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THE MYSTERY OF THE 
 PINCKNEY DRAUGHT 
 
 BY 
 
 CHARLES C. NOTT 
 
 FORMERLY 
 
 Chief Justice of the United States Court of Claims 
 
 NEW YORK 
 
 THE CENTURY CO. 
 
 1908 
 
i^;V 
 
 LIBRARY of CONGRESS 
 Two Copies Received 
 
 NOV 20 \WB 
 
 fc. ^ Copyright Entry _ 
 CLASS O^JU^^^- 
 
 ^^^y^:J. < j 
 
 Copyright, 1908, by 
 The Century Co. 
 
 Published, 'Novewiber, 1908, 
 
 
TO 
 
 CEPHAS BRAINERD 
 
 OP THE NEW YORK BAR 
 
 A SOUND Lawyer and a long-tried Friend 
 
 Sn-xC 
 
CONTENTS 
 
 CHAPTER PAGE 
 
 I. Statement of the Case .... 3 
 II. The Draught in the State Depart- 
 ment 16 
 
 III. Of the Issue of Fraud .... 23 
 
 IV. Madison as a Witness 29 
 
 V. Madison as an Advocate .... 40 
 
 VI. The Position Taken by Madison . 58 
 
 VII. The Plagiarisms 65 
 
 VIII. The Improbabilities 85 
 
 IX. The Observations 105 
 
 X. The Silence of Madison .... 143 
 XI. The Wilson and Randolph 
 
 Draughts 158 
 
 XII. The Committee's Use of the 
 
 Draught 206 
 
 XIII. What Became of the Draught . . 225 
 
 XIV. What Pinckney Did for the Con- 
 
 stitution 243 
 
 XV. Conclusions on the Whole Case . 257 
 XVI. Of Pinckney Personally . . . 278 
 
 Appendix 
 
 Mr. Charles Pinckney 's Draught 
 
 op a Federal Government . . . 295 
 Draught of the Committee of De- 
 tail 3^^ 
 
 Index ^^^ 
 
THE MYSTEEY OP 
 THE PINCKNEY DEAUGHT 
 
THE MYSTERY OF 
 THE PINCKNEY DRAUGHT 
 
 CHAPTEE I 
 
 STATEMENT OF THE CASE 
 
 WHEN I began the studies which have re- 
 sulted in this book someone asked me 
 what I was doing, and I chanced to answer that 
 I was looking into the mystery of Pinckney's 
 draught of the Constitution. Afterwards I 
 received a letter from Professor J. Franklin 
 Jameson in which he spoke of the uncertain- 
 ties attending the draught as * ^ my steries ' ' ; 
 and later I found that Jared Sparks, back in 
 1831, had been engaged in the same study and 
 had used the same term. With two such 
 scholars as Professor Jameson and Mr. 
 Sparks recognizing the knowable but unknown 
 element which we call mystery, I retain the 
 term which I chanced to use. 
 
 '^A true mystery, instead of ending dis- 
 cussion, calls for more.'' ''What constitutes 
 
 3 
 
THE PINCKNEY DEAUGHT 
 
 a mystery is the unknown which is certainly 
 connected with the known. A mystery there- 
 fore is unfinished knowledge. ' ' ^ 
 
 At the opening of the Convention which 
 framed the Constitution, Charles Pinckney of 
 South Carolina presented a draught of a 
 constitution that was referred to the Commit- 
 tee of the Whole. This draught was not a 
 subject of notice or comment by any speaker 
 or writer of the time. One might infer from 
 the silence of all records and writers that it 
 was the fanciful scheme of an individual 
 which exercised no influence whatever on the 
 Convention and did not contribute a single 
 line or sentence to the Constitution. 
 
 On the adjournment of the Convention its 
 records and papers were placed under seal 
 and the obligation of secrecy was set upon its 
 members. When ultimately the seals were 
 broken and the package was opened, more 
 than thirty years afterwards, the draught of 
 Pinckney was not found. John Quincy 
 Adams then Secretary of State applied to 
 Pinckney for a copy; and he on the 30th of 
 
 1 Dr. William Hanna Thomson, Brain and Personality, p. 
 278. 
 
 4 
 
STATEMENT OF THE CASE 
 
 December 1818, sent to the Secretary of State 
 the duplicate or copy of the draught now in 
 the Department of State. The document was 
 published and remained unquestioned until in 
 1830, six years after the death of Pinckney, 
 it came, or was brought, to the attention of 
 Madison; and he at different times wrote to 
 at least four persons concerning it and also 
 prepared a statement which was subsequently 
 published with it in Gilpin's edition of Madi- 
 son's Journal, and in Elliot's Debates; and 
 then the Pinckney draught slept unnoticed in 
 constitutional publications until a review in 
 the columns of the Nation awakened an in- 
 terest in Mr. Worthington C. Ford and he in 
 1895 published the letter which accompanied 
 the draught when it was placed in the State 
 Department. Nevertheless, if the copy in the 
 Department is identical in terms, or substan- 
 tially identical in terms, with the paper which 
 Pinckney presented to the Convention, then 
 Charles Pinckney contributed more of words 
 and provisions to the Constitution of the 
 United States than any other man. And this 
 ■ draught so prepared by him was so largely 
 adopted in a silent way that the law student 
 
 5 
 
THE PINCKNEY DRAUGHT 
 
 who might chance to read it, not knowing of 
 the comment of Madison and its rejection by 
 all commentators, would be tempted to speak 
 of the Constitution of the United States as the 
 constitution of Pinckney. 
 
 The reason why the Pinckney draught has 
 received so little attention, and he has received 
 no credit at all for what apparently is an ex- 
 traordinary piece of constitutional work can 
 be readily explained. 
 
 The statement of Madison is written in tem- 
 perate and guarded terms ; and it is manifest 
 that he was careful to speak with courtesy of 
 Pinckney and to furnish an explanation in the 
 nature of a bridge over which the friends of 
 Pinckney, then deceased, might retreat. But 
 what he does say instantly brings the reader's 
 mind to the conclusion that the paper in the 
 State Department is not the paper — that it is 
 not a substantial copy of the paper, which was 
 before the Convention. Story had been ap- 
 pointed by Madison and it was not for Story 
 to accept what Madison rejected; and Story 
 was so great a man, so great a judge and com- 
 mentator, that it was not for lesser men to re- 
 verse him. Madison's comment and Story's 
 
 6 
 
 \ 
 
STATEMENT OF THE CASE 
 
 silence have united to condemn the draught so 
 effectively that while printed and reprinted it 
 has been as nnnoted as if it had never been 
 written. The final, judicial edict of George 
 Bancroft expressed the general judgment 
 when he wrote of the original draught which 
 was actually before the Convention, "No part 
 of it was used, and no copy of it has been pre- 
 served." 
 
 Moreover Madison is too great an authority 
 to be lightly questioned, the highest authority 
 that exists concerning the proceedings of the 
 Convention; and he asserts and undertakes 
 to demonstrate that the one paper can not be 
 a true copy of the other. He designates pro- 
 visions which he says originated in the Con- 
 vention and could not have been predeter- 
 mined by Pinckney; and still more conclu- 
 sively, as he thinks, he points to the fact that 
 the paper in the Department contains provi- 
 sions to which Pinckney was himself opposed, 
 provisions against which he spoke and voted in 
 the Convention. Here Madison builds his 
 bridge. Mr. Pinckney, he suggests, furnished 
 this copy many years after the event (nearly 
 32 years), after he had become an old man and 
 
 7 
 
THE PINCKNEY DEAUGHT 
 
 the record of events had faded in his memory ; 
 and probably as the work of the Convention 
 went on he had used a copy of his draught as 
 a memorandum and had interlined in it pro- 
 visions which the Convention framed; and 
 when he sent the copy to the Secretary of 
 State he had forgotten this, or had gradually 
 come to regard the interlined matter as his 
 own. A writer like Story with the training of 
 a lawyer and a judge on finding the authen- 
 ticity of the copy impeached in part would be 
 almost certain to exclude it wholly from the 
 consideration of the jury. Historical analysis 
 and research may, nevertheless, render that 
 clear which is obscure and show us where the 
 Work of Pinckney begins and ends. 
 
 There are some extrinsic facts which hither- 
 to unknown should be noted. 
 
 In the first place this letter of Pinckney 
 anticipates one of Madison's criticisms and 
 explains away his strongest point. 
 
 ^^It may be necessary to remark,'' he says, 
 *^that very soon after the Convention met 
 I changed and avowed candidly the change 
 of my opinion on giving the power to Con- 
 gress to revise the State laws in certain cases, 
 
 8 
 
SI'ATEMENT OF THE CASE 
 
 and in giving tlie exclusive power to the Sen- 
 ate to declare war, thinking it safest to re- 
 fuse the first altogether and to vest the latter 
 in Congress." Hunt's Madison, III, p. 22. 
 
 As to one of these things concerning which 
 Pinckney says he changed his mind after the 
 Convention met, the power of Congress to re- 
 vise the laws of the States, the assertion is not 
 sustained by Madison's record of the proceed- 
 ings. He undoubtedly did change his mind 
 but not until after the adjournment of the 
 Convention. There was however another pro- 
 vision in his draught to which his assertion 
 would apply. Concerning it he did change his 
 mind and * * avowed candidly the change of his 
 opinion" and did so '*very soon after the Con- 
 vention met. ' ' This is the provision which de- 
 clares that members of the lower house shall 
 be chosen by the people of the several States. 
 Article 3. As early as the 6th of June he pro- 
 posed that they should be chosen by the legis- 
 latures of the several States. Writing 32 
 years after the event and when the record had 
 faded in his memory, the two things, to use 
 Madison's words, ''were not separated by his 
 recollection. ' ' 
 
 9 
 
THE PINCKNEY DRAUGHT 
 
 The letter is a contemporaneous declaration, 
 given at the moment when he produced the 
 document and placed it on file in the Depart- 
 ment of State, that the copy, like the original, 
 contained provisions which he opposed in the 
 Convention. With this contemporaneous no- 
 tice to the Secretary of State one of Madi- 
 son's objections which at first seemed insuper- 
 able, if it does not fall to the ground, at least 
 becomes susceptible of explanation; and the 
 retention in the copy of the draught of these 
 apparently inconsistent things, accompanied 
 at the time, as they were, by Pinckney's dec- 
 laration, not only removes the objection of 
 Madison but tells strongly in favor of the 
 draught being what Pinckney represented it 
 to be. 
 
 In the second place Pinckney speaks of 
 having ^^ several rough draughts of the Con- 
 stitution'' (^'4 or 5 draughts" he says) and he 
 adds ^ ^ that they are all substantially the same, 
 differing only in words and the arrangement 
 of the articles." Pinckney had preserved 
 them certainly until the end of the year 1818, 
 and *' numerous notes and papers which he 
 had retained relating to the Federal Conven- 
 
 10 
 
STATEMENT OF THE CASE 
 
 tion.'' He also says that ''with the aid of the 
 journal of the Convention and the numerous 
 notes and memorandums I have preserved, it 
 would now be in my power to give a view of 
 the almost insuperable difficulties the Conven- 
 tion had to encounter, and of the conflicting 
 opinions of the members; and I believe I 
 should have attempted it had I not always 
 understood Mr. Madison intended it. He 
 alone possessed and retained more numerous 
 and particular notes of their proceedings than 
 myself." These ''numerous notes and memor- 
 andums, more numerous and particular'' than 
 those preserved by any other person, Madi- 
 son "alone" excepted, and with them the "sev- 
 eral rough draughts," which he found with the 
 other papers on his return to Charleston in 
 1818, existed when Pinckney wrote his letter 
 and placed his copy of the draught in the 
 State Department. They existed both to re- 
 fresh his memory and to refute him if he was 
 not acting in good faith. He acknowledged 
 Madison to be his superior in "notes and mem- 
 orandums" and a particular knowledge of the 
 proceedings of the Convention; and Madison 
 was still living, and Pinckney by placing his 
 
 11 
 
THE PINCKNEY DE AUGHT 
 
 copy of the draught in the State Department 
 invited Madison and all the world to examine 
 it. That was the time when Madison should 
 have spoken. It is most unfortunate that he 
 waited fourteen years, and until after Pinck- 
 ney 's death and the death of every other mem- 
 ber of the Convention, before he spoke. 
 
 Like many another young lawyer I came 
 upon Pinckney's draught in Elliot's Debates 
 and was astounded by finding so large a part 
 of the Constitution apparently written by the 
 hand of a man whom I had never heard ex- 
 tolled as a framer of the Constitution; and 
 like many another young lawyer, I accepted the 
 reasons of Madison and the silence of Story 
 as conclusive. But the discovery and publica- 
 tion of Pinckney's letter in 1895 threw new 
 light upon the subject and made it plain that 
 Madison's objections should not be taken as 
 final and that his premises needed corrob- 
 oration. I therefore prepared the following 
 inquiries in the hope that I could persuade 
 some historical scholar to take up this work 
 of Constitutional investigation. 
 
 1. Does the draught in the State Depart- 
 ment upon its face appear to be an author's 
 
 12 
 
STATEMENT OF THE CASE 
 
 draught — a, ^^ rough draught/' as Pinckney 
 called it — ^with his corrections, erasures, inter- 
 lineations and alterations or does it appear to 
 be a duplicate or a fair copy of an original or 
 * ' rough ' ' draught I It is in the handwriting of 
 Pinckney; does it appear to be his original 
 piece of work, or an engrossed copy made by 
 him of another paper? 
 
 2. If upon the face of the instrument it ap- 
 pears to be an engrossed copy, though in 
 Pinckney 's handwriting, that is a copy of the 
 rough draught with its alterations and cor- 
 rections engrossed therein, then the historical 
 critic must proceed to try the issue of Pinck- 
 ney 's truthfulness. He tells the Secretary of 
 State at the time when he produces the paper 
 that '4t is impossible for me now to say which 
 of the 4 or 5 draughts I have is the one. 
 But enclosed I send you the one I believe was 
 it. I repeat, however, that they are substan- 
 tially the same, differing only in form and un- 
 essentials." If this language be taken liter- 
 ally it means that he is about to place in the 
 archives of the Department of State one of 
 those ^^ original" ^^4 or 5 draughts'' and as he 
 believes the very one of which he prepared an 
 
 13 
 
THE PINCKNEY DSAUGHT 
 
 engrossed copy for the use of the Convention. 
 If the language be not taken literally, it at 
 least means that he sends a true copy of one of 
 the original rough draughts. Is there any- 
 thing in the draught to refute either repre- 
 sentation? Does it contain words, phrases, 
 clauses, provisions which certainly did originate 
 in the Convention; which were ground out 
 there, and which could not possibly have been 
 anticipated by Pinckney as he sat in his study 
 early in 1787 making draught after draught 
 for the consideration of the coming Con- 
 vention ? 
 
 3. Finally, it will be apparent on reflection 
 that even if all of the foregoing issues should be 
 decided against Pinckney; that is to say, if it 
 should be found that the paper in the State De- 
 partment is not an original draught — is not 
 one of the four or ^ve draughts to which Pinck- 
 ney alludes, or that it contains interlineations 
 of which Pinckney could not have been the 
 author, even then after deciding all doubtful 
 points against him a great deal will remain 
 which must have been his ; and historical criti- 
 cism and careful analysis will be able to meas- 
 ure this residuum and give us a fair estimate 
 
 14 
 
STATEMENT OF THE CASE 
 
 of its value, so that we can know with tolera- 
 ble certainty how mucli of the Constitution 
 was the work of Pinckney. 
 
 As I have not been able to persuade any 
 competent scholar to take up this inquiry 
 which seems to me to be an inquiry due to the 
 truthfulness of our Constitutional history and 
 to the memory of a framer of the Constitu- 
 tion whose work was not questioned until after 
 his death, I have felt that the work has become 
 a duty and that the duty has been imposed 
 on me. 
 
 15 
 
CHAPTEE II 
 
 THE DRAUGHT IN THE STATE DEPARTMENT 
 
 THE Pinckney draught in the Department 
 of State is written on unrnled paper lar- 
 ger than common foolscap, hand made, and 
 with nntrimmed edges. The interlineations 
 are few and trivial and clerical, the insertion 
 of an omitted word and the like. There are 
 two exceptions to this. In article 3 the 
 draught says, '^The Honse of Delegates shall 
 
 consist of to be chosen from the different 
 
 States in the following proportions : For New 
 
 Hampshire for Massachusetts — ' — " etc., 
 
 etc. But the names of the States are not set 
 forth in the body of the instrument as they 
 stand in all editions, being written on the mar- 
 gin and the place where they should have been 
 inserted being noted by a mark. 
 
 The second exception is in the last line of 
 article 5. The subject of the paragraph is the 
 veto power; and the clause ''all bills sent to 
 the President and not returned by him within 
 
 16 
 
THE DEAUGHT IN THE DEPAETMENT 
 
 ■ days shall be Laws, unless tlie legisla- 
 ture, by their adjournment, prevent their re- 
 turn" was originally written, ** unless the leg- 
 islature by their adjournment prevent its 
 return, in which case it shall not be the law." 
 The words *4ts" and ^4t" are erased with 
 the pen and the words *^ their" and ^^they" 
 written over them and the article ^^a" and a 
 final ^^s" are stricken out so that the clause as 
 corrected reads as printed. 
 
 In at least two particulars the draught is 
 erroneously printed in almost all editions. 
 Pinckney did not write ''Art. 1," ''Art II," 
 etc. Above the first article of the draught in 
 the middle of the line, is written "Article 1." 
 Over all the other articles, and likewise in 
 the middle of the line, are simply the arable 
 figures "2," "3," "4," etc., without the word 
 "article." The second particular, in which 
 many printed copies are erroneous, is in ar- 
 ticle 3. The printer has there run together 
 two parts of distinct sentences. The true 
 reading is that each member of the House of 
 Delegates shall be "a resident in the State he 
 is chosen for," the sentence closing with the 
 word "for." A new sentence then begins: 
 
 17 
 
THE PINCKNEY DRAUGHT 
 
 *^ Until a census of the people shall be taken 
 in the manner hereinafter mentioned, the 
 
 House of Delegates shall consist of to be 
 
 chosen from the different States in the follow- 
 ing proportions,'' etc. But in some we find 
 that a delegate shall be **a resident of the 
 State he is chosen for until a census of the 
 people shall be taken in the manner herein- 
 after mentioned," which makes the intended 
 provision senseless. 
 
 The first of the foregoing inquiries (p. 12 
 ante). Does the draught in the State Depart- 
 ment upon its face appear to be an author's 
 draught, a rough draught with his corrections, 
 erasures, interlineations and alterations, or 
 does it appear to be an engrossed copy made 
 by him of another paper, has been answered 
 decisively by Mr. Gaillard Hunt in his edition 
 of the Writings of Madison: 
 
 '^The penmanship of all three papers (the 
 draught and the letter to the Secretary of 
 State and a previous letter to the Secretary 
 December 8, 1818) is contemporaneous, and 
 the letter of December 30 and the draught were 
 written with the same pen and ink. This may 
 possibly admit of a difference of opinion be- 
 
 18 
 
THE DEAUGHT IN THE DEPARTMENT 
 
 cause the draught is in a somewhat larger chi- 
 rography than the letter, having been, as befit- 
 ted its importance, written more carefully. 
 But the letter and the draught are written 
 upon the same paper, and this paper was not 
 made when the Convention sat in 1787. There 
 are several sheets of the draught and one of 
 the letter, and all bear the same watermark, 
 ^Russell and Co. 1798.' " Vol. Ill, p. 16. 
 
 The draught, as before shown, contains a 
 few verbal corrections, one or two trivial eras- 
 ures, two or three obviously necessary inter- 
 lineations but no alteration. That is to say it 
 contains no alteration of substance — ^nothing 
 which indicates on the part of the writer an 
 intent to change or add to the substance of 
 what he has written— there is no additional 
 provision interlined, no obscure expression 
 amplified, no omitted thought supplied— the 
 corrections are one and all clerical. The doc- 
 ument, therefore upon its face does not appear 
 to be a ''rough draught." 
 
 When the Secretary of State had written to 
 Pinckney ''I now take the liberty of address- 
 ing you, to inquire if you have a copy of the 
 Draught proposed by you, and if you can with- 
 
 19 
 
THE PINCKNEY DEAUGHT 
 
 out inconvenience furnish me at an early day, 
 with a copy of iV^ and Pinckney replied that 
 among his notes and papers he had * 'found 
 several ronght draughts of the Constitution" 
 and that ^'I send you the one I believe was it,'* 
 and with the letter sent a document which ob- 
 viously was not a rough draught, the fair and 
 reasonable interpretation of his language 
 (apart from an intent to defraud) is that he 
 was sending what the Secretary of State had 
 asked for, viz., ''a copy'' of the ''copy of the 
 draught proposed by you" to the Convention; 
 and that what he meant to say was, "I send 
 you 'a fair copy made by myself of the one I 
 believe was it. ' ' 
 
 What a rough draught is may be seen by re- 
 ferring to the literal reprint of the Journal of 
 Madison in the Documentary History of the 
 Constitution by the Department of State. It 
 is something which requires an editor to put 
 the author's changes and amendments in their 
 proper places. A constructive piece of work 
 as long as the Pinckney draught, must have 
 been cut, transposed, changed, added to over 
 and over again. To be intelligible it would 
 
 20 
 
THE DRAUGHT IN THE DEPARTMENT 
 
 require editing, and the Secretary had in- 
 formed Pinckney that he wanted the ''copy" 
 for publication, and that he wanted it ''at an 
 early day": and no man would have parted 
 with such an important paper and confided the 
 editing of it to some unknown clerk in an exec- 
 utive department. In a word Pinckney did 
 what any man similarly circumstanced would 
 have done, he kept the original paper in his 
 possession, and sent to the Secretary of State 
 what he had asked for, ' ' a copy of it. ' ' 
 
 If we turn now to the printed copy of the 
 draught and note the extent of article 6, con- 
 taining the enumeration of the powers of Con- 
 gress, and the extent of the second paragraph 
 of article 8, setting forth the powers and du- 
 ties of the President, and if we remember that 
 all this matter is to be found in the Constitu- 
 tion, it becomes instantly apparent that 
 absorption of all these provisions by inter- 
 lineation as suggested by Madison was abso- 
 lutely impossible. In a word the bridge which 
 Madison built breaks down. Therefore we 
 must face the inexorable alternative: either 
 Pinckney gave to the Convention a draught 
 
 21 
 
THE PINCKNEY DRAUGHT 
 
 substantially like that in tlie State Depart- 
 ment or he fraudulently fabricated that 
 draught after the Secretary of State had 
 called upon him for a copy. 
 
 22 
 
CHAPTER III 
 
 OF THE ISSUE OF FKAUD 
 
 ^N this issue of fraud we must first look 
 at the circumstances as they existed in 
 December, 1818. 
 
 Pinckney had been a Senator of the United 
 States, Governor of South Carolina, Minister 
 to Spain and had just been elected to the 
 important Congress which was to grapple 
 with the National questions involved in the 
 Missouri Compromise. He may have been a 
 vain man as Madison thought him — (most 
 men of great ability and prominence are ego- 
 tistical; it is egotism ordinarily which impels 
 them to the front) but no one has intimated 
 that Pinckney could have been guilty of an act 
 which from moral and historical points of view 
 was little better than a crime. Some one con- 
 tributed the many provisions which are to be 
 found in the Constitution, and it would have 
 been infamous to filch the honor from the real 
 author. The most felicitous sentence in the 
 
 23 
 
THE PINCKNEY DRAUGHT 
 
 Constitution, '^The citizens of each State shall 
 be entitled to all privileges and immunities of 
 citizens in the several States, " if it was Pinck- 
 ney's, passed through the Committee of De- 
 tail, the Committee of Style and the Conven- 
 tion without the change of a single word. It 
 was one of those rare sentences of which 
 everybody approved; and it is not lightly to 
 be assumed that in 1818 Pinckney would steal 
 such a conspicuous sentence from the Consti- 
 tution and place it at the head of one of his 
 own articles. 
 
 Moreover if the draught was a tissue of 
 fraud detection was always possible; and de- 
 tection would have blasted the life of Pinckney 
 nowhere with greater severity than in his own 
 State. In 1818 sixteen other members of the 
 Convention were still living, and three of them 
 had been members of the Committee of Style, 
 and two of them (Charles Cotesworth Pinck- 
 ney and Pierce Butler), had been delegates 
 from South Carolina. Letters too from mem- 
 bers might disclose the fatal truth. A son 
 of some member might come forward with his 
 father's draught of some of these provisions. 
 Autobiographies, diaries and personal remin- 
 
 24 
 
THE ISSUE OF FEAUD 
 
 iscences of members might exist. Detection 
 was possible, and in the ordinary course of 
 human events, certain. Conversely it is 
 proper here to note the fact that in all these 
 years not a line of writing has been found to 
 thrown a shade of discredit upon the Pinckney 
 draught. 
 
 The temptation, too, was relatively small. 
 The Constitution was not then in the estima- 
 tion of the American people what it is now. 
 No one then had proclaimed it to be *Hhe 
 greatest work ever thrown off by the brain 
 and purpose of man.'' In 1818 the first work 
 on the Constitution (Eawle's) had not yet been 
 written. Monroe was President, and the 
 country was just emerging from the poverty 
 which followed the war of 1812-15. Pennsyl- 
 vania and Georgia had defied the federal 
 / power and the latter had passed a statute mak- 
 ^ ing it a crime punishable with death to en- 
 / force the process of the Supreme Court of the 
 I United States. State feeling was always 
 stronger in the South than in the North and 
 out of State feeling had grown the doctrine of 
 State rights. The South at that time could 
 cherish no warm regard for the man who had 
 
 25 
 
THE PINCKNEY DRAUGHT 
 
 first written ^^all acts made by the legislature 
 of the United States, pursuant to this Consti- 
 tution, and all treaties made under the au- 
 thority of the United States shall be the su- 
 preme law of the land." 
 
 It must also be noted that Pinckney was not 
 a volunteer in this matter — that he did not 
 thrust his draught upon the Secretary of State 
 — that he never came before the public claim- 
 ing to have contributed this or anything to 
 the Constitution. The subject was introduced 
 by Mr. Adams and not by Pinckney; and the 
 draught was produced in response to Mr. 
 Adams' inquiries concerning it. Pinckney 
 showed no great solicitude about it then. His 
 letter is slovenly and careless and manifestly 
 not written for posterity, and it contains no 
 indication of his regarding it as any thing 
 more than a personal explanation. It was due 
 to Mr. Adams to tell him that this draught 
 which he inclosed was not a literal duplicate 
 of the one which he had placed before the 
 Convention; and it was due to himself to say 
 that it contained provisions of which he had 
 subsequently disapproved and which he had 
 opposed in the Convention. Pinckney cer- 
 
 26 
 
THE ISSUE OF FRAUD 
 
 tainly did not suppose that lie was writing 
 history or biography when he wrote that 
 letter. 
 
 The letter demonstrates how inadequately 
 Pinckney estimated the greatness of the Con- 
 stitution and overestimated his own part in 
 the work, and how poorly the Constitution was 
 then esteemed. At the beginning it had been 
 but an experiment and in the opinion of many 
 men an experiment that would fail. Under 
 the moulding hands of Jay and Marshall it 
 had become to Southern statesmen more and 
 more an object of distrust and dislike. It 
 seemed then a growing menace to the rights of 
 the South and the sovereignty of South Car- 
 olina. For Pinckney to have asserted pub- 
 licly that he was the chief author of the instru- 
 ment and of its most offensive provisions 
 would have inclined his fellow citizens in 
 Charleston to say that instead of boasting 
 of his work he ought to be ashamed of it ; that 
 where State rights were involved it was at 
 best ambiguous ; and that, if he was the author 
 of the draught, he more than any other man 
 had enabled the judges to interpret the Con- 
 / stitution in favor of Federal supremacy. 
 
 27 
 
THE PINCKNEY DRAUGHT 
 
 Certainly if this issue of fraud had been 
 involved in a criminal case Pinckney would 
 have been able to establish two things — good 
 character, and the absence of a motive to de- 
 fraud. 
 
 28 
 
CHAPTER IV 
 
 MADISON AS A WITNESS 
 
 HAVING now seen what Pinckney said in 
 1818 and what he did and where he 
 stood, let ns turn to the other party in the 
 controversy, Madison, and examine the testi- 
 mony which he gave and the evidence on which 
 he relied. 
 
 His journal (as edited by Gilpin) after set- 
 ting forth the speech of Randolph on the 29th 
 oaj'^May, and the reference of the 15 resolutions 
 of the Virginia delegates, to the Committee of 
 the Whole, contains this record : 
 
 '^Mr. Charles Pinckney laid before the 
 house a draught of a federal government to 
 be agreed upon between the free and inde- 
 pendent states of America.'' 
 
 ''Ordered that the same be referred to the 
 Committee of the Whole appointed to con- 
 sider the state of the American Union.'' 
 
 But Yates's Minutes give us one thing 
 more: '' Mr. Pinckney, a member from South 
 
 29 
 
THE PINCKNEY DEAUGHT 
 
 Carolina, then added that lie had reduced his 
 ideas of a new government to a system, which 
 he then read.'' 
 
 Madison's report of Pinckney's speech on 
 the 25th of June stops with the subject of 
 State governments and the propriety of hav- 
 ing but one general system. But Yates gives 
 in a condensed form the conclusion of Pinck- 
 ney's speech and contains the following sen- 
 tences : 
 
 '^I am led to form the second branch (of the 
 legislature) diiferently from the report. I 
 have considered the subject with great atten- 
 tion and I propose this plan (reads it) and if 
 no better plan is proposed I will then move its 
 adoption." 
 
 Once while reflecting upon the extraordi- 
 nary, the seemingly inexplicable course which 
 Madison pursued in relation to the Pinckney 
 draught — ^positive and yet evasive; alleging 
 but never testifying — my eye happened to 
 fall on this minute of Yates and it suggested 
 the fact of these repeated omissions of Mad- 
 ison's to state the contents of the Pinckney 
 draught, and I asked myself the question, is 
 it possible that Madison never knew what the 
 
 30 
 
MADISON AS A WITNESS 
 draught contained? In an examination of the 
 facts relating to this question I found that 
 the entry in the journal, above quoted, ''Mr. 
 Charles Pinckney laid before the house a 
 draught'' etc. had been taken word for word 
 from the entry of the Secretary of the Con- 
 vention in the official Journal. I found also 
 that at four different times in the course of the 
 debates Madison designated the draught by 
 four different terms; as Mr. Pinckney 's 
 ''plan" as Mr. Pinckney 's "resolutions" as 
 Mr. Pinckney 's "motion" as Mr. Pinckney 's 
 "propositions," not one of which expressed 
 the idea of a formulated Constitution. It is 
 therefore evident that Madison did not hear 
 Pinckney read his draught as Yates did, and 
 did not hear him say as Yates did, "that he 
 had reduced his ideas of a new government to 
 a system." My inference then was and still is, 
 that Madison was temporarily absent from the 
 hall when Pinckney produced and read his 
 draught and that on hearing of it he went to 
 the Secretary's desk and copied the entry in 
 the official journal — an entry which is also si- 
 lent as to Pinckney having read the draught 
 and which describes it in language entirely 
 
 31 
 
THE PINCKNEY DRAUGHT 
 
 different from Yates's and entirely different 
 from Pinckney's, for Pinckney's draught does 
 not profess to be an agreement ** between the 
 free and independent States of America," 
 bnt is avowedly an act of the people of the 
 United States. It therefore appears both 
 positively and negatively that Madison was 
 not present when Pinckney presented his 
 draught ; that he could not have heard Pinck- 
 ney 's designation of it as a ^^ system" and 
 could not have heard Pinckney read it to the 
 Convention. He regrets in another place that 
 he did not take a copy of it because of its 
 length and it may be inferred from what may 
 be termed his unfailing ignorance of its con- 
 tents that he did not read it because of its 
 length. 
 
