hostelry appears from his statement in a memorandum printed in the American Historical Review, III, 328. Madison and Charles Pinckney lodged in the same house with each other (Madison's Letters, IV, 203); so probably did Kead and Dickinson (No. 8). !/Nos. 18, 22, 23, 41, 51, 53. THE FEDERAL CONVENTION OF 1787. 93 being done deliberately/' but Madison twice writes Jefferson that the public mind is very impatient for the event. ^ Early in eTuly there is a prediction that the delegates will be detained till the middle of August.'' Before the end of July the 1st of September is talked of as the time of release. ^ By the middle of August a continuance till the middle of Septem- ber begins to be foreseen.'' Something of the social life of the members transpires in the letters/ though not so much as in Washington's diary. ^ The daily dinners and tea-drinkings which that much-enduring man tranquilly records wore desperately upon the country -loving and less patient spirit of George Mason. He had been but ten days in Philadelphia when he wrote: I begin to grow heartily tired of the etiquette and nonsense so fashion- able in this city. It would take nie some months to make myself master of them, and that it should require months to learn what is not worth remembering as many minutes is to me so discouraging a circumstance as determines me to give myself no manner of trouble about them.'''' It is not illegitimate to derive a little anmsement from the comparison of two letters of Franklin.* The one (corrobo- rated by Washington's diary) shows that he entertained the members at dinner on the 16th of May, two daj^s after the date on which the Convention should have begun its sessions. The other, in which he is describing to his sister the recent enlargements of his house, tells her that his new dining-room enables him to have a dinner-party of twenty-four. As presi- dent of Pennsjdvania, the sagacious doctor must dine the delegates; but, born not in vain in Yankee land, he placed his invitation early, when not half the delegates had arrived. It was not his fault that they were so slow in assembling. As nearly as it can be calculated, there must have been just about " Nos. 23, 61. t> Nos. 44, 75. <■■ No. 35. d Nos. 46, 51. e Nos. 58, 59, 62, 65. f Nos. 2, 11, 14, 28. (/Washington's diary for the period of the Convention exists in two forms. The Library of Congress possesses a volume, which, according to its Calendar of Washington Manuscripts (pp. 65, 66), "is probably the original notebook from which the amplified diary, now in the Department of State, was written at a later period." Its text for the period in question was printed, with omissions, in the Pennsylvania Magazine of History, XI, 296-308. From the diary in its finished form, preseni'ed at the Department of State, extracts have been printed by Sparks (IX, 538-541) and by Ford (XI, 140-155). h No. 11. tNos. 2, 14. 94 AMERICAN HISTORICAL ASSOCIATION. twenty-four members in town on the 16th; two daj^s later they would have been, in a proper sense, one too many for him. But much more important things than these are to be found in the letters. Beginning with the earliest letters, we catch glimpses of those private and preparatory consultations of which the official records tell us nothing. "The Virginia deputies (who are all here)," says Mason, writing in the da3's when a quorum had not yet come together, "meet and confer together two or three hours ever}^ day, in order to form a proper correspondence of sentiments; and for form's sake, to see what new deputies are arrived, and to grow into some acquaintance with each other, we [that is, the Convention] regularl}^ meet every day at 3 o'clock."" The ordinary hours of meeting, by the way, are stated b}^ one member as being from 10 o'clock till ■!.* Franklin writes to his sister, imme- diately after the adjournment of the Convention: I attended the business of it live hours in every day from the beginning, which is something more than four months. You may judge from thence that my health continues; some tell me I look better, and they suppose the daily exercise of going and returning from the statehouse has done me good. ^ Washington in his diarj^ speaks of ' ' not less than live, for a large part of the time six, and sometimes seven hours, sitting every da3^" But to return to the earliest daj^s of the Convention. It will be remembered that soon after the Randolph or Virginia plan was presented Charles Pinckney, of South Carolina, pre- sented a plan, and also that it has whollj^ disappeared,^ for that which is printed in the journal under his name is demon- strabl}' something quite different. Now, a lettei' written in those early daj^s before a quorum had been obtained gives an a No. 4. bNo. 62. The journal, however, -shows these hours as definitely fixed during only the period from August 18 to August 24. See No. 67. After that the hours were from 10 to 3. From May 28 to .Tune 2 the hour of meeting was 10 o'clock, from June 4 to August 18 11 o'clock, but without .specified hour for adjournment. Documentary History, I, 132, 1.34; III, 559, G13, et passim. I- No. 84. Watson, Annals, ed. 1891, I, 402, says that the municipal authorities covered the street pavement outside the statehouse with earth to silence the rattling of wheels during the time of the Convention. In the Documentary History, 1,280, is ])rinted a communication from the Library Company of Philadelphia, extending tlie i)rivilege of drawing books to the members of the Convention during its continuance. f'So it was universally supposed at the time when this paper was read; but see i)p. 128,132, infra, and the American Historical Review, VIII, 509-511. THE FEDERAL CONVENTION OF 178Y. 95 outline of a plan which the writer of the letter had seen and . copied, and which, though he does not give the author's name, can be demonstrated to have been Pinckne^^'s, which accord- ingly was in existence as early as May 20/' The events of the first days' proceedings of the Convention are not related in a manner different from that of the journal; but the letters show much of the spirit which the delegates manifested at the beginning of their labors, of the various expectations which they and others formed concerning their work, and of the prevalent notions as to what it should be.* If George Mason's estimate was correct, the prevailing opinion at the beginning of the sessions was in favor of a total reno- vation of the existing articles and a government at least as strongl}^ centralized as that which was outlined in the Vir- ginia resolutions soon after presented/ But it should be said that his estimate was formed at a time when the large States were more fully represented in Philadelphia than the small. The spirit in which the work was begun was obviously marked by the expectation and the desire of harmony. Many passages declare, forcibly and even eloquently, the writers' sense of the magnitude of the occasion and of the critical situation in which the United States stood. ^^ Pierce in his notes, published a few 3^ears ago, speaks of himself as having occupied "a seat in the wisest council in the world." ^ Johnson, of Connecticut, a graver man, tells his son that the assembly includes many of the ablest men in America,-^' while Kobert Morris writes to his sons in Germany that they ought to pray for a successful issue to the Convention's labors, "as the result is to be a form of government under which you are to live, and in the admin- istration of which you may probably hereafter have a share, provided you qualify yourselves b}^ application to 3^our studies,"^ and one of the North Carolina delegates takes satis- faction in believing that they have contributed to the happi- ness of millions. ^^ The situation of the General Government [wrote Washington], if it can be called a government, is shaken to its foundation and liable to be over- turned by every blast. In a word, it is at an end, and vinless a remedy is soon applied anarchy and confusion will inevitably ensue. * a No. 6. See pp. 119, 120, infra. /No. 29. l> Nos. 4, 5, 9, 15, 16, 18. g No. 28. •t'No. 5. ?iNo.66. dNos. 10, 15, 16, 21, 28, 60, 66. « No. 15. e American Historical Review, III, 334. 96 AMERICAN HISTORICAL ASSOCIATION. No member of the Convention was less inclined to rhetor- ical exaggeration than George Mason; none surpassed him in the gift of a terse and masculine eloquence. America [he Avrites to his son] has certainly upon this occasion drawn forth her first characters. There are upon this Convention many gentle- men of the most respectable abilities and, so far as I can discover, of the purest intentions. The eyes of the United States are turned upon this assembly and their expectations raised to a very anxious degree. May God grant we may be able to gratify them by establishing a wise and just government. For my own part I never before felt myself in such a situa- tion, and declare I would not, upon pecuniary motives, serve in this Con- vention for a thousand pounds per day. The revolt from Great Britain and the formations of our new governments at that time were nothing com- pared to the great business now before us. There was then a certain degree of enthusiasm which inspired and supported the mind; but to view through the calm, sedate medium of reason the influence which the establishment now proposed may have upon the happiness or miserj^ of millions yet unborn is an object of such magnitude as absorbs, and in a measure suspends, the operations of the human understanding. « It may naturally be supposed that the hopefulness with which the Convention began its work was overclouded by the discordant debates -which marked the last days of June and the first days of Jul^'^, days in which it long seemed impossible to bring into any agreement the conflicting desires of the large and the small States, Several extant letters show that this was plainly felt to be the great crisis of the Convention, in which the danger of breaking up without result was immi- nent.'^ Most strikingl}^ is this shown b}^ the letter of Wash- ington to Hamilton already alluded to. When I refer you [he says] to the state of the counsels which pre- vailed at the period you left the city [some ten days before] and add that they are now, if possible, in a worse train than ever, you will find but lit- tle ground on which the hope of a good establishment can be formed. In a word, I almost despair of seeing a favorable issue to the proceedings of our Convention, and do therefore repent having had any agency in the business. * * * I am sorry you went away. I wish you were back. The crisis is equally important and alarming, and no opposition, under such circumstances, should discourage exertions till the signature is offered. <' As has already been said, in the later months of the Con- vention one finds in the correspondence occasional disclosures as to the stage reached in the proceedings. But these add nothing to what is in the journal, except the evidences of relief when, the main outlines of the Constitution having "No. Ki. ''Nos. 30-33, 39. <-Nu. 39. THE FEDERAL CONVENTION OF 1787. 97 been completed, it had been handed over to the Committee of Detail/' More interesting are the letters in which hints re- specting the Constitution itself are convej^ed. It is not probable [writes one of the North Carolina delegates, August 12] that the United States will in future be so ideal as to risk their happi- ness upon the unanimity of the whole, and thereby put it in the power of one or two States to defeat the most salutary propositions and prevent the Union from rising out of that contemptible situation to which it is at present reduced. ^ Gilman's disclosures as to the process of ratitication have already been mentioned. Madison, after outlining to Jeffer- son the powers proposed to be conferred on the General Gov- ernment, remarks: The extent of them may perhaps surprise you. I hazard an opinion, nevertheless, that the plan, sliould it be adopted, will neither effectually answer its national object nor i^revent the local mischiefs which every- where excite disgust against the State governments. '' As the Convention draws to its close several members, look- ing forward to the action of Congress upon it, express to the authorities of their States an anxiety that the latter shall main- tain an adequate representation in Congress, in order that that body may act promptly, and get the Constitution before the State legislatures at their autumnal sessions.'^ One of the last letters is one in which IJickinson, writing to Read, authorizes the latter to sign his name to the Constitution, as he wishes to leave a few days before the close. ^ I am informed by Mr. Andrew H. Allen, the official custodian of the original docu- ment, that Dickinson's signature to it is undoubtedly written in Read's hand. Finally comes the brief note in which Maj. William Jackson, secretary of the Convention, informs Gen- eral Washington that — Major Jackson, after burning all loose scraps of paper which belong to the Convention, will this evening wait upon tlie General with the journals and other papers which their vote directs to be delivered to his excellency Monday evening./ «Nos. 34, 46, 56, 58, 65, 68. b No. 58. cNo. 75. dNos. 34, 62, 65. e No. 77. /No. 78. From a conversation with Jackson in 1818, which Jolm Quincy Adams records, Memoirs, IV, 175, it appears that Jackson did preserve extensive minutes of the debates of the Convention. Possibly these are still extant; see Appleton's Cye. Biog., s. v., but also Pa. Mag. Hist., II, 353. H. Doc. 461, pt 1 7 98 AMERICAN HISTORICAL ASSOCIATION. A group of letters which in strictness falls outside the pres- ent subject, yet which presents much the same sort of interest, is that of the letters written by members in the next day or two after the adjournment. General Washington transmits a copy of the Constitution to Lafayette, with a brief note: It is the result of four months' deliberation [he says]. It is now a child of fortune, to be fostered by some and buffeted by others. What will be the general opinion or the reception of it is not for me to decide, nor shall I say anything for or against it. If it be good, I suppose it will work its way; if bad, it will recoil on the framers.« Randolph sends a copy to Beverley Randolph, the lieutenant- governor, who had been taking his place as head of the execu- tive of Virginia during his absence; and adds, in a sentence characteristic of his tortuous mind: Altho' the names of Col. Mason and myself are not subscribed, it is not therefore to be concluded that we are opposed to its adoption. Our rea- sons for not subscribing will be better explained at large, and on a personal interview, than by letter. & The members from North Carolina are careful to explain promptly to their governor how completel}^ the interests, and especially the pecuniar}^ interests, of North Carolina have been safeguarded by the great compromises and by some of the minor provisions of the proposed Constitution.^ The series Htly ends with a letter of Madison to Edmund Pendleton, in which he sums up in a sentence the history of the Convention: The double object of blending a proper stability and energy in the Gov- ernment with the essential chai'acters of Ihe repul)lican form, and of trac- ing a proper line of demarcation between tlie national and State authorities, was necessarily found to be as difficult as it Avas desirable, and to admit of an infinite diversity concerning the means among those who were unani- mously agreed concerning the end.'^ II. LETTEES NOT HERETOFORE PRINTED. 1. David Brearley to Jonathan Dayton {extract). ^ Philadelphia, 9"' June 1787. Dear Sir: * * * We have been in a Committee of the Whole for some time, and have under consideration a number " No. 83. ''No. 82. cNo. 79. rtNo. 85. eFrom a copy kindly furnished by Mr. Simon Gratz, of Pliiladelphia, who possesses the original manuscript. THE FEDEEAL CONVENTION OP 1181. 99 of very miportant propositions, none of which, however, have as yet been reported, M}'^ colleagues, as well as myself, are very desirous that you should join us immediately.'* The importance of the business really demands it. ^. David Brearley to William Pater son. * Philadelphia 'Bl Axig. 1787. Dear Sir: 1 was in hopes after the Committee had reported, that we should have been able to have published [? finished] by the first of September, at present I have no prospect of our getting through before the latter end of that month. Every article is again argued over, with as much earnestness and obstinac}^ as before it was committed. We have lately made a rule to meet at ten and sit 'til four, which is punctually complied with. Cannot you come down and assist us, — we have many reasons for desiring this; our duty, in the manner we now sit, is quite too hard for three,'' but a much stronger reason is, that we actually stand in need of your abilities. I am, most respectfully, dear sir, your obedient humble servant David Brearley. 3. Extract from the Pennsylvania Journal.'^ We are informed, that many letters have been written to the members of the foederal convention from different quar- ters, respecting the reports idly circulating, that it is intended to establish a monarchical government, to send for the bishop of Osnaburgh, &c., &c. — to which it has been uniformly an- swered, tho' we cannot, affirmatively, tell j^ou what we are doing, we can, negatively, tell you what we are not doing — we never once thought of a king. o Dayton took his seat June 21. Brearley, Houston, Paterson, and Livingston were already present at the time when the letter was written. b From a copy found among the MSS. of George Bancroft at the Lenox Library, "Pat- erson MSS.," p. 603. There seems to be no evidence of Paterson's presence from July 23 to the time of signing the Constitution. Documentary History, III, 405. cl. e., Brearley, Livingston, and Dayton. Documentary History, I, 140, 144; III, 661, 574, 596. d Of August 22, 1787. Mentioned in Curtis, History of the Formation of the Constitu- tion, II, 495, and Constitutional History, I, 626. I have procured a copy of it and inserted it here mainly that it may be seen not to be an individual letter, though its phrases are taken from one written two days before by Governor Martin, letter No. 65. Upon its sub- ject, see Humphreys to Hamilton, in the latter's works, ed. Hamilton, I, 442; Hamilton's History of the Republic, III, 331: J. C. Hamilton, Life of A. Hamilton, II, 535. L.ofC. 100 AMERICAN HISTORICAL ASSOCIATION. Jf,. Nathanld Gorham to Caleb Strong^'- Philadelphia A ruf 29 My Dear Sir 1 ret-'^ your favour from N York and was pleased to find that ycni had got on so well, inclosed is a Letter that came to hand for you. We haye now under consideration the 18"" Article which is that the United States shall guarantee, &c. &c.'' I am in hopes we shall be done in about 20 days. There are several things referred which will take some time. Remember me to our friend Sedgwick. o. Jondthan Dai/ton to Gen. Ellas Dayton {extract).'