 Madison had a poor opinion of Pinckney, a 
 very poor opinion; and he held fast to it all 
 through his life. During the sitting of the 
 Convention the draught was referred to re- 
 peatedly in discussions and motions and ref- 
 erences. Madison recorded what was said, 
 and the more important of the motions and 
 references, but his opinion of Pinckney was 
 so poor that he did not put himself to the 
 
 32 
 
MADISON AS A WITNESS 
 
 trouble of stepping to the Secretary's desk and 
 reading the draught, much less of taking a 
 copy of it. In October 1787, after the disso- 
 lution of the Convention, he wrote from New 
 York to Washington and Jefferson, the follow- 
 ing letters: 
 
 James Madison to General Washington. 
 New York, Octr. 14, 1787. 
 
 **I add to it a pamphlet which Mr. Pinck- 
 ney has submitted to the public, or rather 
 as he professes, to the perusal of his friends, 
 and a printed sheet containing his ideas on a 
 very delicate subject, too delicate in my opin- 
 ion to have been properly confided to the 
 press. He conceives that his precautions 
 against any further circulation of the piece 
 than he himself authorizes, are so effectual 
 as to justify the step. I wish he may not be 
 disappointed. In communicating a copy to 
 you, I fulfill his wishes only." 
 
 (Gaillard Hunt's Writings of Madison, Vol. 
 
 v., p. 9.) 
 
 Madison to Jefferson. 
 
 New York, Octr. 24, 1787. 
 
 33 
 
THE PINCKNEY DRAUGHT 
 
 ^^To these papers I add a speech of Mr. C. 
 P. on the Mississippi business. It is printed 
 under precautions of secrecy, but surely could 
 not have been properly exposed to so much 
 risk of publication." 
 
 (Id., p. 39.) 
 
 Madison to General Washington. 
 
 New York, Oct. 28, 1787. 
 • ••«... 
 
 **Mr. Charles Pinckney's character is, as 
 you observe well marked by the publications 
 which I enclosed. His printing the secret pa- 
 per at this time could have no motive but the 
 appetite for expected praise; for the subject 
 to which it relates has been dormant a consid- 
 erable time, and seems likely to remain so.'' 
 
 (Id., p. 43.) 
 
 In the memorandum ^^For Mr. Paulding" 
 written shortly before April 6, 1831, reap- 
 pears Madison's poor opinion of Pinckney. 
 ^^It has occurred to me that a copy (of the 
 Observations) may be attainable at the print- 
 ing office, if still kept up, or in some of the 
 libraries or historical collections in the city. 
 When you can snatch a moment, in your walks 
 with other views, for a call at such places, you 
 
 34 
 
MADISON AS A WITNESS 
 will promote an object of some little interest 
 as well as delicacy by ^ascertaining whether 
 the article in question can be met with." 
 
 On the 25th of November, 1831, he wrote to 
 Jared Sparks, ^^I lodged in the same house 
 with him, and he was fond of conversing on 
 the subject. As you will have less occasion 
 than you expected to speak of the Convention 
 of 1787, may it not be best to say nothing of 
 this delicate topic relating to Mr. Pinckney, 
 on which you cannot use all the lights that 
 exist and that may be added?" 
 
 On the 6th of January, 1834, he wrote to 
 Thomas S. Grimke: 
 
 *' There are a number of other points in the 
 published draught, some conforming most 
 literally to the adopted Constitution, which, it 
 is ascertainable, could not have been the same 
 in the draught laid before the Convention. 
 The conformity, and even identity of the 
 draught in the Journal, with the adopted Con- 
 stitution, on points and details the results of 
 conflicts and compromises of opinion apparent 
 in the Journal, have excited an embarrassing 
 curiosity often expressed to myself or in my 
 presence. The subject is in several respects 
 
 35 
 
THE PINCKNEY DRAUGHT 
 
 a delicate one ; and it is my wish that what is 
 now said of it may be understood as yielded to 
 your earnest request, and as entirely confined 
 to yourself. I knew Mr. Pinckney well, and 
 was always on a footing of friendship with 
 him. But this consideration ought not to 
 weigh against justice to others, as well as 
 against truth on a subject like that of the Con- 
 stitution of the United States.'' 
 
 And on the 5th of June, 1835, he wrote to 
 William A. Duer: 
 
 *^I have marked this letter ^confidential,' 
 and wish it to be considered for yourself only. 
 In my present condition enfeebled by age and 
 crippled by disease, I may well be excused for 
 wishing not to be in any way brought to public 
 view on subjects involving considerations of a 
 delicate nature." 
 
 Madison wrote with characteristic caution 
 and courtesy but there is something very sug- 
 gestive in the way he uses the word ''deli- 
 cate." Neither Mr. Paulding nor Mr. Sparks 
 nor Mr. Grimke nor Judge Duer could have 
 doubted that there was something wrong in 
 the draught — something so wrong that Madi- 
 son did not wish to speak of it. 
 
 36 
 
MADISON AS A WITNESS 
 
 It is manifest that when Madison first read 
 the draught in the State Department, he was 
 surprised. He does not say so, and is very 
 guarded in what he does say; yet it is per- 
 fectly plain that the magnitude of this con- 
 tribution to the Constitution was something 
 absolutely new to him. He better than any 
 ^ pther man was supposed to know, the work 
 and workings of the Convention, and lo, here 
 was a document of more importance than any 
 ' given in his journal, or found among the rec- 
 / ords of the Convention, and of its contents he 
 ' had been ignorant until the document was laid 
 before the world by the State Department ! 
 
 Between 1818 and 1836, the magnitude of 
 this and its importance as an historical docu- 
 ment was forced upon Madison's attention 
 from time to time by younger men who took 
 a warmer interest in the Constitution and its 
 history and its framers than their fathers had 
 taken; and it is apparent that he was as- 
 tounded at the historical importance of the 
 document. Marshall was then drawing near 
 to the end of his majestic judicial reign, and 
 though assailed and thwarted by the cavilings 
 and dissents of lesser men^ had placed his im- 
 
 37 
 
THE PINCKNEY DEAUGHT 
 
 perishable impress iipoii the Constitution and 
 revealed to his countrymen its greatness and 
 consistency and power of nationality. The 
 growing interest in the great instrument 
 would not be quieted. Madison would fain have 
 kept silent, as he advised his two most trusted 
 correspondents to do. But he could not ! He 
 [ was the greatest of authorities, living or dead, 
 ' in all that pertained to the making of the 
 Constitution; the last living member of the 
 Convention ; the sole_ chronicler of its secret 
 history. It is as plain now as it was then that 
 he must speak. What could he say? 
 
 Madison was not able to say, ''I read the 
 Pinckney draught when it was before the Con- 
 vention, I studied it, I knew the contents well ; 
 the paper in the State Department is not a 
 substantial duplicate of that paper." There 
 remained then but this alternative; he must 
 confess that he knew no more about the Pinck- 
 ney draught than did the men who were in- 
 terrogating him or he must do precisely what 
 he did do, he must attack it on documentary 
 evidence as an advocate, and must remain si- 
 lent as a witness. If he had testified as a wit- 
 ness ; if he had said of his own knowledge that 
 
 38 
 
MADISON AS A WITNESS 
 
 the paper which Pinckney placed in the State 
 Department was not a copy of the paper 
 which he had laid before the Convention and 
 was not a substantial duplicate worthy of con- 
 sideration, that would have been the end of the 
 matter. Certainly I should never have felt 
 called upon to make the present investigation. 
 But Madison did not so testify. Under the 
 pressure of steadily increasing interest in the 
 Constitution, inquirer after inquirer came to 
 him to explain how a man whom they did not 
 regard as a wise statesman could have con- 
 tributed so much to the Constitution, which 
 they had regarded as the composite work of 
 a number of great men. They did not come 
 to him for reasons or advice or references to 
 documentary evidence, but because he was the 
 one survivor of the men who could have testi- 
 fied, the only chronicler of what had happened 
 in the Convention from first to last, and they 
 sought his personal knowledge. They asked 
 him to tell them what he knew concerning the 
 Pinckney draught, the original draught, the 
 one which was before the Convention; and he 
 answered not a word ! We must reject Madi- 
 son as a witness because he rejected himself. 
 
 39 
 
CHAPTER V 
 
 MADISON AS AN ADVOCATE 
 
 AT this day Madison is regarded as one 
 of the chief statesmen in the group of 
 leading framers of the Constitution; bnt his 
 best appreciated work was his keeping the only 
 record which we have of that august assembly. 
 He, who dealt with the great questions of the 
 hour, may not have been aware how much 
 good work the Pinckney draught was doing in 
 an unnoticed way. Madison spared no ef- 
 fort to make his journal complete, and no lit- 
 tle time in doing so. He copied and inserted 
 in it the Virginia resolutions and the New 
 Jersey resolutions; and he also inserted 
 Pinckney ^s long speech of the 25th of June; 
 and yet he did not procure and apparently did 
 not even read and certainly did not insert in 
 his journal Pinckney 's plan or draught. He 
 seems to have felt sadly a certain self -convic- 
 tion of this, and to have realized the fact that 
 
 40 
 
MADISON AS AN ADVOCATE 
 the omission of the Pinckney draught from his 
 record was an irretrievable error. To a man 
 holding the author of the draught in con- 
 tempt, it must have seemed preposterous in 
 1831 for the shade of Pinckney to stalk upon 
 the historic stage and say, I formulated the 
 Constitution. It was my hand that sketched 
 its outline, leaving it to the members of the 
 Convention, myself among the number, to 
 .change its provisions and modify its terms. 
 My draught was changed and modified, and 
 the conflicting views of the framers were 
 welded together by notable compromises and 
 persuasive arguments, but nevertheless I con- 
 tributed more of form and substance, more of 
 detail and language to the instrument known 
 as the Constitution of the United States than 
 any other man. 
 
 Accordingly, Madison, while he closed his 
 lips as a witness, rallied his failing forces as 
 an advocate and proceeded to give from time 
 to time first to one correspondent and then to 
 another and finally to the people of the United 
 States, in a '^Note" to accompany his Journal 
 when published, all the reasons he could mar- 
 shal from the written record of the case why 
 
 41 
 
THE PINCKNEY DE AUGHT 
 
 the draught in the State Department was an 
 impossible verity. 
 
 At what time the Pinckney draught was first 
 brought to Madison's attention I have not 
 been able to discover; but on the 5th of May, 
 1830, Mr. Jared Sparks had been spoken or 
 written to on the subject, for he then replied 
 to Madison, writing from Washington, ^ * Since 
 my return I have conversed with Mr. Adams 
 concerning Charles Pinckney 's draught of a 
 constitution. He says it was furnished by 
 Mr. Pinckney.'' Among Madison's papers 
 there is also a memorandum entitled, for Mr. 
 Paulding in which he says: 
 
 *^Much curiosity and some comment have 
 been exerted by the marvellous identities in 
 a plan of government proposed by Charles 
 Pinckney in the convention of 1787, as pub- 
 lished in the Journals with the text of the 
 constitution, as finally agreed to." 
 
 This memorandum is not dated, but is 
 placed chronologically before a letter to Mr. 
 J. K. Paulding dated April, 1831. 
 
 On the 21st of June, 1831, he wrote to Jared 
 Sparks : ^ ^ May I ask you to let me know the 
 result of your correspondence with Charles- 
 
 42 
 
MADISON AS AN ADVOCATE 
 ton on the subject of Mr. Pinckney's draught 
 of a Constitution for the United States as 
 soon as it is ascertained?'' 
 
 On the 27th of June, he again wrote to Mr. 
 Paulding saying that he has '^received the 
 volume of pamphlets containing that of Mr. 
 Charles Pinckney." 
 
 On the 25th of November, 1831, he again 
 wrote to Mr. Sparks: ^'The simple question 
 is whether the draught sent by Mr. Pinckney 
 to Mr. Adams and printed in the Journal of 
 the Convention could be the same with that 
 presented by him to the Convention on the 
 29th May, 1787, and I regret to say that the 
 evidence that that urns not the case is irre- 
 sistible/' He instances the election of mem- 
 bers of Congress by the people, and the de- 
 bate of Jime 6 as ''a sufficient example." 
 ''But what decides the point" is a letter 
 ''from him to me" dated March 28, 1789— a 
 letter quoted by Gilpin of which I shall here- 
 after speak. 
 
 Madison is guarded in all he says, but it is 
 perfectly plain that while he wished to im- 
 press upon Paulding and Sparks the idea that 
 the draught which Pinckney placed in the 
 
 43 
 
THE PINCKNEY DRAUGHT 
 
 State Department was not the dranglit wMch 
 he presented to the Convention, he at the same 
 time shrank from bringing on a controversy 
 and from irritating the friends of Pinckney 
 and forcing them into an investigation of the 
 matter. It was, he evidently thought, a case of 
 ^' least said, soonest mended." Madison was 
 a sagacious and an experienced statesman 
 who thoroughly understood his countrymen; 
 Paulding and Sparks were his friends and 
 followers ; what he wished to have said passed 
 into Gilpin's edition of the Journal and El- 
 liot's Debates, and gave the unquestioning 
 world what he wished it to know and nothing 
 more. The bridge which he built was safely 
 passed over by the friends of Pinckney and 
 his method of destroying the good name of 
 the draught without needlessly smirching the 
 good name of Pinckney, and without inciting 
 a controversy on the subject has been so suc- 
 cessful that for seventy years the draught has 
 remained silently condemned, and no man has 
 even thought that an investigation could pos- 
 sibly reverse the accepted judgment. 
 
 But on the 25th of April 1835, William A. 
 Duer of New York wrote to Madison on the 
 
 44 
 
MADISON AS AN ADVOCATE 
 same subject and making the same inquiry. 
 Judge Duer was an eminent and brilliant 
 member of the New York bar and was then 
 President of Columbia College and had been 
 a well known judge. For three years the 
 ghost of Pinckney had not been raised to dis- 
 turb the serenity of Madison's old age. 
 Paulding and Sparks were his friends and 
 were publicists. To them he could say little 
 which would mean much; and for them his 
 wishes and suggestions would be as binding 
 as a law. Judge Duer was not such a per- 
 sonal friend and to him Madison must speak 
 more freely ; he was the possessor of a strong 
 inquiring mind, and to him, Madison must so 
 strongly state the case that it would seem un- 
 questionable. He therefore, with characteris- 
 tic caution lingered until the 5th of June, and 
 then in his reply to Judge Duer made a su- 
 preme, if not final effort. 
 
 In this letter, he brings up again, the elec- 
 tion of members by ''the people" and Pinck- 
 ney 's speech against it on the 6th of June. 
 ''Other discrepancies," he says, "will be found 
 in a source also within your reach, a pamphlet 
 published by Mr. Pinckney soon after the close 
 
 45 
 
THE PINCKNEY DEAUGHT 
 
 of the Convention" (Pinckney's Observa- 
 tions). '^A friend wlio has examined and 
 compared the two documents has pointed ont 
 the discrepancies noted below." ^^One con- 
 jecture explaining the phenomenon has been 
 that Mr. Pinckney interwove with the draught 
 sent to Mr. Adams passages as agreed to in 
 the Convention in the progress of the work 
 and which after a lapse of more than thirty 
 years were not separated by his recollection." 
 The ^^discrepancies noted below" are for 
 the most part unimportant; and will be ex- 
 amined hereafter; but there is one which 
 should be considered now, for it affects Madi- 
 son more than it affects Pinckney. The dis- 
 crepancy referred to is this : In the Observa- 
 tions Pinckney says that, ^4n the best in- 
 stituted Legislatures of the States we find 
 not only two branches [of the legislature] but 
 in some ^ ^ a council of revision ' ' ; and he adds 
 that he has incorporated this ^^as a part of 
 the system." The friend says ^^The pam- 
 phlet refers to the following provisions which 
 are not found in the plan furnished to Mr. 
 Adams as forming a part of the plan pre- 
 sented to the Convention: The executive 
 
 46 
 
MADISON AS AN ADVOCATE 
 term of service 7 years. 2. A council of re- 
 
 vision. ' ' 
 
 The statesmen who framed the Constitution 
 were snfficiently statesmen to know that what 
 we call the veto power is not really a veto 
 power; and that the President, nnlike the 
 Crown, is not a part of the law-making power. 
 The constitution of New York and not the 
 constitution of Great Britain furnished the 
 framers with the needed model. By all of 
 them it was known that the duty imposed and 
 intended to be imposed upon the President 
 was simply a duty of ^^ revision." This has 
 been a subject of judicial inquiry and the his- 
 tory of the veto provision may be stated in 
 the words of the court : 
 
 '^At an early day, June 6, this question of 
 legislative power was determined by two de- 
 cisive votes. The Convention adopted the 
 principle of revision, but being mindful, as 
 Eutledge afterwards said, that ' the judges 
 ought never to give their opinion on a law, 
 till it comes before them,' and that they ' of 
 all men are the most unfit to be concerned in 
 the Eevisionary Council,' struck out Ean- 
 
 47 
 
THE PINCKNEY DEAUGHT 
 
 dolph's ' convenient number of the national 
 judiciary' and left the power of revision in 
 the President alone. At a later day, August 
 6th, Entledge 'delivered in the Eeport of the 
 Committee of Detail,' the committee which 
 embodied the previously ascertained views of 
 the Convention in a draught of the proposed 
 Constitution. This section was couched in 
 the very words of the constitution of New 
 York: Every bill shall be presented to the 
 President 'for his revision'; 4f upon such 
 revision' he approve it, he shall sign it; 4f 
 upon such revision it shall appear to him im- 
 proper for being passed into a law,' he shall 
 return it. On the 15th of August, with this 
 word revision three times repeated, 'The 
 thirteenth section of article 6, as amended, 
 was then agreed to' by all the States. It is 
 this vote which is expressive of the final intent 
 of the Convention. The verbal form in which 
 the provision stands in the Constitution was 
 the work of the Committee of Style. 
 
 ''This 'revisionary business,' as Madison 
 calls it, came up again and again ; appears and 
 reappears in his Journal from the 6th of June 
 to the 16th of August ; was considered and re- 
 
 48 
 
MADISON AS AN ADVOCATE 
 
 considered, discussed and rediscnssed. The 
 views of members swung between the ex- 
 tremes of absolute affirmative power in Con- 
 gress and absolute negative power in the 
 President. The proposition of Hamilton Ho 
 give the Executive an absolute negative on the 
 laws, identical with the legislative power of 
 the Crown, was rejected by ten States and 
 supported by none. The proposition of Madi- 
 son to add the judges of the Supreme Court in 
 the H^evision' of bills was likewise rejected. 
 At last the deliberations ended where they had 
 begun. The Convention held fast to the prin- 
 ciple of a Council of Eevision and left the du- 
 ties of the council in the President alone. He 
 was to be the Council of Eevision. In the 
 words of Madison, the Convention 'gave the 
 Executive alone, without the judiciary, the re- 
 visionary control on the laws, unless over- 
 ruled by two-thirds of each branch.' " The 
 United States v. Weil (29 Court of Claims Ee- 
 ports 523; affirmed in La Abra Co, v. The 
 United States, 175 U. S. E. 423. 
 
 Madison forgot that on the 6th of June 
 South Carolina had voted ^^no" on the motion, 
 
 49 
 
THE PINCKNEY DRAUGHT 
 
 to make * ^ a convenient number of tlae National 
 judiciary'' a council of revision, and that the 
 vote was unanimous; and he forgot that 
 he had written with his own hand only eight 
 days after Pinckney had presented his 
 draught to the Convention: 
 
 *^Mr. Pinckney had been at first in favor of 
 joining the heads of the principal depart- 
 ments, the Secretary of War, of foreign af- 
 fairs, etc., in the council of revision. He had 
 however relinquished the idea from a con- 
 sideration that these could be called on by the 
 Executive Magistrate whenever he pleased to 
 consult them. He was opposed to an intro- 
 duction of the judges into the business." 
 Hunt's Writings of Madison, III., pp. 89, 111. 
 
 According to Madison there was a discrep- 
 ancy — ^more than a discrepancy, a flat contra- 
 diction between the Observations and the 
 draught in the State Department, the one say- 
 ing explicitly that in ^^some of the best in- 
 stituted legislatures of the States" there was 
 * * a council of revision, consisting of their exec- 
 utive and principal officers of government" 
 and that he had ^^incorporated it as part of 
 the system"; the other containing no such 
 
 50 
 
MADISON AS AN ADVOCATE 
 provision but, like the Constitntion, giving the 
 executive alone the revisionary control of the 
 laws. A superficial examination of the case 
 would easily bring one to the conclusion that 
 Pinckney in 1818 omitted the council of re- 
 vision from the draught for the State Depart- 
 ment and copied from the Constitution the 
 provision which the Convention framed. But 
 the brief speech of Pinckney written down con- 
 temporaneously by Madison himself, singu- 
 larly vindicates both the Observations and the 
 draught and leaves the latter stronger than 
 it would have been if Madison's friend had 
 not furnished ^^the discrepancies noted be- 
 low." 
 
 The significance of the term '^council of 
 revision" was not known to the friend who 
 arrayed the Observations against the draught 
 and may not have been to Judge Duer. 
 Neither did they know that in the judgment 
 and understanding of the Convention the 
 President with powers and duties defined as 
 they were defined was in legal effect the em- 
 bodiment of the council of revision. But 
 Madison knew it, or had known it. He too 
 had personally participated in the work by 
 
 51 
 
THE PINCKNEY DEAUGHT 
 
 Ms repeated efforts to engraft a council of 
 revision on the Constitution, and liis knowl- 
 edge lie had written down in his own words. 
 Certainly he had no right to attack Pinckney 
 through his unnamed friend. Certainly he 
 had no right to leave Judge Duer to infer that 
 the discrepancies noted below had received his 
 scrutiny and approval. His Journal he knew 
 would be published, he was even then pro- 
 viding for it in his will, and when published 
 it would contradict the discrepancy noted be- 
 low and sustain the copy of the draught which 
 he was attacking. The obvious explanation 
 is that Madison's failing memory failed to 
 record his own words, ''the Convention gave 
 the executive alone, without the judiciary, the 
 revisionary control of the laws,'' and Pinck- 
 ney 's express declaration as early as the 6th 
 of June that "he had been at first" in favor 
 of a council of revision but for reasons stated 
 had changed his mind. 
 
 And let it not be supposed that Madison 
 deliberately intended to deceive or that he was 
 actuated by a malignant wish to deprive 
 Pinckney of any thing which he really be- 
 lieved was actually his due. Madison was 
 
 52 
 
[MADISON AS AN ADVOCATE 
 
 tlien an old man — a very old man — in his 85tli 
 year wlio had lived long and nnder the strain 
 of great labors and intense excitements and 
 withering anxieties. He was too old and too 
 weary, and too strongly prejudiced to change 
 his mind in a minute or to reverse the judg- 
 ment of many years by an investigation de 
 novo. 
 
 The word '^phenomenon" in his letter to 
 Judge Duer reveals his state of mind and well 
 explains his acts. That the boy who had lodged 
 in the same house with him in Philadelphia, 
 the youngest member of the Convention as he 
 believed, who was always talking about his 
 draught, whom he disliked and underrated, 
 that he should appear in 1818 as the chief con- 
 tributor to, as the principal draughtsman of 
 the Constitution of the United States was in- 
 deed to him a phenomenon. It was somethmg 
 which he could not really believe. There is a 
 note of contrition when he writes that "the 
 length of the document laid before the Con- 
 vention and other circumstances prevented my 
 taking a copy at the time.'' He really be- 
 lieved that if he had procured and kept a copy 
 of the draught which Pinckney laid before the 
 
 53 
 
THE PINCKNEY DRAUGHT 
 
 Convention, it would have blown to pieces this 
 wild pretentions claim which he had laid be- 
 fore the Secretary of State. 
 
 And Madison made a great mistake when 
 he represented Pinckney to Judge Dner as an 
 old man in 1818 whose waning recollection 
 could not then separate the real from the ficti- 
 tious in the draught which he had found 
 among his papers in Charleston. Por Madi- 
 son in 1835, when he wrote to Judge Duer, was 
 twenty-five years older than Pinckney was 
 when he sent the draught to Mr. Adams; and 
 twenty-five years at that end of life is no 
 small difference. Moreover his memory from 
 his youth up had been laden and taxed with 
 great events. It was fifty-two years since he 
 had made this despondent note in his record 
 of the debates in Congress: 
 
 ''Monday, March 17, 1783. 
 ''A letter was received from General Wash- 
 ington, enclosing two anonymous and inflam- 
 matory exhortations to the army to assemble, 
 for the purpose of seeking, by other means, 
 that justice which their country showed no 
 disposition to afford them. The steps taken 
 
 54 
 
MADISON AS AN ADVOCATE 
 by the general to avert the gathering storm, 
 and his professions of inflexible adherence to 
 his duty to Congress and to his country, ex- 
 cited the most affectionate sentiments towards 
 him. By private letters from the army, and 
 other circumstances, there appeared good 
 ground for suspecting that the civil creditors 
 were intriguing, in order to inflame the army 
 into such desperation as would produce a gen- 
 eral provision for the public debts. These 
 papers were committed to Mr. Oilman, Mr. 
 Dyer, Mr. Clark, Mr. Rutledge, and Mr. Mer- 
 cer. The appointment of these gentlemen was 
 brought about by a few members, who wished 
 to saddle with this embarrassment the men 
 who had opposed the measures necessary for 
 satisfying the army, viz., the half-pay and per- 
 manent funds; against one or other of which 
 the individuals in question had voted. 
 
 ' ' This alarming intelligence from the army, 
 added to the critical situation to which our 
 affairs in Europe were reduced by the vari- 
 ance of our ministers with our ally, and to 
 the difficulty of establishing the means of ful- 
 filling the engagements and securing the har- 
 mony of the United States, and to the confu- 
 
 55 
 
THE PINCKNEY DRAUGHT 
 
 sions apprehended from tlie approaching res- 
 ignation of the superintendent of finance, gave 
 peculiar awe and solemnity to the present mo- 
 ment, and oppressed the minds of Congress 
 with an anxiety and distress which had been 
 scarcely felt in any period of the revolution. ' ' 
 
 It was 48 years since Madison had served as 
 the most laborious member of the Convention. 
 It was 28 years since he had seen the Navy dis- 
 graced by the surrender of the Chesapeake af- 
 ter firing only a single gun — a disgrace caused 
 by the shameful negligence and incapacity of 
 administrative officers at Washington while 
 he was a member of Jefferson's Cabinet. It 
 was 21 years since he had seen the Army dis- 
 graced by the negligence of his own Secretary 
 of War and the incapacity of a general of his 
 own choosing, and his Capitol burnt and him- 
 self and his Cabinet fugitives, and his heroic 
 wife, her friends and the military guard of 
 ^ ^ a hundred men all gone, ' ' resolutely refusing 
 to leave the Executive Mansion until she had 
 taken '^the precious portrait'' of Washington 
 from its frame to save it from the ignominy of 
 capture by a British Army. The Pinckney 
 
 56 
 
MADISON AS AN ADVOCATE 
 
 draught was but a leaf blown aside in the tu- 
 mults of his troubled life. 
 
 But there remains the documentary evidence 
 which Madison adduced and the specification 
 of plagiarism which he filed; and apart from 
 Madison and apart from Pinckney there re- 
 mains the ultimate question which every stu- 
 dent of the Constitution must desire to have 
 examined, and if possible, answered, ^^What 
 provisions of the Constitution were contribu- 
 ted by Pinckney"? 
 
 57 
 
CHAPTEE VI 
 
 THE POSITION" TAKEN BY MADISON 
 
 THE position taken by Madison in private 
 letters to individuals, he liad a right to 
 modify, abandon or withdraw; and it would 
 not be treating him fairly to hold him to words 
 hastily written and perhaps inspired by an im- 
 pulse of the moment. But the ^^Note of Mr. 
 Madison to the Plan of Charles Pinckney" 
 (Elliot Vol. 5, 578) deliberately prepared by 
 him for future publication, and intended by 
 him to accompany the draught of the State 
 Department in future publications so that it 
 should destroy the supposed verity of the 
 copy, must be taken as the final expression of 
 his judgment. 
 
 ''Note of Mr. Madison to the Plan of 
 Charles Pinckney, May 29, 1787." 
 
 *'The length of the Document laid before the 
 Convention, and other circumstances, having 
 prevented the taking of a copy at the time, 
 that which is [''here inserted" stricken out] 
 
 58 
 
THE POSITION TAKEN BY MADISON 
 inserted in the Debates was taken from the 
 paper furnished to the Secretary of State, and 
 contained in the Journal of the Convention, 
 published in 1819 which it' being taken for 
 granted was a true copy was not then 
 examined. The coincidence in several in- 
 stances between that and the Constitution as 
 adopted, having attracted the notice of others 
 was at length suggested to mine. On com- 
 paring the paper with the Constitution in its 
 final form, or in some of its Stages ; and with 
 the propositions, and speeches of Mr. Pinck- 
 ney in the Convention, it was apparent that 
 considerable errour had crept into the paper; 
 occasioned [^'probably" stricken out] pos- 
 sibly by the loss of the Document laid be- 
 fore the Convention, (neither that nor the 
 Kesolutions offered by Mr. Patterson, be- 
 ing among the preserved papers), and by a 
 consequent resort for a copy to the rough 
 draught, in which erasures and inter-linea- 
 tions following what passed in the Con- 
 vention, might be confounded in part at least 
 with the original text, and after a lapse of 
 more than thirty years, confounded also in the 
 memory of the Author. 
 
 59 
 
THE PINCKNEY DEAUGHT 
 
 '* There is in the paper a similarity in some 
 cases, and an identity in others, with details, 
 expressions, and definitions, the results of crit- 
 ical discussions and modifications in the Con- 
 vention, that [** cannot be ascribed to accident 
 or anticipation'' omitted] conld not have been 
 anticipated. 
 
 ^^ Examples may be noticed in Article VIII. 
 of the paper ; which is remarkable also for the 
 circumstance, that whilst it specifies the func- 
 tions of the President, no provision is con- 
 tained in the paper for the election of such an 
 ofiicer, nor indeed for the appointment of any 
 Executive Magistracy: notwithstanding the 
 evident purpose of the Author to provide an 
 entire plan of a Federal Government. 
 