^ Philadelphia, Sej)i. 9, 1787. Dear Sir: * * * We have happil}^ so far finished our business, as to be employed in giving it its last polish and preparing it for the pu1)lic inspection. This, 1 conclude, may be done in three or four days, at which time the public curi- osity and our desire of returning to our respective homes, will equall}^ be gratified. III. LIST OF LETTERS IN PRINT. The following is intended as a list of letters to be found in print, written b}^ members of the Philadelphia convention during its sessions, w^hether the same are perceived to have any importance to history or not. Letters printed onl}^ in extract or in summary are included, and also some letters of importance written just after the adjournment. On the other hand, letters written by members before they arrived in Philadelphia, though after the opening of the convention, are not included: 1. May 15. Madison to Jefferson. Letters and other Writings, I, 328. 2. May 18. Franklin to Thomas Jordan. Works, ed. Sparks, X, :W4; ed. Bigelow, IX, 386. 3. May 18. Franklin to George Whatley. Works, ed. Sparks, X, 306; ed. Bigelow, IX, 388. ttThe original of this letter is possessed by the Historical and Natural History Society of South Natick, Mass. A copy was kindly furnished by Gustavus Smith, esq., president of the society. '' Consideration of article 18 of the report of the committee of detail was not begun, according totho journal, until the session of August 30 was well advanced. Documentary History, I, 1G9. ('From a copy kindly scut by Mr. SiuKiu (iratz, owner of tlie original. THE FEDERAL CONVENTION OF 1787. 101 4. May 20. Mason to George Mason, jr. Miss Rowland's Mason, II, 100; Hart, Contemporaries, III, 203; extract in Bancroft, Con- stitution, II, 421. 5. May 21. Mason to Arthur Lee. Lee's Arthur Lee, II, 319; Rowland, II, 102. 6. May 21. Read to John Dickinson. Read's George Read, p. 443. 7. May 24. Randolph to Beverley Randolph. Calendar of Virginia State Papers, IV, 289. 8. May 25. Read to John Dickinson. Brotherhead, Book of the Signers, 1861, p. 63. 9. May 27. Madison to Edmund Pendleton. Letters, I, 328. 10. May 27. Madison to James Madison, sr. Letters, I, 329. 11. May 27. Mason to George Mason, jr. Rowland, II, 103. 12. May 27. Randolph to Beverley Randolph. Calendar of Virginia State Papers, IV, 290. 13. May 30. Davie to James Iredell. McRee, Life of Iredell, II, 161. 14. May 30. Franklin to Mrs. Jane Mecom. Works, ed. Bigelow, IX, 392. 15. May 30. Washington to Jefferson. Sparks, IX, 254; -Ford, XI, 156. 16. June 1. Mason to George Mason, jr. Rowland, II, 128; extract in Bancroft, II, 424. 17. June 6. Madison to Jefferson. Letters, I, 330. 18. June 6. Randolph to Beverley Randolph. Calendar of Virginia State Papers, IV, 293. 19. June 9. Brearley to Jonathan Dayton. See p. 98, supra. 20. June 10. Madison to Monroe. Extract in "Washington-Madison Pa- pers" (McGuire sale catalogue), p. 129. 21. June 11. Gerry to Monroe. Extract in Bancroft, II, 428. 22. June 12. Spaight to Governor Caswell. N. C. Records, XX, 723. 23. June 14. Four N. C. delegates to Caswell. N. C. Records, XX, 723. 24. June 16. Wythe to Edmund Randolph. From Williamsburg. Sum- marized in the Calendar of the Emmet Collection, No. 9542. 25. June 19. Davie to Caswell. N. C. Records, XX, 725. 26. June 19. Davie to James Iredell. McRee' s Iredell, II, 161. 27. June 21. Randolph to Beverley Randolph. Calendar of Virginia State Papers, IV, 298. 28. June 25. Robert Morris to his sons. Extract in Pennsylvania Maga- zine of History, II, 170. 29. June 27. Johnson to his son. Extract in Bancroft, II, 430. 30. June 30. Mason to Beverley Randolph. Rowland, II, 131; Calendar of Virginia State Papers, IV, 310. 31. July 1. Washington to David Stuart. Sparks, IX, 257; Ford, XI, 159. 32. July 3. Hamilton to Washington. From New York. J. 0. Hamil- ton, Life of A. Hamilton, II, 522; Works, ed. Hamilton, I, 435; ed. Lodge, VIII, 175; Hamilton's Republic, III, 317; Sparks, Letters to Washington, IV, 172; Hunt, Madison, ni, 351. 102 AMERICAN HISTOEICAL ASSOCIATION. 33. July 3. Spaight to Iredell. McRee, Iredell, II, 162. 34. July 7. Four North Carolina delegates to Caswell. N. C. Eecords, XX, 733. 35. July 8. Williamson to Iredell. McRee, II, 163. 36. July 9. Washington to Hector St. John de Crevecoeur. Sparks, IX, 259. 37. July 10. Blount to Caswell. N. C. Records, XX, 734. 38. July 10. Blount to W^iUiam Constable. N. C. Records, XX, 734. 39. July 10. Washington to Hamilton. Sparks, IX, 260; Ford, XI, 162; J. C. Hamilton, Life of A. Hamilton, II, 527; Hamilton's Works, ed. Hamilton, I, 437; Hamilton, Republic, 111,322. 40. July 12. Blount to Caswell. N. C. Records, XX, 739. 41. July 12. Randolph to Beverley Randolph. Calendar of Virginia State Papers, IV, 315. 42. July 16. Wythe to Beverley Randolph. From Williamsburg. Broth- erhead. Centennial Book of the Signers, 1876, p. 257. 43. July 17. Davie to Iredell. McRee, II, 165. 44. July 18. Madison to Jefferson. Letters, I, 333. 45. July 19. Washington to R. H. Lee. Lee's R. H. Lee, II, 35; Sparks, IX, 261; Ford, XI, 163. 46. July 22. Williamson to Iredell. McRee, II, 167. 47. July 23. Sherman to Timothy Pickering. Summarized in 6 Mass. Hist. Soc. Coll., VIII, 451. 48 Hamilton to . Works, ed. Hamilton, I, 437 ; ed. Lodge, VIII, 176. 49 Hamilton to William Pierce. Writings, ed. Lodge, VIII, 177. 50. July 26. Hamilton to Auldjo. Works, ed. Hamilton, I, 439; ed. Lodge, VIII, 178. 51. July 27. Alexander Martin to Caswell. N. C. Records, XX, 753. 52. July 28. Madison to James Madison, sr. Letters, I, 335. 53. July 30. Strong to Alexander Hodgdon, treasurer of Massachusetts. Summarized in the Calendar of the Emmet Collection, No. 545. 54. July 31. Oilman to Joseph Oilman. N. H. State Papers, XXI, 835. 55. Aug. 5. McClurg to Madison. From Richmond. Summarized in Bulletin of the Bureau of Rolls and Library, IV, 487. 56. Aug. 6. Davie to Iredell. McRee, II, 167. 57. Aug. 12. Madison to James Madison, sr. Summarized in Bulletin of the Bureau of Rolls and Library, IV, 68. 58. Aug. 12. Spaight to Iredell. McRee, II, 168. 59. Aug. 13. Gerry to Gen. James Warren. Austin, Life of Gerry, II, 36. 60. Aug. 15. Washington to Lafayette. Sparks, IX, 262; extract in Ford, XI, 162. 61. Aug. 19. Washington to Knox. Sparks, IX, 264. 62. Aug. 20. Blount to Caswell. N. C. Records, XX, 764. 63. Aug. 20. Hamilton to Rufus King. J. C. Hamilton, Life of A. Ham- ilton, II, 533; Works, ed. Hamilton, I, 439; ed. Lodge, VII, 178; Hamilton, Republic, III, 329; King's King, I, 258. 70. Aug. 29. 71. Sept. 2. 72. Sept. 3. 73. Sept. 3. 74. Sept. 4. 75. Sept. 6, 76. Sept. 9. 77. Sept. 15. 78. Sept. 17. THE FEDERAL CONVENTION OF 1787. 103 64. Aug. 20. Hamilton to Jeremiah Wadsworth. Works, ed. Hamilton, I, 440; ed. Lodge, VIII, 179. 65. Aug. 20. Alexander Martin to Caswell. N. C. Records, XX, 763. 66. Aug. 20. Williamson to Caswell. N. C. Records, XX, 765. 67. Aug. 21. Brearley to William Paterson. See p. 99, supra. 68. Aug. 23. Davie to Caswell. From Halifax, N. C. N. C. Records, XX, 766. 69. Aug. 28. Hamilton to Rufus King. J. C. Hamilton, Life of A. Ham- ilton, II, 533; Works, ed. Hamilton, I, 441; ed. Lodge, VIII, 179; Hamilton, Republic, III, 329; King's King, I, 258. Gorham to Caleb Strong. See p. 100, supra. Randolph to Beverley Randolph. Calendar of Virginia State Papers, IV, 338. Gilman to John Sullivan. N. H. State Papers, XVIII, 790. Pierce to Don Diego de Gardoqui. From New York. New Jersey Journal, November 28, 1787; Carey's American Museum, II, 583. Madison to James Madison, sr. Letters, I, 336. Madison to Jefferson. Letters, I, 337. Dayton to Gen. Elias Dayton. See p. 100, supra. Dickinson to George Read. Read's Read, p. 456. Maj. William Jackson, secretary of the Convention, to Wash- ington. Bancroft, II, 441. 79. Sept. 18. Blount, Spaight, and Williamson to Caswell. N. C. Records, . XX, 777. 80. Sept. 18. Gilman to Joseph Gilman. Arthur Gilman, The Gilman Family, p. 109; G. Hunt, Fragments of Revolutionary History, p. 156. 81. Sept. 18. Gilman to John Sullivan. N. H. State Papers, XXI, 836. 82. Sept. 18. Randolph to Beverley Randolph. Calendar of Virginia State Papers, IV, 343. 83. Sept. 18. Washington to Lafayette. Sparks, IX, 265. 84. Sept. 20. Franklin to Mrs. Jane Mecom. Writings, ed. Bigelow, IX, 406. 85. Sept. 20. Madison to Edmund Pendleton. Letters, I, 340. 86. Sept. 28. Pierce to St. George Tucker. American Historical Review, III, 313. IV. THE TEXT OF THE VIRGINIA PLAN. The Virginia or Kandolph plan for the amendment of the Articles of Confederation, presented to the Federal Conven- tion on May 29, is commonly held to be a familiar and certain docmnent. Yet there exist four different texts of these reso- lutions, and, what is more remarkable, it can (in the view of the present writer) be proved that no one of the four is the exact text of the original series which Governor Randolph laid 104 AMERICAN HISTORICAL ASSOCIATION. before the Convention on Ma}^ 29, 17ST. As doubts, to say the least, attend also the text of the other plans presented, it ma}- be well before proceeding- to. attempt a demonstration of this thesis to explain why it is not inconceivable that, important as these documents were, their exact text may be uncertain. Luther Martin in one of the opening passages of his Genu- ine Information, says of the Convention:" So extremely solicitous were they that their proceedings should not transpire, that the members Avere prohibited even from taking copies of resolutions on which the Convention were deliberating, or extracts of any kind from the journals, without formally moving for and obtaining permis- sion by a vote of the Convention for that purpose. The rules of the Convention now in print,'' ))ear him out so far as the journals a-re concerned, but not as to resolutions, which like the various "plans," were not regarded as parts of the journal. Yet the injunction "that nothing spoken in the House be printed, or otherwise published, or communicated without leave," doubtless required secrecy as to the plans. Pierce sa3^s,'■ speaking apparently of the Virginia plan: A copy of these propositions was given to each member with an injunc- tion to keep everything a profound secret. One morning, by accident, one of the members dropped his copy of the i>ropositions, which, being luckily picked up by General Mifflin, was presented to General WasliiTig- ton, our President, who put it in his pocket. He goes on to relate how the General, the next day, just before adjournment, forcibly reproA^ed such carelessness, tbrew the paper on the table — and (juitted the room with a dignity so severe that every person seemed alarmed; for my jiart I was extremely so, for putting my hand in 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 tiie liandwritingof anothei- l)erson. In other words, the copy which each member had of the propositions was, in the ordinary case, a copv made l)y his own hand. Those who know how few persons can copy " YiitcR, erl. 1821, p. 12; Elliot, T, ;V)5. I quote Elliot, unless the contrary is stated, from that crlition of 1S3U and subsequent years which is designated on its title-page as the sec- ond, hut is the third— the edition commonly used. See also what Martin says, ibid., 358, of the refusal of the Convention to permit its momLiers at the time of the adjournment of ,Tuly26, " to take correct copies of the propositions to which the Convention had then agreed." '> Documentary History of the Constitution, I, 64. '•American Historical Review, HI, :V2t. THE t^EDERAL CONVENTION OF 1181. 105 anything accuratelj^ will see here a natural source of varia- tions, even in that more formal and deliberate age. More- over, there would always be much chance that a member, following the progress of debate and conclusion with his paper before him, should interline it with some of the addi- tions or amendments which were successively resolved upon, and that these should creep undistinguished into some fair copy which he might subsequently make. Whatever be the causes, the variations certainly exist. Of the Virginia resolutions there are, as we have said, four texts. As the original text in Randolph's handwriting, if such there were, is nowhere said now to exist, it is natural to take up first that which Madison gives." It is printed in the Docu- mentary History' of the Constitution^ and in Hunt's Writings of flames Madison.'' Gilpin printed it, with a small but im- portant variation, in The Madison Papers,'' and it may also be found in the volume strangely called "Journal [meaning Debates] of the Federal Convention, kept liy James Madison "'• * '• edited by E. H. Scott,"'' and in the fifth volume of Elliot.'^ This text, which we may call A, is sufficiently de- scri])ed by saying that the ninth resolution in its series begins with the words: Resolved, That a national judiciary l)e established, to consist of one or more supreme tribunals and of inferior tribunals to be chosen by the National Legislature, to hold their offices during good behavior, and to receive, etc. Texts of this type can not in this section exactty represent the original resolutions. This may be seen by an examina- tion of the journal of the Committee of the Whole for June 4 and June 5.^ It there appears, by explicit quotation, that the ninth resolution undouljtedly contained originall}^ the words: Resolved, That a national judiciary be established, to be appointed by the National Legislature, to hold their offices during good behavior, and to receive, etc. « Though the speech with which Randolph accompanied the introduction of his reso- lutions appears in Madison's notes in Randolph's handwriting, tlie text of the resolutions there given is in Madison's hand. Hunt, Writings of James Madison, III, 21 n. 6111,17-20. cIII, 17-21. (« II, 731-735. e Pp. 61-64. Mr. Hunt gives to Madison's notes the same inappropriate and mislead- ing name. /Pp. 128-130. There are differences of punctuation; hut they are hardly significant ff Documentary History, I, 210; Elliot, I, ItiO, 161. 106 AMERICAN- HISTOTIICAL ASSOCIATION^. Of the insertion of the other words quoted above in this clause, or, rather, of the insertion of words closely resembling them, there is definite record in the form of a vote of the Committee of the Whole, June tt, ''to add these words to the first clause of the ninth resolution, namel}^: 'To consist of one supreme tribunal, and of one or more inferior tribunals.""* Plainlj^ these words can not have been in the original plan. Furthermore, on June 12 — it was moved and seconded to alter the resolution submitted by Mr. Ean- dolph, so as to read as follows, namely: "That the jurisdiction of the supreme tribmial shall be to hear and determine in the dernier resort all pirades, felonies, etc." ^ In other words, now that a provision for both supreme and inferior tribunals — a provision not included in the original document — had been inserted by the committee, it seemed necessary also to modify the clause relating to jurisdiction by giving to the supreme tribunal the position of an appellate court. Now, text A in this clause gives the reading — That the jurisdiction of the inferior tribunals shall be, to hear and de- termine in the first instance, and of the supreme tribunal to hear and determine in the dernier resort, all piracies, etc. As before, the proposal recorded in Committee of the Whole shows that these words were not in the original resolutions. It will be noticed that here one supreme court is spoken of, whereas in the earlier clause the reading of A is "one or more supreme tribunals," in itself an improbable reading. Probably Article 9 of the Virginia plan originally read: Resolved, That a national judiciary be established, to be appointed by the National Legislature, to hold their offices during good behavior; and to receive punctually, at stated times, a fixed compensation for their services, in which no increase or diminution shall be made so as to affect the persons actually in office at the time of such increase or diminution; that its jurisdiction shall be to hear and determine all piracies and felonies on the high seas, all captures from an enemy, and cases in which foreigners or citizens of other States applying to such jurisdiction may be interested; [perhaps, also,] or which respect the collection of the national revenue, impeachment of any national officers, and questions which may involve the national peace and harmony. a Documentary History, I, 210; Elliot, I, 160, 101, ami Madison's notes in Dorarmcntary History, III, 62. ^Documentaxy History, I, 222. THE FEDERAL CONVENTION OF 1787. 107 The votes in the Committee of the Whole" do not enable one to be sure whether these last lines were or were not in the original draft. It was intimated above that Gilpin's text shows a peculiar- ity not found in the books first mentioned. In view of the pains taken with the text of the Documentary History and by Mr. Hunt, it is to be supposed that a phrase which is not in their versions has no place hi the manuscript which they and Gilpin alike follow. However, as the insertion is one which plays a part in other texts than A, it may be as well to consider it at this point. It occurs in the text of the sixth of the Virginia resolutions, toward the end of that article. This concluding portion, in Gilpin, declares that the National Legis- lature ought to be empowered — to negative all laws passed by the several States, contravening in the opinion of the National Legislature the articles of Union, or any treaty sub- sisting under the authority of the Union; and to call forth the force of the Union against any member of the Union failing to fulfill its duty under the articles thereof. The words italicized above are those not found in the Docu- mentray History or in Hunt's Writings of James Madison, That they formed no part of the original document may be seen by inspecting the journal of the Committee of the Whole for May 31, where we read:* "The following words were added to this clause on motion of Mi'. Franklin, 'or any treaties subsisting under the authority of the Union.' " Yet Rives^ in his summary of the plan adds the words "and treaties" at this point, and so does Madison himself in a letter to John Tyler, written about 1833.'^ It may be added that Madison, in his summary of the resolutions, given in this same letter, inserts the provision for supreme and inferior tribunals, discussed above;" and so does Bancroft, in a summary which he places in quotation marks. ■^" Text B of the Virginia plan is to be found in the official Journal of the Convention, published in 1819 under the author- a Documentary History, I, 223; III, 117. & Documentary mstory, I, 203; Elliot, I, 153. c Life of James Madisonj II, 314. d McGuire, Selections from, the Correspondence of James Madison, p. 312; Letters of Madison, IV, 283. elbid., 310; ibid., 282. / History of the Formation of the Constitution, II, 12. 108 AMEBIC AN HISTORICAL ASSOCIATION. ity of the Secretary of State;" in Yates's Secret Proceedings and Debates, * and in the second edition and the third or usual edition of Elliot's Debates.^' Yates says: "I have taken a copy of these resolutions, which are hereunto annexed." But Lansing, who transcribed Yates's notes, says, in a passage not copied into Elliot,'^ that the several papers referred to did not accompan}^ them, and we are compelled to infer that the single source of all these versions is the Journal of 1819. The pecul- iarities of this text are the following: In the sixth resolution it contains the words "or any treaty subsisting under the author- ity of the Union." The ninth begins with the words "i?^- solved., That a national judiciary be established to hold their offices during good behavior, and to receive punctu- ally," etc. Yet though in this first clause there is no mention of the distinction between higher and lower Federal courts, the clause relating to jurisdiction, in the same resolution, be- gins with the words "That the jurisdiction of the inferior tribunals shall be to hear and determine in the first instance, and of the supreme tribunal to hear and determine in the dernier ressort," etc. Finallj', there is, in Elliot's third edi- tion," an additional resolution, with the number 16, reading: "That the House will to-morrow resolve itself into a Commit- tee of the Whole House, to consider of the state of the Ameri- can Union." It is obvious that this last is obtained hj "run- ning in" with the resolutions a portion of the journal of the Convention's proceedings of May ^9iJ' That the provision respecting treaties, in Article 6, has no place in the document, has already been shown in the case of Gilpin. As to Article 9, the journal of the Committee of the Whole, June 5, when this article was receiving its first consideration, reads : ^ "It was then moved and seconded to strike out the words ' the national legis- lature,' so as to read 'to be appointed by.'" Accordingly the first clause of the article must have originall}^ contained the words "to be appointed by the national legislature," and an}' text which does not contain them can make no claim to be the true original. To the phrases about the jurisdiction of su- a Pp. 67-70. '' Pp. 209-212 of the edition of 1821; pp. 226-229 of that of 1839. '■Second edition, I, 180-182; "second" (third) edition, I, 143-145. ''Yates, ed. 1821, p. 207. '■ But not in the first, nor in Yates, nor in the .lournal of 1819. / Docnmentar.v History, 1, 55. '/Ibid., I, 211. THE FEDERAL CONVENTION OF 1787. 109 preme and inferior tribunals the same arguments apply as have been adduced above in the criticism of text A, but with additional force from the fact that if the distinction had not been made in the first clause of the article it is unlikel}^ that we should find it appearing in the last. Text C is printed only in the Documentary History/* It is derived from a manuscript which came to the Department of State from Gen. Joseph Bloomfield, executor of David Brear- ley, member of the Convention from New Jersey.* It can not correctly represent the original for the following reasons: In Article 4 it provides that the term of the members of the first branch of the national legislature shall be three years, yet the journal of the Committee of the Whole for June 12 shows the committee on that day for the first time inserting the words "three years" into a blank previously existing at this point.'' Article 5 provides that the members of the second branch shall be " elected by the individual legislatures," which was not agreed to (as a substitute for election by the first branch) until June 7/^ Thirdly, in Article 6 the provi- sion respecting treaties, already commented upon, is included. Fourthly, the beginning of Article T reads: Resolved, That a national executive be instituted, to consist of a single person, with powers to carry into execution the national laws, and to ap- point to offices in cases not otherwise provided for, to be chosen by the national legislature for the term of seven years, to receive punctually, etc. But the journal of the Committee of the Whole, June 1,« shows exactly what must have been the reading of the original at this point, namely: ''Besolved, That a national executive be instituted, to be chosen by the national legislature for the term of years, to receive punctually," etc. ; and it shows the stages by which this became modified into the form pre- sented by text C. Fifthly; Article 9 of the latter begins: ^'Resolved, That a national judiciary be established, to consist of one supreme tribunal, to hold their oflices during," etc.; yet recognizes in its clause respecting jurisdiction the same distinction of supreme and inferior which is made in text B, and in the same words. Finally, Article 13 declares that the assent of the national legislature " ought to be required" to proposed amendments to the articles of union, whereas the f( Documentary History, I, 329-332. rflbid., I, 202, 215. ('Journal (of 1819), pp. 10, 11. elbid., I, 203. '•Documentary History, I, 220. 110 AMEEICAN HISTOEICAL ASSOCIATION. quotation of this resolution in the journal of the Committee of the Whole "■ supports the reading " ought not to be required," which is given in the other texts, and must obviously be correct in any case. The fact apparentl}^ is that text C represents the original, plus most of the modifications made up to about June 11 or 12. Incorrect as it is, it ma}^ not improbabl}^ be the source from which Secretary Adams derived the more correct text (B) which he printed in the official journal in 1819; for, the man- uscript journal not containing these resolutions, it is difficult to see what other text than Brcarley's could have been acces- sible to him. Text D is not in print, but is found among the manviscripts of William Paterson, member of the Convention from New Jersey.^ In the form in which it now exists, it is not a first rough copy on separate sheets (the form in which we may assume that the members' copies of the Virginia resolutions were first taken), but is copied neatly into a little book, which also contains Judge Paterson's copies of several other funda- mental documents of the Convention/' This text omits from the fourth resolution the words, "to be incapable of reelection for the space of after the expiration of their term of service;" but this may be a mere slip, due to the verbal sim- ilarity of this phrase to that which in the other texts precedes it. Like B and C and Gilpin's version of A, it inserts in the sixth resolution the provision respecting treaties. It fills the blank in the number of years of the Executive's term of office (seventh resolution) with the word " seven," which the Com- mittee of the Whole did not do till June l.^*^ In the ninth resolution, while the i-eading is otherwise like that of text A, there is a blank before the word "inferior," so that the phrase rea;ds: "Of one or more supreme tribunals, and of inferior tribunals," Although, for reasons already- given, these words can not be considered to have been a part of the original document, it may be that the form in which they here appear represents, more correctly than that presented by Mad- ison, the intentions of the Committee of the Whole on June a Documentary History, I, 219. 6 Lent to the writer by the kindness of Miss Emily K. Paterson, of Perth Amboy. Tlicre is a copy among the Bancroft MSS. at the Lenox Library. t^The report of the Committee of the Whole House, Judge Paterson's own resolves, and Colonel Hamilton'^ plan. rf Documentary History, I, 205. THE FEDERAL CONVENTION OF 1787. Ill 4 and June 6. The committee then voted, first, to add the words "to consist of one supreme tribunal and of one or more inferior tribunals," and then to strike out the words " one or more."'* It may have been intended to leave a blank in the place of the latter. However this may be, arguments already stated suffice to show that text D has no more claim than the others to represent the exact form of the Virginia resolutions, laid before the Convention on May 29 by Edmund Randolph. The exact form of those resolutions can be recovered only by inference, and in one or two particulars remains uncertain. V. THE TEXT OF THE PINCKNEY PLAN. On May 29, immediately after the Virginia resolutions had been referred to a Committee of the Whole House, " Mr. Charles Pinckney, one of the deputies of South Carolina, laid before the House for their consideration the draft of a Fed- eral Government" which he had prepared, and it also was referred to that committee. ^ There is no evidence of any debate upon it beyond the author's remark, that he "con- fessed that it was grounded on the same principle as of the above resolutions," ^ meaning those offered by Governor Ran- dolph, Nor does it appear to have been separately considered at any subsequent time. On July 24 the Committee of the Whole was discharged from further consideration of it, and it was referred to the Conunittee of Detail, along with the reso- lutions reported from the Committee of the Whole and those offered by Paterson, of New Jersey.'^ No mention of it in the Convention by anj^one but its author seems to have come down to us. There is something noteworth}^ in this silence. It is not impossible that the other members thought their youngest colleague somewhat presumptuous in o'ffering his lucubration at the very outset and laying it complacently alongside the mature conclusions of the grave and experienced Virginia Delegates.^ "Documentary History, I, 210, 211. bibid., I, 55. c yates, ed. 182], p. 97; Elliot, I, 391; Documentary History, III, 14, 34. ^Documentary History, I, 109; III, 423, 443. <■ O'Neall, Bench and Bar of South Carolina, II, 140, tells us that Pinckney always said in after life that he had never risen to addres.? the Convention without feelings of deep diffi- dence and solemnity; so,also, " W.S.E." in De Bow's Review, XXXIV, 64. Butthe letters printed by the present writer in the American Historical Review, IV, 113-129, reveal a character marked by much vanity and self-assertion. See, also, Jefferson's Writings, ed Ford, VIII, 289. 112 AMERICAN HlvSTORlCAL ASSOCIATION. Moreover, in 1818, when the Seerctary of State, John Quinc}^ Adani.s, was preparing- the journal of the Convention for pulilication, no copv of the Pinckney draft was found either among its original papers or among tliose whieh had been added ))y General Bloonitield. In the hope of repairing the omission, Adams, after apphang in vain to Madison, who had no copy," wrote to Pinckney, then still living in South Carolina, and asked him for a copy of his proposals.'' Pinck- ney replied, in a letter which has been printed,'' saying that he had among his papers four or li\o rough drafts of his plan, and could not l)e a])solutely sure which was the one actually presented; but that they differed in no essentials, onh^ in some words and the arrangement of the articles, and that he sent the one Avhich he believed to be the proper document. Adams printed the document in the Journal/' with a footnote saying that the paper had lieen furnished by Pinckney. From that day (1819) to this it has figured in man}^ l)ooks as the "Pinckney plan." It is printed, in identical text, in Yates,' in Elliot,-^' in Gilpin,'/ in the Documentary Historj^,'' and even in Justice Miller's Lectures on the Constitution* and Hunfs Writings of James Madison.-' The paper which Pinckne}^ sent to Adams is still in the custody" of the Depart- ment of State. Mr. Hunt, who gives a facsimile of a portion of it and of a part of the letter in which it was inclosed, declares that the plan is written upon paper of the same size as the letter, and with the same ink; that it is undoubtedly^ contemporaneous with the letter, and that l)oth are written on paper l^earing the water-mark of the year ITUT.^' That the so-called "Pinckney plan" is not authentic has "Sec his letter in the appendix to J. C. Hamilton's History of the Rcimblic, third edi- tion, III, iii. '' See Memoirs of John Quincj- Adams, IV, 365. '■Letter of December 30, ISIS, printed by Mr. Worlhingtcu C. Ford in the Nation of May 23, 1895, LX, 397, 39S; and by Mr. Gaillard Hnnt in his Writings of James Madi.son, III, 22-24. An extract was printed in 1S70 by Rives, in his Life and Times of James Madison, II, 3.i4. Mr. Hnnt is in error in saying. Ill, 2-5 n., that the letter is printed in tlie Docnmentary History. 't Pp. 71-81. '■Ed. Ifs21, p]). 212-2'Jl. The source is the Jonrn;il printed two years before; see the note to p. 207. /I, 145-149. !7 Pp. 735-74(>. '' I, 309-318. '• Pp. 732 ss. J III, 23-36. '"Writings of James Maili.son, HI, xvii and 'Jl. THE FEDERAL COJSTVENTIOlSr OB' 1787. 113 been so publicly and so successfully demonstrated that a writer who does not like to spend his tim^ in slaying- the slain might be excused if he took this for granted and passed on to cast what new light he could upon the problem of the real Pinck- ney plan. But in reality the two inquiries are closely con- nected; and, moreover, the legendary version has such vitality that it is no harm to cast one more stone upon its funeral cairn as one passes by. In 1859 a South Carolina writer assures us that, in view of the remarkably close agreement between Pinckney's proposals and the finished Constitution, " he has "always been considered as entitled to the high and honorable designation of the Father of the Constitution."^' This was before much of the pertinent evidence to the contrary had been made public. But such was not the case when, in 1894, in the income-tax decision, the Chief Justice of the Supreme Court of the United States quoted the "Pinckney plan" as if it had authority,* It may be that — "Error, wounded, writhes in pain, And dies among his worshippers;" but, if we are speaking of historical error, he manifestly takes his time about it. The supposed plan might instantly be put out of court on the ground that it is '' too good to be true." A novice in his- torical criticism, provided he had read the story of the long and shifting and sometimes bitter disputes by which the Con- vention had hammered into shape a Constitution for the United States, would say at once that it was glaringly improbable — in fact, impossible — -that as the result of this process they should come around to the acceptance, to the extent of five- sixths, of a document offered to them at the outset in full detail; or, to put it in another way, that their youngest mem- ber should succeed beforehand in framing a constitution so good that they could hardly improve it, yet that ' ' the wisest council in the world" should not be able to perceive this fact till they had wrangled over the document (without expressly mentioning it) for more than three months. a J. B. O'Neall, Bench and Bar of South Carolina, II, 139. So, also, " W. 8. E. of S. C," in his sketch of Pinckney in De Bow's Review, XXXIV, 63. "AY.S.E." was William Sinker Elliott, grandson of Pinckney. b Pollock V. Farmers' Loan and Trust Co., 157 U. S. Reports, 562, H. Doc. 461, pt 1 — -8 114 AMEKICAN HISTORICAL ASSOCIATIOlSr. It now appears that the document had not been long pub- lished before its authenticity was privately disputed. John Taylor, of Caroline, to be sure, who in his New Views of the Constitution (1823) might be supposed to have exhausted sus- picion concerning the integrity of the Journal, seems to accept the ''Pinckneyplan" Avithout a murmur. « But Rufus King, who died in 1827, told John Quincy Adams that it was not genuine, and Madison said the same to Jared Sparks when Sparks visited him at Montpelier in April, 1830. As the pas- sage of Adams's diary in which these questionings are brought out has apparently not before been used in this connection, and as they seem to be the earliest recorded, it may be worth while to quote at length from that ' ' copious storehouse of damnations.'- '' Sparks said he had been spending a week at Mr. Madison's, who ypoke to him much of tlie proceedings and pubUshed Journal of the Convention of 1787. He said he knew not what to make of the plan of Constitution in that volume purporting to have been presented by Charles Pinckney, of South Carolina. He said there was a paper presented by that person to the Convention, but it was nothing like the pajier now in the book. It was referred to the committee who drafted the plan of the Constitution, and was never afterwards in any manner referred to or noticed. In the book it has the appearance as if it was the original draft of the Constitution itself, and as if that which was finally adopted Avas Pinckney' s plan, with a very few slight alterations. I told JMr. Sparks that Rufus King had spoken to me of C. Pinckney' s paper precisely in the same manner as he says Mr. Madison now does; that it was a paper to which no sort of attention was paid by the Convention, except that of referring it to the committee, but when I compiled the Journal of the Convention, Cliarles Pinckney himself sent me the jilan now in the book as the paper which he had presented to the Convention, and with it he wrote me a letter which obviously held the pretension that the whole plan of Consti- tution was his and that the Convention had done nothing more than to deteriorate his work by altering some of his favorite provisions. Sparks said INIr. JNIadison added that this plan now in the book contained several things which could not possibly have been in Pinckney's paper, but which rose out of the debates upon the plan of Constitution reported by the com- mittee. Pie conjectured that Mr. Pinckney's memory had failed him, and that, instead of a copj' of the paper which he did present, he had found a copy of the plan reported by the committee with interlined amendments, perhaiis proposed by him, and, at a distance of more than thirty years, had imagined it was his own plan. 0. Memoii>, VIH,'_'21, 225. See also Sparks'sroeord of his ponvcrsation with Madison in H. B. Adams's Jarcd Sparks, I, 4C.:>, and Ins forrespondeiiue witli Madison, ibid., 11,225-231. THE FEDERAL CO]SrVE]S-TIOTT OF 1*187. 115 In several letters written during the next few years, but not published till 1867, Madison went into the question more explicitly. Writing to Sparks in 1831, he declared the evi- dence ag-ainst the draft irresistible." For instance, he pointed out that, whereas in that document the House of Representa- tives is made the choice of the people, it was the known opinion of Pinckney, who lodged in the same house with him at Philadelphia, that they should be chosen by the State legis- latures; that on June 6 Pinckney, agreeably to previous notice, moved an amendment in that sense; and that in a letter to him, dated March 28, 1789, Pinckney had asked him if he was not "abundantly convinced that the theoretic nonsense of an election of the members of Congress by the people, in the first instance, is clearly and practically wrong."