 ** Again, in several instances where the 
 paper corresponds with the Constitution, it is 
 at variance with the ideas of Mr. Pinckney, 
 as decidedly expressed in his propositions, 
 and in his arguments, the former in the Jour- 
 nal of the Convention, the latter in the report 
 of its debates: Thus in Art: VIII. of the 
 paper, provision is made for removing the 
 President by impeachment; when it appears 
 that in the Convention, July 20, he was op- 
 
 60 
 
THE POSITION TAKEN BY MADISON 
 
 posed to any impeachability of the Executive 
 Magistrate: In Art: III., it is required that all 
 money-bills shall originate in the first Branch 
 of the Legislature; which he strenuously op- 
 posed Aug : 8, and again, Aug: 11 : In Art : V., 
 members of each House are made ineligible to, 
 as well as incapable of holding, any office un- 
 der the Union, etc., as was the case at one 
 Stage of the Constitution; a disqualification 
 highly disapproved and opposed by him 
 Aug: 14. 
 
 '^A still more conclusive evidence of errour 
 in the paper is seen in Art: III., which pro- 
 vides, as the Constitution does, that the first 
 Branch of the Legislature shall be chosen by 
 the people of the several States ; whilst it ap- 
 pears, that on the 6th of June, according to 
 previous notice, too, a few days only, after the 
 Draft was laid before the Convention, its Au- 
 thor opposed that mode of choice, urging & 
 proposing, in place of it, an election by the 
 Legislatures of the several States. 
 
 ''The remarks here made, tho' not ma- 
 terial in themselves, were due to the authen- 
 ticity and accuracy aimed at, in this Eecord of 
 the proceedings of a Publick Body, so much 
 
 61 
 
THE PINCKNEY DRAUGHT 
 
 an object, sometimes, of curious research, as 
 at all times, of profound interest. ' ' 
 
 *^As an Editorial note to the paper in the 
 hand writing of Mr. M. beginning ^The 
 length, &c.' " 
 
 ^^*Striking discrepancies will be found on a 
 comparison of his plan, as furnished to Mr. 
 Adams, and the view given of that which was 
 laid before the Convention, in a pamphlet pub- 
 lished by Francis Childs at New York shortly 
 after the close of the Convention. The title 
 of the pamphlet is ^ Observations on the plan 
 of Government submitted to the Federal Con- 
 vention on the 28th of May, 1787, by Charles 
 Pinckney, &c.' 
 
 ^^But what conclusively proves that the 
 choice of the H. of Reps, by the people could 
 not have been the choice in the lost paper is a 
 letter from Mr. Pinkney to J. M. of March 
 28 J 1789 J now on his files, in which he emphat- 
 ically adheres to a choice by the State Legrs. 
 The following is an extract — 'Are you not, 
 to use a full expression, abundantly convinced 
 that the theoretical nonsense of an election 
 of the members of Congress by the people in 
 
 62 
 
THE POSITION TAKEN BY MADISON 
 the first instance, is clearly and practically 
 wrong — that it will in the end be the means of 
 bringing our Councils into contempt and that 
 the Legislatures (of the States) are the only 
 proper judges of who ought to be elected?' " 
 
 It is plain that Madison intended that the 
 last two paragraphs of the foregoing, begin- 
 ning with an asterisk, should take the form of 
 an editorial note, and he so prepared the paper 
 even to the placing of the asterisk at the begin- 
 ning. As long before this as 1821 he had de- 
 termined in his own mind that the publication 
 of the Journal should be as he termed it, "a 
 posthumous one" (letter to Thomas Eitchie 
 September 15, 1821), and he carried out the 
 intention by so providing in his will made in 
 1835. The expected editor was Mrs. Madison ; 
 and she, he knew, would scrupulously and in- 
 telligently carry into effect his slightest wish. 
 She was not able to perform the editorial 
 task. 
 
 When these charges of Madison are an- 
 alyzed they may be reduced to three. The 
 first and most serious charge is that there are 
 coincidences ''in several instances'' between 
 
 63 
 
THE PINCKNEY DRAUGHT 
 
 the draught and the Constitution — '^a similar- 
 ity in some cases and an identity in others 
 with details, expressions and definitions'' 
 which were *^the results of critical discussion 
 and modification in the Convention.'' The 
 second is that there are provisions in the 
 draught inconsistent with Pinckney's known 
 views, with the propositions which he pre- 
 sented and the speeches which he made in the 
 Convention and that these provisions are so 
 inconsistent with his views and speeches that 
 they are * ^ conclusive evidence of error ' ' in the 
 draught. The third, is that Pinckney imme- 
 diately after the sittings of the Convention 
 printed and published a paper entitled ^'Ob- 
 servations" which described the contents of 
 the draught which he had presented to the 
 Convention and that the two are utterly ir- 
 reconcilable. 
 
 64 
 
CHAPTER yil 
 
 THE PLAGIAEISMS 
 
 NOTWITHSTANDING Madison's igno- 
 rance of the contents of the draught, and 
 the fallacy of the inference which he drew 
 from the fact that Pinckney did not adhere to 
 all the provisions of a tentative scheme, there 
 remains an objection of the gravest charac- 
 ter, susceptible of proof or disproof which 
 must rest on facts and not be deduced by in- 
 ferences. The objection that Pinckney framed 
 a provision at one time and disapproved of it 
 at another is easily superable: the objection 
 that '* there is in the paper a similarity in some 
 cases and an identity in others with details, 
 expressions and definitions, the results of crit- 
 ical discussion and modification in the Con- 
 vention which could not have heen antici- 
 pated/' is insuperable— if it be well founded. 
 That is to say if there are ^^ details, expres- 
 sions and definitions'' in the State Depart- 
 ment copy of the draught which were ^^the re- 
 
 65 
 
THE PLAGIARISMS 
 
 lutions, on the 29th of May, and ended on the 
 26th of July with the 23 resolutions of the 
 Convention. The 15 resolutions had been con- 
 sidered and discussed and modified and ex- 
 panded into the 19 resolutions of the Commit- 
 tee of the Whole, June 13th ; and the 19 resolu- 
 tions had also been considered and discussed 
 and modified and enlarged into the 23 resolu- 
 tions of the Convention, July 26th. Never in 
 the history of nations did a deliberative public 
 body strive so philosophically, so wisely and 
 well to possess itself of the subjects to be con- 
 sidered — to comprehend its task — to know 
 what it was doing and to do. 
 
 ^^At the beginning, propositions for consid- 
 eration and discussion were tentatively placed 
 before the Convention in an abstract form. 
 These propositions were embodied in 15 reso- 
 lutions, which were immediately referred to 
 the Committee of the Whole. They were 
 taken up one by one, and considered and dis- 
 cussed and amended or rejected or adopted 
 or postponed for later consideration. The 
 abstract of a part of a single day's proceed- 
 ings will give a clear idea of the way in which 
 the Convention worked : 
 
 67 
 
THE PINCKNEY DEAUGHT 
 
 suits of critical discussion and modification 
 in the Convention wMcli could not have heen 
 anticipated/' then the presumption must be 
 well nigh irrefutable that these "details, ex- 
 pressions and definitions" in the questionable 
 instrument were taken from the Constitution ; 
 and in the absence of extraordinary explana- 
 tion, we shall be compelled to agree with Madi- 
 son that the evidence is ''irresistible" — unless 
 indeed it should appear that the expressions 
 and definitions which at first sight appear to 
 have been begun and created in the Conven- 
 tion had previously existed in the Articles of 
 Confederation or in a State Constitution, or in 
 the resolutions of the Continental Congress 
 or in some source open to all parties. 
 
 To a right understanding of the circum- 
 stances and conditions of the subject of in- 
 vestigation, we must bear in mind, when we 
 begin the inquiry whether there are "details, 
 expressions and definitions" in the Pinckney 
 draught which were ''the results of critical 
 discussion and modification in the Conven- 
 tion," that the Constitution passed through 
 four germinal stages : 
 
 The first began with Eandolph's 15 reso- 
 
 66 
 
 ^ J 
 
THE PINCKNEY DRAUGHT 
 
 * Tuesday, June 5. Mr. Randolph's ninth 
 proposition — The national judiciary to he 
 chosen hy the national legislature — Disagreed 
 to — To hold office during good behavior and 
 to receive a fixed compensation — Agreed to 
 To have jurisdiction over offenses at sea, cap- 
 tures, cases of foreigners and citizens of dif- 
 ferent States, of national revenue, impeach- 
 ment of national officers, and questions of 
 national peace and harmony — Postponed. 
 
 ''At the end of two weeks of such consid- 
 eration and discussion, June 13, the Committee 
 of the Whole reported the conclusions which 
 had so far been reached in the form of 19 res- 
 olutions. But everything was still abstract 
 and tentative. No line of the Constitution 
 had yet been written; no provision had yet 
 been agreed upon. The 19 resolutions in like 
 manner were taken up, one by one, and in 
 like manner considered and discussed, and 
 amended or rejected or adopted or postponed. 
 Other propositions coming from other sources 
 were also considered ; and so the work went on 
 until July 26, when the conclusions of the Con- 
 vention were referred to the Committee of 
 
 68 
 
THE PLAGIAEISMS 
 
 Detail, and tlie work of reducing the abstract 
 to the concrete began. The Convention then 
 adjourned to Angnst 6, to enable the commit- 
 tee to ^prepare and report the Constitution.' 
 
 ^^ On August 6, the Committee of Detail re- 
 ported and furnished every member with a 
 printed copy* of the proposed Constitution. 
 Again the work of consideration began, and 
 went on as before, section by section, line by 
 line. Vexed questions were referred to com- 
 mittees representing every State, — ''grand 
 committees'' they were called,— amendments 
 were offered, changes were made, the Com- 
 mittee of Detail incorporated new and addi- 
 tional matters in their draught, until, on Sep- 
 tember 8, the work of construction stopped. 
 But not even then did the labors of the Con- 
 vention cease. On that day a committee was 
 appointed, ''by ballot, to revise the style of, 
 and arrange, the articles which had been 
 agreed to." This committee was afterward 
 known as the Committee of Style. It re- 
 ported on the 12th of September, and the work 
 of revision again went on until Saturday, the 
 15th. On Monday, the 17th, the end was 
 reached, and the members of the Convention 
 
 69 
 
THE PINCKNEY DKAUGHT 
 
 signed the Constitution. Well might Frank- 
 lin exclaim in his farewell words to the Con- 
 vention: 'It astonishes me, sir, to find the 
 system approaching so near to perfection as 
 it does ! ' He had been overruled more than 
 once in the Convention; provisions which he 
 had proposed had been rejected; provisions 
 which he had opposed had been retained; bnt 
 he was a great man and saw that a great work 
 had been accomplished." The Immutability 
 of the Constitution. Encyclopaedia Ameri- 
 cana. 
 
 The second germinal stage began July 26th 
 with the appointment of a committee — the 
 Committee of Detail ''for the purpose of re- 
 porting a Constitution," and continued until 
 August 6th when "Mr. Rutledge delivered in 
 the report of the Committee of Detail — a 
 printed copy being at the same time furnished 
 to each member." 
 
 The Committee had retired from the Con- 
 vention with instructions couched in the 23 
 resolutions, and they returned to it with more 
 than half of the Constitution, arranged in the 
 form of articles and sections substantially as 
 
 70 
 
THE PLAGIARISMS 
 
 we have them in the Constitution. The num- 
 ber of provisions contained in the draught 
 greatly exceeded the number of specific in- 
 structions set forth in the resolutions, but 
 the excess was not wholly an excess of au- 
 thority for it had been resolved : 
 
 * * That the national legislature ought to pos- 
 sess the legislative rights vested in Congress 
 by the Confederation: and moreover to leg- 
 islate in all the cases for the general inter- 
 ests of the Union, and also in those to which 
 the States are separately incompetent or in 
 which the harmony of the United States may 
 be interrupted by the exercise of individual 
 legislation. ' ' 
 
 When the paper which Eutledge held in his 
 hand, as he rose to address the Convention 
 on the 6th of August, was placed on the table 
 before Washington, the moment witnessed the 
 birth of the Constitution. Provisions which 
 it contained were to be stricken out, and some 
 of the great compromises were yet to be forged 
 and inscribed upon the scroll, but the written 
 Constitution was now in being. And yet this 
 is but figurative language. The great state 
 paper which passed from the hand of Rut- 
 
 71 
 
THE PINCKNEY DEAUGHT 
 
 ledge to the hand of Washington was not en- 
 grossed on parchment, like a second Magna 
 Charta; it was not attested by signature or 
 date ; it was not even in writing ; a few pages 
 of printer's paper, plain and unpretentious; 
 a mere copy, one of a number of printed 
 copies, as we gather from the record. But 
 it was to receive the severest scrutiny of some 
 of the great men of the world, of Washington, 
 Franklin, Madison, Ellsworth, Wilson, Eut- 
 ledge, Hamilton. 
 
 The printed document found in the box 
 which holds the few records of the Convention 
 is not unworthy of a great state paper. It 
 is on stately, heavy, hand-made paper, 10 by 
 15% inches in size. The printed matter is 
 5% inches by 12i/^. There are seven pages 
 carrying from 27 to 53 lines on each. The 
 workmanship is faultless; the type clear, the 
 impression uniform, the ink unfaded, the punc- 
 tuation careful, the spacing perfect. There 
 are but two typographical errors, one of which 
 is a misnumbering of the articles. In Pinck- 
 ney's draught the first article has inscribed 
 over it '^Article 1" and the following articles 
 have only their numbers 2, 3, etc. The prin- 
 
 72 
 
THE PLAGIAEISMS 
 
 ter followed the same form, the only difference 
 being that Pinckney, writing the draught with 
 his own hand, used arable figures, for which 
 the printer substituted Eoman numerals. 
 When he reached the seventh article he re- 
 peated VI. and when he reached the eighth he 
 entitled it VII. and continued the error 
 through the remaining articles. Notwith- 
 standing this blemish I have never seen so 
 faultless a public document. 
 
 The copy bears this endorsement: 
 
 *' Printed Draught of the Constitution, 
 received from the President of the United 
 States, March 19th, 1796 by 
 
 *^ Timothy Pickering 
 
 ^^Sec'y of State" 
 
 The name of the printer who did his confi- 
 dential work so well, I regret to say, is not 
 upon the paper. 
 
 It has been supposed and said that this 
 copy of the draught was Jackson's, the inef- 
 ficient Secretary of the Convention, and that 
 he used it to save himself the trouble of writ- 
 ing out the proceedings in the journal by not- 
 
 73 
 
THE PINCKNEY DRAUGHT 
 
 ing amendments on the margin. This like 
 mnch other imaginary history is erroneous. 
 
 When I first saw the draught of the commit- 
 tee, I observed that the notes on the margin 
 were written in two different hands. I also 
 observed that one of these though not familiar 
 was a hand which I had seen before. On call- 
 ing the attention of Mr. S. B. Crandall of the 
 Bureau of Rolls to it, he instantly recognized 
 this writing as Washington's. A further ex- 
 amination showed that 115 notes and inter- 
 lineations were written by Washington and 7 
 by Jackson. This copy of the draught was 
 Washington's own copy! 
 
 Whether he placed the copy among the pa- 
 pers of the Convention on September 17, 1787 
 when the Secretary brought them to him; or 
 whether he transferred his own copy to the 
 Secretary of State in 1796 is unknown and 
 probably unascertainable, but the indorsement 
 makes it certain that the paper came to the 
 Department directly from Washington; and 
 the 115 carefully made emendations in his 
 handwriting are for us the highest evidence 
 in the world of its authenticity. 
 
 The notes by Jackson are easily explicable ; 
 
 74 
 
THE PLAGIAEISMS 
 
 they are lengthy amendments which Wash- 
 ington could not take down from hearing them 
 read; and he handed his printed copy to the 
 Secretary to have them correctly and fully 
 written ont.^ 
 
 If the Committee of Detail — Entledge of 
 Sonth Carolina, Eandolph of Virginia, Gor- 
 ham of Massachusetts, Ellsworth of Connec- 
 ticut and Wilson of Pennsylvania — intended 
 to keep their work a profound secret, and the 
 secret to be buried with themselves, they could 
 not have planned better than they did. The 
 work was done in secret; they employed no 
 secretary; their report was not in writing. 
 After the committee was discharged no hint 
 or word seems to have escaped them. No 
 man boasted of his own part or disparaged 
 another's. There is no journal which tells 
 us how they worked. No son or daughter 
 or grandchild has revealed a word that any 
 member subsequently said. In 1813 when Ed- 
 
 iFor the benefit of those persons who are so fortunate 
 as to have a copy of the Documentary History of the Con- 
 stitution (Department of State, 1894) I will add that the 
 marginal notes which are in the writing of Jackson are those 
 of Art. V, Sec. 1; Art. VI, Sec. 3; Sec. 13, Art. VII; Sec. 
 1, Art. XI; Sec. 4, Art. XV; (see Doc. Hist., Constitution 
 Vol. I, p. 285). 
 
 75 
 
THE PINCKNEY DRAUGHT 
 
 mund Randolph died, the secret of the mem- 
 bers of the Committee of Detail died with 
 him. 
 
 The third germinal stage was based on the 
 draught of the Committee of Detail and ex- 
 tended frOin the 6th of August to the 12th of 
 September. The draught of the Committee 
 constituted the divide in the march of the 
 framers. Behind them was the plain of phil- 
 osophical disquisition on which there had been 
 many contests, but exclusively as to what 
 might be and might not be. Before them were 
 many hills of difficulty to be surmounted in 
 the practical application of abstract propo- 
 sitions by incorporating them in provisions 
 and conditions to be written into the Consti- 
 tution. But the work of the Convention and 
 the debates of the members were in connec- 
 tion with the draughted Constitution of the 
 Committee of Detail, or in connection with 
 amendments thereof or additions thereto. 
 There were indeed new provisions framed 
 sometimes by grand committees, sometimes 
 by special committees, sometimes by the 
 Convention itself — provisions concerning 
 which the Convention had not at first suffi- 
 
 76 
 
THE PLAGIARISMS 
 
 ciently instructed the Committee of Detail- 
 provisions which the Convention had not then 
 considered and determined even in the form of 
 abstract propositions. The most difficult of 
 the compromises, that between the large and 
 the small States in the choosing of the Presi- 
 dent, was eifected; and the method first pro- 
 posed by "Wilson and rejected by the Conven- 
 tion, June 2nd, that the choice should be made 
 through the agency of electoral colleges 
 was reconsidered and adopted. The power 
 to try officers impeached by the House of 
 Eepresentatives was taken from the Supreme 
 Court and given to the Senate; the power to 
 appoint ambassadors, and judges of the Su- 
 preme Court, was taken from the Senate and 
 given to the President; the power to appoint 
 the Treasurer of the United States was taken 
 from the Legislative branch and given to the 
 Executive; and the important treaty-making 
 power which at first was lodged exclusively 
 in the Senate was transferred to the Executive 
 subject to the ratification of the Senate. But 
 all that was considered and agreed upon was 
 attached to the draught of the Committee of 
 Detail. 
 
 77 
 
THE PINCKNEY DEAUGHT 
 
 The foTirtli stage began on tlie 12th of Sep- 
 tember with the revised Constitution reported 
 by the Committee appointed 'Ho revise the 
 style of and arrange the articles'' which had 
 been agreed upon, commonly termed the 
 '^ Committee of Style," but which more cor- 
 rectly might have been termed the Commit- 
 tee of Revision. During that and the next 
 three days the Constitution was modified by a 
 number of amendments chiefly of the nature 
 of corrections. The Committee of Style made 
 no changes other than those of arrangement 
 and language. The correction of the language 
 of the Constitution was masterly and is 
 ascribed by Madison to Gouverneur Morris. 
 On Saturday the 15th of September the labors 
 of the Convention ended. On Monday the 
 17th, the engrossed Constitution was signed. 
 
 In his ''Note to the Plan," Madison speci- 
 fies some of the "details, expressions and defi- 
 nitions'' which were framed in the Conven- 
 tion, the "results of critical discussions" 
 that "could not have been anticipated" by 
 Pinckney. "Examples" of these "similari- 
 ties" and "identities" he says, "may be no- 
 ticed in article VIII, which is remarkable also 
 
 78 
 
THE PLAGIAEISMS 
 
 for the circumstance that whilst it specifies 
 the functions of the President, no provision is 
 contained in the paper for the election of such 
 an officer. ' ' These are all the specifications of 
 provisions or of language plagiarised from the 
 Constitution by Pinckney which Madison has 
 filed. Specifying nothing else, we may as- 
 sume that the plagiarisms contained in article 
 VIII. were the plagiarisms which dwelt in his 
 own mind and upon which he rested his con- 
 clusions. 
 
 These specific charges of plagiarism may be 
 struck down by a single blow:— - 
 
 Not one of the provisions contained in 
 Pinckney' s article VIII was framed in the 
 Convention, and all loere brought before 
 the Convention by the draught of the Com- 
 mittee of Detail All the provisions of the 
 Constitution which ivere framed by the Con- 
 vention were framed subsequently to the 6th 
 of August and belong to the 3d and 4th ger- 
 minal periods. All the provisions which are 
 contained in the draught of the Committee of 
 Detail ivere framed before the 6th of August 
 and existed before the constructive ivorh of 
 the Convention began, 
 
 79 
 
THE PINCKNEY DEAUGHT 
 
 "When the sequence of events is observed 
 the matter is cleared and the ^^ phenomenon" 
 of Madison becomes a simple link in the chain 
 of events. Pinckney presented his draught to 
 the Convention on its first business day be- 
 fore there had been a single '^critical discus- 
 sion." The Convention immediately referred 
 the draught to the Committee of the Whole, 
 which made it accessible to every member of 
 the Convention. When a committee was ap- 
 pointed to draught a Constitution, the draught 
 of Pinckney was taken from the Committee of 
 the Whole and referred to the Committee of 
 Detail. The committee found in the draught 
 matter which they needed and they used it as 
 the basis of their own draught as any commit- 
 tee would have done. And thus the draught 
 of the Committee of Detail became the vehicle 
 by means of which these provisions and ex- 
 pressions of Pinckney were carried into the 
 Constitution. 
 
 If all this were not a matter of record it 
 would be well nigh unbelievable that Madison 
 of all men could have pursued the course he 
 did. The most diligent member of the Con- 
 vention, the chronicler of its transactions, the 
 
 80 
 
THE PLAGIARISMS 
 
 sole survivor of its members and, consequent- 
 ly, a witness who should speak with the great- 
 est care ; and yet we find him, at one end of the 
 line, ignorant of the contents of Pinckney's 
 draught, and at the other silent as to the con- 
 tents and existence of the draught of the Com- 
 mittee of Detail. When he wrote of ^' the co- 
 incidence in several instances between that 
 [the State Department draught] and the Con- 
 stitution as adopted'^ and cited article VIII 
 as containing remarkable examples of these 
 coincidences, he gave unconsciously a curious 
 illustration of things ^^ confounded in the mem- 
 ory'' ''after a lapse of more than thirty 
 years" — in his case, after a lapse of more than 
 forty-five years. 
 
 With the fall of these specifications falls the 
 general charge of plagiarism. The draught in 
 the State Department ends with the draught 
 of the Committee of Detail; whatever coinci- 
 dences there be of ''details, expressions and 
 definitions" are coincidences in the two 
 draughts and in them alone. The similarities 
 and identities which so impressed Madison 
 were merely similarities and identities between 
 the two draughts. He doubtless selected arti- 
 
 81 
 
THE PINCKNEY DEAUGHT 
 
 cle VIII as ^^ remarkable'' because lie recog- 
 nized in it provisions and expressions which 
 he knew were in the Constitution. But there 
 are others in article VIII which are not in the 
 Constitution and which are inconsistent with it. 
 The retention of these is sufficient to refute the 
 idea that Pinckney changed his draught to 
 make it conform to the work of the Conven- 
 tion. Article VIII provides that the title of 
 the President ^^ shall be his Excellency.'* 
 There is no such provision in the Constitution. 
 Article VIII makes exceptions to the appoint- 
 ing power; ^^ambassadors, other ministers and 
 judges of the Supreme Court" are not to be 
 appointed by the President but by the Senate. 
 This was not one of the ^^ results" arrived at 
 in the Convention. In case of the death of the 
 President and the death of the President of 
 the Senate, '^the Speaker of the House of Dele- 
 gates shall exercise the duties of the office." 
 Here all that Pinckney had to do to make his 
 draught conform was to run his pen through 
 the supplementary clause vesting the succes- 
 sion in the Speaker. The President may be 
 removed from office on impeachment by the 
 House of Delegates and ** conviction in the 
 
 82 
 
THE PLAGIAEISMS 
 
 Supreme Court. ' ' Here all that Pinckney had 
 to do was to erase ''Supreme Court" and in- 
 sert ''Senate." Finally it is to be noted that 
 those expressions and provisions in article 
 VIII which caught the eye of Madison and 
 were characterized as ' ' remarkable ' ' were not 
 "results of critical discussion and modifica- 
 tion in the Convention that could not have 
 been anticipated, ' ' but were provisions and ex- 
 pressions which had been taken by Pinckney 
 from the constitutions of New York and Mas- 
 sachusetts, generally word for word. The ar- 
 ticle provides that the President "shall from 
 time to time give information to the legislature 
 of the state of the Union," and "recommend 
 to their consideration" the measures he may 
 think necessary; that "he shall take care that 
 the laws be duly executed"; that "he shall 
 commission all officers"; and "shall nominate 
 and with the consent of the Senate" appoint 
 officers; that "he shall have power to grant 
 pardons and reprieves "; and that "he shall be 
 commander in chief of the army and navy"; 
 but each of these provisions was taken from 
 the constitution of New York. The article 
 also provides that at "entering on the duties 
 
 83 
 
THE PINCKNEY DEAUGHT 
 
 of his office he shall take an oath faithfully to 
 execute the duties" of President; and that he 
 *^ shall be removed from his office on impeach- 
 ment by the House of Delegates''; but these 
 provisions were taken from the constitution 
 of Massachusetts. The article also provides 
 that '4n case of his removal by death, resig- 
 nation or disability, the President of the Sen- 
 ate shall exercise the duties of his office ' ' ; but 
 this is taken from the constitution of New 
 York. In a word when we trace these provi- 
 sions and expressions to their respective 
 sources there is nothing left of the article. 
 Article VIII is indeed remarkable ; but it is for 
 reversing the deductions of Madison ; for dem- 
 onstrating with mathematical certainty (so 
 far as it goes), that Pinckney did not make 
 his draught conform to '^results'' which had 
 been reached in the Convention, and which 
 '^ could not have been anticipated." ■ 
 
 84 
 
CHAPTER VIII, 
 
 THE IMPROBABILITIES 
 
 THE most incisive reason given by Mad- 
 ison against the authenticity of the 
 draught in the Department of State, the reason 
 which he most reiterated, if not the one upon 
 which he most relied, was that the draught 
 was presented to the Convention on the 29th 
 May and a week later, June 6th, Pinck- 
 ney moved ''that the first branch of the na- 
 tional legislature be elected by the State legis- 
 latures and not by the people." This objec- 
 tion is not only plausible but it rests on two 
 incontrovertible facts each of which is a mat- 
 ter of record — that the draught was presented 
 to the Convention on the 29th of May ; that his 
 inconsistent motion was made on the 6th of 
 June. But the conclusiveness of these facts 
 disappears when the circumstances and 
 changed conditions of the case appear. 
 
 In the first place Pinckney had forestalled 
 the point made by Madison by declaring in 
 
 85 
 
THE PINCKNEY DRAUGHT 
 
 his letter to the Secretary of State that there 
 were provisions in the draught which on fur- 
 ther reflection he had opposed in the Conven- 
 tion. This declaration, it must be remember- 
 ed, was made before the publication of Madi- 
 son's Journal, before it was known that it 
 would be published, before Pinckney knew or 
 could have known what the Journal would 
 show. In other words it was he himself who 
 first revealed his own inconsistency in having 
 presented a plan for one thing in May and 
 in having contended for another thing in June. 
 The explanation is not an after-thought or a 
 defence, but an avowal made in due time. 
 
 In the second place the draught was present- 
 ed on the 29th of May, but it was not written 
 then. It must have been written weeks before 
 this in Pinckney 's study in Charleston. When 
 he wrote it he had before him, as every 
 American of that day had, the Constitution of 
 Great Britain, the constitution under which he 
 had grown up, the merits and virtues and wis- 
 dom and excellencies of which he had read and 
 re-read in Blackstone. It was a matter of 
 course for him, when dealing with the legisla- 
 tive power, to have his Congress consist of two 
 
 86 
 
THE IMPEOBABILITIES 
 houses. 'As to this there would not be a doubt 
 or a thought. The next thing would be to have 
 the members of the first house, like the mem- 
 bers of the House of Commons, elected by the 
 people. So far he had no reason to pause and 
 reflect. But when he came to the second 
 house, he had no nobility at hand of which it 
 might be composed. Here his invention be- 
 gan, and he avowedly so contrived his Senate 
 that it should in fact though not in form, rep- 
 resent not nobility but wealth. It is probable 
 that when he was draughting his constitution, 
 it never entered his head that the lower house 
 of the American parliament could be chosen 
 by any other means than the means by which 
 the House of Commons was chosen and the 
 lower house of every American State. 
 
 In the third place between the 29th of May 
 and the 6th of June the subject had come be- 
 fore the Convention and had been discussed 
 and South Carolina had taken a position 
 
 against it. 
 
 Gerry of Massachusetts said that ''the evils 
 we experience flow from the excess of democ- 
 racy''; and that ''he did not like the election 
 by the people." Butler, of South Carolina, 
 
 87 
 
THE PINCKNEY DRAUGHT 
 
 ^'thouglit an election by the people an imprac- 
 ticable mode. ' ' Eutledge, tbe strongest man in 
 the State, seconded the motion to have the 
 first branch elected by the State legislatures. 
 Charles Cotesworth Pinckney, the most es- 
 teemed citizen of the State and Pinckney's 
 kinsman, brought South Carolina before the 
 Convention as an illustration and even went 
 so far as to say ^'an election of either branch 
 by the people, scattered as they are in many 
 States, particularly in South Carolina, is total- 
 ly impracticable." 
 
 Pinckney was the youngest member of the 
 delegation — ^much the youngest. He was not 
 yet 30 ; and, with the exception of Dayton and 
 Mercer was the youngest member of the Con- 
 vention. It would have been natural for him 
 as a Southerner ''to go with his State" — and 
 as a young man to defer to his seniors. And 
 after hearing the debate on the 31st of May 
 and the reasons of his fellow delegates from 
 South Carolina, it was proper for him to 
 change his mind and advocate election by the 
 State legislatures as a better mode. It would 
 have been a matter of wonder if he had 
 not! 
 
 88 
 
THE IMPEOBABILITIES 
 But there is a letter of George Eead which 
 should be considered, for it suggests the ques- 
 tion whether this change of Pinckney did not 
 take place before the 29th of May; that is to 
 say before he presented his draught to the 
 Convention. 
 
 On the 20th of May 1787 Mr. Read wrote 
 from Philadelphia to John Dickinson: 
 
 ''I am in possession of a copied draught of 
 a federal system intended to be proposed if 
 something nearly similar shall not precede it. 
 Some of its principal features are taken from 
 the New York system of government. A house 
 of delegates and senate for a general legisla- 
 ture, as to the great business of the Union. 
 The first of them to be chosen by the legislature 
 of each State, in proportion to its number of 
 white inhabitants, and three-fifths of all oth- 
 ers, fixing a number for sending each repre- 
 sentative. The second, to-wit the senate, to 
 be elected by the delegates so returned, either 
 from themselves or the people at large, in four 
 great districts, into which the United States 
 are to be divided for the purpose of forming 
 this senate from which, when so formed, is to 
 be divided into four classes for the purpose of 
 
 89 
 
THE PINCKNEY DEAUGHT 
 
 an annual rotation of a fourth of the members. 
 A president having only execntive powers for 
 seven years.'' (Eead's Life of George Eead 
 of Delaware p. 443.) 
 