* In two subsequent letters— one written in 1834 to T. S. Grimke, the other in 1835 to W. A. Duer— he dwelt upon the same dis- crepancies, using the Journal rather than his own notes as the touchstone, and requesting the letters to be regarded as con- fidential.'" It is not necessary to detail all the comparisons made. Substantially the same were published in 1810 in an appendix to Madison's notes of the debates, edited by Gilpin. ^^ In this memorandum, moreover, and in two of the letters mentioned above, Madison adduces evidence from another quarter in support of his contention that the draft could not be what it purported to be. This is from a pamphlet entitled " Observations on the Plan of Government, submitted to the Federal Convention in Philadelphia on the 28th [sic] of May, 1787, by the Hon. Charles Pinckney, esq., LL. D., Delegate from the State of South Carolina, delivered at different times in the course of their discussions."* It was "privately printed" in New York within a month of the rising of the Convention. Madison, on October 11, sends a copy of it to Washington./ n Letters of Madison, IV, 201-203; Adams's Sparks, II, 227. b In January of the same year Pinckney had written to the same effect to Rufus King: " You know I always preferred the election of representatives by the legislature to that of the people, and I will now venture to pronounce that the mode which you and Madi- son and some others so thoroughly contended for and ultimately carried is the greatest blot in the Constitution." (Life and Correspondence of Rufus King, I, 359.) c Letters of Madison, IV, 337, 378. See also pp. 172, 181, 183 f! Gilpin, III, app. v-vii; Elliot, V, 578, 579. cNo. 143 in Ford's Bibliography of the Constitution. / Letters of Madison, I, 342; Sparks, Letters to M' ashington, IV, 182. Washington's copy of the pamphlet is still in existence. Catalogue of the Washington Collection in the Boston Athenseum, p. 535. 116 AMERICAN HISTOEICAL ASSOCIATION. They exchange sentiments upon it, in their grave manner. Washington writes: "Mr. C. Pinckney is unwilling, 1 per- ceive by the inclosures contained in your favor of the 13th [14th], to lose any fame that can be acquired by the publica- tion of his sentiments. "« To which Madison replies: "Mr. Charles Pinckney's character is, as you observe, w^ell marked by the publications which 1 inclosed."* It is not generally known that Pinckney immediately reprinted his "Observa- tions" in a South Carolina newspaper.^' In 1857 they were reprinted by Frank Moore in Volume I of his American Eloquence.'' The original is very rare.'' Madison, in 1831, having but a mutilated copy, took pains to borrow one from New York, and by its means had no difficulty in casting still further discredit on the draft contributed by Pinckney to the Jonrnal.-^' The pamphlet did not, indeed, give the text of the project to which its title referred. But m&nj references were made to it in the course of the "Observations," which, in fact, had the form of a series of arguments based on its provisions, which were taken up in order, and in some cases cited by number. It was plain that they diiiered widely from those of the printed draft. " In 1810 and in 1859 John C. Hamilton exposed fully the untrustworthy character of the latter. 5' In 1870 Rives did the same.''' When Bancroft in 1883 published his Formation of the Constitution he contented himself with sajdng only of the draft submitted to the Convention by Pinckney that "no part of it was used and no copy of it has been preserved."* In 1891, in a review article in the Nation, the worthlessness of the accepted text was again insisted on. This led to the publication of Pinckne3^'s original letter by Mr. Worthington a October 22, 1787. Ford, XI, 175; Sparks, IX, 274. Sparks characteristically has "Mr. C.P ." b October 28. Gilpin, II, 653; Elliot, V, 568; Sparks, Letters to Washington, IV, 186. <■ A copy of the State Gazette of South Carolina for November 1, 1787, in the library of the American Antiquarian Society, contains an installment (evidently the second) of the pamphlet, and others follow in the two succeeding numbers (November 5, 8), M'hich are all the society possesses for that month. No doubt the print began October 29 and ran till November 29. ' the exist- ence of tbo amendments which ensue, p. 5Gfi, regarding the cabinet; but these go into much more detail than, probably, was done in the plan. The motion for freedom of the press reappears, as made by Pinckney and Gerry, on September 14; Documentary His- tory, III, 747. That for trial by jury in civil cases is made by the same two delegates on September 15; id., 755. (' This closeness of resemblance was noted by Sparks in a letter of November 14, 1831, to Madison; H. B. Adams, Jared Sparks, II, 529. The text of the report of the Committee of Detail given in the Journal, pp. 215-230, and (from Madison) in Documentary History, III 444-458, is apparently more exact than those which are given (from Washington's and Brearlcy's copies) in the latter work I, 285-308, 335-358, where, in the attempt to represent the original print by large type and the manuscript additions by small letters, some errors seem to have crept in. VJI AMKKKWN HlsrOKlCAL ASSOCIATION. t ions. Such iwv llio poouliar provisions I or tho election of the SiMiJite (Articles 1 aiul 10 of the so-ealliHl ])lan); those in Arti- c\c () for !i national university, for the estahlishnient of a seat o( o-o\(>rnnicnt ami for c^xclusixe jurisiliction of Cong-ress in its inuneiliate area, for the propiu-tioniny' of direct taxation to tlu> winkle ])opulation of the State (he had inserted the three liftlis rule in his plan. l)ut had stated his personal pref- erenci^ for reckoniny- in the slaves)." for the prohibition of reliuii>us tests, for liberty of the press, and for habeas corpus; that in Article 8. for the reeligibility of the President; and that in Article 1 1, semirino- to the natit)nal Conoress a negative on State hnvs. All the rest does not amount to ten lines, or a thirtieth part o( the dticunient. Practically, in other words, the s(vcalled Tinckney plan consists of the report of the Com- mittee of Detail, as brought in on August 0, minus some of it^ lesser features, and plus some of those of his real phm. It is not possible to say that Pincknt\v answered Adams's request by sitting dmvu and copying the printed report of the Com- mittee of Oetail, paraphrasing to a small extent here and there, and interweaving as he went along some of the best- remembered features of his own plan. Put it is possible to declare that if he had done this the result would have been precisely like that which in fact he sent on to Washington. Moreover, it is an ascertainable faet^ that in Deeember, 1818, when the document was sent, he had still in his posses- vsion his printed copy of the report of the Committee of De- tail, as secretly put in type for the use of the members on August l>, 1787: for in the letter to Adams which accompanies the dnift he says: 1 c;m as^uiv you ats a fact that for nunv than four months and a hah" out of live tlio power of oxoh\!?iYoly making tivaties, appoiuthig foreign minis- toi"s and judgt^s of tlie Supreme Court Avas given to the Senate, after numer- ou!^ dekUoi! and oonsideRition of the !?nbjeet, both in Connnitttv of tlie Whole and in tlie House. This I not only aver, but can pTx>\e by printeil document:? in my possession to have been the ease. <" Ry what printed document could such a point possibly have been proved in 1818. but by the printed report of the Com- mittee of Detail i From the nature of the case there Ma^s no <« IXxnuneiitary History, III, 824, ^Sf•lllWc^ That a man inrtv bo trustetl in oasnal anil lunntondtHl imlioations in a letter, CYon tho\i^l» in its n>ain puriK»rt it bo lUvoptivo. «-llunt, Ul, J:!, THE FEDERAL CONVENTIOlSr OF 11S1. 125 other. It is well known that several members carefully pre- served their copies/' It will perhaps be remembered that though Madison's final explanation, written down in connec- tion with his notes, was that Pinckney's rough draft, marked with subsequent erasures and amendments, may have been the source of the document he supplied to the Secretary of State, his original conjecture, expressed in conversation to Sparks, is said to have been that Pinckney "had found a copy of the plan reported by the committee, with interlined amendments, perhaps proposed by him, and, at a distance of more than thirty years, had imagined it was his own plan." If th(i Com- mittee of Detail is the conmiittee meant, we may well accept, as our final result, the first half of this earliest conjecture. But, it may be asked, may not another conclusion be drawn from the remarkable similarity observed between the docu- ment called the Pinckne}^ draft and the report of the Commit- tee of Detail ? Is it certain that this is not due to the fact that the f ramers of the latter, who undoubtedly had Pinck- ney's plan before them, for it had been formally referred to them, based their work upon it, rather than upon the Virginia resolutions 'i The process by which one document is proved ]jy internal evidence to be copied or derived from another is often a tedious one to expound or to read. In the present case it can be exhibited in an abridged form. We need not enter into a minute consideration of each phrase. Substan- tially the same results, in almost as convincing a form, can be shown by following the labors of the Committee of Detail through inspection of the order or succession of articles in certain documents. There are five documents which show us practically all that we know of the work of the Committee of Detail. The first is the series of 23 resolutions confided to that (committee on July 26, the text of which, gathered from the journals by Sec- retary Adams, is to be found in his edition of the Journal and in the first volume of Elliot.'^ The second is that document in the handwriting of Edmund Kandolph (and John Rutledge), members of that committee, which Mr. W. M. Meigs has "Bancroft, IT, 119, 139; Ford, Bibliography, p. 3, No. 8. '' .lournal, pp. 207-213; Klliot, I, 221-223; Meign, pp. 333-330. A copy of these resolutions, in James Wilson's handwriting, evidently put in form for the uses of the committee, ex- ists amoiig his papers in the library of the Historical Society of Pennsylvania. 126 AMERICAN HISTORICAL ASSOCIATION. conclusively proved " to be a document prepared b}^ Randolph soon after the committee was appointed, to aid its members in the task before them — the task of elaborating the 23 resolu- tions and filling in details. This document has been printed in facsimile by Mr. Meig'S. The third and fourth of the five documents alluded to have not hitherto been printed. Their manuscripts exist among those papers of James Wilson, an- other member of the Committee of Detail, which are possessed by the Historical Society of Pennsylvania.^ The former, upon comparison with the Randolph manuscript, appears plainlj^ to represent a later stage of the committee's deliberations, and to l)e the result of an endeavor to work out Randolph's sug- gestions and to give formal shape to his details. It is of so great interest that, by the kind permission of the ofiicers of the society, it is printed in this series. (No. VIII, post.) The fourth document difiers but little from the final result of the committee's work. It exhibits that work in a still later stage. That stage is so near the final one that it has not been deemed necessary to print the document ui exteuso, but a full statement of the differences between it and our fifth document is presented herewith (in No. VIII) inmiedia'tel}'' after the third. The fifth is, of course, the report of the Committee of Detail, a document often printed.' Like the first, it consists of 23 articles, but they are different. Most of them, however, are to be found, more or less fully expressed, in the second, third, and fourth of the series. These five documents, as has been said, enable us to ti-ace in outline the histor}' of the conmiittee's work from the time of its appointment until, on August 6, it reported to the Con vention. Now, without going into details respecting the text of the articles contained in them, let us merel}^ consider what provisions, speaking generally, the}^ contained, and in what order. Though it ma}^ give an abhorrent appearance to the page, this can most clearly and succinctly be done by denot- ing each provision by the number which it (or its amplified equivalent) bears in the articles and sections of the fifth and final document, the report of the Committee of Detail. Pur- aThe Growth of the Constitution, pp. 317-321. ''I am groatly indebted to Jlr. John W. .lordan, librarian of tlio society, for favoring me wilh oopit'sof llicse two docnniunts. f Docmnentary History, HI, 444-458; Journal of 1S19, pp. 215-230; also in Dou. Hist., I, 285-308, 335-358, and in Elliot, I, 224-230; but see note e, on p. 123, supra. THE FEDERAL COlSrVENTIOISr OF 1787. 127 suing this mode of expression, then, we should say that the first document, the resolutions referred to the committee, contains the following provisions, in the following order: II, III, IV, 1; IV, 2; VI, 9; V, 1; V,'3; V, 2; VI, 9; VI, 12; VII, 1; VIII, IV, 3; IV, 1; VII, 3; IV, 5; V, 1; X, VI, 13; XI, 1, 2, 3; XVII, XVIII, XIX, XX, XXII, V, 1. The second, the Randolph document reproduced by Mr. Meigs, contains the following: III, IV, 2, 3, 4, 1; VI, 1, 3, 6, 5, 9; IV, 7; VI, 8; V, 1, 3, 2 (VI, 3, 6, 5, 9, 8); VII, 1, 4, 5, 6; X, VI, 13; XI, XVII, XVIII, XX, XXII, XIX, XXI, XXIII. The third document, the first of the two Wilson drafts, runs thus if we follow the same system of notation and omit for the present from consideration certain extraneous matter which is found embedded in the manuscript: I, II, III, IV, 1-4; VII, 3; IV, 5-7; V, 1, 2; IX, 1; V, 3; VI, 12; VI, 3; V, 4; VI, 4, 1, 2, 6, 8, 5b, 9, 11, 10, 7, 5a (then other matter, of which anon); XVII-XX, XXII, XXI,- XXIII, VI, 13; IX, 2; IX, 3. The fourth of our documents would be repre- sented thus: I-VIII, XII, XIII, IX-XI, XVII, XVIII, XIV-XVI, XIX, XX, XXII, XXI, XXIII. Not a little instruction might be derived from this record of the transmutations which our fundamental document, or its germ, underwent during these eleven da3^s at the hands of the committee. But our present concern is only with its bearings on the problem of the Pinckney plan and specifically on the question — the last remaining question, it is submitted — whether the report of the Committee of Detail might not after all have been modeled on the Pinckney plan rather than the latter on the former. We have shown, by a somewhat mechanical device, what was the actual genesis of the com- mittee's report. Let anyone who is not fatally repelled by the notation examine the results with care, and then consider the fact that the articles of the so-called Pinckney plan, so far as they extend (it has nothing corresponding to Articles XXII and XXIII), run in exactly the same order as those of the committee's report, and that indeed almost absolutely the same order of clauses is preserved within the individual arti- cles. Then let any person who has ever attended a committee meeting, and who remembers the process by which an impor- tant document was ground out, ask himself what the chance is that a document which was one of several put into the 128 AMERICAN HISTORICAL ASSOCIATION. hopper on eTuly 26 should, after such permutations as those above exhibited, emerge on August 6 as the final result of the committee's deliberations, with almost exactly the provisions with which it entered, and in almost exactly the same order. This, it should be observed, is an argument against the theory of wholesale copying from Pinckney. It does not militate against the supposition that the committee, having Pinckney's plan before them, may have borrowed from it some portions. When all of this paper but the last four paragraphs had been written, there came to the writer a manuscript contain- ing large portions of the original text of the long-lost Pinck- ney plan. Then felt I like some watcher of the skies When a new planet swims into his ken; or, more exactly, like one before whose telescope appears an asteroid which pursues exactly the orbit that "he had predicted. The manuscript alluded to was a copy of James Wilson's rough draft, discussed on the preceding pages, and printed in a later section (VIII). In the midst of it there was a manifest break in text and sense, followed by passages which were readily perceived to be excerpts from the Paterson plan. Then came a series of propositions which were not less easily identified as parts of the much-sought Pinckne}^ plan. Then Wilson's rough draft was resumed at a later point than that at which it was interrupted. Investigation showed that in the volume of Wilson papers possessed by the Historical Society of Pennsylvania, from which the copy came, there are four sheets of manuscript pertaining to the work of the Committee of Detail. The fourth in the order of binding contains those res- olutions of the Convention which were turned over to the com- mittee at its appointment as the main basis of its work. The first and third are the first and third sheets of Wilson's rough draft, based on the Randolph paper presented by Mr. Meigs. Its second sheet is missing. In its place is sandwiched-in a half -sheet containing the excerpts from the New Jersey and Pinckne}^ plans already mentioned. A possible reason for their being found at this point is that, in the main, the}^ relate to what would naturally be the middle portion of Wilson's THE FEDERAL CONVENTION OF 1787. 129 draft. They relate for the most part to the powers of Con- gress, of the Executive, and of the Judiciary. These three mat- ters had received little elaboration in the Virginia plan or in the twenty-three resolutions of July 26. It was natural that Wil- son, in essaying the task of amplifying this portion of the scheme, should draw off sach passages as were germane to it from the other two documents which, it will be remembered, had likewise been referred to his committee. At all events, this is what appears to have been done. The half -sheet is written with a liner pen than the sheets which precede and follow (though in Wilson's own hand) and with a different spacing. It is distinctly an interpolation, and will not be printed with the rest in section No. VIII. It is inserted here. First are given the extracts from the Paterson plan. An Appeal for the Correction of all Errors both in Law and Fact. That the United States in Congress be authorised — to pass Acts for rais- ing a Revenue — by levying Duties on all Goods and Merchandise of foreign Growth or Manufacture imported into any Part of the United States — by Stamps on Paper Vellum or Parchment — and by a Postage on all Letters and Packages passing through the general Post-Ofhce, to be apphed to such foederal Purposes as they shall deem proper and expedient — to make Rules and Regulations for the Collection thereof — to pass Acts for the Regulation of Trade and Commerce as well with foreign Nations as with each other. « That the Executive direct all military Operations. That the Judiciary have Authority to hear and determine all Imjieach- ments of foederal Officers; and, by Way of Aj)peal, in all Cases touching the Rights of Ambassadors — in all Cases of Capture from an Enemy — in all Cases of Piracies and Felonies on the high Seas — in all Cases in which Foreigner's may be interested in the Construction of any Treaty, or which may arise on any Act for regulating Trade or collecting Revenue. & If any State, or any Bodj^ of Men in any State shall oppose or prevent the carrying into Execution the Acts or Treaties of the United States; the Executive shall be authorised to enforce and compel Obedience by calling forth the Powers of the United States. That the Rule for Naturalization ought to be same in every State. These portions of the New Jersey draft require little expla- nation. The first line is a misplaced phrase from the end of the second article. The next paragraph is derived from that article and contains such important provisions in it as are not found in the twenty-three resolutions of July 26, which is just what we should expect upon the theory above suggested "The margin adds: " to lay and eoDect taxes." ?'The margin adds: "or on tlie Law of Nations, or general commercial or marine Laws..' ' H. Doc. 161, pt 1 9 130 AMERICAN HISTORICAL ASSOCIATION. as to the reasons for making these memoranda. Similarh^, the next sentence contains the one provision of Paterson's fourth proposal which is not in the twenty-three resolutions. The next paragraph contains the most essential portions of Paterson's Article 5, in so far as these were not contained in the other or main document which the committee had before it; most of them, however, were in Randolph's plan. The provisions for coercion and for naturalization are, for similar reasons, copied out of the seventh and tenth of Paterson's articles." Then comes in the manuscript a space unusually wide, and then, obviously proceeding per saltum to the heg'in- ning of a fresh document, we read a longer group of extracts from the Pinckney plan.'^ (The italics are not in the original, but are used for a purpose which will be explained later.) The Legislature shall consist of two distinct Branches — a Senate and a House of Delegates, each of which shall have a Negative on the other, and shall be sliled the U. S. in Congress assembled. Each House shall appoint its own Speaker and other Officers, and settle its own Rules of Proceeding; but neither the Senate nor H. D. shall hare the Power to adjourn for more than Days, without the Consent of both. There shall be a President, in which the Ex. Authority of the U. S. shall be vested. It shall be his Duty to inform the Legislature of the Condi- tion of U. S. so far as may respect his Department — to recommend Matters to their Consideration — to correspond with the Executives of the several States — to attend to the Execution of the Laws of the U. S. — to transact Affairs with the Officers of Government, civil and military — to exi3edite all such Meas- ures as may be resolved on by the Legislature — to inspect the Departments of foreign Affairs — War — Treasury— Admiralty — to reside where the Legis- lature shall sit — to commission all Officers, and keep the Great Seal of U. S. He shall, by Virtue of his Office, be Commander in Chief of the Land Forces of U. S. and Admiral of their Navy. He shall have Potver to convene the Legisla- ture on extraordinary Occasions— to prorogue them, provided such Proroga- tion shall not exceed Days in the space of any . He may suspend Officers, civil and military, The Legislature of LT. S. shall have the exclusive Power — of raising a military Land Force— of equiping a Navy—oi rating and causing public Taxes to be levied — of regulating the Trade of the several States as well with foreign Nations as with each other — of levying Duties upon Imports and Exports — of establishiug Post- Offices and raising a Eevenue from them — of regulating Indian Affairs — of coining Money — fixing the Standard of Weights and Measures — of determining in what Species -of Money the public Treasury shall be supplied. a As mimbered in the eleven-article texts; see p. 134, post. 6 Immediately upon discovering this document, I communicated it to the American Historical Review, and it was printed in the section devoted to documents, in the num- ber for April, 1903 (VIII. 509-511). THE FEDERAL CONVENTION OF 1787. 131 The foederal judicial Court shall try Officers of the U. S. for all Crimea &c. in their Offices. The Legislature of IT. S. shall have the exclusive Right of instituting in each State a Court of Admiralty for hearing and determining maritime Causes. The Power of impeaching shall be vested in the H. D. The Senators and Judges of the foederal Court, be a Court for trying Impeachments. The Legislature of U. S. shall possess the exclusive Right of establishing the Government and Discipline of the Militia &c. — and of ordering the Militia of any State to any Place within V. S. Since the preceding document follows Paterson so nearly verbatim, we are warranted in supposing that this, as far as it g'oes, is an accurate transcript. But what proves it to be Pinckney's plan? First, we have here a body of material plainly derived from two documents, and exactly meeting certain needs which we know, from the nature of the twenty- three resolutions of July 26, the Committee of Detail must have felt; one of the two is the second of tKe pieces which had been referred to them; it is most likely that the other is the third. Secondly, the more numerous house is termed "House of Delegates," the name which it bore in Pinckney's plan, according to Read's letter and Pinckney's "Observations," but in no other of the known projects. Thirdl}^, out of some forty provisions given in the text above, not one is in conflict with what we otherwise know of Pinckney's real plan, devel- oped according to the method established on previous pages. It is impossible not to feel that the newly discovered document and the preceding investigation confirm each other to a re- markable degree; not to be gratified by so signal a corrobora- tion, and not to regret that the whole plan can not be found. '^^ The discovery of these documents shows that the reference of the New Jersey and Pinckney plans to the Committee of Detail was not, as has generally been assumed, a mere smoth- ering of them. They were used. To what effect they were used may be seen by comparing them with some of those five papers which, as has been said, exhibit in successive stages the work of the Committee of Detail. Paterson's proposals for a power to levy duties on imports, to regulate commerce, to make uniform the rules for naturalization, to give the Executive the power to direct all military operations, and to a " W. S. E. of S. C," in De Bow's Review, XXXIV, 63, and n. s. I, 375, says that " Tlie original draft, in liis [Pinckney's] own handwriting, with notes and interlineations, was preserved among his papers," but implies that it perished in the Charleston Are of 1861. 132 AMEBIC AN HISTORICAL ASSOCIATION. give the Federal coiirthJ jurisdiction over cases relating* to ambassadors, and his provisions for the return of fugitives from justice, all appear in the report of the Conniiittee of Detail; but none of these are to be found in the twcntj^-three resolutions, though it must be said that the first two were in 1787 the commonplaces of constitutional reform. Pinckne3'''s plan, among the fovtj provisions (roughly speaking) which are preserved to us in the text above, contains no fewer than nineteen or twenty that are to be found in the committee's report, but were not in the twenty-three resolutions referred to them at the beginning of their work, nor in the Virginia resolutions, nor in those offered by Paterson. They are marked by italics in the text above. Taken together, they constitute a noteworthy contribution for the j^oungest dele- gate to have made, and show that the labor he spent in draw- ing up a plan before the Convention began its work was not expended in vain. In some cases we can trace the process by which these por- tions of Pinckney's scheme found their way into the commit- tee's report. Thirteen of them are to be found in Mr. Meigs's facsimile of the Randolph draft, which stands second among the papers that mark the conunittee's prog'ress. Of these, four, it is exceedingly interesting to observe (and also one respecting Indian affairs, which did not take effect), stand minuted in the margin or interlined in the text by the hand of John Rutledge, of South Carolina, colleague of Pinckney and representative of their State upon the committee.^* Another, though it does not appear in the Randolph draft, is found slipping from the margin into the text of Wilson's rough draft, the paper next in order of development.^ It is perhaps sufficient to remark, in conclusion, that as a maker of the Constitution Charles Pinckney evidently deserves to stand higher than he has stood of late 3^ears, and that he would have a better chance of doing so if in his old age he had not claimed so much.^ a I refer to the words " to regulate weights and measures," iu the margin of Mr. Meigs's Plate V, the words " and equip fleets," interlined in the text nearly opposite, and in the margin of Plate VI the phrases ' ' to be commander in chief of the land and naval forces of the Union," and "shall propose to the legislature from time to time, by speech or message, such matters as concern the Union." '' The provision that each house shall appoint its presiding officer. '■ Beside his " plan," we owe to his later suggestion the whole or part of Art. I, § 8, els. 4, 8, 11, 17, § 1), cl. 2, and Art. VI, § 3, cl. 2. THE FEDEEAL CONVENTION OF 1787, 133 VI. THE TEXT OF THE NEW JERSEY PLAN. On the 15th of June, according- to the journal of the Con- vention/' " Mr. Faterson submitted several resolutions to the consideration of the House, which he read in his place, and afterwards delivered in at the secretary's table," and which have since been famous as the New Jersey or Paterson plan. But of this document, or series of resolutions, four different texts exist, and it can be declared with confidence that none of them precisely represents the original as presented on June 15. In order to an intellig-ent investigation of these texts, it is necessary first to recall what has hitherto been known of the genesis of the document. On June 13 the Committee of the Whole had practically completed its report, based on the Vir- ginia plan. On June 11 — Mr. Paterson observed to the Convention that it was the wish of several deputations, particularly that of New Jersey, that further time might be allowed them to contemplate the plan reported from the Committee of the Whole, and to digest one purely federal and contradistinguished from that reported plan. '' The next day, June 15, he "laid before the Convention the plan which he said several of the deputations vyished to be substituted in place of that proposed by Mr. Randolph." Madison .states its origin thus:'" This plan had been concerted among the deputations, or members thereof, from Connecticut, New York, New Jersey, Delaware, and perhaps Mr. Martin, from Maryland, who made with them a common cause on different principles. ■ Luther Martin, in his remarks before the Maryland legis- lature, definitely claims a share in its preparation, saying: We then tliought it necessary to bring forward the projDositions which such of us who had disapproved the plan before [submitted?] had pre- pared. The members who prepared these resolutions were principally of the Connecticut, New York, Jersey, Delaware, and Maryland delega- tions. The Hon. Mr. Paterson, of the Jerseys, laid them before the Convention. Of these propositions 1 am in possession of a copy, which I shall beg leave to read to you.'' s(,i()iis ol' I'lirlhtM' sources o( ('(mUm'siI l•ln'^MUu^ to h(^ considoriHl; and (lu> lliiiil dral't, though, as inioht l)(> (^x|>(H'I(m1. ill aA'oids llu> oxclso and the poll tax, inserts after the mention of r(M(MiU(> hy duties on imports the words "by stamps on paper, vellum oi" ])arehment, and by a postai>"e on all letters or paekay't^s i)assin^' throui^h th(\iivneral post-olKcc." Attontion may bo called to the close relation between these projH)sals and the revenue ])ropos;ds ol' ITSI and 178;) and the pi-oj(M'( o\' iTSt t'oi" the regulation of conuuerce. In short, we have in this docuuuMit a ]\>rschrift for the New Jersey plan, draAvn up ])y a man or nuM\ wlu) wen^ willing to go but little beyoi\d thosi^ r(\j(M't(Hl and insuUieient schemes. Kither no m(U(> was writtiMi of this paper or Paterson copied no moie. 'The other pa[)er extends fart hei* and seems to mark a lattM- stai^e in llu> process. Its lirst article is that which we ultimately lind as the lirst of A and B. Its sei-ond insists that the an\tMnlments resolved on l)y the (\)uvention should be submittA>d io C^hiotoss and io each State, after the fashion prescribed in ArticU> l-iof the (\)nl"ederatii>n. ArticU>s 8 and 4 are the same as those of the shorter paper. The nuud)ers 5. (), and T are left with l)laidvs in the text. 'Phis is done to sa\i' copying'; for in the maroin, ag'ainst 5, we read, "See Ml". Lansing;" against (!, '' See (Jov. Randolph's Tth Prop'n:"" apiinst T. "Same. l*th." Now, since in the linislunl document, at least accordinu" to texts A and H, we lind at this point a r(>solution relatiuii" to the additional ]>owers to be conferred on (\>no-ress. then (after that on requisitions) one on the exet-u- ti\t> which clostdy reseml)les Randolph's seventh resolution, then one on tlu> judiciary, which closely folUnvs his ninth, it is m)t illeuitimate to infer that the tifth article of the shorter l^aper, whose text we have ipioted and on w hich the article on thC' powers of C'onoress in the final dot'ument was plainly modeled, is here alluded to as the work of John Lansing, of New York. The eighth and ninth articles, assertions of tho equality of the States in sovereigiity and independence and of their conseipient right to equal representation in the supreme legivslature, need not detain us. The part which such asser- tions played in the transactions of the Convention is well known. The two papers under discussion have their main interest as preparatory sketches for the completed New Jersey plan, the general nature of which is after all ascertainable, and THE fp:dekal convention of 1787. 143 aw helping to explain its development. It was doul)tless a joint product." It may be remembered, by the way, that Ellsworth, Paterson, and Luther Martin were fellow-students at Princeton and companions in foimding- the Cliosophic Society. VII. tup: text of Hamilton's plan. In any discussion of Hamilton's formal suggestions for the proposed Constitution of the United States, it is important to keep in mind the distinction between the brief outline which he I'ead in connection with his important speech of June 18 and the longer and more elaborate plan which, near the end of the sessions of the Convention, "was placed in Mr. Madison's hands for preservation by Colonel Hamilton, who regarded it as a permanent evidence of his opinion on the subject."'^ Of this longer document Madison returned the original, from which it was printed in Hamilton's Works,' and kept a copy, from which it was printed by Gilpin'^ and by Elliot,'^andmore recently in the Documentary History-^ and in Hunt's Writings of James Madison.'^ The text of all these is the same, and not at the present day a matter of controversy. One detail, how- ever, Avas a hundred years ago a matter of vivid dispute, and may deserve a passing notice. It having been alleged "in a Jacobin meeting at Salem "^' that Hamilton had proposed that the president and senate should be chosen for life, Timothy Pickering wrote to him requesting information on the point. Hamilton replied in a letter of September 16, 1803, admitting that he had proposed a tenure during good behavior for presi- dent, senate, and judges, but declaring that his final opinion in the Convention had been reversed, so far as the executive was concerned. a See, also, p. 150, infra; and, for the use iiiiirte of the New Jersey resolntions in the Clommittee of Detail, p. 129, mpra. & Gilpin, III, xvi. Mr. Lorlgc seems really to suppose the longer document to have been laid before the Convention at the same time with the shorter, when he says (Works of Hamilton, I, 3-51 n.): "Many of the clauses of the existing Constitution would seem to have been taken exactly from Hamilton's draft." f' J. C. Hamiltem's edition, II, 395-409. The original is now in the Aslor Lil)rary. fUII, xvi-xxviii. e V. 584-590. / III, 771-7SH. a III, 197-209. Madison had at some time furnished .lefferson with a copy of this paper. See his letter of July 17, 1810 (Letters, II, 481), written under the apprehension that he had lost his own eojiy. 'J Pickering to Hamilton, April 5, 1803, 6 Mass. Hist. Soc. Coll., VIII, 179. 144 AMERICAN HISTORICAL ASSOCIATION. In the plan of a constitution, which I drew xip while the Convention waH sitting, and which I connnunicated to Mr. INIadison about the close of it, perhaps a day or two after, the office of president has no greater dura- tion than for three years." Madison in one of his letters, in which he is disenssing- the disputed numbers of tlie ''Federalist," animadverts upon this as a signal instance of the fallibility of Hamilton's memory" ;^ for the tenure is during- good l:>ehavior both in the Madison cop3' and in that found among Hamilton's papers.' But it is the i)riefer sketch read on June 18 which more concerns us. It ol)\'ioush' has uiore in common with the pro- jects laid before the Convention in its early daj^s by Eandolph, Pinckney, and Paterson than has the finished document which Hamilton drew up when all discussion was ended. And 3^et it stands on a somewhat different basis from these. It was never formally proposed to the Convention, and of course never referred to a committee; in a sense, it was but a por- tion of a speech. Its author, at the time when he read it, stated, according to Madison's report, that — he did not mean to offer the jiai^er he had sketched as a proposition to the committee. It was meant only to give a more correct view of his ideas, and to suggest the amendments which he should probably propose to the jilan of Mr. R. in the proper stages of its future discussion.'' To the same purport Madison sa3^s, in a letter to John Quincv Adams: Colonel Plamilton did not prcjpose in the Convention any plan of Con- stitution. He had sketched an outline which he read as part of a speech, observing that he did not mean it, etc. (' But though laid before the Convention so informall v, Ham- ilton's paper was regarded l)y his colleagues with so much interest that we have eight different texts of it from copies kept by at least six different members of the Convention. (( Niles'.s Register, III, 14S; Piekeriug's Review, pp. 172-173 (120-121 of seconded.); Pitkin, II, 259-2G0; Works, ed. Hamilton, VI, 556; J. C. Hamilton, Life of Alexander Hamilton, II, 518; id., History of the Repiiblie, III, S44, 315. At p. 313 of the latter is a similar state- ment made by Hamilton in print during his lifetime. ('To James K. Paulding, April, 1831. Letters, IV. 177. So also in Clilpin, III, xvi. <■ J. C. Hamilton's note, Republic, III, 315, is singularly inept; he says, regardless of what he had printed in Hamilton's Works, II, 401, sec. 9, "the term of three years is in the second plan." (? Documentary History, III, 149: (lilpin, II. sso, 890: Hunt, HI, 194. '■ Letter to .T. Q. Adams, November 2, 1818. ,]. C. Hamilton's History of the Republic, III, app. iii: Iliuit, III, 209. J. C. Hamilton labors (ibid., 301 u.) to show that Madison contradicted himself on this point, but on the whole without success. THE FEDERAL CONVEI^TION OB^ 1787. 