 This letter is very far from being conclusive. 
 In the first place it does not appear that Mr. 
 Eead had seen the original of this ^^ copied 
 draught" or that Pinckney had given him the 
 copy or had told him what his plan was or that 
 any person who had seen the original draught 
 had told him what it contained. In the second 
 place the existence of an unauthenticated copy 
 on the 20th of May does not conclusively prove 
 that a different version of the same draught 
 was not presented to the Convention on the 
 29th of May. Still this letter undoubtedly re- 
 fers to Pinckney 's draught and compels a more 
 searching examination of the question raised 
 than would otherwise be necessary. 
 
 In a paper which will be called, briefly, *^the 
 Observations ' ' written by Pinckney before he 
 left Charleston he sets forth at length a de- 
 scription of his plan of government. In the 
 opening paragraph of this paper he says that 
 he will ^^give each article" of his draught 
 ''that either materially varies" from the pres- 
 
 90 
 
THE IMPROBABILITIES 
 ent government ''or is new." He then goes 
 on to say that 'Hhe first important alteration 
 is that of the principle of representation." 
 ' ' Representation is a sign of the reality. Upon 
 this principle, however abnsed, the Parliament 
 of Great Britain is formed, and it has been 
 universally adopted by the States in the for- 
 mation of their legislatures." This is all 
 which Pinckney, writing before the Convention 
 began its work, had to say concerning the low- 
 er house of Congress. His Senate was new and 
 concerning it he had much more to say, and 
 he described it. But of the lower house, the 
 popular body, he had nothing to say save that 
 there would be such a house, and that it would 
 rest upon the principle of representation ''uni- 
 versally adopted by the States in the forma- 
 tion of their legislatures." The Virginia res- 
 olutions undoubtedly expressed the opinion of 
 substantially all Americans when they said, 
 "Resolved that the members of the first branch 
 of the national legislature ought to be elected 
 by the people of the several States. ' ' Assured- 
 ly if the draught which Pinckney was then de- 
 scribing had contained the extraordinary and 
 novel proposition that the popular branch of 
 
 91 
 
THE PINCKNEY DEAUGHT 
 
 the national legislature, the body wliich should 
 represent the people, was not to be chosen by 
 the people he would have had something 
 *^new'' to lay before the Convention — some- 
 thing which did not exist in the government 
 of any English speaking people in the world — 
 something which ^ ^ materially varied" from 
 the belief and usage and history and traditions 
 of the people who were to ordain this Consti- 
 tution. Knowing Pinckney as we do — ^his 
 general views, his adherence to the general 
 principles of the British constitution, his at- 
 tentive study of State constitutions, his out- 
 spokenness, his belief in his own devices, we 
 know that if his draught had then contained 
 so radical a departure from all existing consti- 
 tutions as that which he subsequently proposed 
 in the Convention, and if he had worked him- 
 self into a belief at the time when he wrote the 
 Observations that the election of their repre- 
 sentatives by the people was ^ ^ theoretical non- 
 sense'', he could not have refrained from say- 
 ing so. What is said in the Observations har- 
 monized with the constitutions of every State 
 in the Confederation and with the Virginia 
 resolutions and with the views of every mem- 
 
 92 
 
THE IMPROBABILITIES 
 ber of the Convention excepting the five great 
 land owners from South Carolina. 
 
 The Observations, therefore (written before 
 the Convention and published afterwards), 
 sustain the draught in the State Department. 
 
 The words ''the people" appear directly and 
 necessarily in article 3 of the draught: ''The 
 Members of the House of Delegates shall 
 
 be chosen every year by the people of the 
 
 several States; and the qualifications of the 
 electors shall be the same as those of the elect- 
 ors in the several States for their Legisla- 
 tures." They reappear casually and need- 
 ^ lessly in article 5 : "Each State shall prescribe 
 . the time and manner of holding elections hy 
 the people for the House of Delegates." The 
 draught therefore in these provisions is con- 
 sistent with itself. 
 
 In the draught of the Committee of Detail 
 the words of Pinckney's article 3 again appear 
 with some amplification, but in the same order 
 with the same context and with the same in- 
 tent. Such agreements come not by chance. 
 
 And if such agreements come not by chance, 
 could Pinckney while he was copying the com- 
 mittee 's draught for his own article 3 have 
 
 93 
 
THE PINCKNEY DEAUGHT 
 
 written these two troublesome words ^^the peo- 
 ple '^ without taking heed of their significance, 
 without realizing what he was doing, without 
 remembering that his own draught had said 
 ^Hhe legislatures of the several States." He 
 conld not! For there is another provision in 
 the draught in the State Department which 
 was not taken from the committee's draught — 
 which did not exist in the committee's draught 
 — which must have been deliberately framed 
 by Pinckney — the provision before quoted 
 from article 5, ' ^ Each State shall prescribe the 
 time and manner of holding elections by the 
 people for the House of Delegates." That is 
 to say if Pinckney unintentionally abstracted 
 his article 3 from the committee's draught in 
 1818, he, nevertheless, must have fabricated 
 designedly his article 5 at the same time; for 
 there is nothing in the committee 's draught to 
 suggest it. 
 
 Then the question immediately arises. What 
 motive could Pinckney have had for falsifying 
 his draught and making this change from the 
 election of delegates by State legislatures to 
 their election by the people of the several 
 States. The answer of the superficial of 
 
 94 
 
THE IMPEOBABILITIES 
 course will be, ^'So that the world should be- 
 lieve that 'he had always been in favor of the 
 election of representatives by the people.'' 
 No other reason can well be assigned; yet there 
 could not have been such a motive. Pinckney 
 knew that his draught was to be soon published 
 and that with it would be published the of&cial 
 Journal of the Convention and that the publi- 
 cation would disclose to the world this record: 
 
 '^ Wednesday, June 6, 1787 
 
 ^^Mr. Gorham in the Chair. 
 *^It was moved by Mr. Pinckney, seconded 
 by Mr. Rutledge to strike the word * people' 
 out of the 4th resolution submitted by Mr. Ean- 
 dolph, and to insert in its place the word 
 
 ^Legislatures' so as to read ^resolved that 
 the Members of the first branch of the national 
 legislature ought to be elected by the Legisla- 
 tures of the several States' 
 
 ^^and on the question to strike out 
 ^^it passed in the negative." 
 
 If Pinckney 's article 3 had really provided 
 that members of the first house should be chos- 
 en hy the legislatures of the several States, cer- 
 
 95 
 
THE PINCKNEY DEAUGHT 
 
 tainly his article 5 would not have provided 
 that ^^eacli State shall prescribe the time and 
 manner of holding elections by the people/' 
 Article 3 laid down the basic principle that 
 representatives were to be chosen by the peo- 
 ple, and article 5 provided for the time and 
 manner when and whereby the people should 
 elect their representatives; and article 4 pro- 
 vided that Senators should be chosen, not by 
 the people or the legislatures of the several 
 States, but by the House of Delegates. In all 
 these provisions we again see that the draught 
 in the State Department is consistent with it- 
 self. 
 >^ It is possible that the person who gave the 
 '^ *^ copied draught'^ to Mr. Eead was Pinckney 
 himself ; and it is probable that by the 20th of 
 May he had changed his mind concerning the 
 election of delegates by the people and had de- 
 termined to make his draught conform to the 
 views of his fellow delegates from South Caro- 
 ,,^ lina. We know, .as will hereafter appear, that 
 he contemplated making many amendments to 
 his draught before presenting it to the Conven- 
 tion ; and that he hastily and prematurely pre- 
 sented it on the 29th of May so that it should 
 
 96 
 
THE IMPROBABILITIES 
 
 go with the Virginia resolutions to the Com- 
 mittee of the Whole. The change we are con- 
 sidering may not have been made in the writ- 
 ten instrument which he laid upon the Secre- 
 tary's desk, though he made the change in his 
 own mind. But be that as it may, it is as cer- 
 tain as existing knowledge goes that no man 
 saw the original draught with the words ^'by 
 the people" twice stricken out and the words 
 ^^by the legislatures of the several States'' 
 twice written in; and until this change in the 
 original draught is shown by positive testi- 
 mony, unequivocal in terms and above suspi- 
 cion in character, the circumstantial evidence 
 that the draught went to the Convention with 
 the words ^Hhe people" in the 3d and 5th arti- 
 cles is overwhelming. 
 
 There are some other things specified in the 
 Note not of great importance, but which serve 
 to show how eagerly Madison clutched at any- 
 thing that would operate as a makeweight 
 against Pinckney and his draught. 
 
 Article VIII '4s remarkable also for the cir- 
 cumstance that whilst it specifies the functions 
 of the President, no provision is contained in 
 the paper for the election of such an officer." 
 
 97 
 
THE PINCKNEY DEAUGHT 
 
 This is not a complete statement of the case. 
 The article declares that ^^the executive pow- 
 er" shall be vested in a President and that ^^he 
 shall be elected for years." The provi- 
 sions relating to the President were on their 
 face incomplete. There are virtually two 
 blanks left in the provision, the one relating 
 to the length of the President's term of office, 
 the other to the manner in which he shonld be 
 chosen. The 12th resolution filled these 
 blanks for a time by saying ^ ' seven years ' ' for 
 the one and by **the National legislature" for 
 the other. Here were *' results" arrived at in 
 the Convention. That Pinckney did not fill 
 these blanks in the Department copy — ^blanks 
 so obvious and so easily filled — goes a great 
 way to show that he did not in any place com- 
 plete his draught by writing into it * * results ' ' 
 arrived at in the Convention. It is a strained, 
 artificial conclusion which calls an omission 
 * ^ remarkable ' ' when the instrument is avowed- 
 ly nothing but an incomplete, tentative draught 
 prepared for the future consideration of its 
 author as well as other persons. 
 
 Madison notes ^'variances" between the 
 draught in the Department and the proposi- 
 
 98 
 
THE IMPKOBABILITIES 
 
 tions and arg-ainents of Pinckney in tlie Con- 
 vention. '^Tlius in article VIII" lie says, 
 Pinckney provides for the impeachment of the 
 President but on the 20th of July he was op- 
 posed to ^^any impeachability of the Execu- 
 tive." **He was sure they ought not to issue 
 from the legislature who ivould in that case 
 hold them as a rod over the Executive/^ But 
 the draught says much more than Madison re- 
 peats. *^He shall be removed from his office 
 on impeachment by the House of Delegates 
 and conviction in the Supreme Court/' Pinck- 
 ney did not oppose that in the Convention. 
 Madison on his own record clearly had no right 
 to say that Pinckney ''was opposed to any im- 
 peachability of the Executive." He did not 
 oppose such an impeachability as his draught 
 provided for viz., by the Supreme Court, and 
 his reasons quoted by Madison do not apply to 
 the impeachability provided in his draught. 
 
 ''In article III it is required that all money- 
 bills shall originate in the first branch of the 
 legislature ; which he strenuously opposed on 
 the 8th of August and again on the 11th." 
 Here Madison overlooked the significance of 
 these dates. They are subsequent to the report 
 
 99 
 
THE PINCKNEY DRAUGHT 
 
 of the Committee of Detail by wliich report 
 Pinckney's plan for the organization of thei 
 Senate had been rejected. Pinckney alluded to 
 this on the 11th when he said, *^The rule of 
 representation in the first branch was the true 
 condition to that in the second branch.'' 
 Neither does it appear in Madison's Journal 
 that he ' ^ strenuously opposed. ' ' On the 11th he 
 *^was sorry to oppose reopening the question," 
 but ^*he considered it a mere waste of time." 
 On the 8th his opposition had been couched in 
 three lines, ^^If the Senate can be trusted with 
 the many great powers proposed, it surely can 
 be trusted with that of originating money- 
 bills." Pinckney 's real position in regard to 
 this was clearly stated by himself and thus re- 
 corded by Madison on Wednesday, June 13th ; 
 * ^ Mr. Pinckney thinks the question premature. 
 If the Senate should be formed on the same 
 proportional representation, as it stands at 
 present, they should have equal power. Other- 
 wise a different principle should be intro- 
 duced. ' ' How did the Senate ^ ^ stand at pres- 
 ent, ' ' on June 13th. This is shown by the reso- 
 lutions of the Committee of the Whole of the 
 same day. ''That the right of suffrage in the 
 
 100 
 
THE IMPROBABILITIES 
 second branch of the national legislature ought 
 to be according to the rule established for the 
 first branch. '' Eesolution 8. The Senate 
 therefore was ''at present," a very different 
 representative body than the Senate of Pinck- 
 ney's draught; and to say on these changed 
 conditions and on the record of what he did 
 say that he ''strenuously opposed" the very 
 thing which he had adopted in his draught is a 
 wild use of terms. 
 
 "In article V, members of each house are 
 made ineligible to as well as incapable of hold- 
 ing any office" a provision, Madison contin- 
 ues, which "was highly disapproved of by him 
 on the 14th of August." 
 
 What was this disapproval? Article V pro- 
 vides that the members of each house shall not 
 be eligible to office during the time for which 
 they have been respectively elected, "nor the 
 members of the Senate for one year after." 
 This idea that a member of Congress should 
 not hold, during his legislative term of office, 
 an executive office which he had helped to cre- 
 ate or the emoluments of which he had helped 
 to increase, undoubtedly existed in many 
 minds. But under the scheme embodied in the 
 
 101 
 
THE PINCKNEY DEAUGHT 
 
 Pinckney draught there was a peculiar reason 
 why the ineligibility of Senators should con- 
 tinue after their legislative terms of office had 
 expired. That reason was because (Art. 
 VIII), the Senate was to be an appointing pow- 
 er. It was to ^^have sole and exclusive power 
 to'' ^* appoint ambassadors, and other minis- 
 ters to foreign nations, and judges of the Su- 
 preme Court." Under this scheme it was ob- 
 vious that a Senator should not be allowed to 
 step out of office at the expiration of his term 
 on one day and be appointed by his late col- 
 leagues to an important office on the next day. 
 It is, therefore, not a surprising thing to find 
 this provision in the draught and to find it ap- 
 plied only to the Senate. 
 
 On the 14th of August Pinckney had so far 
 modified his own views that he was then in fav- 
 or of making the members of each House in- 
 capable of holding executive salaried offices 
 while they continued members, with a provi- 
 sion that ''the acceptance of such office shall 
 vacate their seats respectively." This having 
 failed in Convention, he on the same day urged 
 a general postponement of the subject ''until it 
 should be seen what powers should be vested 
 
 102 
 
THE IMPKOBABILITIES 
 
 in the Senate" ^^when," he said, ''it would be 
 more easy to judge of the expediency of al- 
 lowing officers of State to be chosen out of that 
 body." This postponement was agreed to 
 nem. con. It is manifest that the idea of the 
 Senate being an appointing power was still up- 
 permost in his mind. He gave good reasons 
 for not making ineligibility absolute; but he 
 consistently adhered to the idea that the same 
 person should not be both a Legislator and an 
 officer of State. 
 
 On the 14th of August Pinckney proposed to 
 make members ineligible to hold any office by 
 which they would receive a salary. This was 
 merely a restriction on the original proposi- 
 tion of the draught, a limiting of its applica- 
 tion to salaried offices but leaving members 
 eligible and capable of filling honorary posi- 
 tions. To say that his original proposition 
 was thereby ''highly disapproved" by him is 
 certainly an abuse of the term "highly disap- 
 proved." The objection of Madison when 
 tested by his own record, the Journal, comes 
 down to this : that three months or more after 
 Pinckney wrote the draught, he thought it bet- 
 ter to limit the Constitutional prohibition to 
 
 103 
 
THE PINCKNEY DRAUGHT 
 
 ^^ salaried offices.'' This restriction was a 
 trivial and a sensible modification. To infer 
 from it that Pinckney then ** highly disap- 
 proved" his own original proposition merely 
 marks the nervous excitement which seems to 
 have impelled Madison to exaggerate every 
 little deviation of Pinckney from the strict let- 
 ter of his draught into conclusive evidence that 
 this draught never existed. 
 
 This brings us to the extrinsic evidence on 
 which Madison relied, the testimony of Pinck- 
 ney against himself. 
 
 104 
 
CHAPTEK IX. 
 
 THE OBSEKVATIONS 
 
 THE Observations of Pinckney, in Madi- 
 son's estimation, fully sustained his ar- 
 guments and justified Ms attacks on the verity 
 of the draught in the State Department. The 
 publication so entitled is a sm^all pamphlet of 
 27 pages. It has the following title page : 
 
 Observations 
 
 on the 
 
 PIAN OF GOVEKNMENT 
 
 Submitted to the 
 FEDEEAL CONVENTION 
 
 in Philadelphia on the 28th of May, 1787 
 
 By Mr. Charles Pinckney 
 Delegate from the State of South Carolina 
 
 DELIVERED AT DIFFEEENT TIMES 
 IN THE COURSE OF THEIR DISCUSSIONS. 
 
 New York. Printed 
 
 by Francis Childs 
 
 105 
 
THE PINCKNEY DEAUGHT 
 
 Two copies of this are in the library of the 
 New York Historical Society, and it is re- 
 printed in Moore's American Eloquence. It 
 bears no date, bnt we learn from Madison's 
 letter to Washington (before quoted) that it 
 must have been published before the 14th of 
 October, 1787 ; that is to say immediately after 
 the dissolution of the Convention on the 17th 
 of September. 
 
 Madison unquestionably relied upon this 
 pamphlet as containing the highest evidence 
 against the verity of the draught in the State 
 Department. The anxiety which he showed to 
 obtain it, and the care with which he brought 
 it to the attention of those who were or who 
 in the future might be interested in the mat- 
 ter make it plain that he regarded the Ob- 
 servations as a conservatory of admissions 
 which Pinckney would not deny if he were liv- 
 ing, and which his friends could not contro- 
 vert now that Pinckney was dead. 
 
 The first record we have of Madison's re- 
 liance on this pamphlet is a memorandum 
 found among his papers which bears no date 
 but which must have been written prior to 
 April 6th, 1831. 
 
 106 
 
THE OBSEEVATIONS 
 
 ^'for MR. Paulding" 
 
 ''Much curiosity and some comment have 
 been exerted by the marvellous identities in a 
 plan of Government proposed by Charles 
 Pinckney in the Convention of 1787 as pub- 
 lished in the Journals with the text of the Con- 
 stitution, as finally agreed to. I find among 
 my pamphlets a copy of a small one entitled 
 Observations on the Plan of Government sub- 
 mitted to the Federal Convention, in Phila- 
 delphia, on the 28th of May, by Mr. C. Pinck- 
 ney, a Delegate from S. Carolina, delivered at 
 different times in the Convention. 
 
 *^The copy is so defaced and mutilated that 
 it is impossible to make out enough of the 
 plan, as referred to in the Observations, for a 
 due comparison of it with that printed in the 
 Journal. The pamphlet was printed in N. 
 York by Francis Childs. The year is defaced. 
 It must have been not very long after the close 
 of the Convention, and with the sanction, at 
 least, of Mr. Pinckney himself. It has oc- 
 curred to me that a copy may be attainable at 
 the printing office, if still kept up, or in some 
 of the libraries or historical collections in the 
 
 107 
 
THE PINCKNEY DRAUGHT 
 
 city. When you can snatch a moment,an your 
 walks with other views, for a call at such 
 places, you will promote an object of some lit- 
 tle interest as well as delicacy, by ascertaining 
 whether the article in question can be met 
 with. I have among my manuscript papers 
 lights on the subject. The pamphlet of Mr. 
 P. could not fail to add to them. 
 ^^ April, 1831.^' 
 
 At some time subsequent to the 6th of April 
 he wrote to Mr. Paulding, saying that in a 
 previous letter '' I requested you to make an 
 inquiry concerning a small pamphlet of 
 Charles Pinckney printed at the close of the 
 Federal Convention of 1787;*' and on the 6th 
 of June he again wrote to Mr. Paulding, 
 
 '^ June 6th, 1831. 
 *'Dear Sie. — ^Since my letter answering 
 yours of April 6th, in which I requested you 
 to make an inquiry concerning a small pam- 
 phlet of Charles Pinkney printed at the 
 close of the Federal Convention of 1787, 
 it has occurred to me that the pamphlet 
 might not have been put in circulation, 
 
 108 
 
THE OBSERVATIONS 
 
 but only presented to Ms friends, etc. In that 
 way I may have become possessed of the copy 
 to which I referred as in a damaged state. On 
 this supposition the only chance of success 
 must be among the books, etc., of individuals 
 on the list of Mr. Pinckney's political associ- 
 ates and friends. Of those who belonged to 
 N. York, I recollect no one so likely to have re- 
 ceived a copy as Eufus King. If that was the 
 case, it may remain with his representative, 
 and I would suggest an informal resort to that 
 quarter, with a hope that you will pardon this 
 further tax on your kindness.'' 
 
 On the 27th of June he wrote to Mr. Pauld- 
 ing for the third time regarding the Observa- 
 
 ^'''''^'' ^^June 27th, 1831. 
 
 ''Dear Sie:— With your favor of the 20th 
 instant I received the volume of pamphlets 
 containing that of Mr. Charles Pinckney, for 
 which I am indebted to your obliging re- 
 searches. The volume shall be duly returned, 
 and in the mean time duly taken care of. I 
 have not sufficiently examined the pamphlet in 
 question, but I have no doubt that it throws 
 light on the subject to which it has relation.'' 
 
 109 
 
THE PINCKIsrEY DRAUGHT 
 
 On tlie 25t]i of November he wrote at length 
 to Jared Sparks setting forth all his objec- 
 tions to the draught and added: ^^ Further dis- 
 crepancies might be found in the observations 
 of Mr. Pinclmey, printed in a pamphlet by- 
 Francis Childs, in New York, shortly after the 
 close of the Convention. I have a copy too 
 mutilated for use, but it may probably be pre- 
 served in some of your historical reposito- 
 
 ries. ' ' 
 
 On the 5th of June 1835 he wrote to Judge 
 Duer : ^ ' Other discrepancies will be found in a 
 source also within your reach, in a pamphlet 
 published by Mr. Pinckney soon after the close 
 of the Convention, in which he refers to parts 
 of his plan which are at variance with the docu- 
 ment in the printed Journal. A friend who 
 has examined and compared the two docu- 
 ments has pointed out the discrepancies noted 
 below. ' ' 
 
 Then follows the list of discrepancies 
 '' pointed out'' by '^ a, friend"; and in this let- 
 ter he refers Judge Duer to the Ivibrary of the 
 Historical Society of New York as the place 
 where a copy of the Observations can be 
 found. 
 
 110 
 
THE OBSERVATIONS 
 
 The following paragraphs from the Obser- 
 vations contain all that bears npon the con- 
 tents of the draught, and all upon which Madi- 
 son relied. 
 
 *^ There is no one, I believe, who doubts 
 there is something particularly alarming in 
 the present conjuncture. There is hardly a 
 man in or out of office, who holds any other 
 language. Our Government is despised — our 
 laws are robbed of their respected terrors — 
 their inaction is a subject of ridicule — and 
 their exertion, of abhorrence and opposition 
 — rank and office have lost their reverence 
 and effect — our foreign politics are as much 
 deranged, as our domestic economy — our 
 friends are slackened in their affection, and 
 our citizens loosened from their obedience. 
 We know neither how to yield nor how to en- 
 force — ^hardly any thing abroad or at home is 
 sound and entire — disconnection and confu- 
 sion in offices, in States and in parties, prevail 
 throughout every part of the Union. These 
 are facts universally admitted and lamented.'* 
 
 ''Be assured that however unfashionable 
 for the moment your sentiments may be, yet, 
 
 111 
 
THE PINCKNEY DEAUGHT 
 
 if your system is accommodated to the situa- 
 tion of the Union, and founded in wise and 
 liberal principles, it will in time be consented 
 to. An energetic government is our true 
 policy, and it will at last be discovered and 
 prevail. ' ' 
 
 *' Presuming that the question will be taken 
 up de novo, I do not conceive it necessary to 
 go into minute detail of the defects of the pres- 
 ent confederation, but request permission to 
 submit, with deference to the House, the 
 draught of a governmicnt which I have formed 
 for the Union. The defects of the present will 
 appear in the course of the examination. I 
 shall give each article that either materially 
 varies or is new. I well know the science of 
 government is at once a delicate and difficult 
 one, and none more so than that of republics. 
 I confess my situation or experience have not 
 been such as to enable me to form the clearest 
 and justest opinions. The sentiments I shall 
 offer are the result of not so much reflection as 
 I could have wished. The plan will admit of 
 important amendments. I do not mean at 
 once to offer it for the consideration of the 
 
 112 
 
THE OBSERVATIONS 
 
 House, but have taken the liberty of mention- 
 ing it, because it was my duty to do so. 
 
 ''The first important alteration is that 
 of the principle of representation and the dis- 
 tribution of the different powers of govern- 
 ment. In the federal councils, each State 
 ought to have a weight in proportion to its 
 importance ; and no State is justly entitled to 
 greater. A representation is a sign of the 
 reality. Upon this principle, however abused, 
 the Parliament of Great Britain is formed, 
 and it had been universally adopted by the 
 States in the formation of their legislatures." 
 
 ''In the Parliament of Great Britain as 
 well as in most and the best instituted legisla- 
 tures of the States, we find not only two 
 branches, but in some a council of revision, 
 consisting of their executive and principal of- 
 ficers of government. This I consider as an 
 improvement in legislation, and have there- 
 fore incorporated it as a part of the system. 
 
 "The Senate, I propose to have elected 
 by the House of Delegates, upon proportiona- 
 ble principles, in the manner I have stated, 
 which though rotative, will give a sufficient de- 
 
 113 
 
THE PINCKNEY DEAUGHT 
 
 gree of stability and independence. The dis- 
 tricts, into whicli tlie Union is to be divided, 
 will be so apportioned as to give to each its 
 due weight, and the Senate, calculated in this, 
 as it ought to be in every government, to rep- 
 resent the wealth of the nation. 
 
 '^The executive should be appointed septen- 
 nially, but his eligibility ought not to be 
 limited: He is not a branch of the legisla- 
 ture farther, than as a part of the council of 
 revision; and the suffering him to continue 
 eligible will not only be the means of ensuring 
 his good behavior, but serve to render the of- 
 fice more respectable. 
 
 *^The 4th article, respecting the extend- 
 ing the rights of the citizens of each State 
 throughout the United States ; the delivery of 
 fugitives from justice upon demand, and the 
 giving full faith and credit to the records and 
 proceedings of each, is formed exactly upon 
 the principles of the 4th article of the present 
 confederation, except with this difference, that 
 the demand of the Executive of a State for 
 any fugitive criminal offender shall be com- 
 plied with. It is now confined to treason, 
 felony, or other high misdemeanor; but as 
 
 114 
 
THE OBSEEVATIONS 
 there is no good reason for confining it to 
 those crimes, no distinction ought to exist, and 
 a State shonld always be at liberty to demand 
 a fugitive from its justice, let his crime be 
 what it may. 
 
 '*The 5th article, declaring that individ- 
 ual States shall not exercise certain powers, 
 is also founded on the same principle as the 
 6th of the confederation. 
 
 ''The next is an important alteration of 
 the Federal system, and is intended to give 
 the United States in Congress, not only a re- 
 vision of the legislative acts of each State, but 
 a negative upon all such as shall appear to 
 them improper. 
 
 ''I apprehend the true intention of the 
 States in uniting is, to have a firm, national 
 government, capable of effectually executing 
 its acts, and dispensing its benefits and protec- 
 tion. In it alone can be vested those powers 
 and prerogatives which more particularly dis- 
 tinguish a sovereign State. The members 
 which compose the superintending government 
 are to be considered merely as parts of a great 
 whole, and only suffered to retain the powers 
 necessary to the administration of their State 
 
 115 
 
THE PINCKNEY DEAUGHT 
 
 systems. The idea whicli has been so long and 
 falsely entertained of each being a sovereign 
 State, mnst be given np; for it is absnrd to 
 suppose there can be more than one sover- 
 eignty within a government. The States 
 should retain nothing more than that mere 
 local legislation, which, as districts of a gen- 
 eral government, they can exercise more to 
 the benefit of their particular inhabitants, 
 than if it was vested in a Supreme Council; 
 but in every foreign concern as well as in those 
 internal regulations, which respecting the 
 whole ought to be uniform and national, the 
 States must not be suffered to interfere. No 
 act of the Federal Government in pursuance 
 of its constitutional powers ought by any 
 means to be within the control of the State 
 Legislatures ; if it is, experience warrants me 
 in asserting they will assuredly interfere and 
 defeat its operation. 
 
 ^'The next article proposes to invest a 
 number of exclusive rights, delegated by the 
 present confederation, with this alteration: 
 that it is intended to give the unqualified 
 power of raising troops, either in time of 
 
 116 
 
THE OBSERVATIONS 
 peace or war, in any manner the Union may 
 direct. It does not confine them to raise 
 troops by quotas on particular States, or to 
 give them the right of appointing regimental 
 officers, but enables Congress to raise troops 
 as they shall think proper, and to appoint all 
 the officers. It also contains a provision for 
 empowering Congress to levy taxes upon the 
 States, agreeable to the rule now in use, an 
 enumeration of the white inhabitants, and 
 three-fifths of other descriptions. 
 
 **The 7th article invests the United States 
 with the complete power of regulating the 
 trade of the Union, and levying such imposts 
 and duties upon the same, for the use of the 
 United States, as shall in the opinion of Con- 
 gress, be necessary and expedient. 
 
 '^The 8th article only varies so far from 
 the present, as in the article of the Post Of- 
 fice, to give the Federal Government a power 
 not only to exact as much postage as will bear 
 the expense of the office, but also for the pur- 
 pose of raising a revenue. Congress had this 
 in contemplation some time since, and there 
 can be no objection, as it is presumed, in the 
 
 117 
 
THE PINCKNEY DRAUGHT 
 
 course of a few years the Post Office will be 
 capable of yielding a considerable sum to the 
 public treasury. 
 
 ''The 9th article, respecting the appoint- 
 ment of Federal courts for deciding territorial 
 controversies between different States, is the 
 same with that in the confederation; but this 
 may with propriety be left to the supreme ju- 
 diciary. 
 
 ''The 10th article gives Congress a right 
 to institute all such offices as are necessary for 
 managing the concerns of the Union ; of erect- 
 ing a federal judicial court for the purposes 
 therein specified; and of appointing courts of 
 Admiralty for the trial of maritime causes in 
 the States respectively. 
 
 "The exclusive right of coining money- — 
 regulating its alloy, and determining in what 
 species of money the common treasury shall 
 be supplied — is essential to assuring the fed- 
 eral funds. 
 
 "In all those important questions, where 
 the present confederation has made the assent 
 of nine States necessary, I have made the as- 
 sent of two-thirds of both Houses, when as- 
 sembled in Congress, and added to the number 
 
 118 
 
THE OBSEEVATIONS 
 the regulation of trade, and acts for levying 
 an impost and raising a revenue. 
 