145 Presiimabljr all these were written in the members' own hand- writing, according- to the practice described on a previous page, at the beginning of our study of the Virginia resolu- tions. In most cases we know that this was the fact. These texts manifest considerable differences in certain articles. First of all (A) we have Hamilton's own text, in eleven articles, as printed in his works.* The manuscript from which it was printed was found among his papers. Next (B) we have Madison's. Madison says that his report of the speech, in connection with which this plan was read, was re- vised by Hamilton, but his phrase does not necessarily imply that this was true of his text of the plan.* The latter is printed in Gilpin, « in Elliot,'^ in the third volume of the Docu- mentary History,^ and in Hunt's Madison./ Thirdly, there is Brearley's copy (C), which General Bloomlield handed over to Secretary Adams, with the other papers mentioned on pre- vious pages as derived from him, in May, 1818. s' This is printed in the Journal of 1819,^* in Elliot,* and in the first volume of the Documentary History.-' Fourthly, there is Paterson's copy (D), in his handwriting, which is contained in the small manuscript book already mentioned in these pages, and temporarily lent to the present writer. Fifthly, Read's Life of George Read presents a text in nine articles (E), "from a copy in Mr. Read's handwriting."'^ It will be re- membered that George Read, perhaps alone among the mem- bers of the Convention, expressed full approval of Hamilton's suggestions.'^ The eleven articles are reduced to nine by the omission of the second and the consolidation of the fourth and fifth into one. Yates's minutes contain a summary of the plan, which, though very brief, is of interest and has an inde- . 4. « Ed. Hamilton, II, 393-395; ed. Lodge, I, 331-333. &Hunt, II, 411, III, 182; Gilpin, II, 892; Trist's memorandum in Randall's Jefferson, III, 594. c II, 890-892. d V, 205. cIII, 149-151. f III, 194-197. a Letter of Adams, iu Hamilton'.s Republic, III, app. p. ii; Journal, p. 130. h Pp. 130-132. '■ I, 179-180. J I, 324-326. '-■ Pp. 453, 454. I Documentary History, III, 212, 213, 217, 210. H. Doc. 461, pt 1 10 146 AMERICAN HISTORICAL ASSOCIATION. pendent origin/' Of the seventh and eighth texts, we may postpone our consideration for a few pages. Among these six texts there are considerable variations, though Paterson's (D) is precisely like Brearley's (C). If there were no reasons to the contrary in any case the pre- sumption would be in favor of assigning a superior au- thority to the copy found in Hamilton's own handwriting. But documents are often retouched, and we have seen how insecure such reasoning would be in the case of Pinckney or even of Paterson. Let us, then, study the variations. Thej'' occur in the text of the fourth, seventh, eighth, and ninth of Hamilton's eleven proposals. In the fourth article, which relates to the executive, the variations are in that part which prescribes the (indirect) mode of his election. Text A provides for "his election to be made by electors chosen by electors chosen by the people in the election districts aforesaid," meaning the single-member districts arranged for the choice of senators. That is to say, it provides not that his election shall be secondary, but that it shall be, if the phrase is permissible, a tertiary election. An alternative is provided, which appears in no other of the texts, namely, "or by electors chosen for that purpose by the respective legislatures" — an election still tertiary. The Bloomfield and Paterson texts (C, D), though they do not give the second member of this alternative, agree exactly with the phraseology of the first. In Madison's text the process be- comes simpl}?^ that of secondary election — "the election to be made by electors chosen by the people in the election districts aforesaid." Read's text (E) agrees with this. That of Yates seems to support it. He writes, " Let electors be appointed in each of the States to elect the Executive;"* but this brief phrase does not necessaril}^ rule out the wording of A nor ab- solutely sustain that of B. Arguments from one or another of these texts derived from expressions used in the subse- quent debates seem to be lacking. The longer and more in- tricate form in which A provides for the presidential election is sustained by the more elaborate -plan which Hamilton . « Secret Debates, ed. 1821, pp. 136, 137; Elliot, I, 423, with a difference, to be noted below. '> Elliot, I, 423, changes the last word to "legislature," which the context shows to be erroiieons. It should be remembered that the plan printed in the appendix to Yates is simply copied from that in the Journal of 1819, and has no independent authority, THE FEDERAL CONVENTIOISr OF 178*7. 147 showed to Madison in September, for this provided for a ter- tiary rather than a secondary election/' and it is easy in copy- ing to omit one of two similar phrases when the repetition is not perfectly well known to be intentional. On the other hand, it is not easy to imagine that the alternative method which is suggested in A was really in the document read on June 18, yet escaped all notice on the part of all five, or at any rate four, of those whose versions have come down to us. In the seventh article, relating to the judiciary, the number of judges in the Supreme Court is left blank in B, C, D, and E, . whereas in A the blank is filled with the word twelve. Much the most probable conclusion is that the document origi- nally read had a blank at this point, which Hamilton subse- quently filled in with the number. In his longer plan he provides for a court of from six to twelve judges. The eighth article of A reads: The Legislature of the United States to have power to institute courts in each State for the determination of all causes of caj^ture and of all matters relating to their revenue, or in which the citizens of foreign nations are concerned. In B, in C, in D, and in E (art. 6), we find a less specific definition of their jurisdiction: "for the determination of all matters of general concern." It would be natural, according to the usual rules respecting copying, to suppose that the more specific phrase was the original, the more general derivative; but this presumption is much weakened when we find four independent texts agreeing exactly in their phrasing of this provision. Finally, in the ninth article, the various texts differ markedly in respect to the composition of the court for trying impeach- ments. Text A provides that they shall be tried by a court consisting "of the judges of the Federal Supreme Court, chief or senior judge of the superior court of law of each State." The others make no mention of the judges of the Federal Supreme Court. Once they were introduced, it is easy to see why the blank in Article 7 should be filled with the word twelve, lest in impeachments of Federal officers they be quite outnumbered by the thirteen chief justices of the States, or so many of them as could attend. But B, C, D, and E, while they confine the tribunal to the State judges, have minor a Documentary History, III, 775-778. 148 AMERICAN HISTORICAL ASSOCIATION. variations in their definition of them. B, in the Documentary History, reads, "to consist of the chief or judge of the supe- rior court of law of each State;" in Gilpin and in Hunt, "of the chief or judge:" E, "chief or judges;" C and D, like A, "chief or senior judge." It is not difficult to im- agine that, if the writer did not feel perfectly acquainted with the judicial systems of all the States, and therefore could not in advance of discussion decide what phrase should be used to cover the case of States which did not precisely have a chief judge, he might at first write "chief or judge," and afterward till in the blank with the word " senior." In Ham- ilton's longer plan, the court for the trial of impeachments in the case of the higher officials is composed of the Supreme Court of the United States, (which, it will be remembered, was to consist of from six to twelve judges), plus the chief or senior judge of each State, any twelve to constitute a court. The seventh and eighth texts have been postponed. It is no wise certain that they have an independent origin. In the first volume of "Porcupine's Works," published by William Cobbett in May, 1801, he tells us that "the plan of a Consti- tution, which Mr. Hamilton * * * proposed to the Con- vention, has since been published by his enemies, with a view of destroying his popularity and influence. " " He then reprints a text of it, which difi^ers onh^ in two small particulars from Madison's (B) — the blank in the seventh article is simply closed up, which is doubtless a mere typographical error; and in the description of the impeachment court the reading is "Chief justice, or judge of the superior court of law," etc. I have not been able to discover Cobbett's source. It would have some interest, as the earliest printed text of Hamilton's plan, or of an}^ of the plans submitted to the Convention, except Paterson's. Cobbett's, however, was printed during Hamil- ton's lifetime; and so was our eighth text, which is found in a pamphlet entitled "Propositions of Colonel Hamilton of New York, in the Convention for establishing a Constitutional Government for the United States," printed at Pittstield, Mass., by Phinehas Allen, in 1803.^ This difi'ers in no respect from Porcupine's, save that in the phrase last cited the read- a P. 89. ''There is a copj- in the library of the New York Historical Society. I am greatly indebted to Mr. Robert H. Kelby, librarian of that society, for kindly furnishing me a transcript. THE FEDEKAL CdSrVENTION OF 1787. 149 ing- is "Chief judge or judge." It is impossible at present to say whether either of these, agreeing so closely with Madi- son's text, has an}^ other source than his manuscript. Whatever the probabilities in any of these individual cases of variation, it is perhaps sufficiently shown that in respect to Hamilton's suggested plan we have hardly more warrant than in the case of the Virginia or New Jersey resolutions or Pinckney's plan for declaring with confidence that any one of the variant texts represents exactly the original document which was brought before the Convention. In the late Paul Ford's Bibliography of the Constitution of the United States " mention is briefly made, against Hamil- ton's name, of a plan of government printed in the Massachu- setts Centinel for June 23, 1787. The attribution is erron- eous.^ The piece in question bears no signature or other indication of authorship. It is entitled simpl}^ "Scetch of a Federal Government." It is formed upon principles difl^ering widely in several respects from those which Hamilton is known at that time to have entertained.^ It provides for a legislative assembly consisting of five members from each State, chosen annuall}^, and having the power to levy excise duties as well as duties on imports and exports; if the amount thus raised were insufficient, resort should be had to requi- sitions. There was to be an executive council of one member from each State, chosen trienniallj^, which should have a veto, superable by a two-thirds vote, upon the acts of this assembly. Appointments were to be made upon a triple nomination on the part of the executive council by a committee of one mem- ber of the assembly from each State. A council of revision, consisting of the Secretary of Foreign Afl^'airs, the Secretary of War, the commissioners of the Treasury, and first judge of the admiralty, with appeal to a two-thirds vote of the assem- bly, was to exercise in the national interest a control over the legislation of the States. The States were to have no power to emit money of any kind. AH this is interesting, but not highly important; not as important, certainly, as (to cite a document of somewhat the a P. 48. 61 wrote to Mr. Ford about this some years ago. He was unable to say with certainty from what source he had derived his attribution of the plan to Hamilton. t-For a copy of the sketch I am indebted to my father, John Jameson, esq., of Boston. 150 AMERICAN HISTORICAL ASSOCIATION. same class) the body of suggestions found among the papers of Roger Sherman, and printed by Jeremiah Evarts in his sketch of Sherman in Sanderson's Lives of the Signers.* It is, by the way, not at all impossible that this last document, to which Mr. Bancroft attaches so high an importance,^ ma}^ have been a portion of the Connecticut delegates' contribution to those consultations of the members of the small States, out of which, as we have already seen, the New Jersey resolutions originated. There is nothing in its provisions inconsistent with this theory; and the suggestion is fortified by the pres- ence of blanks in the declaration, "That the eighth article of the confederation ought to be amended agreeably to the recommendation of Congress of the day of . " For a document prepared at leisure by Sherman it would have been easy to hunt down the date, April 18, 1783, and insert it. For a paper prepared upon a sudden exigenc}'^ and when he was remote from his own books, it might have been necessary to leave the date blank. The original of the paper seems to be no longer extant. VIII. THE WILSON DRAFTS FOR THE COMMITTEE OF DETAIL. The original manuscripts of the two papers which follow are found among the papers of James Wilson possessed b}^ the Historical Society of Pennsjdvania. They are wholly in his handwriting. For some consideration of their character, and of their relations to the Report of the Committee of Detail, see pages 126-130, supra. For copies of them the writer is indebted to Mr. John W. Jordan, librarian of the societ3^ The first, which in the original has received its present shape through many interlineations and other alterations, is here printed for the first time, and at full length, so far as pre- served. The portion now extant consists of two sheets, evi- dently the first and third of three. The second, which must have contained statements as to the powers of Congress, the organization and powers of the executive and judiciary, is missing. In the text which follows, under A, the origin of each clause is indicated by references, in square brackets, to the clause from which it was derived, directly or with modi- oli, 42-44. 6 Formation of the Constitution, II, 37. THE FEDEEAL CONVENTION OF 1787. 151 fications. These references point, when it is possible, to the corresponding- passages in the twenty-three resolutions of the convention referred to the committee, to the Paterson plan (text in eleven articles), and to the Pinckne}^ plan as presented on pages 130, 131, supra — the three documents directly referred to the committee. In the case of provisions not found in any of these three, reference is made (by the word "Randolph" and the number of plate and clause in Mr. Meigs's facsimile text) to the draft in Randolph's handwriting which shows the earlier processes of the committee's work; or to other sources when this gives no aid. Of the second of Wilson's drafts (B), it has been thought sufficient to print a statement of its divergences (which are few) from the text of the final report. We the People of the States of New Hampshire, Massachusets, Ehode Island and Providence Plantations, Connecticut, New- York, New-Jersey, Pennsylvania, Delaware, Maryland, Virginia, North -Carolina, South-Car- olina and Georgia do ordain declare and establish the following Constitu- tion for the Government of ourselves and of our Posterity. [Original.] The Stile of this Government shall he the "United People and States of America." [Articles of Confederation, I.] 2. The Government shall consist of supreme legislative, executive and judi- cial Powers. [Eesollitions, I.] 3. The legislative Power shall be vested in a Congress to consist of two sep- arate and distinct Bodies of Men, a House of Representatives, and a Sen- ate, each of which shall in all Cases have a Negative on the other. [Res- olutions, II, and Pinckney.] 4. The Members of the House of Representatives shall be chosen every second year by the People of the several States comprehended within this Union. The Qualifications of the Electors shall be prescribed by the Leg- islatures of the several States; but their Provisions concerning them may at any Time be altered and superseded by the Legislature of the United States. [Resolutions, III; Randolph, III, 11.] Every Member of the House of Representatives shall be of the Age of twenty five Years at least; shall have been a Citizen in the United States 152 AMERIGAK HISTORICAL ASSOCIATION. for at least three Years before his Election, and shall be, at the Time of his Election, a Resident of the State, in which he shall be chosen. [Resolu- tions, III; Randolph, II, 5.] The House of Representatives shall, at its first Formation and until the Number of Citizens and Inhabitants shall be taken in the Manner herein- after described, consist of 65 Members, of whom three shall be chosen in New-Hampshire, eight in Massachussets, &c. [Resolutions, VIII.] As the Proportions of Numbers in the different States will alter from Time to Time; as some of the States may be hereafter divided; as others may be enlarged by Addition of Territory, or two or more States may be united; and as new States will be erected within the Limits of the United States; the Legislature shall, in each of those Cases, possess Authority to regulate the Number of Representatives by the Number of Inhabitants, according to the Provisions herein after made. [Resolutions, VIII.] Direct Taxation shall always be in Proportion to Representation in the House of Representatives. [Resolutions, VIII.] The Proportions of direct Taxation shall be regulated by the whole Number of white and other Free Citizens and Inhabitants of every &c. which Number shall, within six Years after the first Meeting of the Legis- lature, and within the Term of every ten Years afterwards, be taken in such Manner as the said Legislature shall direct. [Resolutions, IX. ] From the first Meeting of the Legislature until the Number of Citizens and Inhabitants shall be taken as aforesaid, direct Taxation shall be in Proportion to the Number of Representatives chosen in each State. [Res- olutions, VIII. ] All Bills for raising or appropriating Money and for fixing the Salaries of the Officers of Government shall originate in the House of Representa- tives, and shall not be altered or amended hy the Senate. No Money shall be drawn from the public Treasury but in Pursuance of Appropria- tions that shall originate in the House of Representatives. [Resolu- tions, X.] The House of Representatives shall be the grand Inquest of the Nation; and all Impeachments shall be made by them. [Pinckney.] 