 ''The exclusive right of establishing regula- , 
 tions for the government of the milita of the L- 
 United States, ought certainly to be vested in 
 the federal council. 
 
 ''The article empowering the United States 
 to admit new States into the confederacy is 
 become indispensable, from the separation of 
 certain districts from the original States — and 
 the increasing population and consequence of 
 the western territory. I have also added an 
 article authorizing the United States, upon the 
 petition from the majority of the citizens of 
 any State or convention authorized for that 
 purpose, and of the legislature of the State 
 to which they wish to be annexed, or of the 
 States among which they are willing to be di- 
 vided, to consent to such junction or division, 
 on the term mentioned in the article. 
 
 "The Federal Government should also pos- 
 sess the exclusive right of declaring on what 
 terms the privileges of citizenship and natu- 
 ralization should be extended to foreigners. 
 
 "The 16th article proposes to declare that if 
 it should hereafter appear necessary to the 
 
 119 
 
THE PINCKNEY DEAUGHT 
 
 United States to recommend the grant of any 
 additional powers, that the assent of a given 
 number of the States shall be sufficient to in- 
 vest them and bind the Union as fully as if 
 they had been confirmed by the legislatures of 
 all the States. The principles of this, and the 
 article which provides for the future altera- 
 tion of the Constitution by its being first 
 agreed to in Congress, and ratified by a cer- 
 tain proportion of the legislatures, are pre- 
 cisely the same. 
 
 < i There is also in the articles a provision re- 
 specting the attendance of the members of both 
 Houses; it is proposed that they shall be the 
 judges of their own rules and proceedings, 
 nominate their own officers, and be obliged, 
 after accepting their appointments, to attend 
 the stated meetings of the legislature ; the pen- 
 alties under which their attendance is required, 
 are such as to insure it, as we are to suppose 
 no man would willingly expose himself to the 
 ignominy of a disqualification. 
 
 **The next article provides for the privilege 
 of the writ of habeas corpus — the trial by jury 
 in all cases, criminal as well as civil — the free- 
 dom of the press and the prevention of reli- 
 
 120 
 
THE OBSEEVATIONS 
 
 gions tests as qualifications to offices of trust 
 or emolument. 
 
 ''There is also an authority to the national 
 legislature, permanently to fix the seat of 
 the general government, to secure to authors 
 the exclusive right to their performances and 
 discoveries, and to establish a Federal Uni- 
 versity. 
 
 ''There are other articles, but of subordi- 
 nate consideration. In opening the subject, 
 the limits of my present observations would 
 only permit me to touch the outlines ; in these 
 I have endeavored to unite and, apply, as far 
 as the nature of our Union would permit, the 
 excellencies of such of the States' Constitu- 
 tions as have been most approved. 
 
 "I ought again to apologize for presuming 
 to intrude my sentiments upon a subject of 
 such difficulty and importance. It is one that 
 I have for a considerable time attended to. 
 I am doubtful whether the convention will, at 
 first be inclined to proceed as far as I have in- 
 tended; but this I think may be safely as- 
 serted, that upon a clear and comprehensive 
 view of the relative situation of the Union, 
 and its members, we shall be convinced of the 
 
 121 
 
THE PINCKNEY DEAUGHT 
 
 policy of concentring in the federal head, a 
 complete supremacy in the affairs of govern- 
 ment; leaving only to the States such powers 
 as may be necessary for the management of 
 their internal concerns." 
 
 The first comment to be made on this speech 
 of Pinckney's is that it was never made, and 
 that no speech whatever was made hy him 
 when he presented his draught to the Conven- 
 tion. 
 
 Upon this question of fact there are two wit- 
 nesses, Madison and Yates. The evidence 
 which they have left to us is negative and posi- 
 tive, the one showing inferentially, what could 
 not have occurred in the Convention on the 
 29th of May 1787 and the other stating posi- 
 tively what did occur ; the one absolutely silent 
 as to any speech by Pinckney ; the other telling 
 us that ^^Mr, Pinckney a member from South 
 Carolina then added that he had reduced his 
 ideas of a new government to a system ivhich 
 he then read," 
 
 Madison has written for us an account of 
 the manner in which he took his notes and 
 wrote out his Journal — a most interesting ac- 
 count, showing us the method he pursued, the 
 
 122 
 
THE OBSEEVATIONS 
 efforts which he made, and reminding ns how 
 much we owe him for his fidelity to his self- 
 imposed task. 
 
 ''The curiosity I had felt during my re- 
 searches into the history of the most distin- 
 guished confederacies, particularly those of 
 antiquity, and the deficiency I found in the 
 means of satisfying it, more especially in what 
 related to the process, the principles, the rea- 
 sons, and the anticipations, which prevailed 
 in the formation of them, determined me to 
 preserve, as far as I could, an exact account of 
 what might pass in the Convention whilst ex- 
 ecuting its trust ; with the magnitude of which 
 I was duly impressed, as I was by the grati- 
 fication promised to future curiosity by an 
 authentic exhibition of the objects, the opin- 
 ions, and the reasonings from which the new 
 system of government was to receive its pe- 
 culiar structure and organization. Nor was I 
 unaware of the value of such a contribution to 
 the fund of materials to the history of a Con- 
 stitution on which would be staked the happi- 
 ness of a people great even in its infancy, and 
 possibly the cause of liberty throughout the 
 world. 
 
 123 
 
THE PINCKNEY DEAUGHT 
 
 '*In pursuance of the task I had assumed, 
 I chose a seat in front of the presiding mem- 
 ber, with the other members on my right and 
 left hands. In this favorable position, for 
 hearing all that passed, I noted in terms legi- 
 ble, and in abbreviations and marks intelli- 
 gible to myself, what was read from the chair 
 or spoken by the members; and losing not a 
 moment unnecessarily between the adjourn- 
 ment and reassembling of the Convention, 
 I was enabled to write out my daily notes 
 during the session, or within a few finish- 
 ing days after its close, in the extent and 
 form preserved, in my own hand, on my 
 files. 
 
 ^^In the labor and correctness of this, I was 
 not a little aided by practice, and by a famil- 
 iarity with the style and the train of observa- 
 tion and reasoning which characterized the 
 principal speakers. It happened, also, that I 
 was not absent a single day, nor more than 
 a casual fraction of an hour in any day, so 
 that I could not have lost a single speech, un- 
 less a very short one," 
 
 Yates was at the time of writing his Min- 
 utes 49 years of age. During the Eevolution 
 
 124 
 
THE OBSEKVATIONS' 
 
 he had written political essays highly esteemed 
 over the signature of the Eongh Hewer. He 
 had been for eleven years a judge of the 
 Supreme Court of New York — a judge of the 
 old school before the days of stenographers 
 and printed arguments and was well trained 
 in taking notes of what counsel said. 
 
 The Minutes of Yates are manifestly the 
 work of a man accustomed to take down the 
 ideas rather than the words of public speak- 
 ers. His reports of the debates are briefer 
 than Madison's showing much less of the re- 
 porter and much more of the lawyer or judge 
 accustomed to analyze and to note the scope 
 and sense of an argument. His report of the 
 chief speech of Pinckney, that of June 25th, 
 when compared with the full speech written 
 out by Pinckney for Madison is a remarkably 
 clear and accurate and full abstract. It is 
 also valuable as giving us an abstract of the 
 conclusion of the speech which Pinckney neg- 
 lected to furnish. Madison says in his letter . 
 to Judge Duer, ''Mr. Yates's notes as you ob- 
 serve are very inaccurate; they are also in 
 some respects grossly erroneous." There are 
 indeed mistakes resulting from his non-ac- 
 
 125 
 
THE PINCKNEY DKAUGHT 
 
 quaintance with the delegates; and especially 
 in his confusing the names of the two Pinck- 
 neys, the first name of each being the same as 
 the first name of the other and both being dele- 
 gates from the same State. But be that as 
 it may, Yates correctly characterized the 
 speech of Eandolph as '^long and elaborate," 
 and Pinckney's draught as a ^'system" of a 
 *^new government"; and he certainly knew 
 enough to distinguish between the delivery of a 
 long speech and the reading of a formal docu- 
 ment. 
 
 The fact therefor must be regarded as es- 
 tablished as firmly as any fact recorded in the 
 annals of the Convention that on the day when 
 Pinckney presented his draught to the Con- 
 vention he did not deliver and could not have 
 delivered a speech making 27 pages of printed 
 matter. 
 
 There is another fact to be considered in 
 connection with the foregoing. Between the 
 opening statements of the Observations and 
 the title to the pamphlet there is a flat contra- 
 diction. In the speech he says expressly that 
 the *^plan will admit of important amend- 
 ments"; that he does ^^not mean to offer it for 
 
 126 
 
THE OBSERVATIONS 
 
 the consideration of the House"; that he has 
 ''taken the liberty of mentioning it because it 
 was his duty to do so." In the title to the 
 pamphlet he says, ''Plan of Government sub- 
 mitted to the Federal Convention in Phila- 
 delphia on the 28th of May 1787." It is plain 
 that the speech and its title were written at 
 different times and that in this the two are ir- 
 reconcilable. It is also plain that Pinckney 
 when he wrote a title for the printer in New 
 York had forgotten the detail of the contents 
 of the speech and did not take the trouble to 
 examine it. We may therefore conclude that 
 the two events were far apart, the one having 
 taken place in Charleston before the assem- 
 bling of the Convention and the other taking 
 place in New York when the publication of 
 the speech required that a title should be 
 given to it. 
 
 Furthermore the title to the speech contains 
 a significant error in saying that the plan of 
 government was submitted to the Convention 
 "on the 28th of May" ; for the first days of the 
 Convention were not days to be quickly for- 
 gotten. 
 
 The day fixed for the meeting of the dele-. 
 
 127 
 
THE PINCKNEY DRAUGHT 
 
 gates in Convention was Monday, May 14tli 
 1787. "Washington, notwithstanding his pain- 
 ful illness during the winter and the expected 
 death of his mother was among the first who 
 arrived in Philadelphia. On the 27th of April 
 he had written to Knox, ' ' Though so much af- 
 flicted with a Kheumatick complaint (of which 
 I have not been entirely free for Six months) 
 as to be under the necessity of carrying my 
 arm in a Sling for the last ten days, I had 
 fixed on Monday next for my departure, and 
 had made every necessary arrangement for 
 the purpose when (within this hour) I am 
 called by an express, who assures me not a 
 moment is to be lost, to see a mother and only 
 sister (who are supposed to be in the agonies 
 of Death) expire ; and I am hastening to obey 
 this Melancholy call, after having just buried 
 a Brother who was the intimate companion of 
 my youth, and the friend of my ripened age. 
 This journey of mine then, 100 miles, in the 
 disordered frame of my body, will, I am per- 
 suaded, unfit me for the intended trip to Phila- 
 delphia. ' ' 
 
 But Washington, though he knew it not, was 
 then approaching the verge of his third cycle 
 
 128 
 
THE OBSEEVATIONS 
 
 of illustrious service rendered to his country 
 — ''the country he assembled out of chaos." 
 
 Madison writing to Jefferson, the.n in Paris, 
 on Tuesday, the 15th of May, happily re- 
 corded the fact that Washington, true to 
 his life record, was on the ground when he 
 should have been: ^'Monday last was the day 
 for the meeting of the Convention. The num- 
 ber as yet assembled is but small. Among the 
 few is General Washington who arrived on 
 Sunday evening, amidst the acclamations of 
 the people, as well as more sober marks of the 
 affection and veneration which continue to be 
 felt for his character." 
 
 But a quorum of lesser men did not appear 
 until Friday May 25th. On that day nine 
 States were represented by twenty-nine dele- 
 gates among whom was Charles Pinckney on 
 whose motion a committee was appointed, of 
 which he was one, to prepare standing rules 
 and orders. The only other business was the 
 election of Washington as President and Ma- 
 jor William Jackson as Secretary. On Mon- 
 day May 28th the Convention next met when 
 ''Mr. Wythe, from the committee for prepar- 
 ing rules made a report which employed the de- 
 
 129 
 
THE PINCKNEY DEAUGHT 
 
 liberations of this day.'' Tuesday May 29tli 
 was the great day when Eandolph ^ ' opened the 
 main business" and presented the Virginia 
 resolutions, and Pinckney ^4aid before the 
 House the draught of a Federal Government. ' ' 
 These were not days to be easily confounded. 
 But between the presentation of the draught 
 to the Convention and the writing of the title 
 for the printer in New York four months had 
 elapsed crowded with labor and excitement, 
 and Pinckney had forgotten the date of the 
 most eventful day of his life. The error of 
 this date means a great deal. 
 
 In his letter to the Secretary of State cover- 
 ing the draught in the Department, Pinckney 
 says that he has then four or ^ve draughts 
 of the Constitution in his possession. It is 
 certain that the draught in the Department 
 conforms much more closely to the draught 
 which he presented to the Convention than 
 to the draught which he describes in the Obser- 
 vations. If we consider the facts established 
 (as we must) that the Observations were writ- 
 ten before the assembling of the Convention, 
 that they were written many months before 
 their publication, that they were not examined 
 
 130 
 
THE OBSEEVATIONS 
 
 or revised when they were published, it is 
 easily within the range of possibilities, if not 
 of probabilities, that the draught which formed 
 the ^'text of the discourse" was one of the four 
 or ^ve which Pinckney had drawn at various 
 times and was not the one which he finally sub- 
 mitted to the Convention. 
 
 If the Observations were what they pretend 
 to be the text of a real speech actually spoken 
 at the time when Pinckney was about to pre- 
 sent his draught to the Convention they would 
 be very good secondary evidence of the con- 
 tents of the paper which he held in his hand 
 and which he then and there presented, and 
 thereby parted company with. But a speech 
 which was never spoken to suppositional audi- 
 tors who never heard it, is not a public decla- 
 ration of the contents of another paper. The 
 Observations are not a speech because they 
 are cast in the form of a speech. They 
 are simply a paper which may have been writ- 
 ten in Charleston before the assembling of the 
 Convention, or (possibly) in New York after 
 the Convention had been dissolved, and when- 
 ever written Pinckney may have had before 
 him another of the four or five constitutions 
 
 131 
 
THE PINCKNEY DEAUGHT 
 
 which he had draughted. With the uncovering 
 of the fact that this paper was not contempo- 
 raneous, and that it did not necessarily refer 
 to the particular copy of the draught which 
 Pinckney presented to the Convention on the 
 29th of May, the supposed value of the Obser- 
 vations as evidence to impeach the integrity 
 of the draught in the State Department is 
 blown to pieces. 
 
 If this were a suit between Madison and 
 Pinckney it might be held that Pinckney would 
 be estopped from questioning the veracity of 
 the paper which he wrote and made public, or 
 the actuality of the facts which it sets forth. 
 But an estoppel which in the words of Coke, 
 '* conclude th a man to alleage the truth" does 
 not extend to the student of Constitutional his- 
 tory. He is not a party to that record and is 
 at liberty to use it for what it may be worth 
 against Pinckney or for Pinckney, to over- 
 throw the draught or to substantiate the 
 draught — to use it in any way which will tend 
 to clear the situation from error, and authen- 
 ticate the true history of the Constitution. 
 
 Madison in his ^^Note to the Plan'' re- 
 garded article VIII as ^* remarkable also for 
 
 132 
 
THE OBSERVATIONS 
 
 the circumstance that whilst it specifies the 
 functions of the President, no i^rovision is 
 coiltained in the paper for the election of such 
 an officer." The plain unquestionable pur- 
 pose of Madison when so writing was to im- 
 press upon the American mind the improb- 
 ability, the almost impossibility, of Pinckney's 
 having neglected to provide for the election of 
 the President while actually establishing the 
 office and defining the functions of the officer ; 
 and hence that the paper which is so remark- 
 able for the omission cannot be a true copy of 
 the one presented to the Convention ; and the 
 inevitable inference from this is that the real 
 draught, the one presented to the Convention 
 on the 29th of May contained and must have 
 contained, and could not have overlooked the 
 needed provision declaring how the President 
 should be chosen. 
 
 The choosing of the President by means of 
 electoral colleges in which each State should 
 have a proportionate power equal to its total 
 representation in the two houses of Congress 
 was one of the notable compromises between 
 the large and small States ; and what Madison 
 says must excite the curiosity of the Constitu- 
 
 133 
 
THE PINCKNEY DEAUGHT 
 
 tional student to know in wliat manner Pinck- 
 ney provided in Ms draught for the choosing 
 of the President and whether he attempted a 
 compromise. The original draught is lost; 
 but here Madison appears with the Observa- 
 tions which he fortunately saw in 1787 and 
 which he fortunately remembered in 1831 and 
 which, remembering, he brought to light and 
 made an authority; and these Observations, 
 according to Madison, presumptively set forth 
 what the original draught contained so fully 
 and accurately that upon the faith of them we 
 can and must reject the copy of the draught 
 which Pinckney produced and placed in the 
 State Department. Therefore we may turn to 
 the Observations with unusual interest to 
 ascertain whether Pinckney provided, and in 
 what manner he provided, for the choosing of 
 the President. 
 
 We find that the Observations are as silent 
 as the draught in the State Department. 
 They are not more silent however. If the 
 Observations said nothing and were abso- 
 lutely silent on the subject of the President, it 
 might be a casual oversight of the writer. 
 But the Observations agree with article VIII; 
 
 134 
 
THE OBSERVATIONS 
 
 both recognize the Execntive as vested in one 
 person; both limit his term of office, the one 
 to seven, the other to — ^years; both expressly 
 declare that he shall be re-eligible; both are 
 silent as to the means by which he shall be 
 chosen. The Observations here are little more 
 than a paraphrase of article VIII. Madison 
 regarded the omission to provide for so vitally 
 important a thing as the choosing of the Presi- 
 dent as ''remarkable"; but the more remark- 
 able the omission, the more significant the 
 coincidence. 
 
 The explanation of Pinckney's conduct and 
 of the contradictions between his statements 
 in the Observations and the facts appearing 
 on the records of the Convention, including in 
 the term the Madison Journal and the Yates 
 Minutes is, I think, the following: 
 
 The first business day of the Convention, 
 probably, was the most impressive day of all 
 its sittings. There were less than forty dele- 
 gates present but among them were the most 
 distinguished men of the country; Washington, 
 Hamilton, Eufus King, David Brearly, both 
 Robert and Gouverneur Morris, George Read, 
 George Mason, George Wythe, John Rutledge, 
 
 135 
 
THE PINCKNEY PEAUGHT 
 
 John Dickinson and Elbridge Gerry. A pain- 
 ful anxiety existed concerning everything 
 which lay before them — the method of pro- 
 cedure, the specific subjects to be considered, 
 the prejudices of the different States, the 
 views and plans and projects of the different 
 members. Eandolph, as heretofore has been 
 said, opened the great business which was to 
 result either in the formation of a National 
 government or in the dissolution of the feeble 
 Confederation which existed, by the presen- 
 tation of the abstract propositions which the 
 delegates from Virginia had formulated for 
 the consideration of the Convention, and by a 
 masterly address in which he set forth the 
 perils of the hour and the difficulties to be 
 overcome. When he concluded his solemn and 
 philosophical exposition of the impending 
 problems the Convention adjourned as well it 
 might. 
 
 Pinckney must have been impressed by this. 
 He had studied the field long and intelligently ; 
 but there were now waters before him which 
 were beyond his depth — difficulties which he 
 had not considered; prejudices and jealousies 
 
 136 
 
THE OBSEEVATIONS 
 
 for which he had formulated no compromise. 
 It was not the time for the man believed 
 to be the youngest member to harangue the 
 Convention on his scheme for a new gov- 
 ernment. 
 
 Pinckney unquestionably had prepared a 
 written speech in his study in Charleston. It 
 was his strategic purpose to deliver the speech 
 at the opening of the Convention and draw 
 forth expressions of opinion concerning his 
 scheme for a National government, after 
 which he would modify his plan and when 
 modified to suit himself or to suit a majority 
 of the members, he would present it. But 
 when the time came to speak he saw that the 
 Convention was in no humor to listen to an 
 oration about his plan, and that the business 
 before them would be the consideration and 
 discussion of abstract propositions one by one 
 as set forth in the Virginia resolutions, and 
 that no plan would be considered until the 
 delegates should learn by intelligent discus- 
 sion what they wanted to formulate. He 
 therefore wisely reversed his strategy, with- 
 holding the speech but presenting the draught, 
 
 137 
 
THE PINCKNEY DRAUGHT 
 
 thereby placing himself on the record and 
 establishing what in patent law would be 
 called priority of invention. 
 
 After the great work was done and the Con- 
 stitution had gone forth to the world Pinck- 
 ney knew that his draught was buried in the 
 secrecy of the proceedings. He too, like many 
 another effusive young man, may have 
 thought his speech too good to be lost. Cer- 
 tainly he could not resist the temptation of 
 revealing what he had written and of record- 
 ing the great part he had played among the 
 eminent actors in the Convention. He avoid- 
 ed violating the pledge of secrecy by revealing 
 no act or proceeding of the Convention, not 
 even that his plan had been presented and re- 
 ferred. And it is fair to say that while he 
 acted like a boy, he also gave out the full 
 record in a manly way. The absurdities in 
 his draught, as some of his provisions must 
 have seemed to many intelligent men, were set 
 forth; the provisions which failed were set 
 forth; the propositions which he himself had 
 abandoned and opposed were set forth. 
 There was no tampering with the record. 
 There are passages in some of his imperfectly 
 
 138 
 
THE OBSERVATIONS 
 reported speeches in the Convention which 
 bear some resemblance to his discursive rhe- 
 torical flights in the Observations, and these 
 he may have thought justified the title with 
 which he prefaced the publication. The two 
 lines on the title page, ''Delivered at different 
 Times in the course of their Discussions," are 
 in very small type and appear much as if they 
 had been crowded into a printer's proof — as 
 if they had been an afterthought. But how- 
 ever that may be one thing is certain, that the 
 speech setting forth the contents of his plan 
 was never made in the Convention. 
 
 The Observations sustain the draught in the 
 State Department in matters of substance, but 
 not in order and arrangement. The Observa- 
 tions also allude to provisions which are not in 
 the draught in the State Department, provi- 
 sions which may or may not have been in the 
 draught which was presented to the Conven- 
 tion; and these I shall subsequently examine. 
 As to the variance in order and arrangement 
 there are two things which should be consid- 
 ered: First: as a matter of antiquarian re- 
 search it would be interesting and satisfactory 
 to ascertain that the one draught was a fac- 
 
 139 
 
THE PINCKNEY DRAUGHT 
 
 simile or exact duplicate of the other; but 
 where the purpose of the inquiry (as in this 
 case) is to ascertain what contributions the 
 draught of Pinckney made to the Constitution 
 of the United States, it is wholly immaterial 
 whether one provision followed another or 
 preceded it, or was far removed from it. 
 The second thing to be remembered is that the 
 draught of the Committee of Detail, so far as 
 it agrees in order and arrangement with the 
 draught in the State Department furnishes us 
 with presumptive evidence of the order and 
 arrangement in the draught which was pre- 
 sented to the Convention. A comparison of 
 the two will show that the variances are so 
 trivial that they are not worthy of further con- 
 sideration. 
 
 As we have seen (chapter VI) Madison did 
 not cite the Observations in the '^Note of Mr. 
 Madison to the plan of Charles Pinckney,'' 
 but did prepare a footnote for the Note to be 
 appended to and published with it by his 
 future editor who he then believed would be 
 Mrs. Madison. "Why he did not cite or set 
 forth in his own Note the ^^ striking discrep- 
 ancies'' set forth in the footnote, but planned 
 
 140 
 
THE OBSERVATIONS 
 and arranged that tliey should be brought be- 
 fore the public by his editor has seemed inex- 
 plicable hitherto. The reason is now plain — 
 he did not wish to assume the responsibility 
 of citing the pamphlet of Pinckney because he 
 knew that it consisted of a speech which was 
 never made. 
 
 Madison cited the Observations and the 
 eighth article and the fifth article of Pinck- 
 ney 's draught to secure its condemnation; but 
 of each he might say as Balak the son of Zip- 
 por said to the prophet of old, ^'I took thee to 
 curse mine enemies and behold thou hast 
 blessed them!" He hunted for the Observa- 
 tions ; he found them ; he brought them to the 
 knowledge of men, he appealed to them, he 
 made them an authority by which Pinckney 
 should be judged out of his own mouth; and 
 lo ! they furnish the strongest confirmation of 
 the verity of the draught which he attacked. 
 
 The Observations seem to have been a fate- 
 ful thing, fatal to whichever party relied 
 upon them. Madison exhumed them and be- 
 lieved that they would destroy the pretensions 
 of Pinckney and vindicate himself — and they 
 have but demonstrated the superficiality of his 
 
 141 
 
THE PINCKNEY DEAUGHT 
 
 own investigation and the baselessness of his 
 deductions. Pinckney fearing that the part 
 which he had played in the Convention would 
 never be known, that his great contribution to 
 the Constitution might never receive so much 
 as the notice of men, impelled by his boyish 
 egoism and by what Madison called with ref- 
 erence to another contemporaneous publica- 
 tion, *^his appetite for expected praise, '' im- 
 properly laid them before the world — and they 
 have done more than any other one thing to 
 smirch his good name and bury in oblivion the 
 great work of his life. 
 
 142 
 
CHAPTER X 
 
 THE SILENGE OF MADISON" 
 
 T^"P to this point the draught in the State 
 1^ Department has been considered pre- 
 cisely as Madison desired it should be consid- 
 ered; that is to say upon his objections. The 
 inquiry moreover has been confined to the 
 final indictment which he drew up, to-wit, the 
 *'Note of Mr. Madison to the Plan of Charles 
 Pinckney," and to the evidence which he ad- 
 duced to sustain it, to-wit Pinckney's Obser- 
 vations and letter and Madison's Journal of 
 the Convention. But there is another chapter 
 which must be considered, a chapter of facts 
 and circumstances forming an unseen part of 
 the strategy which his cautious policy sup- 
 plied. 
 
 In his letters to Sparks and the others as 
 in the final ''Note,'' there is a studious com- 
 parison instituted between the draught in the 
 State Department and the Constitution itself. 
 There is also an argument implied that the 
 
 143 
 
THE PINCKNEY DRAUGHT 
 
 draught in the Department cannot possibly be 
 identical with the draught presented to the 
 Convention because it contains some provi- 
 sions which Pinckney opposed in the Conven- 
 tion. A student whose inquiries were limited 
 to early editions of Madison's Writings might 
 draw from them two extenuating inferences, 
 the first of which would be that the weakened 
 memory of age and infirmity had failed to 
 bring before Madison the proper instrument 
 for comparison, the draught of the Committee 
 of Detail ; the second that he had never heard 
 of Pinckney 's letter to the Secretary of State 
 and knew not that Pinckney had notified the 
 Secretary that the copy which he sent was not 
 a literal reproduction of the lost draught and 
 that it, like the original, contained provisions 
 which on further reflection he had opposed in 
 the Convention. 
 
 In the spring of 1830 Mr. Jared Sparks 
 passed a week with Madison at Montpelier 
 and on his return to Washington sent to him 
 the following letter : 
 
 '* Washington, May 5th, 1830. 
 ''Since my return I have conversed witli 
 
 144 
 
THE SILENCE OF 'MADISON 
 
 Mr. Adams concerning Charles Pinckney's 
 draught of a constitution. He says it was fur- 
 nished by Mr. Pinckney, and that he has never 
 been able to hear of another copy. It was 
 accompanied by a long letter (written in 1819) 
 now in the Department of State, in which Mr. 
 Pinckney claims to himself great merit for 
 the part he took in framing the constitution. 
 A copy of this letter may doubtless be pro- 
 cured from Mr. Brent, should you desire to 
 see it. Mr. Adams mentioned the draught 
 once to Mr. Eufus King, who said he remem- 
 bered such a draught, but that it went to a 
 committee with other papers, and was never 
 heard of afterwards. Mr. King's views of 
 the subject, as far as I could collect them from 
 Mr. Adams, were precisely such as you ex- 
 pressed.'' 
 
 Here it may be noted that what Mr. Adams 
 heard from Mr. King is recorded in his 
 Memoirs, May 4, 1830, Vol. VIII, p. 225. It 
 is only what Sparks reported to Madison. 
 Mr. King had not seen the draught, and had 
 not heard any one narrate what its provisions 
 were. Indeed his doubts and suspicions seem 
 
 145 
 
THE PINCKNEY DEAUGHT 
 
 to have been founded on no other fact than 
 that he did not hear it talked about. Like 
 Madison, he was a witness who could testify 
 to nothing, not even to hearsay. 
 
 On the 24th of May, 1831, Mr. Sparks, who 
 was then at work on his life of Gouveneur 
 Morris, again wrote to Madison. 
 
 ''Boston, May 24, 1831. 
 ''In touching on the Convention, I shall 
 state the matter relating to Mr. Pinckney's 
 draught, as I have heard it from yon, and 
 from Mr. Adams as reported to him by Mr. 
 King. Justice and truth seem to me to re- 
 quire this exposition. I shall write to Charles- 
 ton, and endeavor to have the draught in- 
 spected, which was left by Mr. Pinckney. 
 Your explanation, that he probably added par- 
 ticulars as they arose in debate, and at last 
 forgot which was original and what super- 
 added, is the only plausible way of accounting 
 for the mystery, and it may pass for what it is 
 worth. Should anything occur to you, which 
 you may think proper to communicate to me 
 on the subject, I shall be well pleased to re- 
 ceive if 
 
 146 
 
THE SILENCE OF MADISON 
 
 Madison felt so solicitous about the inquiry 
 in Charleston that on the 21st of June he 
 wrote to Sparks, asking to be informed of the 
 result ''as soon as it is ascertained." 
 
 But on the 16th of June Sparks had written 
 to Madison the following letter which could 
 not have reached him when he wrote on the 
 21st. 
 
 '' Boston, June 16th, 1831. 
 
 ''I have procured from the Department of 
 State a copy of the letter from Mr. Charles 
 Pinckney to Mr. Adams, when he sent his 
 draught for publication. This letter is so 
 conclusive on the subject that I do not think it 
 necessary to make any further inquiry. It is 
 evident, that the draught, which he forwarded, 
 was a compilation made at the time from loose 
 sketches and notes. The letter should have 
 been printed in connexion with the draught. I 
 imagine Mr. Pinckney expected it. He does 
 not pretend that this draught was absolutely 
 the one he handed into the Convention. He 
 only 'believes' it was the one, but is not cer- 
 tain. 
 
 "Should you have leisure, I beg you will 
 favor me with your views of this letter. It 
 
 147 
 
THE PINCKNEY DRAUGHT 
 
 tonclies npon several matters respecting the 
 history and progress of the Convention. Do 
 these accord with yonr recollection? I wonld 
 not weary or trouble yon, but when yon recol- 
 lect that there is no other fountain to which 
 I can go for information, I trust you will par- 
 don my importunity. * ' 
 
 When Sparks wrote his hasty letter of June 
 16th he was evidently writing under two mis- 
 apprehensions. The first was that he sup- 
 posed the question involved was whether the 
 draught on file was an exact copy of the lost 
 original; the second was that its verity de- 
 pended entirely on Pinckney's accompanying 
 letter. To his inquiry what did Madison 
 think of that letter, Madison made no reply. 
 