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. [Randolph, III, 17.] The House of Representatives shall chuse its own Speaker, and other Officers. [Pinckney.] The Senate of the United States shall be chosen by the Legislatures of the several States; Each Legislature shall chuse two Members. Each Member shall have one Vote. [Resolutions, IV, XI, XXII. ] The Members of the Senate shall be chosen for six Years; provided that immediately after the first Election, they shall be divided by Lot into three Classes as nearly as may be, and numbered one, two and three. The Seats of the Members of the first Class shall be vacated at the Expi- ration of the second Year, of the second Class at the Expiration of the fourth Year, of the third Class at the Expiration of the sixth Year, and so on continually, that a third Part of the Members of the Senate may be chosen every second Year. [Resolutions, IV.] THE FEDERAL CONVENTION OF 1787. 153 The Senate of the United States shall have Power to make Treaties, to send Ambassadors, and to appoint the Judges of the Supreme national Court. [Randolph, VI, 3.] Every Member of the Senate shall be of the Age of thirty Years at least, shall have been a Citizen in the United States for at least four Years before his Election, and shall be, at the Time of his Election, a Resident of the State for which he shall be chosen. [Resolutions, IV; Randolph, III, 3.] Each House of the Legislature shall possess the Right of originating Bills, except in the Cases before mentioned. [Resolutions, A^.] In each House a Majority of the Members shall constitute a Quorum to do Business; but a smaller Number may adjourn from Day to Day. [Randolph, III, 12; IV, 5.] The Senate shall chuse its own President and other Officers. [Pinckney. ] Each House of the Legislature shall be the Judge of the Elections, Returns, and Qualifications of its own Members. [Original.] The Times and Places and the Manner of holding the Elections of the Members of each House shall be prescribed by the Legislatures of each State; but their Provisions concerning them may, at any Time, be altered and superseded by the Legislature of the United States. [Randolph, II, 8; III, 2.] The Legislature of the United States shall have Authority to establish such qualifications of the Members of each House with regard to Property as to the said Legislature shall seem proper and expedient. [Resolu- tions, XXIII. ] Each House shall have Authority to determine the Rules of its Proceed- ings [Pinckney], and to punish its own Members for disorderly Behaviour. [Randolph, III, 13; IV, 7.] Each House may expel a Member, but not a second Time for the same Offence. [Randolph, III, 13; IV, 7.] Neither House shall adjourn for more than three Days without the Con- sent of the other; nor with such Consent, to any other Place than that at which the two Houses are sitting. But this Regulation shall be applied to the Senate only in its legislative Capacity. [Pinckney.] The Members of each House shall, in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attend- ance at Congress, and in going to and returning from it. [Randolph, III, 14; IV, 8.] The Members of each House shall be ineligible to and incapable of holding any Office under the Authority of the United States during the Time for which they shall be respectively elected: And the Members of the Senate shall be ineligible to and incapable of holding any such office for one Year afterwards. [Resolutions, III, IV.] The enacting Stile of the Laws of the United States shall be "be it enacted and it is hereby enacted by the House of Representatives, and by the Senate of the United States in Congress assembled. [Original.] The Members of each House shall receive a Conipensation for their ser- vices, to be ascertained and paid by the State in which they shall be chosen. [Resolutions, III, IV.] 154 AMERICAN HISTORICAL ASSOCIATION. The House of Representatives and the Senate, when it shall be acting in a legislative Capacity, shall keep a Journal of its Proceedings, and shall from Time to Time publish them: And the Yeas and Nays of the Mem- bers of each House on any Question shall at the Desire of any Member, be entered on the Journal. [Original.] Freedom of speech. « The [The first sheet ends at this point; the second, as above explained, is missing; the third begins in the midst of a pro- vision respecting the admission of new States.] mitted on the same Terms with the original States: [Resolutions, XVII, or Paterson, 8.] But the Legislature may make Conditions with the new States concerning the public Debt which shall be then subsisting. [Randolph, VII, 5 b.] The United States shall guaranty to each State a Republican Form of Government; and shall protect each State against foreign Invasions, and, on the Application of its Legislature, against domestic Violence. [Reso- lutions, XVIII; Randolph, VIII, 2:4.] This Constitution ought to be amended whenever such Amendment shall become necessary [Resolutions, XIX]; and on the Application of the Legislatures of two thirds of the States in the Union, the Legislature of the United States shall call a Convention for that Purpose. [Ran- dolph, VIII, 5.] The Members of the Legislature, and the executive and judicial Officers of the United States and of the several States shall be bound by Oath to support this Constitution. [Resolutions, XX; Paterson, 6.] Resolved, That the Constitution jsroposed by this Convention to the People of the United States for their Approbation be laid before the United States in Congress assembled for their Agreement and Recommendation, and be afterwards submitted to a Convention chosen in each State under the Recommendation of its Legislature, in order to receive the Ratifica- tion of each Convention. [Resolutions, XXL] Resolved, That the Ratification of the Conventions of States shall be sufficient for organizing this Constitution: That each assenting Con- vention shall notify its Assent and Ratification to the United States in Congress assembled: That the United States in Congress assembled, after receiving the Assent and Ratification of the Conventions of States shall appoint and publish a Day, as early as may be, and appoint a Place for commencing Proceedings under this Constitution: That after such Publication or (in Case it shall not be made) after the Expiration of Days from the Time when the Ratification of the Convention of the State shall have been notified to Congress the Legislatures of the several States shall elect Members of the Senate, and direct the Election of Mem- bers of the House of Representatives, and shall provide for their Support: That the Members of the Legislature shall meet at the Time and Place assigned by Congress or (if Congress shall have assigned no Time and Place) at such Time and Place as shall have been agreed on by the Majority a A marginal memorandum. THE FEDERAL CONVENTIOlSr OF 1787. 155 of the Members elected for each House, and shall as soon as may be after their Meeting chuse the President of the United States, and proceed to execute this Constitution. [Randolph, VIII, Addenda.] Every Bill, which shall have passed the House of Representatives and the Senate, shall before it become a Law be presented to the Governour of the United States for his Revision; If, upon such Revision, be approve of it, he shall signify his Approbation by signing it; But, if, upon such revi- sion, it shall appear to him improper for being passed into a Law, he shall return it, together with his Objection against it in Writing, to that House in which it shall have originated, who shall enter the Objection at large on their Journal, and proceed to reconsider the Bill. But if after such Recon- sideration, two thirds of that House shall, notwithstanding the Objections of the Governour, agree to pass it; it shall together with his Objections, be sent to the other House, by which it shall likewise be considered; and, if approved by two thirds of the other House also, it shall be a Law. But in all such 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 enlisted in the Journal of each House respectively. If any Bill shall not be returned by the Governour within Days after it shall have been presented to him, it shall be a Law, unless the Legislature, by their Adjournment, prevent its Return; in which Case it shall be returned on the first Day of the next Meeting of the Legislature. [Massachusetts Con- stitution of 1780, Ch. I,. Sect. I, Art. II.] « In all Disputes and Controversies now subsisting, or that may hereafter subsist between two or more States, the Senate shall possess the following Powers. Whenever the Legislature, or the Executive Authority, or the lawful Agent of any State in Controversy with another shall by Memorial to the Senate, state the Matter in Question, and ajjply for a Hearing, Notice of such Memorial and Application shall be given by Order of the Senate to the Legislature or the Executive Authority of the other State in Controversy. 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 Commissioners or Judges to consti- tute 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 Commissioners or Judges to hear and finally determine the Controversy; provided a major Part of the Judges, who shall hear the Cause, agree in the Determination. If either Party shall neglect to attend at the Day assigned, without shewing suflicient Reasons for not attending, or, being present, shall refuse to strike, the Senate shall proceed to nominate three Persons out of each State, and the Secretary or Clerk of the Senate shall strike in Behalf of the Party absent or refusing. If any of the Parties shall a A Massachusetts man, Gorham, was a member of the Committee of Detail. 156 AMEEICAN HISTORICAL ASSOCIATIOTST. refuse to sulimit to the Authority of such Court, or shall not appear to prosecute or defend their Claim or Cause; the Court shall nevertheless proceed to jsronounce Judgment. The Judgment shall be final and con- clusive. The Proceedings shall be transmitted to the President of the Senate, and shall be lodged among the public Records for the security of the Parties concerned. Every Commissioner shall before he sit in Judg- ment, take an Oath, to be administered by one of the Judges of the Supreme or Superior Court of the State, where the Cause shall be tried, "well and truly to hear and determine the Matter in Question, accord- ing to the best of his Judgment, without Favour, Affection or Hope of Reward." [Articles of Confederation, IX.] « All Controversies concerning lands, claimed under different Grants of two or more States, whose Jurisdictions, as they respect such Lands, shall have been decided or adjusted subsequent to such Grants, shall, on Application to the Senate, be finally determined, as near as may be, in the same Man- ner as is before prescribed for deciding Controversies between different States. [Articles of Confederation, IX.] B. The later and more finished of Wilson's two drafts differs so little from the report of the Committee of Detail that the easiest way to give a notion of its contents is to state seriatim the alterations which one would have to make in the latter document* in order to reproduce, with almost verbal exact- ness, the text of the former. The}^ are but eleven in number: 1. Article HI of the report of the Committee of Detail, omit: " The Legislature shall meet on the first Monda}^ in December ever}^ year." 2. Article IV, transpose section 7 and the last half of section 6. 3. Article V, section 1, omit: "Vacancies ma}^ be supplied by the Executive until the next meeting of the Legislature." 4. Article VII, section 1, after the twelfth clause, add: "and of Treason against the U. S. or any of them; Not to work Corruption of Blood or Forfeit, except during the Life of the Party; to regulate the Discipline of the Militia of the several States;" 5. Article VII, section 2, omit (except in so far as it is rep- resented by the clauses just mentioned). 6. Article VII, section 3, omit: " except Indians not paying taxes." a For a suggestion as to the origin of this provision, see my Essays in the Constitutional History of the United States, pp. 44, 45. ^ As given in the Documentary History, III, 444-458. THE FEDERAL CONVENTION OP 1781. 157 7. After that section add: "From the hrst Meeting of the Legislature until the Number of Citizens and Inhabitants shall be taken as aforesaid, direct Taxation shall be in Pro- portion to the Number of Representatives chosen in each State." 8. Article X, section 2, ad fin., the reading is: "until another President of the United States be chosen, or until the President impeached or disabled be acquitted or his Disability be removed;" and in the preceding clause impeachment is mentioned. 9. After Article X, add: "All Commissions, Patents and Writs shall be in the Name of *• the United States of America.'" 10. Article XI, section 1, omit: "when necessary." 11. Article XIII, omit: "or make anything but specie a tender in payment of debts." The other clauses of Articles XII and XIII are present in the Wilson draft, but arranged in a different order and placed as one article (No. 10) immedi- ately after that which prescribes the supremacj^ of the federal law, corresponding to Article VIII of the committee's report. IX. MEMBERS WHO DID NOT SIGN. Seventy-three delegates were elected to the Convention.'* Of these, 18 did not attend. Of the 55 who attended, the signatures of only 39 appear at the end of the document. Among the 16 whose names are not found there, Elbridge Gerry, Luther Martin,'^ George Mason, and Edmund Ran- dolph, it is familiar, refused to sign. The object of the pres- ent inquiry is to explain the absence of the other 12 names. This may not be entirely useless if it is still possible to say, as is said in one of the most elaborate accounts of the work of the Convention, that they all declined to affix their signatures.^ In reality, all 12 were absent when the instrument was signed; and there is evidence that 7 approved of it, and no evidence that any but 3 of the 12 opposed it. a The list which Secretary Adams published in the Journal of 1819, pp. 13-15, contains but 65 names. Mr. Paul Ford printed what is presumed to be a complete list (73 names; he says 74) in the Collector for September and October, 1888. This was reprinted as a separate pamphlet, Brooklyn, 188S; also in Draper's Essay on the Autographic Collections of the Signers, pp. 114-117; in Wisconsin Historical Society Collections, X; in Carson's History of the Celebration of the Hundredth Anniversary of the Constitution, I, 1.35 ss.; and in my Dictionary of United States Hi-story, p. 163. l> Martin says that he left Philadelphia on September 4. Letter to the Maryland Jour- nal in Ford, Essays onthe Constitution, p. 341. "Landholder" (Ellsworth) says the same, ibid., p. 186. ('Thorpe, Constitutional History of the United States, I, 594. 158 AMERICAN HISTORICAL ASSOCIATION. The 12 members under consideration are Caleb Strong, of Massachusetts; Oliver Ellsworth, of Connecticut; Robert Yates and John Lansing, of New York; William C. Houston, of New Jersey; John Francis Mercer, of Maryland; George Wythe and James McClurg, of Virginia; Alexander Martin and William R. Davie, of North Carolina; and William Pierce and William Houstoun, of Georgia. We will take them up in the presumed order of their departure from the Convention. Of Chancellor Wj^the, Madison records in his notes under date of June tt that he had alread}^ gone home.^' His letter of June 16, written from Williamsburg to Governor Randolph, shows that the cause of his I'etirement was the dangerous ill- ness of his wife.^ A letter of July 16 to Beverley Randolph, the acting governor, shows that this cause, "the onl}^ one which could have moved me to retire from the Convention," continued urgent, and he explained that both these letters were intended to express his resignation.^' Mrs. Wythe's illness proved fatal.'' His course in the Virginia convention plainly evinces his approval of the Constitution. Major Pierce left the Convention about July 1. In Madi- son's notes and those of Yates we find him speaking on June 2d J From Jul)^ i to August 1, and from August 27 to Octo- ber 1, he was in attendance upon Congress at 'New York. •'' Two letters of Hamilton show the latter adjusting a difficulty and preventing a duel between Pierce and a Mr. Auldjo, and another. New York, July 26, 1787, says: "He informs me that he is shorth^ to set out on a jaunt up the North River. " ^ Apart from Congressional duty the reasons for his absence do not appear. It was not for lack of appreciation of the honor of a seat in the Convention. His letter to St. George Tucker, written September 28, sa3"s: You will probably be surprised at not finding my name affixed to it, and will no doubt be desirous of having a reason for it. Know, then, sir, that I was absent in New York on a piece of business so necessary that it a Documentary History, III, 54; Hunt, III, 81. & Calendar of the Emmet Collection, No. 9542. See also Randolph to Beverley Randolph, June 21, in Va. Cal. St. P., IV, 298. cBrotherhead, Centennial Book of the Signers, p. 257. rf Madison, Letters, I, 339. e Documentary History, III, 244; Hunt, III, 320; Yates, p. 187; Elliot, I, 464. .f Journals of Congress, IV, 750-765, 773-783; memoranda in a manuscript volume of his which I have seen. A letter of his to Gardoqui, dated New York, September 3, 1787, is in tlie New Jersey Journal for November 28, 1787, and in Carey's American Museum, II, 583. (/Works, ed. Hamilton, I, 437, 439; ed. Lodge, VIII, 170, 177, 178. THE FEDERAL CONVENTION OP 1787. 159 became unavoidable. I approve of its principles, and would have signed it with all my heart had I been present. « Lansing- and Yates left the Convention on or soon after July 10.^ Elliot says July 5/ But a comparison of the journal of the Convention with the sheets of yeas and nays shows New York casting- a vote through July 10/^ and there is other though not conclusive evidence that Yates was present on July 9/ The attitude of these two toward the Constitution is well known. William C. Houston, of New Jersey, is not known to have been present after July 17, if then. He spoke then, if the indexer of the third volume of the Documentary History is right in attributing certain remarks made that day to him rather than to William Houstoun, of Georgia; as to this no evidence is known to the present writer.-^ He is not stated to have spoken on Siny other occasion. Pierce, in his descrip- tions of the members, omits his name.^ Mr. Thorpe, perhaps on local New Jersey evidence, says that he withdrew on account of illness.'''' Doctor McClurg was present on July 20.* But on August 5 he writes to Madison from Richmond.'' In a later unprinted letter to Madison, written on October 31, he discusses the Constitution.'^ Kives, probably on the basis of this letter, says that McClurg favored it.^ William Houstoun, of Georgia, was present till July 24."* Davie does not appear in the proceedings after July 26.'* On August 6 he writes to Iredell that he shall leave on Mon- day, which would mean August 13,'' and on August 23 he writes to Governor Caswell from Halifax, N. C, saying that a Georgia Gazette, March 20, 1788; American Historical Review, III, 314. b Bancroft, II, 75; Martin, in Elliot, I, 358. el, 479. d Documentary History, I, 86, 250. e Appointment of Yates on a committee. Documentary History, I, 84, 299. /Documentary History, III, 358; Hunt, III, 455. Madison spells the two names the sam.e. (/American Historical Review, III, 327. /'Constitutional History of the United States, I, 594. '■ Documentary History, III, 389. J Bulletin of the Bureau of Rolls and Library, 4: 487. fclbid. / Life of James Madison, II, 253. "I Documentary History, III, 414. Internal evidence shows nearly all the remarks which Madison credits to " Mr. Houston " to have been made by a Georgia member. » Documentary History, III, 434. oMcRee, II, 168. 160 AMERICAN HISTORICAL AS&OCIATIOlsr. he had left Philadelphia on the 13th/' In the North Carolina convention he showed his approval of the Constitution. Strong" was present on August 15.* That he left Philadel- phia before August 25 is apparent from the letter of Gorham printed above — No. 4 in Section II. Senator Lodge states that he was called home by illness in his family.'' In Parsons's notes we find him saying in the Massachusetts convention that "through sickness he was obliged to return home, but had he been there he should have signed" the Constitution.'^ He voted for its ratification. Mercer was present from August 6 to August 17/ In the Maryland convention he voted against ratification of the Constitution. Governor Martin, of North Carolina, was in Philadelphia as late as August 20, but expected to leave on September 1, having to attend the superior court in Salisbury in that month.'^ He favored ratification. Judge Ellsworth was present in the Convention on August 23.^ Jeremiah Evarts, in his sketch of the life of Roger Sherman, in Sanderson's Lives of the Signers, explains that, Sherman and Ellsworth both being judges of the superior court of Connecticut, Sherman had to be absent from the Convention at its beginning-, Ellsworth at its end.'''^ Ellsworth visited President Stiles at New Haven on August 27, on his way home.^ That he approved of the Constitution is evident from the letter which he and Sherman wrote to the governor from New London on September 26,-'' and from his speeches in the Connecticut convention.. That Dickinson, though his name appears upon the docu- ment, was absent on the last day, has been shown in a preced- ing portion of these studies (p. 97). ■I North Carolina State Records, XX, 766. Pitkin says, II, 262, that he has been assured that Davie, Strong, and Ellsworth would have signed if they could have stayed to the end. b Documentary History, III, 535. cMass. Hist. Soc. Proc., I, 296. d Debates of the Massachusetts Convention, ed. 1856, p. 316. e Documentary History, I, 112; III, 444, 555. Mr. Ford (Draper, p. 116) says that Mercer left on September 4. f North Carolina Records, XX, 763. ff Documentary History, III, 602. /t Signers, II, 44. i Literary Diary of President Stiles, III, 279. iCarey's American Museum, II, 434, 435; Elliot, I, 491, 492. THE FEDEUAL CONVENTION OE^ 178Y. 161 X. THE ACTION OF THE STATES. The following- paragraphs show, for each State, the dates of the sessions of its legislature which intervened between Sep- tember 17, 1787, when the Philadelphia Convention adjourned, and the date of the ratification of the Constitution by that State; also the official or formal materials — journals and de- bates — for a knowledge of the proceedings of those sessions. New Hampshire. — Four sessions. The "Proceedings of the Honorable Senate " and the ' ' Legislative Journals of the House of Representatives of the State of New Hampshire" were contemporaneously printed at Portsmouth. They have been reprinted in Volume XXI of the New Hampshire State Papers. The resolution for calling a convention was passed on Decem- ber 11, 1787. September 12-29, 1787. New Hampshire State Papers, XXI, 89-106 (S.); 109-143 (H. R.). December 5-15, 1787. New Hampshire State Papers, XXI, 145-154 (S.); 155-169 (H. R.). January 23 to February 13, 1788. New Hampshire State Papers, . XXI, 171-194 (S.); 195-232 (H. R.). June 4-18, 1788. New Hampshire State Papers. XXI, 261-286 (S.); 287-33! (H. R.). MassachiisetU. — One session, the second of the existing leg- islature, October 17 to November 21, 1787. Its journals exist only in manuscript, in the office of the secretary of the Com- monwealth. The legislative proceedings of the General Court relative to the new Constitution are, however, printed in the Debates and Proceedings of the Convention of 1788, ed. 1856. The joint resolution for holding the convention was passed on October 25, 1787, and is printed in the Documentary History, II, 91-92. Rhode Island. — Fifteen sessions, beginning respectively on October 29, 1787; February 25, March 31, May 7, June 9, October 27, December 29, 1788; March 9, May 6, June 8, September 15, October 12, October 28, 1789; January 11 and May 5, 1790. Their "Schedules," or "Acts and Resolves," resembling a journal in character, were printed contempora- neously. Extracts from them, embracing what is most im- portant to the present purpose, are printed in the colonial records of Rhode Island, X, 262-379. The resolve for hold- ing a convention was passed on Januar}^ 17, 1790. H. Doc. 461, pt 1 11 162 AMEBIC ATSr HISTORICAL ASSOCIATIOTT. Gomiectlcnt. — One session, October 11 to November 1, 1787, of which there are no printed journals. The resolve for hold- ing the convention was passed on October 16. Nein York. — One session, Januar}^ 1« to March 22, 1788. The Journal of the Senate and the Journal of the Assembly of the State of New York were contemporaneous!}'^ printed, but have not been reprinted. The resolution for holding a convention was passed on February 1, 1788. Neu} Jersey. — One session, October 23 to November 7, 1787. The Journal of the Council, Twelfth Session, First Sitting, and the Votes of the Twelfth Assembly, First Sitting, were contem- poraneously printed at Trenton. The convention was called by virtue of a resolution of October 29, 1787,^ and an act of November 1, both of which will be found printed in the Doc- umentary History of the Constitution, II, 61, 62. Pennsylvania. — Two sessions. Third session of the eleventh assembl}", September 1—29, 1787; first session of the tAvelfth assembl}', October 22 to November 29, 1787. Their journals — e. g.. Minutes of the First Session of the Twelfth General Assembl}^ of the Commonwealth of Pennsylvania^— were printed contemporaneoush?^ in Philadelphia. For debates, see Proceedings and Debates of the General Assembl}^ of Pennsylvania, taken in shorthand b}^ Thomas Lloyd, Phila- delphia, 1787; Carey's American Museum, II, 362-366; and McMaster and Stone, Pennsjdvania and the Federal Constitu- tion, pp. 27-72. The resolution for calling a convention was passed, b}- well-known means, on September 29, 1787. An act for the members'' compensation was passed on Novem- ber 10. Delaware. — One session, which legally began on October 20, 1787 (but there was no quorum till October 25), and which ended November 10. The Minutes of the Council of the Dela- ware State from 1776 to 1792 were printed at Wilmington in 1888, as No. 6 of the Papers of the Historical Society of Dela- ware. The Votes and Proceedings of the House of Assembly of the Delaware State were (1787) printed at Wilmington. The resolution for calling a convention was passed Novem- ber 10. (I But tlicre was no qnonim in the Assembly till .Tannary 9, nor in the Senate till Janu- ary 11. ''Bancroft, Constitution, II, 252, says "on the 2Gth ; " ))nt tlie above date is given in tlie Doc. Hist., ubi sup., in the Minutes of the Convention and in the New Jersey Journal. THE FEDEEAL COlSrVENTION OF 178*7. 163 Maryland. — One session, November 5« to December 17, 1787. The journals of the senate and house of delegates were printed in 1787. Of the debates, we have the speech of Luther Martin, first printed, from the notes of "a customer," in the Mar3dand Gazette and Baltimore Advertiser, December 28, 1787, to February 8, 1788; then in the State Gazette of South Carolina, and probably in other newspapers; then as a pamph- let. The Genuine Information delivered to the Legislature of the State of Mar^dand, relative to the Proceedings of the Gen- eral Convention lately held at Philadelphia, b}^ Luther Martin, Philadelphia, 1788 (Ford, 119); reprinted in Yates, Secret Proceedings, Albany, 1821, Washington, 1836, and the other editions; and in Elliot's Debates, first ed.. Vol. IV; third ed., Vol. I. The vote for calling a convention passed the house on November 27, the senate on December 1. Virginia. — One session, October 15, 1787, to January 8, 1788. The journals of the senate and house of delegates were printed contemporaneously, and also in 1828, at Richmond. The debate of October 25 is reported in Miss Rowland's George Mason, II, 190-191, from the Pennsylvania Packet of Novem- ber 10. A resolution for calling a convention was passed by the house on October 25, 1787, amended by the senate, and finally passed on October 31. An act respecting the conven- tion was passed on December 12. Hening, XII, 462. North Carolina. — Three sessions. The journals of the sen- ate and house of commons are to be found either in Vol. XX of the State Records of North Carolina or in contemporary print. November 19-December 22, 1787. Journals (S., H. C.) in N. C. Kec, XX. November 3-December o, 1788. Journals (S.) N. C. Rec, XX; (H. C.) Edenton, 1788. November 2-22, 1789. Journals (S., H. C), Edenton, 1789. The first convention was called by virtue of a resolution of December 6, 1787; the second, by one of November 17, 1788. South Carolina. — One session, January 8 to February 29, 1788. The journals remain in manuscript in the office of the secretary of state at Columbia. Of the debates, we have: Debates which arose in the House of Representatives of South Carolina on the Constitution framed for the United States by (I There was no quorum in the house till November 14, nor in the senate till Novem- ber 22. 164 AMERICAN HISTORICAL ASSOCIATION. a Convention of Delegates assembled at Philadelphia; Charles- ton, collected by R. Has well and published at the Cit}' Gazette Printing Office, No. 47 Bay, 1788 (Ford 152). This pamphlet was reprinted with additions in 1831 (Ford 153), and in the third ("second") edition of Elliot's Debates, IV, 253-317. The resolution for calling the convention was passed on Janu- ary 19, 1788; the ordinance giving the members the usual privileges, etc. , on February 29. Georgia. — One session, July 3 to October 31, 1787. Another began on Januar}^ 1, 1788, the day before ratification. The journals are in manuscript in the office of the secretary of state. The resolution for calling the convention was passed on Octo- ber 26, 1787, and is printed in Documentary History, II, 83. XI. JOURNALS AND DEBATES OF THE STATE CONVENTIONS. The formal or official journal has not in all cases been printed, but the volumes of debates usuall}^ contain, as inci- dental to their main purpose, much of the material appropri- ate to a journal. In the case of the rarer publications I have referred by number to Mr. Ford's Bibliography, where fuller titles, and sometimes notes, may be found. NEW HAMPSHIRE. /ournai.— Historical Magazine, XIII, 257-263. New Hampshire State Papers, X, 1-22. Defeases.— (Fragments.) Elliot, Debates, third ed., II, 203-204. Thomas C. Amory, The Military Services and Public life of Maj. Gen. John Sullivan, pp. 230-231. Joseph B. Walker, History of the New Hampshire Convention, pp. 112-116. MASSACHUSETTS. Journal. — In Debates, ed. 1856. Debates. — Debates, Resolutions, and other Proceedings of the Convention of the Commonwealth of Massachusetts, Boston, 1788. (Ford, 122.) American Museum, III, 343-362. Debates, Resolutions, and other Proceedings, Boston, 1808. (Ford, 123.) Elliot, Debates, first ed., I, 25-184. Elliot, Debates, third ed., II, 1-202. Debates and Proceedings in the Convention of the Common- wealth of Massachusetts, Boston, 1856. (Contains the mate- rial which was in the editions of 1788 and 1808, and also the official journal and the notes of Theophilus Parsons.) Notes of Jeremy Belknap, in Mass. Hist. Soc. Proc, III, 296-304. THE FEDBEAL CONVENTION OF 1787. 165 RHODE ISLAND. Journal. — W. R. Staples, Rhode Island in the Continental Congress, pp. 640-674. (Contains also some notes of the debates; see ex^ planation on ji. 644. ) CONNECTICUT. Debates. — (Fragments. ) American Museum, III, 334-343 (Ellsworth) ; IV, 167-170. Elliot, Debates, third ed., II, 185-202. G. H. HoUister, History of Connecticut, II, 456-460 (Ellsworth) . Frank Moore, American Eloquence, I, 404-409 (Ellsworth) NEW YORK. Journal. — Journal of the Convention of the State of New York, Pough- keepsie, 1788. (Ford, 130.) Debates. — The Debates and Proceedings of the Convention of the State of New York, New York, 1788. (Ford, 129.) American Museum, IV, 172-173 (G. Livingston). Elliot, Debates, first ed., I, 185-358; III, l*-8* (the last a speech by Tredwell, never delivered). Elliot, Debates, third ed., II, 205-413. Hammond, History of Political Parties, I, 26-28 (G. Livingston). Hamilton, Works, ed., J. C. Hamilton, II, 426-463 (Hamilton). Moore, American Eloquence, I, 187-204 (Hamilton). Johnston, American Orations, I, 39-52 (Hamilton). NEW JERSEY. Journal. — Minutes of the Convention of the State of New Jersey, Trenton, 1788. (Ford, 127; reprinted at Trenton in 1888 by C. -L. Traver. ) PENNSYLVANIA.' Journal. — Minutes of the Convention of the Commonwealth of Pennsyl- vania, Philadelphia, 1787. (Ford, 141.) Debates. — The Substance of a Speech delivered by James Wilson, esq., Philadelphia, 1787. (Ford, 168.) Debates of the Convention of the State of Pennsylvania, * * * taken accurately in shorthand by Thomas Lloyd, Philadelphia, 1788 (McKean, Wilson). (Ford, 140.) Elliot, Debates, first ed., Ill, 221-322. Elliot, Debates, third ed., II, 415-542. Moore, American Eloquence, I, 74-82 (Wilson). McMaster and Stone, Pennsylvania and the Federal Constitu- tion, pp. 211-431 and (Wilson's notes) 765-785. DELAWARE. [Neither journal nor debates has, I believe, ever been published. ] 166 AMERICAN HI9T0EICAL ASSOOIATION. MAKYLAND. Journal. — Documentary History of the Constitution, II, 97-122. VIRGINIA. Journal.- — Journal of the Convention of Virginia, Richmond, 1827. (Ford, 159). Debates. — Debates and other Proceedings of the Convention of Virginia, Petersburg, 1788, 1789, three volumes. (Ford, 157.) The notes for these volumes were taken in shorthand by David Robertson, of Petersburg. A note on the last page of this original edition, III, 228, tells us that ' ' The Gentleman who took the foregoing Debates in Short-Hand, having had but an ineligible seat in the Gallery, a situation remote from the speakers, where he was frequently interrupted by the noise made by those who were constantly going out and coming in, is conscious that he must have lost some of the most beauti- ful periods and best observations of the different speakers; and is afraid that in some instances he may have misappre- hended their meaning. * * * He further begs leave to add, that his having taken the Debates of the Convention of North Carolina, and the pressure of his other avocations dis- abled him from furnishing the Printers with so fair a copy as he would otherwise have done. He was only able to give him a rough transcription from the Short-Hand origi- nal," and could not read the proofs. Rives, II, 586, says that Madison's speeches were not revised by him and that he presumes none of the others were revised by their authors, unless Monroe's first speech. Debates and other Proceedings of the Convention of Virginia, Richmond, 1805. For this second edition Robertson corrected his text and compared it in part with the original shorthand notes. Elliot, Debates, first ed.. Vol. II; third ed.. Vol. III. (From the above. ) When Elliot was preparing his first edition he offered Madison the chance to revise his speeches as given by Robertson; but Madison did not think it fair to the others when forty years had elapsed. See his letter of November, 1827. Letters, III, 598. Moore, American Eloquence, I, 13-39 (Henry), 127-144 (Madi- son), 165-173 (Randolph), II, 10-20 (Marshall). Johnston, American Orations, I, 53-71 (Madison). NORTH CAROLINA. Journals. — (First convention.) Journal of the Convention of North Caro- lina, Hillsborough, 1788. (Second convention. ) Journal of the Convention of the State of North Carolina, Edenton [1789]. (Ford, 135; reprinted in the State Chronicle of Raleigh, November 15, 1889. ) THE FEDERAL CONVENTION OF 1787. 167 Debates.— {First convention. ) Proceedings and Debates of tlie Convention of North Carolina, Edenton, 1789. (Ford, 137.) "A Mr. Robinson [Robertson] attended the convention as stenogra- pher. The Federalists were desirous that the debates should be published. * * * At their instance Iredell and Davie assumed the responsibility and care of the publication. Neat copies were made in Edenton by Mr. Lorimer (an English- man) from the notes of the reporter; and as far as practicable the speeches were submitted to their authors for correction. This enterprise involved Iredell and Davie in some pecuniary loss. ^ * * The debates were printed at Edenton by Hodge and Wills, and made their appearance about the last of June, 1789. One thousand copies were published." McRee, Life of Iredell, II, 235. Elliot, Debates, first ed.. Ill, 17-220. Elliot, Debates, third ed., IV, 1-252. (Second convention. ) Fragments in news]3apers, according to Mr. Ford. SOUTH CAROLINA. Debates. ^State Gazette, of South Carolina, May, 1788. (Pinckney's speech at the opening, May 14. ) American Museum, IV, 170-172 (two speeches), 256-263 (Charles Pinckney's speech of May 14). Debates which arose in the House of Representatives [as above, pp. 163, 164]. Together with such notices of the Convention as could be procured. Charleston, A. E. Miller, 1831. Elliot, Debates, third ed., IV., 318-341. [IliTothing of either journal or debates is known to have been printed, unless in some contemporary newspaper outside the State; the Georgia newspapers seem to have nothing of the sort. ] LlBRftRV OF CONGRESS 012l050j753j_