 But in the course of the next five months 
 Sparks cleared his mind of the above misap- 
 prehensions and freed himself from the 
 authority of Madison's opinion; and his 
 strong and well trained mind analysed the 
 facts involved and grasped the real problem 
 of the case. This analysis and this problem 
 he set clearly before Madison in the following 
 letter. 
 
 148 
 
THE SILENCE OF MADISON 
 
 *'BosToi^, November 14th, 1831. 
 
 ''My mind has got into a new perplexity 
 about Pinckney's Draught of a Constitution. 
 By a rigid comparison of that instrument with 
 a Draught of the Committee reported August 
 6th they are proved to be essentially, and 
 almost identically, the same thing. It is im- 
 possible to resist the conviction, that they 
 proceeded from one and the same source. 
 
 ''This being established, the only questiqn 
 is, whether it originated with the committee, 
 or with Mr. Pinckney, and I confess that 
 judging only from the face of the thing my im- 
 pressions incline to the latter. Here are my 
 reasons. 
 
 ''1. All the papers referred to the commit- 
 tee were Randolph's Eesolutions as amended, 
 and Patterson's Resolutions and Pinckney 's 
 Draught without having been altered or con- 
 sidered. The committee had them in hand 
 nine days. Their Report bears no resem- 
 blance in form to either of the sets of resolu- 
 tions, and contains several important provi- 
 sions not found in either of them. Is it prob- 
 able that they would have deserted these, 
 particularly the former, which had been exam- 
 
 149 
 
THE PINCKNEY DEAUGHT 
 
 ined seriatim in the convention, and struck ont 
 an entirely new scheme (in its form) of which 
 no hints had been given in the debates? 
 
 ^^2. The language and arrangement of the 
 Eeport are an improvement upon Pinckney's 
 Draught. Negligent expressions are correct- 
 ed, words changed and sentences broken for 
 the better. In short, I think any person ex- 
 amining the two for the first time, without a 
 knowledge of circumstances, or of the bearing 
 of the question, would pronounce the Com- 
 mittee's Eeport to be a copy of the Draught, 
 with amendments in style, and a few unim- 
 portant additions. 
 
 **3. If this conclusion be not sound, it will 
 follow that Mr. Pinckney sketched his draught 
 from the Committee's Eeport, and in so artful 
 a manner as to make it seem the original, a 
 suspicion I suppose not to be admitted against 
 a member of the Convention for forming the 
 Constitution of the United States. 
 
 ^^ Will you have the goodness to let me know 
 your opinion ? If I am running upon a wrong 
 track I should be glad to get out of it, for I 
 Rke not devious ways, and would fain have 
 light rather than darkness. 
 
 150 
 
THE SILENCE OF MADISON 
 *'P. S.—You may be assured, Sir, that I 
 have no intention of printing anything on this 
 subject, nor of using your authority in any 
 manner respecting it. I am aware of the deli- 
 cate situation in which such a step would 
 place you, and you may rely upon my discre- 
 tion. I am greatly puzzled, however, in 
 respect to the extraordinary coincidence be- 
 tween the two draughts. Notwithstanding 
 my reasons above given, I cannot account for 
 the committee's following any draught so 
 servilely, especially with Kandolph's Eesolu- 
 tions before them, and Randolph himself one 
 of their number. — I doubt whether any clear 
 light can be gained, till Pinckney's original 
 draught shall be found, which is probably 
 among the papers of one of the committee. It 
 seems to me that your secretary of the conven- 
 tion was a very stupid secretary, not to take 
 care of these things better, and to make a bet- 
 ter Journal than the dry bones that now go by 
 that name.'' 
 
 This letter set forth the real elements of the 
 case, elements incontrovertible and absolutely 
 certain — that Pinckney's draught was re- 
 
 151 
 
THE PINCKNEY DRAUGHT 
 
 f erred to the Committee of Detail ; that it was 
 never considered in the Convention; that the 
 period within which the Committee framed 
 their draught was a brief one; that the Com- 
 mittee 's draught bears no resemblance in form 
 to the resolutions of the Convention and con- 
 tains provisions not found in them; that the 
 Committee so departed from the resolutions, 
 though Randolph himself was one of their 
 number, and struck out an entirely new 
 scheme in form of which no hint had been 
 given in the debates and that the Committee's 
 draught in form, language and arrangement 
 appears to be a copy of Pinckney's with 
 amendments and additions. 
 
 From these sure premises Sparks deduced 
 two alternative conclusions ; ' * I think any per- 
 son examining the two [draughts] for the first 
 time without a knowledge of the circumstances 
 or of the bearing of the question would pro- 
 nounce the Committee's report to be a copy of 
 the draught with amendments in style and a 
 few unimportant additions," ^^or that Mr. 
 Pincliuey sketched his draught from the Com- 
 mittee^ s^ and in so artful a manner as to make 
 it seem the original, a suspicion I suppose not 
 
 152 
 
THE SILENCE OF MADISON 
 
 to be admitted against a member of the con- 
 vention/' 
 
 In the second clause of the latter alterna- 
 tive Sparks with admirable sagacity applied 
 the most delicate test that could be applied 
 to the matter. He brings the dilemma down 
 to this : The Committee must have used Pinck- 
 ney's draught or Pinckney must have sketched 
 his draught from the Committee's; and more 
 than that, he must have sketched it ^^in so 
 artful a manner as to 7nake it seem the 
 original/' 
 
 When one instrument is fashioned after an- 
 other the natural and even unconscious action 
 of the mind is to correct and improve. It is 
 a going forward toward a desirable result. 
 To fashion the second instrument after the 
 first but in such a manner that in many details 
 there would be an unfailing inferiority would 
 be a going backward. This . inferiority in 
 detail runs through the Pinckney draught as 
 has repeatedly been shown before. When 
 Sparks wrote the word ''artful" he used the 
 right word, the word which controlled the situ- 
 ation — ''in so artful a manner as to make it 
 seem the original" most accurately defines 
 
 153 
 
THE PINCKNEY DEAUGHT 
 
 what Pinckney did in Charleston in 1818 if he 
 then fabricated a new draught. 
 
 Of course such a fabrication was possible 
 but it would have required a literary forger 
 with a genius for literary forgery to have 
 taken the Committee's draught and given 
 these artless imperfections — these delicate 
 touches of inferiority to the copy for the State 
 Department. 
 
 To the specific charge that Pinckney must 
 have sketched his draught '4n so artful a 
 manner as to make it seem the original'' if it 
 was not what he had represented it to be, 
 Madison made no reply. Sparks had nar- 
 rowed the issue to this, '*Did the Committee 
 follow Pinckney 's draught or did Pinckney 
 use the Committee's?" But Madison evaded 
 the issue. Sparks had shown that the Com- 
 mittee did not confine themselves to results 
 arrived at after discussion in the Convention; 
 but that they had incorporated in their 
 draught * important provisions not found in 
 either" set of resolutions, and he called Madi- 
 son's attention *^to the extraordinary coinci- 
 dence l)etween the two draughts;" and he 
 added that he could not ^ * account for the Com- 
 
 154 
 
THE SILENCE OF MADISON 
 
 mittee following any draught so servilely, es- 
 pecially with Eandolph's resolutions before 
 them, and Eandolph himself one of their 
 number." It was for Madison then to meet 
 this issue and show definitely where the Com- 
 mittee got the many new provisions of their 
 draught, important and unimportant, if 
 they did not get them from the Pinckney 
 draught. 
 
 On the 25th of November, 1831, Madison re- 
 plied at length to Sparks' letter but he said 
 not a word about the draught of the Commit- 
 tee or of Pinckney 's letter to the Secretary of 
 State. His answer was in effect, ^^Impos- 
 sible!" 
 
 Sparks did not acknowledge the receipt of 
 the letter until the 17th of January, 1832, and 
 then the acknowledgment was called out by a 
 letter from Madison of January 7th. He 
 yielded a reluctant assent, manifestly in def- 
 erence to Madison, that ''this letter seems to 
 me conclusive, but" (he immediately adds), ''I 
 am still a good deal at a loss about the first 
 draught of the Committee. The history of 
 the composition of the draught would be a 
 curious item in the proceedings of the Conven- 
 
 155 
 
THE PINCKNEY DEAUGHT 
 
 tion.'' Here Sparks again put his finger on 
 one of the things that needed explanation, 
 *^the composition of the draught." His sa- 
 gacious mind grasped the fact that the struc- 
 ture of the draught of the Constitution — of 
 the Constitution itself, would indeed be a 
 ** curious item in the proceedings of the Con- 
 vention." It was original work in style, 
 order, details and arrangement; **a curious 
 item" indeed! Whose was the hand that 
 sketched it? When Sparks was so near the 
 end of the matter and on the path which led to 
 the end, it seems almost incredible that he did 
 not take one step forward. If he had he 
 would have solved the problem and dispelled 
 the mystery. 
 
 Madison's letter of November 25th seems 
 to have been written for posterity as well as 
 for the man to whom it was sent. Its untold 
 object manifestly was to divert attention from 
 the draught of the Committee and to direct 
 comparison to the Constitution itself. Three 
 years later in his letter to Judge Duer he 
 reiterated what he had said to Sparks, and 
 again he said nothing upon the point which 
 Sparks had plainly placed before him. Final- 
 
 156 
 
THE SILENCE OF MADISON 
 
 ly when he prepared his Note to the Plan, he 
 for a third time, was silent on the primary 
 issue in the case, Did the Committee follow 
 Pinckney's draught or did Pinckney surrep- 
 titiously use the Committee's? 
 
 This silence of Madison's is a most curious 
 instance of his sagacious and adroit manage- 
 ment. It was not his business to direct atten- 
 tion to this troublesome final issue and he did 
 not. The ''Note of Mr. Madison to the Plan 
 of Charles Pinckney ' ' would be published ; the 
 letters of Sparks to himself might never see 
 the light. Indeed I can give this tribute to 
 his adroitness — that this book was written in 
 the belief that Madison never knew of Pinck- 
 ney 's letter to the Secretary of State, and 
 that his weakened mind had overlooked the 
 draught of the Committee of Detail; and it 
 was not till the book was finished that I found 
 the letters of Sparks above quoted and was 
 compelled thereby to supply this chapter, and 
 modify what I had elsewhere written. 
 
 157 
 
CHAPTER XI 
 
 THE WILSON AND RANDOLPH DRAUGHTS 
 
 SINCE Madison's time there have been un- 
 covered four papers of which he knew 
 nothing, and they bring ns into an almost new 
 field of inquiry. These papers are in the 
 handwriting of James Wilson, Edmund Ran- 
 dolph and John Rutledge (all members of the 
 Committee of Detail) and they are draughts 
 (or sketches for draughts) of the Constitu- 
 tion. 
 
 The first paper, chronologically, is not a 
 draught. It was discovered by Professor Mc- 
 Laughlin and was published by him in the 
 Nation of April 28, 1904, and is among the 
 Wilson papers in the library of the Historical 
 Society of Pennsylvania. It is in Wilson's 
 hand and was found among his papers ; but if 
 it was drawn up by him, of which I do not 
 feel sure, it is questionable whether it was 
 prepared by him for the Convention of 1787 ; 
 and it is unquestionable that it was prepared 
 
 158 
 
WILSON AND EANDOLPH DRAUGHTS 
 before the adoption of the 23 resolutions. A 
 single article, or item of the paper will dem^ 
 onstrate this and its worthlessness. 
 
 ''20. Means of enforcing and compelling 
 the Payment of the Qnota of each State/' 
 
 This is all that there is concerning the rock 
 upon which the Confederation was already 
 wrecked — the dependence of the general gov- 
 ernment upon the voluntary action of the State 
 governments for revenue. Wilson in 1787 was 
 too intelligent a statesman to even think of re- 
 taining this condition of national dependency, 
 and he was too wise a man to talk of ' ^ enforc- 
 ing and compelling" the several States to con- 
 tribute to the national treasury. He may 
 have prepared the paper some time before the 
 Convention was called, when amendments to 
 the Articles of Confederation were all that 
 was anticipated, but he did not draw up this 
 memorandum after he had become a member 
 of the Committee of Detail. 
 
 The second paper in Wilson's hand was dis- 
 covered by Professor Jameson among the 
 Wilson papers, and was published by him in 
 
 159 
 
THE PINCKNEY DRAUGHT 
 
 the Animal Report of the Historical Associa- 
 tion, 1902, Vol. I., p. 151. This paper contains 
 the preamble of the Pinckney draught, and, 
 consequently, of the draught of the Committee. 
 Then follow the first three articles of the 
 Committee's draught, with some slight varia- 
 tions of language ; and then under the caption 
 of what should be article 4, come 29 para- 
 graphs containing provisions closely agree- 
 ing with provisions in the Committee's but 
 unarranged and incoherent in their order. 
 The second sheet of this draught is unfor- 
 tunately missing; the third sheet contains 
 various provisions, following closely the 
 17th, 18th, 19th, 20th and 21st resolutions, 
 and, near the end of the paper, the provision 
 relating to the veto power taken from the con- 
 stitution of Massachusetts with the term 
 ^ ^ Governour of the United States ' ' twice used. 
 The third paper of Wilson was likewise dis- 
 covered by Professor Jameson. Wilson had 
 prepared the second draught for himself, 
 but this third or final draught manifestly was 
 prepared for the consideration of the other 
 members of the Committee. He wrote it on 
 lars^e foolscap in what is called double col- 
 
 160 
 
WILSON AND RANDOLPH DRAUGHTS 
 
 umns, L e, half of each page was left blank for 
 the comments and suggestions and amend- 
 ments of the others. The writing is in the 
 clear, neat, legible hand, characteristic of Wil- 
 son, and before the work of revision began, 
 there was hardly a clerical error in the paper. 
 A remarkable contrast is stamped upon it con- 
 sisting of 43 amendments in the scrawly, slov- 
 enly, bold, illegible writing of Rutledge, who 
 really seems to have found pleasure in cutting 
 and slashing the careful work, the almost fem- 
 inine neatness and niceness of Wilson's pages. 
 This draught unlike the second, is divided into 
 articles, but unlike the Committee's, is not 
 subdivided into sections. 
 
 The fourth of these recently discovered 
 papers is in the handwriting of Edmund 
 Randolph. Mr. William M. Meigs in his 
 Growth of the Constitution has done an ex- 
 cellent piece of historical work in reproducing 
 the draught of Randolph in facsimile. In 
 its interlineations, erasures, changes, omis- 
 sions and marginal queries we see Randolph's 
 doubts and perplexities and the incomplete- 
 ness of his plan and the limitations of his 
 mental view of a draught ; and we see this as 
 
 161 
 
THE PINCKNEY DEAUGHT 
 
 distinctly as if we stood beside him wMle lie 
 wrote. A more disheveled paper was never 
 reproduced in facsimile. Upon its margin 
 are annotations and suggestions of omitted 
 provisions which are in the hand of Eutledge. 
 One thing, most meritorious, appears — that 
 Eandolph carefully and conscientiously went 
 through the 23 resolutions and neglected no 
 instruction which they gave. But the chief 
 question remains unexplained as Sparks left 
 it. How came the Committee of Detail to 
 wander so far from the resolutions '^with the 
 resolutions before them and Eandolph himself 
 one of their number''? 
 
 The draught of Eandolph begins in this 
 way: 
 
 *^In the draught of a fundamental consti- 
 tution two things deserve attention: 
 
 *^1. To insert essential principles only, lest 
 the operations of government should be 
 clogged by rendering those provisions perma- 
 nent and unalterable which ought to be accom- 
 modated to times and events, and 
 
 * ^ 2. To use simple and precise language and 
 general propositions according to the example 
 
 162 
 
WILSON AND RANDOLPH DRAUGHTS 
 
 of the constitutions of the several States." 
 Randolph then considers the subject of a 
 preamble and sets forth a brief disquisition to 
 show that a preamble is proper and what it 
 should contain. ^^We are not working,'' he 
 says, '^on the natural rights of men not yet 
 gathered into society, but upon the rights 
 modified by society and interwoven with what 
 we call the rights of States." He outlines 
 what the preamble should set forth ; his views 
 are sound, but his intended preamble is not the 
 preamble reported by the Committee of De- 
 tail. 
 
 There is a curious provision in his draught 
 relating to the compensation of Senators: 
 *^The wages of Senators shall be paid out of 
 the treasury of the United States ; those wages 
 
 for the first six years shall be dollars per 
 
 diem. At the beginning of every sixth year 
 after the first the supreme judiciary shall 
 cause a special jury of the most respectable 
 merchants and farmers to be summoned to de- 
 clare what shall have been the averaged value 
 of wheat during the last six years, in the State 
 where the legislature 3hall be sitting; and for 
 
 163 
 
THE PINCKNEY DEAUGHT 
 
 the six subsequent years, the Senators shall 
 
 receive per diem the averaged value of 
 
 bushels of wheat. ' ' 
 
 This extraordinary provision for the benefit 
 of Senators only illustrates the crudity of 
 Eandolph's intentions at the time and the in- 
 completeness of his plan. 
 
 The annotations of Eutledge are few but 
 they are valuable for they authenticate the 
 paper ; they prove it was the very paper upon 
 which Eandolph and Eutledge worked; and 
 that it was all which they had then prepared 
 toward a draught of the Constitution. 
 
 These draughts of Eandolph and Wilson 
 disclose another fact of unusual interest. 
 When the Eandolph draught was found bear- 
 ing the annotations of Eutledge, it suggested 
 the idea that the two Southern members of 
 the Committee of Detail had put their heads 
 together to draught a constitution which 
 would be accepted at the South, and that prob- 
 ably the three Northern members had pre- 
 pared another which would be accepted at the 
 North. But the final draught of Wilson dis- 
 pels that illusion. We now know that Eut- 
 ledge gave quite as much attention to the Wil- 
 
 164 
 
WILSON AND EANDOLPH DRAUGHTS 
 
 son draught as to the Randolph draught, and 
 that he wrote many more amendments upon 
 its margin. Nothing has been discovered to 
 show that Ellsworth and Gorham even at- 
 tempted to draught a constitution; and after 
 finding that the other members used and util- 
 ized and amended the Pinckney draught we 
 know that there was nothing left for Ellsworth 
 and Gorham to draught. They were not con- 
 structive men in the Convention, though being 
 critically minded they may have rendered 
 good service in the way of revision, but they 
 contributed nothing to the draught of the 
 Committee. Every provision in it is traceable 
 to Pinckney, Wilson, Randolph and Rutledge, 
 and they were its authors. 
 
 The second and third draughts of Wilson 
 appear in neatness and completeness to be 
 copies. There is nothing indicative in them 
 of an author's perturbations. The writing is 
 small and finished. If it were not known to 
 be Wilson's hand one could easily believe it to 
 be that of a secretary, giving good work for 
 wages, undisturbed by the cross currents of 
 thought and composition. But on the back of 
 a sheet of the second draught is a paragraph 
 
 165 
 
THE PINCKNEY DRAUGHT 
 
 which is unmistakably a rough draught, which 
 is unquestionably author's work, warped and 
 altered in the uncertainties of construction 
 and composition; and this piece of work is a 
 preamble. 
 
 As first written, before erasures and inter- 
 lineations Degan, it stood as follows: 
 
 *'We the people of the States of New Hamp- 
 shire etc. do agree upon ordain and establish 
 the following Frame of Government as the 
 Constitution of the United States of Amer- 
 ica according to which we and our Posterity 
 shall be governed under the Name and Stile 
 of the United States of America." 
 
 "Wilson then amplified the first part of this 
 draught, and the amplifications well illustrate 
 the bent of his mind toward details and par- 
 ticulars ; and he next reduced it by omitting the 
 clauses which relate to the government of our- 
 selves and our posterity, and to the '^Name 
 and Stile ' ' of the future nation so that it reads 
 as follows: 
 
 ''We the People of the States of New Hamp- 
 shire etc. already confederated under and 
 
 166 
 
WILSON AND RANDOLPH DRAUGHTS 
 known by the Stile of the United States of 
 America do ordain declare and establish the 
 following Frame of Government as the Con- 
 stitution of the said United States." 
 
 Neither of these versions is the preamble re- 
 ported by the Committee. Each lacks the 
 bold simplicity and comprehensiveness and di- 
 rectness of Pinckney's: ^^We the People of 
 New Hampshire'' etc. ^'do ordain declare and 
 establish the following Constitution for the 
 government of ourselves and posterity." 
 
 The preamble is in words and structure a 
 small thing. Two persons having the tasks 
 set them of preparing a preamble with that 
 of Massachusetts before them as material out 
 of which each should be made, could hardly 
 avoid, one would think, evolving out of it two 
 sentences which would be in terms almost 
 identical. But even in this small thing the 
 different traits and methods and style of the 
 two men appear. Pinckney takes the Massa- 
 chusetts preamble and reduces it until he gets 
 what he wants without a superfluous word. 
 Wilson cannot resist amplifying even while he 
 is condensing. When we get through with 
 
 167 
 
THE PINCKNEY OEAUGHT 
 
 what is unqiiestionably Wilson's work, the 
 preamble for the Committee remained to be 
 written — unless it was already written in the 
 Pinckney draught. 
 
 In the investigation of the charges of Madi- 
 son against Pinckney it was found that when- 
 ever the evidence was subjected to a rigorous 
 examination the case broke down. These 
 draughts of Wilson and Eandolph though not 
 intended as a charge against Pinckney may be 
 treated as such — the charge of appropriating 
 Wilson's work and representing it to be his 
 own. Accordingly I have in like manner, ex- 
 amined the evidence and have again found 
 that it does not sustain the charge. A few il- 
 lustrations will make this plain. 
 
 The preamble in the Committee's draught is 
 in Wilson's, word for word. When we find 
 that this preamble is in the preliminary 
 draught of Wilson (a member of the commit- 
 tee), and in the finished product (the draught 
 of the committee), we easily infer that Wilson 
 was the author, the originator of the preamble, 
 and when we find that the same preamble is in 
 the draught of Pinckney and know that he 
 possessed a copy of the Committee's draught 
 
 168 
 
WILSON AND EANDOLPH DRAUGHTS 
 
 we are in danger of taking another step on the 
 pathway of assumption and reaching the con- 
 clusion that Pinckney must have taken his 
 preamble from the Committee's draught. 
 This makes a case against Pinckney which is 
 entitled to explanation or examination. 
 
 The preamble to the Constitution of the 
 United States was suggested by the Articles 
 of Confederation and the constitutions of 
 eleven of the thirteen States. Its language 
 was taken by Pinckney or by Wilson, or by 
 both, from the Constitution of Massachusetts 
 by much condensing. Wilson's draught is 
 identical in terms with Pinckney 's save for the 
 insertion of a single word, *^our," in the last 
 line; ^^for the government of ourselves and 
 our posterity." 
 
 This word ^^our" is here a word of limita- 
 tion, a word which taken literally would con- 
 fine the blessings and government of the Con- 
 stitution to the men who made it and their pos- 
 terity. But at the time when these early con- 
 stitutions were framed the growth of the 
 country it was foreseen would depend chiefly 
 on immigration. The Constitution of Massa- 
 chusetts does not use the word ''citizen," and 
 
 169 
 
THE PINCKNEY DEAUGHT 
 
 throws the door of the elective franchise open 
 to *' every male person" ^^ resident in any par- 
 ticular town'' and to ^^the inhabitants of each 
 town." '*And to remove all donbts concern- 
 ing the meaning of the word inhabitant' in 
 this constitution, every person shall be con- 
 sidered as an inhabitant, for the purpose of 
 electing and being elected into any office or 
 place within the State in that town, district or 
 plantation where he dwelleth or has his home." 
 The draughtsmen of the Massachusetts Con- 
 stitution therefore with logical exactitude, left 
 the word ''posterity" unrestricted, and broad 
 enough to extend to the posterity of all men 
 who thereafter might become inhabitants 
 within the State. 
 
 Two things must now be noted. The first 
 is that every word in Pinckney's preamble, 
 save one, was taken from the preamble of the 
 constitution of Massachusetts; the second, 
 that Pinckney's draught adheres to the un- 
 restricted ''posterity" of the constitution, and 
 does not follow the restricted "posterity" of 
 the Wilson draught. The charge that Pinck- 
 ney's preamble was "necessarily" derived 
 from the Committee's draught is therefore 
 
 170 
 
WILSON AND EANDOLPH DRAUGHTS 
 
 doubly refuted. There was a source to which 
 Pinckney could go for his preamble, the con- 
 stitution of Massachusetts, and he went there ; 
 there was a deviation from the constitution of 
 Massachusetts in the Wilson draught, and 
 Pinckney did not follow it. 
 
 Wilson probably inserted the word '^our," 
 in his preamble for a rhetorical reason ; for he 
 was one of the signers of an instrument which 
 rang with its own concluding words **our 
 
 LIVES, OUR FORTUNES AND OUR SACRED HONOR. ' ' 
 
 The insertion of one word (our) in one of 
 these preambles is a slender strand of cir- 
 cumstantial evidence. But circumstantial evi- 
 dence is made up generally of slender strands ; 
 and circumstantial evidence is least suspicious 
 when the strands are severally insignificant. 
 With the Declaration of Independence and the 
 Articles of Confederation and eleven of the 
 State constitutions containing preambles, it 
 is inconceivable that Pinckney would have 
 framed his draught without a preamble ; and 
 if Pinckney framed the preamble, as he must 
 have done, it is inconceivable that he would 
 have thrown it aside in 1818 and substituted 
 another man's, for he was never ashamed of 
 
 171 
 
THE PINCKNEY DEAUGHT 
 
 his own work. And it mnst be taken as a 
 fixed fact that Pinckney had a preamble, for 
 the structure of the draught required it; the 
 first article would be meaningless without one, 
 *^The stile of this government — the govern- 
 ment announced in the preamble. Therefore 
 having the necessity of a preamble, and the 
 production of one in 1818, and the strict ad- 
 herence in words and intent to the consti- 
 tution of Massachusetts and Pinckney 's famil- 
 iarity with that constitution, the severally 
 slender strands become a cord of circumstan- 
 tial evidence which must satisfy an unpre- 
 judiced mind that Pinckney was the author of 
 the preamble in his draught. There are too 
 many clews here to be disregarded, and they 
 all lead one way. The unquestionable sketches 
 of a preamble in Wilson's and Eandolph's 
 handwriting show only three attempts and 
 three failures. 
 
 Let us now consider a second illustrative 
 case : 
 
 As we have seen in a previous chapter 
 (Chap. XI) the 3d of the 23 resolutions de- 
 clared that the members of the House of Eep- 
 resentatives ^ * ought ' ' to receive an adequate 
 
 172 
 
WILSON AND RANDOLPH DRAUGHTS 
 compensation for their services; and the 4th 
 resolution, that the members of the Senate 
 ''ought'' ''to receive a compensation for the 
 devotion of their time to the public service." 
 The term "adequate'' implied and required 
 the exercise of some discretionary power, 
 which must necessarily be national. For if 
 Senators and Representatives were to be paid 
 by the States which sent them to Congress, the 
 members of Congress could not well turn 
 around and dictate to the States what they 
 should be paid. This was understood at 
 the time. For on the 22d and 26th of June 
 when the Convention refused to retain the 
 words "to be paid out of the National Treas- 
 ury" in the 3d resolution, "Massachusetts 
 concurred" as Madison says, "not because 
 they thought the State Treasury ought to be 
 substituted; but because they thought nothing 
 should be said on the subject, in which case 
 it wd. silently devolve on the Nat. Treasury 
 to support the National Legislature." 
 
 Furthermore this thing was not done in a 
 corner and the consideration of it was not 
 confined to an hour. On the 12th of June the 
 Committee of the Whole had resolved that the 
 
 173 
 
THE PINCKNEY DRAUGHT 
 
 Representatives in Congress ^^ ought to be 
 paid out of the National Treasury, ' ' and again 
 on the same day that Senators ** ought'' **to 
 be paid out of the National Treasury"; and 
 on the 13th of June the committee had voted 
 to report these resolutions to the Convention; 
 and on the 22d of June the Convention had re- 
 fused to change this to payment by the States. 
 Moreover the proposition that members be 
 paid by the States had been condemned by the 
 strongest men in the Convention. ^* Those 
 who pay are the masters of those who are 
 paid, ' ' Hamilton had said ; and Gorham, Ran- 
 dolph, King, Wilson, and Madison had said 
 as much. 
 
 Nevertheless the Committee of Detail re- 
 ported a provision that the members should be 
 paid by the States; and, not only this, but 
 also, that the compensation should be ^^ascer- 
 tained" ^'by the State in which they shall be 
 chosen." , 
 
 The only reason for or explanation of the 
 Committee's act so far as we know is that 
 working hurriedly, they overlooked one of the 
 details of the 3d and 4th resolution, and, using 
 Pinckney's draught as their copy, inadver- 
 
 174 
 
WILSON AND RANDOLPH DRAUGHTS 
 
 tently allowed this provision of Ms to stand 
 unchanged. 
 
 In these newly found papers of "Wilson this 
 provision making the compensation of the 
 national legislators dependent npon the action 
 of the State legislators appears just as it 
 stands in the draught of the Committee of De- 
 tail. Did "Wilson originate this or did he get 
 it from the Pinckney draught! 
 
 There is good reason for believing that such 
 a provision would be found in Pinckney 's 
 draught. On the 22nd of June when the 
 clause of the 3d resolution declaring that mem- 
 bers ^^ ought'' to be paid out of the public 
 treasury" had been advocated by some of the 
 strongest men in the Convention, and the Con- 
 vention apparently were about to adopt it, 
 their immediate action was blocked by South 
 Carolina; ^^The determination of the House 
 on the whole proposition was, on motion of 
 the Deputies of the State of South Carolina, 
 postponed until to-morrow," says the Journal. 
 A State had this right under the Rules of the 
 Convention, and the Deputies of South Caro- 
 lina exercised it, Pinckney being one of them. 
 On the following day they succeeded in defeat- 
 
 175 
 
THE PINCKNEY DRAUGHT 
 
 ing the adoption of the clause. On the 26th of 
 June General Pinckney ^^ proposed that no 
 salary should be allowed'' to Senators. '^This 
 branch" he said *^was meant to represent 
 wealth ; it ought to be composed of persons of 
 wealth." And '^on the question for payment 
 of the Senate to be left to the States" South 
 Carolina voted V^aye." 
 
 But there is no good reason why we might 
 expect to find this provision in Wilson's 
 draught. The resolutions did not so direct; 
 and there had not been a single vote of the 
 Convention which committed this matter of 
 compensation to the States; and "Wilson's per- 
 sonal bias could not have misled him for he 
 condemned it. On the 22nd of June he had said 
 in the Convention that '^he thought it of great 
 moment that the members of the National 
 Government should be left as independent as 
 possible of the State Governments in all re- 
 spects," and during the same debate he had 
 moved that the salaries of the 1st branch ^^be 
 ascertained by the National Legislature." 
 The explanation is that Wilson working with 
 Pinckney 's draught before him gave his at- 
 
 176 
 
WILSON AND EANDOLPH DEAUGHTS 
 tention to improving its phraseology ; and that 
 the other members of the Committee confiding 
 in Wilson's scrupulous carefulness and par- 
 ticularity overlooked his mistake. 
 
 We have before us a third illustration : 
 
 The Constitution of New York provided, 
 ^'The supreme legislative power within this 
 State shall be vested in two separate and dis- 
 tinct bodies of men; the one to be called the 
 Assembly of the State of New York ; the other 
 to be called the Senate of the State of New 
 York ; who together shall form the legislature, 
 and meet once at least in every year for the 
 despatch of business." 
 
 The draught of Pinckney varies slightly; 
 *^The legislative power shall be vested in a 
 Congress, to consist of two separate houses; 
 one to be called the house of Delegates; and 
 the other the Senate, who shall meet on the — 
 day of — ' — in every year. ' ' 
 
 The draught of Wilson also follows this 
 with little variation: 
 
 ''The Legislative power of the United States 
 shall be vested in two separate and distinct 
 Bodies of Men, the one to be called the House 
 
 177 
 
THE PINCKNEY DEAUGHT 
 
 of Eepresentatives of the People of the United 
 States, the other the Senate of the United 
 States. '^ 
 
 So far we have in these three instruments 
 the same earmark: ^Hhe one to be called the 
 Assembly of the State of New York ; the other 
 to be called the Senate." '^One to be called the 
 House of Delegates and the other the Senate.'' 
 * ^ The one to be called the Honse of Eepresen- 
 tatives, the other the Senate.'' But the 
 draught of the Committee of Detail departs 
 both in words and structure from this form: 
 '^The Legislative Power shall be vested in a 
 Congress to consist of two separate and dis- 
 tinct bodies of men, a House of Eepresenta- 
 tives and a Senate; each of which shall in all 
 cases have a negative upon the other." 
 
 Here it was possible that Wilson followed 
 the Pinckney draught, which was in his pos- 
 session, but it was not possible that Pinckney 
 copied Wilson's draught which was then un- 
 published and unknown. The words that 
 Pinckney and Wilson both used, '4he one to 
 be called the House, the other the Senate" 
 are clews which lead from Pinckney directly 
 to the Constitution of New York. The Com- 
 
 178 
 
WILSON AND RANDOLPH DEAUGHTS 
 
 mittee changed the words and changed the 
 structure of the sentence and thereby rendered 
 it certain that Pinckney did not derive his 
 provision from their draught. 
 
 Let us take another illustrative case: 
 Luther Martin's resolution of July 17th 
 provided, ^^The legislative acts of the United 
 States" ''and all treaties'' ''shall be the su- 
 preme law of the respective States." (The 
 7th of the 23 resolutions.) Article VIII. of 
 the draught of the Committee of Detail varied 
 the phraseology in one word "shall be the 
 supreme law of the several States." The com- 
 mittee of Style gave us the provision as it 
 stands in the Constitution: (Art. VL) "This 
 Constitution and the Laws of the United 
 States which shall be made in pursuance 
 thereof; and all treaties which shall be made 
 under the Authority of the United States shall 
 be the supreme law of the land," 
 
 Turning back from the Constitution to 
 Pinckney 's draught, avowedly drawn up be- 
 fore the work of the Convention had even be- 
 gun, we find in his Artivle VI. "All acts made 
 by the legislature of the United States pur- 
 suant to this Constitution, and all treaties 
 
 179 
 
THE PINCKNEY DRAUGHT 
 
 made under the authority of the United States 
 shall be the supreme law of the land. ' ' 
 
 This assuredly seems to be an instance 
 which confirms Madison; that is to say an in- 
 stance where as Madison said there are to be 
 found in the draught in the State Department, 
 'Hhe results of critical discussion and modifi- 
 cation in the Convention/' Must we also add, 
 with Madison ^^ which could not have been an- 
 ticipated"? Moreover if Pinckney obtained 
 this provision by purloining it, he must have 
 taken it from the Constitution itself. The 
 language in his draught apparently involves 
 and combines three distinct acts of the Con- 
 vention; the adoption of the resolution of 
 Martin on the 17th of July ; the acceptance of 
 the Committee 's draught of the 6th of August ; 
 the revision by the Committee of Style, just 
 before the dissolution of the Convention. 
 This makes a dark charge against Pinckney — 
 far darker and more specific than any charge 
 that Madison preferred against him. At first 
 sight it seems as if at last Pinckney was taken 
 in the toils of his own weaving, as if there 
 were no escape for him and that he must be 
 convicted. But the simple explanation is that 
 
 180 
 
WILSON AND EANDOLPH DRAUGHTS 
 
 Pinckney took his provision and its verbiage 
 from the Congress of the Confederated States 
 in the resolution of March 21st 1787. Luther 
 Martin did not adhere to the language of the 
 resolution; and he did not intend to; for his 
 resolution was a compromise, an alternate for 
 a proposed power in Congress to negative the 
 laws of the States, and he intended that his 
 resolution should bear directly and explicitly 
 upon '^the respective States." The subject 
 was one of great importance, of surpassing 
 interest and had but recently been disposed of 
 by compromise in the Convention, and the 
 Committee properly adhered to Martin's reso- 
 lution, correcting only one word by the sub- 
 stitution of another, ^^severaP' for ^^respec- 
 tive, " * ^ shall be the supreme law of the several 
 States.'' 
 
 Pinckney had been a member of the Con- 
 gress when the resolution of March 21st was 
 passed ; he may have draughted it himself ; 
 and certainly it covered a matter in which 
 he was interested above all other things, the 
 supremacy of the National Government. The 
 Committee of Style may have taken the con- 
 cluding phrase from the resolution of Con- 
 
 181 
 
THE PINCKNEY DEAUGHT 
 
 gress or theymay have placed it in the Consti- 
 tution on their own motion; for Trevett v. 
 Weeden had been heard and adjudicated by 
 the Supreme Court of Ehode Island on Sep- 
 tember 25th, 26th, 1786, and the words ''the 
 LAW OF THE land" wcto in the air; and the 
 term had received a judicial significance 
 which has never been adequately appreciated 
 It meant an authority higher than a statute. 
 
 There are three important articles in Wil- 
 son's draught which are not Wilson's. These 
 appear on the margin in the handwriting of 
 Rutledge and answer to article XIV, XV and 
 XVI of the Committee's draught. As they 
 are in almost the precise language of Pinck- 
 ney's articles 12 and 13 the much repeated 
 question again arises, did Rutledge take them 
 from the Pinckney draught ; were they then in 
 the Pinckney draught to be taken; or did 
 Pinckney abstract them from the Committee's 
 draught! The question is easily and deci- 
 sively answered: these articles are described 
 in the Observations; Pinckney' s title to them 
 cannot be questioned; Wilson and Rutledge 
 %ad his draught before them, and iised it, when 
 Rutledge ivrote these articles upon the margin, 
 
 182 
 
WILSON AND EANDOLPH DEAUGHTS 
 
 The veto power was cast by the Convention 
 in their resolutions with those of the Execu- 
 tive. Pinckney had placed it in his draught 
 among the legislative, though he is careful to 
 say in the Observations that the Executive 
 ''is not a branch of the Legislature farther 
 than as a part of the council of revision/' 
 Nevertheless he placed the veto at the end of 
 his article 5 — an article relating to the choos- 
 ing of members of the lower house; to the 
 privileges of Representatives and Senators; 
 to the business proceedings of both houses. 
 Wilson more clearly perceived that the Ameri- 
 can veto would lack the finality of the Le roy, 
 avisera of the Crown, and that it would be 
 neither a legislative nor an executive power 
 though having the properties of both; and he 
 properly made of the veto power an entire and 
 independent article, article 7 of his draught. 
 There were members of the Convention who 
 regarded the veto power as a bulwark against 
 the encroachments of the legislative power; 
 and Wilson himself had said that, ''the Exe- 
 cutive ought to have an absolute negative"; 
 that "without such a self-defence the Legis- 
 lature can at any moment sink it into non- 
 183 
 
THE PINCKNEY DE AUGHT 
 
 existence. ' ' Unquestionably the veto provision 
 ought to have been placed in the Committee's 
 draught as Wilson placed it in his own. But 
 it was not. On the contrary it appears there 
 as it appears in Pinckney's, as an incongruous 
 paragraph at the end of an article which deals 
 with the Plouse of Representatives, with the 
 business of both Houses and with the privi- 
 leges of the members of each. The one thing . 
 certain here is absolutely certain — that the 
 Committee in this did not follow Wilson's 
 draught though it was correct and did follow 
 some other draught though it was incorrect. 
 
 It is comprehensible that if the provision 
 of the veto power had started wrong as it did 
 in Pinckney's draught, it might have con- 
 tinued wrong, and its misplacement might 
 have remained unnoticed; but it is incompre- 
 hensible how the error could have been known 
 to at least the two leading members of the 
 Committee and have been actually and plainly 
 corrected by one of them and the provision 
 then have relapsed into the condition in which 
 Pinckney left it, unless the Committee found 
 about the end say of the seventh day that they 
 must forego either the completion of Wilson's 
 
 184 
 
WILSON AND EANDOLPH DEAUGHTS 
 
 carefully prepared work or their bringing 
 into the convention printed copies for the use 
 of members, and that they then determined 
 to use Pinckney's draught as copy for the 
 printer, letting Wilson work into it, so far as 
 he could, the corrections that he had embodied 
 in his own and the changes which the Commit- 
 tee had agreed upon. The incompleteness 
 with which this was done shows very plainly 
 that toward the end of the ten days the Com- 
 mittee worked in haste. There are too many 
 errors in the draught which would be both in- 
 excusable and inexplicable if the Committee 
 had had ordinary time to do their extraordi- 
 nary work. 
 
 There is a curious omission in Wilson *s 
 draught which indirectly brings to the light 
 the composite authorship of one section of the 
 Constitution. 
 
 In 1777 the punishment of treason had been 
 a delicate subject in the United States more 
 likely to be avoided than discussed. In 1787 
 the members of the Convention had not for- 
 gotten that within a dozen years they had had 
 a personal interest in that subject. Pinckney 
 in article 6 had given Congress twenty-two 
 
 185 
 
THE PINCKNEY DRAUGHT 
 
 specific unrestricted powers but when he came 
 to the power to declare the punishment of 
 treason he paused and defined what treason 
 should consist in and provided that no per- 
 son should be convicted of the restricted 
 crime but by the testimony of two witnesses. 
 He threw all this into a distinct paragraph 
 which ultimately, with additional restrictions, 
 became section 2 of article VII of the Com- 
 mittee's draught. But neither the paragraph 
 of Pinckney nor the section of the Committee 
 is in the draught of Wilson. 
 
 Wilson did not overlook the subject, ^^The 
 Legislature of the United States shall have the 
 power," his draught says, ^^to declare what 
 shall be treason against the United States," 
 and, having attached no restriction to the 
 power, he properly placed it among the speci- 
 fied powers immediately after the one ^'To 
 declare the law and punishment of piracies 
 and felonies committed on the high seas and 
 the punishment of counterfeiting the coin of 
 the United States, and of offences against the 
 law of nations." 
 
 But Rutledge did not consent to this. He 
 and Pinckney seem . to have vaguely feared 
 
 186 
 
WILSON AND EANDOLPH DRAUGHTS 
 
 that the law of treason might yet he admin- 
 istered in the United States by George III 
 and he scrawled with his ruthless hand on the 
 margin of "Wilson's carefully written page, 
 ''Not to work corruption of Blood or Forfeit 
 except during the life of the party"; and Wil- 
 son thereupon erased his own provision and 
 struck it out from among the specific, unre- 
 stricted powers. 
 
 Here the significant fact to be noted is that 
 the words written on the margin of Wilson's 
 draught were not taken from Pinckney's. 
 That is to say the restrictions proposed by 
 Eutledge were additional to those set forth by 
 Pinckney. What Pinckney wrote and what 
 Eutledge wrote and nothing more make the 
 second section of the Committee's draught 
 compounded and rearranged. The material 
 was supplied by Pinckney and Eutledge ; the 
 reconstruction, judging by the careful and log- 
 ical way the work was done was by Wilson: 
 1 the definition of the crime ; 2 the power to 
 punish the crime defined; 3 the restriction 
 upon judicial proceedings, on the testimony 
 of two witnesses ; 4 the restriction upon the re- 
 sult of conviction, that it should not work cor- 
 
 187 
 
THE PINCKNEY DEAUGHT 
 
 ruption of blood, or forfeiture except dur- 
 ing tlie life of the person attainted. It is also to 
 be noted that no draught of this section 2 has 
 been found. For reasons subsequently to be 
 stated (chap. XII) it must be inferred that it 
 was framed on the margin of the Pinckney 
 draught. 
 
 In article 8 of Wilson's draught immedi- 
 ately following his treason clause is this pro- 
 vision : 
 
 ^'To regulate the discipline of the militia of 
 the several States." 
 
 In article 6 of Pinckney 's draught the same 
 power is given: 
 
 ^^To pass laws for arming organizing and 
 disciplining the militia of the United States." 
 
 This grant of power to arm organize and 
 discipline meant that control of State troops 
 should be taken from the States and lodged in 
 the general government. It was a radical de- 
 parture from what had been; a change not 
 countenanced by the Articles of Confedera- 
 tion and not authorized by the 23 resolutions. 
 During the debates no member of the Conven- 
 tion had so much as suggested it ; and on the 
 26th of July when the Convention adjourned 
 
 188 
 
WILSON AND EANDOLPH DRAUGHTS 
 
 to enable the Committee of Detail to draught 
 a constitution, Pinckney alone had ventured to 
 formulate a provision which might alarm the 
 States and arouse the anger and opposition 
 of the militia. He had done so; that we 
 know; it is incontrovertible, for it is specific- 
 ally described in the Observations ^^the ex- 
 clusive right of establishing regulations for 
 the government of the militia of the United 
 States ought certainly to be vested in the Fed- 
 eral Government." 
 
 Yet the Committee of Detail did not think 
 so and they did not report such a provision. 
 Here again it is possible that Wilson took his 
 provision from Pinckney 's draught, but it is 
 not possible that Pinckney took his from 
 Wilson's. 
 
 The draught of Randolph discloses three 
 important pieces of information which tend 
 positively to sustain the Pinckney draught. 
 The first is (in the words of Mr. Meigs) ''that 
 it was drawn up after the Convention had 
 agreed upon the resolutions that were re- 
 ferred to the Committee of Detail on July 
 26th ; and in numerous instances its language 
 is modeled upon them with even verbal ac- 
 
 189 
 
THE PINCKNEY DEAUGHT 
 
 curacy." (Growth of the Constitution, p. 
 318.) Manifestly this draught was not writ- 
 ten- — ^was not even begun, until after Ean- 
 dolph had become a member of the Committee. 
 The writing of it, the revising of it, its numer- 
 ous alterations and corrections, the submis- 
 sion of it to Rutledge, his examination of it 
 and his changes and additions must have taken 
 time. Almost every sentence in it is checked 
 as if it had been compared with some other 
 paper. In a word it indicates that some days 
 must have passed after the 26th of July before 
 Eandolph and Eutledge could have written it, 
 and revised it, and left it in its present form; 
 and it witnesses the important fact that only 
 five or six days before the finished draught of 
 the Committee of Detail was put in the hands 
 of the printer at least two members of the 
 committee were no nearer completion of the 
 work than this disheveled draught. 
 
 The great improbability against the Pinck- 
 ney draught is that one man alone and unas- 
 sisted should have prepared so much of the 
 Constitution. But it is a hundred times more 
 improbable that this Committee unassisted by 
 Pinckney's draught should have prepared and 
 
 190 
 
WILSON AND RANDOLPH DRAUGHTS 
 
 completed their own with all its well se- 
 lected details, with language carefully taken 
 from many sources, and with provisions far in 
 excess of their instructions, than that Pinck- 
 ney should have completed his in his own 
 time (making as he did, four or five versions 
 of it), thoroughly versed, as he was, in the 
 needs and weaknesses of the existing general 
 government and the constitutions of the sev- 
 eral States, and able to confer, as he did, with 
 the ablest statesmen in the country. 
 
 The second thing which the Randolph 
 draught does for us is important and most in- 
 teresting. It enables us to ascertain the fact 
 that the section of the Committee's draught 
 which declares the jurisdiction of the Supreme 
 Court (Art. XI, sec. 3), was the work of three 
 persons ; and the very words which each con- 
 tributed. 
 
 The 16th resolution of the Convention was 
 
 as follows : 
 
 ^^16. Resolved, That the jurisdiction of the 
 national judiciary shall extend to cases aris- 
 ing under laws passed by the general legis- 
 lature, and to such other questions as involve 
 the national peace and harmony." 
 
 191 
 
THE PINCKNEY DRAUGHT 
 
 Eandolph followed the resolution but en- 
 larged the jurisdiction; and Rutledge added 
 two provisions in marginal notes; and their 
 proposed section was as follows : 
 
 ^^The jurisdiction of the supreme tribunal 
 shall extent, 1, to all cases arising under laws 
 passed by the general Legislature; 2, to im- 
 peachments of officers; and 3, to such cases as 
 the national legislature shall assign, as in- 
 volving the national peace and harmony; in 
 the collection of the revenue; in disputes be- 
 tween citizens of different States (here Rut- 
 ledge has added on the margin 4n disputes 
 between a State and a citizen or citizens of 
 other States^); in disputes between different 
 States ; and disputes in which subjects or citi- 
 zens of other countries are concerned (here 
 Rutledge has added 4n cases of admiralty 
 jurisdiction'). But this supreme jurisdiction, 
 shall be appellate only; except in cases of im- 
 peachment and in those instances, in which 
 the Legislature shall make it original ; and the 
 Legislature shall organize it. The whole or a 
 part of the jurisdiction aforesaid, according 
 to the discretion of the legislature, may be as- 
 
 192 
 
WILSON AND RANDOLPH DRAUGHTS 
 
 signed to the inferior tribunals as original 
 tribunals.'^ Meigs, p. 244. 
 
 When we pass to the draught of the Com- 
 mittee of Detail we find that the latter part of 
 this section of Randolph's was adopted, but 
 that the first part was rejected. This rejec- 
 tion however was not a curtailment of juris- 
 diction, but a substitution of other language 
 in the stead of Randolph's. The question 
 therefore which is now presented to us is this, 
 Who contributed the substitute? Who was the 
 author of the first part of the 3d section? 
 
 The corresponding declaration of jurisdic- 
 tion in the Pinckney draught in article 10 con- 
 tains only four subjects of jurisdiction. Each 
 of these was suggested by other provisions of 
 the draught. Article 8 for instance, provides 
 that the President may be removed ''on im- 
 peachment by the House of Delegates and con- 
 viction in the Supreme Court." Article 10 
 accordingly provides that the jurisdiction of 
 the Supreme Court shall extend to ''the trial 
 of impeachment of officers.'' The style is 
 characteristic of Pinckney; clear and terse 
 and yet carelessly expressed. "One of these 
 
 193 
 
THE PINCKNEY DEAUGHT 
 
 courts," he says, '^ shall be termed the Supreme 
 Court, whose jurisdiction shall extend to all 
 cases arising under the laws of the United 
 States, or affecting ambassadors, other public 
 ministers and consuls; to the trial and im- 
 peachment of officers of the United States ; to 
 all cases of admiralty and maritime jurisdic- 
 tion." 
 
 If we now turn to the draught of the Com- 
 mittee we shall find that these lines are the 
 first lines of section 3, and that the two 
 draughts are here identical. They contain the 
 same provisions, arranged in the same se- 
 quence, expressed in the same terms. These 
 lines therefore form the substitute which ap- 
 pears to have displaced the first part of Ean- 
 dolph's section. The two things fit together 
 with precision. 
 
 The significant fact to be noted here is that 
 the Pinckney draught contains the provisions 
 and words which form the apparent substi- 
 tute in the Committee's draught, but contains 
 nothing more. In a word not one of the pro- 
 visions which we now know were prepared 
 by Eandolph and Eutledge are in the Pinckney 
 draught. 
 
 194 
 
WILSON AND RANDOLPH DRAUGHTS 
 
 Four then of the grants of jurisdiction in 
 article XI section 3 of the Committee's draught 
 apparently were taken from the Pinckney 
 draught and the remaining four unquestion- 
 ably were taken from the Randolph draught. 
 The section therefore is composite. 
 
 Wilson's draught here comes into the case 
 enabling us to understand how this combina- 
 tion was brought about. 
 
 Wilson was in effect rewriting the Pinckney 
 draught. Finding the first four subjects of 
 jurisdiction precisely what he wanted, he re- 
 tained them as they were without change or 
 amendment. But they were insufficient. 
 Randolph, Wilson and Rutledge were lawyers 
 in practice who could foresee controversies in 
 the future dual system which Pinckney had 
 not foreseen. Accordingly Wilson took four 
 additional subjects of jurisdiction from Ran- 
 dolph's draught having Rutledge 's amend- 
 ments and with some revising thus brought 
 eight subjects of jurisdiction into his draught 
 which subsequently appeared in the Commit- 
 tee's. 
 
 To say that Pinckney was fraudulently 
 plagiarising from the Committee's draught 31 
 
 195 
 
THE PINCKNEY DEAUGHT 
 
 years afterward and that while so doing he 
 chanced to take one-half of the Committee's 
 subjects of jurisdiction bnt not the other half, 
 and that the half which he chanced to take 
 might very well be his own, and that the half 
 which he did not take chanced, as we now 
 know, to be Eandolph's is to state an absurd- 
 ity. There are too many things here to be 
 ascribed to chance; and each and all of them 
 must have chanced to take place to make out a 
 case of plagiarism against Pinckney. 
 
 The third piece of information which Ean- 
 dolph's draught gives us is in the nature of 
 positive evidence and establishes directly the 
 fact that the Committee recognized Pinckney 's 
 draught and used it. 
 
 Under the heading, ^^The following are the 
 legislative [poivers] with certain exceptions 
 and under certain restrictions/^ Eandolph set 
 forth the powers of Congress, for the most 
 part taken from the Articles of Confederation, 
 ^^To raise money by taxation"; **To make 
 war," etc., etc. After investing the general 
 government with these powers he turned, not 
 illogically, to restrictions which would prevent 
 the States from usurping or denying the pow- 
 
 196 
 
WILSON AND RANDOLPH DEAUGHTS 
 
 ers so granted and placed in his draught the 
 following provision: 
 
 *'A11 laws of a particular State repugnant 
 hereto shall be void; and in the decision 
 thereon, which shall be vested in the supreme 
 judiciary, all incidents without which the gen- 
 eral principle cannot be satisfied shall be con- 
 sidered as involved in the general principle. ' ' 
 
 This section he subsequently cancelled and 
 over it he wrote, ^'Insert the 11 article.'^ 
 
 Where then is this article 11 which would 
 restrict the powers of the States and render 
 their laws, if repugnant to the Constitution, 
 void? 
 
 It cannot be article XI of the Articles of 
 Confederation ; for it provides only for the ad- 
 mission of Canada as one of the States of this 
 Union. It cannot be article XI of the 
 draught of the Committee of Detail for it re- 
 lates only to ^^The judicial power of the 
 United States "> to the judges, to jurisdic- 
 tion; to the trial of criminal offences; and 
 there is not a line which limits the power of a 
 State or declares a statute void. Moreover 
 the restrictions upon the States in the Com- 
 mittee's draught are divided and pkced in two 
 
 197 
 
THE PINCKNEY DRAUGHT 
 
 articles which are numbered XII, XIII. It 
 cannot be Article XI of Wilson's draught for 
 it relates to the powers of the Senate, the 
 power to make treaties, to appoint ambassa- 
 dors and judges, to adjudicate controversies 
 between two or more States, and controver- 
 sies concerning lands claimed under conflict- 
 ing grants from different States, it being ar- 
 ticle IX of the Committee's draught. There 
 is, however, an article 11 which places re- 
 strictions upon the States, and meets the re- 
 quirements of Randolph as exactly as if it had 
 been framed to effect his purpose, and it is 
 article 11 of the Pinckney draught. We know 
 too that it is Pinckney 's own, for it is de- 
 scribed in the Observations. 
 
 With the 11th article in Wilson's draught 
 and the 11th article in the Committee 's failing 
 to respond to the requirements of the refer- 
 ence, and with Pinckney 's article 11 respond- 
 ing fully and exactly to it, there is but one con- 
 clusion left which is that Randolph when he 
 wrote ^^ Insert the 11 article" intended article 
 11 of the Pinckney draught. 
 
 When the fact is established that the Com- 
 mittee of Detail had before them the Pinckney 
 
 198 
 
WILSON AND RANDOLPH DEAUGHTS 
 
 draught and took from it a single excerpt, 
 though of not more than f onr lines, the burden 
 cannot rest on Pinckney to account for 
 identities and resemblances. The onus pro- 
 bandi will then be npon the other side ; and the 
 issue being whether the Committee used the 
 Pinckney draught or Pinckney copied from 
 the Committee's, the presumption must be, un- 
 til the contrary be shown, that all identical 
 provisions in the two draughts originated in 
 Pinckney 's. 
 
 If James Wilson were now living, and as- 
 serting that he was the true and unassisted 
 author of the Committee's draught these pa- 
 pers would be strong, though not conclusive, 
 evidence to maintain his claim; and if Pinck- 
 ney had never prepared a draught of the Con- 
 stitution and his draught had never been pre- 
 sented to the Convention, and had never been 
 referred to the Committee of Detail for the ex- 
 press purpose of assisting them in drawing up 
 a draught of the Constitution, these papers 
 would justify historical scholars in saying that 
 Wilson should occupy the place which Pinck- 
 ney occupies, and that the alien member of the 
 Convention was the chief individual contrib- 
 
 199 
 
THE PINCKNEY DRAUGHT 
 
 utor to the Constitution of the United States. 
 But the defect of these papers is that we know 
 nothing about them, save that they are in the 
 handwriting of Wilson and Eutledge. That 
 they are original matter; that they are not 
 made up of excerpts from Pinckney's draught: 
 are propositions which are now sustained only 
 by conjectures. 
 
 Against such conjectures, there stand the 
 consistent silences of all the members of the 
 Committee. Gorham lived nine years and said 
 nothing of his colleague's great work. Wilson 
 lived eleven years and saw the government 
 which, conspicuously, he had helped to form 
 firmly established, and became a judge of the 
 Supreme Court, yet while he lived gave no in- 
 timation of having drawn up the most impor- 
 tant document of the Convention, and when he 
 died left no statement showing the manner in 
 which the work of the Committee of Detail 
 was done. When Wilson passed away it be- 
 hooved Ellsworth and Rutledge and Randolph 
 to testify to posterity, if not to the men of 
 their own time, of the great part which Wilson 
 had secretly played in the drama of the Con- 
 stitution, if he was the author of the draught. 
 
 200 
 
"WILSON AND EANDOLPH DEAUGHTS 
 
 But Rutledge lived two years, and Ellsworth 
 nine years, and Eandolph fifteen years, and 
 gave no sign. 
 
 Against such conjectures too there is the 
 record of the other draught, a series of incon- 
 testible facts, each consistent with those that 
 had gone before it and with those which were 
 to come after it. Pinckney prepared a 
 draught; it was presented to the Convention; 
 it was referred to the Committee of the Whole, 
 and thereby made accessible to every member 
 of the Convention ; it was referred to the Com- 
 mittee of Detail and thereby placed at the dis- 
 posal of the committee and brought directly 
 to the notice and knowledge of every member ; 
 the Committee never returned it to the Con- 
 vention and it has not been found among the 
 papers of any one of them; Pinckney pub- 
 lished a description of it within a month after 
 the adjournment of the Convention; and a 
 month later republished the description in a 
 newspaper. In 1818 he authorized the publi- 
 cation of a paper which he certified to be a 
 substantial copy of the draught; it was im- 
 mediately published with the first publication 
 of the secret journal of the Convention and 
 
 201 
 
THE PINCKNEY DRAUGHT 
 
 widely disseminated as a public document ; at 
 the time of publication 16 members of tbe Con- 
 vention were living who must have desired, we 
 must assume, to see the journal of the pro- 
 ceedings in wbicb they bad personally taken 
 part; and when tbey received tbe journal re- 
 ceived with it a copy of Pinckney's draught; 
 and yet when Pinckney died more than six 
 years afterwards no surviving member of the 
 Convention had denied or questioned the ver- 
 ity of the published draught. 
 
 There are very few historical papers in the 
 world which have such a record of publicity 
 behind them as Pinckney 's draught; and it is 
 idle to attack such a record with one man's 
 suspicions and another man's inferences, and 
 our own prejudices and conjectures. Two in- 
 controvertible facts are that at the time when 
 these papers were written, Pinckney 's draught 
 was in possession of these same men, Wilson, 
 Randolph and Rutledge, and that they never 
 returned it to the Convention. This exami- 
 nation brings us round a circle to the question 
 at which we started. Did the Committee rightly 
 use the draught of Pinckney, or did Pinckney 
 fraudulently copy the Committee's draught! 
 
 202 
 
WILSON AND RANDOLPH DRAUGHTS 
 
 The Randolph and Wilson draughts bring 
 the case into this situation : 
 
 1. Randolph, Wilson and Rutledge were the 
 working members of the Committee and 
 worked together. All that was done with the 
 pen, so far as we know, was done by them. 
 Wilson was the ready writer of the Committee 
 and had before him, when he wrote his final 
 draught, his own preliminary draught and 
 Randolph's draught and Pinckney's draught. 
 
 2. The final draught of Wilson was not be- 
 gun until after his own preliminary draught 
 was finished. The 43 amendments of Rut- 
 ledge came later and were all subsequently 
 considered and accepted by the Committee. 
 
 3. From an intellectual point of view the 
 final draught of Wilson with the annotations 
 of Rutledge came near to being the draught of 
 the Committee of Detail; but it was not the 
 completed draught of the Committee even from 
 an intellectual point of view; for additional 
 provisions were framed and the arrangement 
 of provisions was changed and the articles 
 were subdivided into sections. From a print- 
 er's point of view the material for a written 
 
 203 
 
THE PINCKNEY DEAUGHT 
 
 draught wMdi was to be put into type did not 
 yet exist. 
 
 4. If a copy of the draught was prepared 
 for the printer (with Eutledge's 43 amend- 
 ments and the additional provisions and the 
 rearrangement of articles and the subdivision 
 of articles into sections all engrossed therein), 
 it is plain that Wilson, the hard worker of the 
 Committee, was the man who did it. Wilson 
 saved everything that he wrote and, conse- 
 quently, saved his best. His best is his third, 
 his final draught, but it is not the draught of 
 the Committee. If he had prepared a copy 
 for the printer, it would have been his best — 
 by far the best thing he did. It would have 
 been returned to him by the printer with the 
 proofs; and Wilson we may confidently con- 
 clude (knowing how he saved even scraps of 
 his writing) would have preserved it. 
 
 5. The evidence relating to the draughts of 
 Eandolph and Wilson therefore closes with 
 the draught of the Committee of Detail still 
 undrawn and with very little time left in 
 which it could be prepared for the printer. 
 When we couple together the two significant 
 facts that the Committee's work {i. e their 
 
 204 
 
WILSON AND EANDOLPH DEAUGHTS 
 
 manual labor) ended before they had prepared 
 a draught for the printer, and that Pinckney's 
 draught which was in their possession and had 
 been used by them, disappeared during the 
 same eventful week, there can be but one in- 
 ference—that the Committee used it. 
 
 205 
 
CHAPTER XII 
 
 THE COMMITTEE 's USB OF THE DEAUGHT 
 
 T~TP to tMs point the subject of considera- 
 1^ tion has been the charges preferred by 
 Madison against the copy of the draught in the 
 State Department. I now propose to press 
 the investigation in a more positive way; to- 
 wit, by ascertaining whether the Committee of 
 Detail used a draught of which this is a copy 
 or duplicate, and to what extent and in what 
 manner. 
 
 In copyright cases where the issue is of 
 plagiarism, it sometimes happens that traces 
 of the earlier work will be found in the later 
 one, be the language ever so carefully para- 
 phrased and the plagiarism ever so carefully 
 hidden. Misspelled names, erroneous dates, 
 genealogical mistakes which originated in the 
 one and reappear in the other are fateful wit- 
 nesses. If we find such traces in the work of 
 the Committee of Detail we may follow them 
 as detectives follow clues until they find the 
 
 206 
 
COMMITTEE'S USE OF THE DRAUGHT 
 
 criminal ; that is to say mitil we find to a cer- 
 tainty that the Committee used the draught. 
 
 The first of these traces of Pinckney's hand 
 in the Committee's draught is a very curious 
 one inasmuch as it discloses the fact that in 
 one provision the Committee followed Pinck- 
 ney's leading unconsciously, and that their ac- 
 tion was unauthorized by the Convention, if 
 not in violation of their positive instructions 
 twice repeated. The subject, the pay of Sena- 
 tors and Representatives, had been much dis- 
 cussed; but neither in the Committee of the 
 Whole nor in the Convention had it ever been 
 voted that the compensation should be either 
 ''determined'' or ''paid" by the States. The 
 proceedings of the Convention in regard to 
 this have been examined at length in the pre- 
 ceding chapter and the details need not be re- 
 peated here. It is enough to recall the fact 
 that the Convention resolved expressly that 
 the pay of Representatives should be "ade- 
 quate," and by implication that the pay of 
 Senators should likewise be adequate ; and that 
 the Committee of the Whole had previously re- 
 solved that both should be paid out of "the 
 public treasury." How the Committee of De- 
 
 207 
 
THE PINCKNEY DRAUGHT 
 
 tail could have so reversed the determina- 
 tion of the Convention as to provide that the 
 members of both Houses should receive a com- 
 pensation not necessarily '^adequate'' and ''to 
 be ascertained" as well as ''paid'' by the 
 State "in which they shall be chosen'' is ex- 
 plicable in only one way; to-wit: 
 
 Pinckney's draught likewise declared, also 
 in a single provision (art. 6 )that "the mem- 
 bers shall be paid for their services by the 
 States which they represent." There is a 
 verbal difference between the Committee's 
 draught and the copy of the Pinckney draught 
 in the State Department, a bettering of the 
 English, which was done by Wilson as we have 
 already seen in his draught and it is certain 
 that the Committee reported to the Conven- 
 tion a provision substantially that of the 
 Pinckney draught, a provision which the Con- 
 vention had more than once rejected. If the 
 Pinckney draught was used as copy for the 
 printer, it is plain enough that the clause of 
 six words "by the States which they repre- 
 sent" may have misled the Committee. With 
 the many propositions which they had to codify 
 and the brief time within which the work must 
 
 208 
 
COMMITTEE'S USE OF THE DE AUGHT 
 
 be done; and the confused and somewhat con- 
 tradictory action of the Committee of the 
 Whole and the Convention in June, and the di- 
 vided responsibility and scrutiny of fLve men, it 
 is easily possible that the Committee were mis- 
 led by the provision in the Pinckney draught ; 
 but it is not possible that they could have been 
 so misled if there had been no Pinckney 
 draught and they had followed the 3d and 4th 
 resolutions and borne in mind the action of 
 the Convention and the words of its leading 
 members. 
 
 A second deviation from the instructions 
 given by the Convention relates to the pay- 
 ment of the Executive. The 12th resolution 
 says that the Executive is ^'to receive a fixed 
 compensation for the devotion of his time to 
 the public service to be paid out of the public 
 treasury. '* The Pinckney draught (art. 8) 
 says that the President ^^ shall receive a com- 
 pensation which shall not be increased or 
 diminished during his continuation in office" 
 and stops there. The draught of the Commit- 
 tee (art. X sec. 2) says ^^He shall, at stated 
 times receive for his services a compensation, 
 which shall neither be increased nor dimin- 
 
 209 
 
THE PINCKNEY DRAUGHT 
 
 ished during his continuance in office/' and 
 stops there. In a word we find here Pinck- 
 ney's language with a word or two of amplifi- 
 cation, and a little correction (the kind of devi- 
 ation which one may expect to find in the revi- 
 sion of a statute or legal document) and we 
 find (as in Pinckney) the important word 
 '^ fixed'' omitted, and the not ^'increased or 
 diminished" clause of Pinckney inserted, and 
 the provision stopping as Pinckney stops, 
 without the concluding words of the resolu- 
 tion ^^to be paid out of the public treasury." 
 There is here too much resemblance to Pinck- 
 ney and too little adherence to the 12th resolu- 
 tion to leave a doubt as to where the Commit- 
 tee's provision came from. 
 
 A more notable instance relates to the ap- 
 pointing and treaty-making power of the Sen- 
 ate. The 14th resolution declares that the 
 judges of the ''Supreme tribunal shall be ap- 
 pointed by the second branch" i.e, the Senate. 
 But the draught of the Committee says (art. 
 IX), ''The Senate of the United States shall 
 have power to make treaties, and appoint Am- 
 bassadors and judges of the Supreme Court." 
 How came the Committee to invest the Senate 
 
 210 
 
COMMITTEE'S USE OF THE DRAUGHT 
 
 with power to make treaties and appoint am- 
 bassadors when no such authority was con- 
 ferred by the resolutions and no such deter- 
 mination had been reached in the Convention? 
 Pinckney's draught answers the question, 
 (art. 7) the Senate, it says, shall have the sole 
 and exclusive power *Ho make treaties; and to 
 appoint ambassadors and other ministers to 
 foreign nations, and judges of the Supreme 
 Court. ' ' Here the Committee placed the whole 
 treaty-making power and the diplomatic inter- 
 course with foreign nations entirely in the 
 hands of the Senate and for no other reason 
 than that Pinckney had already done so. Such 
 an extension of their work beyond their author- 
 ity could not have suggested itself. Evi- 
 dently when adapting Pinckney 's work to their 
 own purposes they neglected to strike out 
 '^treaties" and ^^ambassadors." 
 
 In Pinckney 's draught is set forth (art. 3) 
 ''The House of Delegates shall exclusively pos- 
 sess the power of impeachment, and shall 
 choose its own officers ; and vacancies shall be 
 supplied by the executive authority of the 
 State in the representation from which they 
 shall happen." And in the Committee's 
 
 211 
 
THE PINCKNEY DEAUGHT 
 
 draught it is similarly set forth (art. IV, sec. 
 6, 7) ''The House of Eepresentatives shall 
 have the sole power of impeachment. It shall 
 choose its speaker and other officers. Vacan- 
 cies in the House of Representatives shall be 
 supplied by writs of election from the execu- 
 tive authority of the State in the representa- 
 tion from which they shall happen" (sec. 7). 
 These incongruous things Pinckney threw to- 
 gether in a single sentence. The Committee 
 placed two of them in one section and the third 
 in another, and amplified and corrected as us- 
 ual; but not one of these powers is enumer- 
 ated in the twenty-three resolutions; and let 
 it also be noted that the peculiar and awkward 
 phraseology, ''the executive authority of the 
 State in the representation from which they 
 shall happen'* is in both. 
 
 While the uses and misuses of the Pinckney 
 draught conclusively establish the fact that the 
 Committee of Detail did use it and frequently 
 adhere to its text, a more comprehensive and 
 just idea of the service which Pinckney ren- 
 dered and the manner in which his draught 
 was used in the formation of the Constitution 
 will be obtained by placing ourselves in the 
 
 212 
 
COMMITTEE'S USE OF THE DEAUGHT 
 
 place of the Committee and using it as they 
 must have used it. 
 
 At the convening of the Committee the 
 draught which had been referred by the Con- 
 vention was before them. It was the only 
 draught of the proposed constitution which 
 had been prepared by anyone — ^the only instru- 
 ment or document, so far as our knowledge 
 goes, which could be used by them as a pattern 
 or basis for their work. Unquestionably the 
 Committee sooner or later would take up this 
 one instrument of its kind and ascertain how 
 far it would serve their purpose. 
 
 The preamble is the first and chief sentence 
 in the Constitution; for it declares the source 
 and supremacy of its authority. ''We the 
 people of the United States" ''do ordain, de- 
 clare and establish this Constitution." The 
 preamble goes behind State governments, ask- 
 ing nothing from them, either of authority or 
 consent, and invokes the power which estab- 
 lished them, the people of the United States. 
 This supreme power, if the Constitution should 
 be adopted, would allow States and State gov- 
 ernments to continue to exist, but to exist sub- 
 ordinate to a new power, the Constitution of 
 
 213 
 
THE PINCKNEY DEAUGHT 
 
 the United States and as parts and not units. 
 In the first letter wliich Madison (then in New 
 York) wrote to Jefferson (then in Paris) after 
 the adjonrnment of the Convention, he said: 
 
 ^^It was generally agreed that the object of 
 the Union could not be secured by any system 
 founded on the principle of a confederation of 
 Sovereign States. A voluntary observance of 
 the federal law by all the members could never 
 be hoped for. A compulsive one could evi- 
 dently never be reduced to practice, and if it 
 could, involved equal calamities to the inno- 
 cent and the guilty, the necessity of a military 
 force, both obnoxious and dangerous, and, in 
 general, a scene resembling much more a civil 
 war than the administration of a regular gov- 
 ernment. 
 
 ^^H-ence was embraced the alternative of a 
 government which, instead of operating on the 
 States, should operate without their interven- 
 tion on the individuals composing them; and 
 hence the change in the principle and propor- 
 tion of representation. ' ' 
 
 The chief idea of the preamble is not set 
 forth in any resolution or act of the Conven- 
 
 214 
 
COMMITTEE'S USE OF THE DRAUGHT 
 
 tion; and no instruction so to declare the 
 source of anthority was given to the Commit- 
 tee of Detail. The preamble belongs exclu- 
 sively to Pinckney, though its words as we 
 have before seen, were taken from the pream- 
 ble of the constitution of Massachusetts. 
 Chap. XL 
 
 The only amendment which the Committee 
 of Detail made, was in the last line of Pinck- 
 ney's, the insertion of a single word ^'our,'' — 
 *^for the government of ourselves and our pos- 
 terity." With the exception of this word the 
 Committee took Pinckney's preamble as they 
 found it, and so reported it to the Convention. 
 During the subsequent sittings of the Conven- 
 tion it remained unamended and unques- 
 tioned and undiscussed until at last it received 
 the final touch of the Committee of Style. 
 
 In article 1 Pinckney followed in part the 
 Articles of Confederation and in part the Con- 
 stitution of New York: ''The stile of this 
 Government shall be the United States of 
 America, and the Government shall consist of 
 supreme legislative. Executive and judicial 
 powers. ' ' 
 
 This the Committee broke into two articles 
 
 215 
 
THE PINCKNEY DEAUGHT 
 
 and in the first line changed ^^this" to ^Hhe" 
 but made no other change. 
 
 Article 2 relates to the legislative power and 
 was taken by Pinckney almost verbatim from 
 the constitution of New York. The Commit- 
 tee changed ^^ House of Delegates" to ^^ House 
 of Eepresentatives,'' and filled a blank with 
 ^* first Monday in December,'^ and in place of 
 two ** houses'^ said two ^^ distinct bodies of 
 men," and introduced a needless provision 
 that each house * ^ shall in all cases have a nega- 
 tive upon the other." 
 
 Article 3 relates to members of the ^^ house 
 of delegates " ; to the term of office, to the qual- 
 ifications of the electors, to the qualifications 
 of members, to their apportionment among the 
 States, to their proportion with population, to 
 '^ money bills," impeachment, the choosing of 
 their own officers, and to vacancies. Here the 
 Committee ^s method of breaking an ar- 
 ticle into sections begins. But the seven 
 sections of the Committee 's follow in the same 
 order and almost in the same words, the 
 sentences of Pinckney. The article, like 
 Pinckney 's, begins with, ''The members of the 
 
 216 
 
COMMITTEE'S USE OF THE DRAUGHT 
 
 house"; and ends, like his, '4n the representa- 
 tion from which they shall happen. ' ' 
 
 Article 4 relates to the Senate, and here first 
 appear the individual opinions of Pinckney 
 which were shared by no one. His senators 
 were to be chosen by the House of Delegates. 
 ^^From among the citizens and residents of 
 New Hampshire" — ''from among those from 
 Massachusetts" — etc., etc. That is the repre- 
 sentation was neither by States nor by popu- 
 lation but by an arbitrary assignment in the 
 Constitution. Pinckney believed that the Sen- 
 ate should represent the wealth of the coun- 
 try, and he probably intended that this arbi- 
 trary assignment should be representative of 
 wealth. The senators from New Hampshire, 
 Massachusetts, Rhode Island and Connecticut 
 were to form one class ; those from New York, 
 New Jersey, Pennsylvania and Delaware an- 
 other; and the remaining States a third. It 
 was to be determined by lot which should go 
 out of office first, which second, which third. 
 As their times of service expired the House of 
 Delegates was to fill them for a fixed and uni- 
 form term. This plan was suggested to 
 
 217 
 
THE PINCKNEY DEAUGHT 
 
 Pinckney by the constitution of New York. 
 Its only merit was that it wonld make the Sen- 
 ate a continuing body, as we now have it, one- 
 third of the members going out at one time. 
 Its errors seem incredible. It would have en- 
 abled the delegates from, say, the eastern and 
 middle States to choose senators who would 
 grossly misrepresent the southern States; 
 with every change in the political supremacy 
 of the House one-third of the senators would 
 change, and one-third of the country might be 
 represented by new and inexperienced men; 
 with the people of a section of one political 
 faith, their senators, chosen for them by the 
 House of Delegates, might be of the opposite 
 political belief. It is plain that when the Com- 
 mittee came to Pinckney 's Article 4 they 
 found something which would be of no use to 
 them. The Convention had already marked 
 out their work — ^the senatorial system which 
 we still have — each State represented by two 
 senators, each senator having an individual 
 vote, the senators chosen by the legislatures of 
 the several States. Yet even this article re- 
 lating to Pinckney 's senate, the Committee 
 used, and used in a way which indicates that 
 
 218 
 
COMMITTEE'S USE OF THE DRAUGHT 
 
 they took the paper upon which it was written 
 and made it serve their purpose in framing 
 their hurried draught. Art. V. 
 
 Pinckney's article begins: '^The senate shall 
 be elected and chosen by the;'' and the Com- 
 mittee's begins: ^^The senate of the United 
 States shall be chosen by the." At this point 
 the Committee struck out the equivalent of 
 222 words from the Pinckney article and in- 
 terlined about half the number, 120 words. 
 (The large imperial unruled foolscap with 
 lines well apart and the broad margin readily 
 admitted of this being done.) But the in- 
 stant that the necessarily new matter was 
 interlined, the Committee resumed with Pinck- 
 ney 's words. His ' ' Each senator shall be 
 
 years of age" etc., etc., becomes their *' Every 
 member of the senate shall be of the age of 
 thirty years at least" etc., etc. Then follow 
 Pinckney 's provisions concerning citizenship, 
 concerning the prior period of a senator's citi- 
 zenship, concerning residence, the article clos- 
 ing as Pinckney 's closes, ^'The Senate shall 
 choose its own President and other officers." 
 Here we have the two most dissimilar articles 
 in the two draughts beginning with the same 
 
 219 
 
THE PINCKNEY DEAUGHT 
 
 words, ending with the same words, contain- 
 ing the same provisions, following the same 
 order, and differing only where the instruc- 
 tions of the Convention compelled the Com- 
 mittee to strike out a large and important por- 
 tion of the earlier draught and to insert a new 
 and important substitute. If the Committee 
 were rewriting the article, there would be no 
 reason for this extraordinary closeness of ad- 
 herence — for this moving pari passu — for 
 this going always as far and never farther 
 over the ground traversed. 
 
 Article 5 of the Pinckney draught is notable 
 for containing the veto power. The Conven- 
 tion grouped it in the 23 resolutions with the 
 powers of the Executive; Wilson made of it 
 an entire, independent article, but Pinckney 
 who had taken it, as we have before seen, from 
 the constitution of New York, retained its re- 
 visionary character and placed it at the end of 
 an article relating to the legislature and legis- 
 lative business. The Committee left it where 
 Pinckney placed it (Article VI, sec. 13) as 
 we have seen in the preceding chapter; and 
 in this as we have also seen in the preceding 
 
 220 
 
COMMITTEE'S USE OF THE DRAUGHT 
 
 chapter the Committee followed Pinckney and 
 did not follow Wilson. 
 
 The 6th article contains another singular 
 instance of an oversight of Pinckney 's which 
 the Committee followed. In it he gathers to- 
 gether with care and patience from the 
 Articles of Confederation and from State Con- 
 stitutions the incidental powers of Congress. 
 The governing clause is, *^The Legislature of 
 the United States shall have the power." 
 Then follow some 22 declarations of power, 
 properly paragraphed: *^To lay and collect 
 taxes, duties, imposts and excises." ^^To 
 regulate commerce" etc., etc., until in a final 
 paragraph he sums up and closes the record 
 of these powers by the paragraph, ^^And to 
 make all laws for carrying the foregoing- 
 powers into execution." The power to pun- 
 ish treason Pinckney placed in a distinct para- 
 graph for reasons stated in chapter XI. But 
 this compelled him to rewrite the governing 
 clause, ''The Legislature of the United States 
 shall have the power." In the same sentence 
 he appended the definition of treason, ''which 
 shall consist only in levying war against the 
 United States" etc. And he then (following 
 
 221 
 
THE PINCKNEY DRAUGHT 
 
 tlie Act of Edward III), in a separate sentence 
 imposed tHs condition upon conviction of 
 treason that it shall be *'but by the testimony 
 of two witnesses.'' Wbat Pinckney should 
 have done was what Wilson did; he should 
 have placed this power with the others under 
 the first governing clause, ^^The Legislature 
 of the United States shall have the power," 
 and have pushed the limitations upon that 
 power over with those relating to ^^the sub- 
 ject of religion," 'Hhe liberty of the press" 
 and ^Hhe writ of habeas corpus," into a bill 
 of rights. 
 
 This oversight of Pinckney 's, the Commit- 
 tee of Detail attempted to hide but not to 
 rectify. The needless duplication of the 
 words, ^^The Legislature of the United States 
 shall have the power," they pushed out of 
 sight by inverting the provisions of the sen- 
 tence and defining treason first; but they re- 
 tained it; and also in this article, properly 
 relating only to legislative powers, they re- 
 tained the condition laid upon the judiciary 
 that ''no person shall be convicted of treason 
 unless on the testimony of two witnesses" 
 (Article VII, sec. 2), and in doing these things, 
 
 222 
 
COMMITTEE'S USE OF THE DEAUGHT 
 
 the Committee overruled Wilson and followed 
 Pinekney. 
 
 It is manifest, therefore, that the two 
 draughts, the draught in the State Depart- 
 ment and the draught of the Committee, are 
 built upon the same framework. That is to 
 say in structure, arrangement, form and order 
 the two are identical, the one the basis of 
 the other. In other words, the Committee 
 took the draught which had been referred to 
 them, and worked upon it, beginning with the 
 preamble, and continuing to the last sentence, 
 
 *^The ratification of the conventions of 
 
 States shall be sufficient for organizing this 
 Constitution." They amended, changed, sub- 
 stituted, subdivided (articles into sections), 
 and amplified; but it was always Pinekney 's 
 draught which they worked upon. They re- 
 tained every provision of his which was 
 authorized by the instructions of the Conven- 
 tion, and some which were beyond the scope 
 of the instructions and a few which were con- 
 trary to the instructions; and whenever they 
 retained a provision, they retained, substan- 
 tially, the language in which it had been cast 
 by Pinekney. As in mathematics it is held to 
 
 223 
 
THE PINCKNEY DEAUGHT 
 
 be self-evident that things which are equal to 
 the same thing are equal to each other, so here 
 it may be said that this extraordinary identity 
 of the draught in the State Department and 
 the draught of the Committee of Detail dem- 
 onstrates that the draught in the State De- 
 partment is a true and substantially exact 
 duplicate of the lost draught which was re- 
 ferred to the Committee. 
 
 224 
 
CHAPTER XIII 
 
 WHAT BECAME OF THE DRAUGHT 
 
 A QUESTION of much interest follows 
 tlie foregoing investigation; to-wit, wliy 
 was not the Pinckney draught found among 
 the records and papers of the Convention? 
 
 It was the only draught of a constitution 
 which had been before the Convention; it had 
 been referred to the Committee of the Whole 
 and referred to the committee charged with 
 the duty of preparing a draught of the Con- 
 stitution; and that committed had used it for 
 that purpose. It was a paper of unique char- 
 acter and unquestionable importance and one 
 of the records of the Convention. Why was it 
 not found in the sealed package of the Con- 
 vention's records? 
 
 And there was another paper, which should 
 have been found but was not. This was the 
 report of the Committee of Detail, containing, 
 or accompanying, their draught of a Constitu- 
 tion. The absence of any other paper that 
 
 225 
 
THE PINCKNEY DRAUGHT 
 
 should have been placed in the package might 
 be strange, yet not significant. But these 
 two papers, if there were two, related to the 
 same subject, contained more or less the same 
 provisions, had been used for the same most 
 important purpose by the same men, and were 
 on the 6th of August, 1787, if they then ex- 
 isted, in the possession and official custody of 
 the Committee of Detail. When Eutledge on 
 the morning of that day ^^ delivered in" the 
 most important report ever laid before the 
 Convention he should have laid upon the Sec- 
 retary's desk those two papers, if there were 
 such to lay there. Yet neither Pinckney's 
 draught of the Constitution, nor the Commit- 
 tee's draught of the Constitution, was found 
 in the sealed package ; nothing was found but 
 one printed copy of the Committee's draught. 
 The draught of the Committee of Detail was 
 the most important of all the papers of the 
 Convention, for the reason that it was the 
 embodiment of all that had been done during 
 the first period of the Convention's work, the 
 abstract stage, and was to be the foundation 
 of all that was yet to be done in bringing the 
 Constitution to its concrete and final form. 
 
 226 
 
WHAT BECAME OF THE DEAUGHT 
 
 For purposes of construction and interpreta- 
 tion the draught is the most valuable paper 
 that exists or that ever did exist, inasmuch as 
 it sets forth in a tangible, practical, unmistak- 
 able form the results so far attained and the 
 views which a majority of the members held, 
 and the conclusions which a majority of the 
 States had reached when the work of ab- 
 stract consideration ceased, and the work of 
 changing their abstract ideas into the concrete 
 provisions of the Constitution began. There 
 was no other report, draught or document 
 which should have been so watchfully guarded 
 and carefully kept as the report of the Com- 
 mittee of Detail, if there were indeed such a 
 document to preserve. 
 
 To comprehend and appreciate the signifi- 
 cance of the disappearance of these two 
 papers, it is necessary that we understand 
 the conditions of the case — the circumstances 
 which tended toward their destruction, and 
 those which should have secured their preser- 
 vation. 
 
 The first of these conditions was secrecy. 
 The Convention early determined ^ ' That noth- 
 ing spoken in the House be printed or other- 
 
 227 
 
THE PINCKNEY DRAUGHT 
 
 wise published or communicated without 
 leave." No reporter was present at the sit- 
 tings of the Convention; no stenographer, 
 typewriter or amanuensis served the mem- 
 bers ; no clerical force aided the Committee of 
 Detail. The secrets of the Convention were in 
 the custody of the members, and from the 29th 
 of May to the 17th of September not one was 
 revealed to the expectant, inquisitive, anxious 
 American world. 
 
 As the work of the Convention drew to- 
 ward its close, it was determined that the ob- 
 ligation of secrecy should be continued into 
 the indefinite future. The records were to be 
 placed under seal and the custodian was to be 
 Washington himself. Washington asked what 
 should be done with the records ; and the Con- 
 vention answered that '^he retain the Journal 
 and other papers subject to the orders of 
 Congress, if ever formed under the Constitu- 
 tion." For thirty years and more the seals 
 remained unbroken ; and for thirty years and 
 more no member of the Convention spoke. 
 
 Let the reader imagine, if he can, what 
 would be the public feeling now, if a conven- 
 tion should be sitting from the 29th of May to 
 
 228 
 
WHAT BECAME OF THE DEAUGHT 
 
 the 17tli of September to frame a new consti- 
 tution for tlie United States which should sit 
 with closed doors, and whose members should 
 disclose no act, speak no word, drop no hint 
 from the beginning to the end ; and who, when 
 the end was reached, should say absolutely 
 nothing of what had been said and done in the 
 secret proceedings of the Convention. We 
 owe much to the f ramers of the Constitution ; 
 they were not common men. 
 
 The first and highest instance of this sense 
 of obligation is where we should expect to 
 find it, in the personal journal of Washing- 
 ton. 
 
 ** Friday, 1st June. 
 
 ** Attending in Convention — and nothing 
 being suffered to transpire no minute of the 
 proceedings has been, or will be inserted in 
 this diary/' 
 
 And for this reason, no member of the Com- 
 mittee wrote. The unfortunate Observations 
 of Pinckney were the only publication that 
 gave a glimmer of what had been done, or 
 might have been done in the Convention — of 
 what had been said or might have been said. 
 
 229 
 
THE PINCKNEY DEAUGHT 
 
 The Journal of Madison was not published 
 until after Congress had released the secrets 
 of the Convention. The members had taken 
 no solemn oath, nor clasped hands nor pledged 
 their honor to each other, but they kept 
 silence. 
 
 A single incident fortunately preserved by 
 William Pierce of Georgia will show how the 
 obligation was regarded during the sitting of 
 the Convention. It grandly displays the per- 
 sonal majesty of Washington, and the value 
 which he set upon the secrecy of the Conven- 
 tion's deliberations. To a better apprecia- 
 tion of what took place it must be remembered 
 that the Convention as a mark of respect for 
 their great presiding officer established this 
 rule: ^'When the House shall adjourn, every 
 member , shall stand in Ms place until the 
 President pass him," 
 
 Mr. Pierce says : 
 
 ''When the Convention first opened at Phila- 
 delphia, there were a number of propositions 
 brought forward as great leading principles 
 for the new Government to be established for 
 the United States. A copy of these proposi- 
 tions was given to each Member with an in- 
 
 230 
 
WHAT BECAME OF THE DEAUGHT 
 
 junction to keep everything a profound secret. 
 One morning, by accident, one of the Members 
 dropt his copy of the propositions, which 
 being luckily picked up by General Mifflin was 
 presented to General Washington, our Presi- 
 dent, who put it in his pocket. After the 
 Debates of the Day were over, and the ques- 
 tion for adjournment was called for, the Gen- 
 eral arose from his seat, and previous to his 
 putting the question addressed the Conven- 
 tion in the following manner: — 
 
 'Gentlemen: I am sorry to find some one 
 Member of this Body, has been so neglectful 
 of the secrets of the Convention as to drop in 
 the State House a copy of their proceedings, 
 which by accident was picked up and delivered 
 to me this Morning. I must entreat. Gentle- 
 men, to be more careful, lest our transactions 
 get into the News Papers, and disturb the pub- 
 lic repose by premature speculations. I know 
 not whose paper it is, but there it is (throwing 
 it down on the table), let him who owns it take 
 it. ' At the same time he bowed, picked up his 
 Hat, and quitted the room with a dignity so 
 severe that every Person seemed alarmed ; for 
 mj part I was extremely so, for putting my 
 
 231 
 
THE PINCKNEY DEAUGHT 
 
 hand to my pocket I missed my copy of the 
 same Paper, but advancing up to the Table my 
 fears soon dissipated; I found it to be the 
 handwriting of another person. When I went 
 to my lodgings in the Indian Queen, I found 
 my copy in a coat pocket which I had pulled 
 oif that Morning. It is something remarkable 
 that no Person ever owned the Paper. ^' (3 
 Amer. Hist. Eeview, 324.) 
 
 The obligation of secrecy required that 
 these two papers should not be lost — that they 
 should not be left where they might fall into 
 the hands of someone who would publish them, 
 that they should not remain in the possession 
 of a member; and the final determination of 
 the Convention implied that these two papers 
 should be delivered by the Committee of De- 
 tail into the hands of the Secretary of the 
 Convention and be by him placed in the cus- 
 tody of Washington. 
 
 The second condition was time — the time 
 within which the Committee's work must be 
 done. 
 
 On Thursday, the 24th of July, the Conven- 
 tion appointed the Committee of Detail *^for 
 the purpose of reporting a Constitution, ' ' and 
 
 232 
 
WHAT BECAME OF THE DRAUGHT 
 
 on the 26th, referred to the Committee certain 
 resolutions and ^^ adjourned until Monday, Au- 
 gust 6th, that the Committee of Detail might 
 have time to prepare and report the Consti- 
 tution." This adjournment gave to the Com- 
 mittee ten full days in which to prepare and 
 complete their draught, two of which were 
 Sundays. The committee moreover deter- 
 mined to furnish to each member of the Con- 
 vention a printed copy. On Monday, the 6th 
 of August, the Committee appeared in the 
 Convention bringing with them the printed 
 copies of the draught. 
 
 The draught contains about 3,600 words. 
 A good printer in the olden days when there 
 was not a typesetting machine in the world 
 would have required (according to the compu- 
 tation of a present day printer) three days for 
 doing the work, allowing therein a reasonable 
 time for changes and corrections made in the 
 proofs. It cannot be supposed that after the 
 admonition of Washington, the Committee 
 could be negligent in their selection of a 
 printer. They would not carry their copy 
 into a large printing office, if any such there 
 was in Philadelphia, but would surely place 
 
 233 
 
THE PINCKNEY DRAUGHT 
 
 it in the hands of some individual printer rec- 
 ommended to them as trustworthy by Wilson 
 or Gouverneur Morris or some other delegate 
 from Philadelphia, perchance by Franklin, the 
 greatest printer in the world. In a word, the 
 printing would not have been confided to a 
 shop full of men but would have been given to 
 one man and marked ' ' confidential ' ' ; and it is 
 safe to say that the copy must have been in 
 the printer's hands by the close of the 7th 
 day. Besides the typesetting, the proofs 
 were to be examined, and the work scanned in 
 the clearer light ot printed matter by every 
 member of the committee ; and errors were to 
 be corrected, and possibly changes made. 
 
 After these ten days of actual and con- 
 structive work the Committee appeared in the 
 Convention bringing with them a draught con- 
 taining fifty-seven articles and sections, and 
 some 200 constitutional provisions. Some of 
 these provisions had been prescribed by the 
 23 resolutions, and some had been suggested 
 by the Articles of Confederation, but there 
 were others declaratory of the inherent pow- 
 ers of a national sovereignty which had neither 
 been directed by the Convention, nor were 
 
 234 
 
WHAT BECAME OF THE DRAUGHT 
 
 contained in the Articles of Confederation. 
 No reflective person beginning the study of 
 the Constitution can read Madison's Journal 
 attentively through to the 26th of July with- 
 out being astonished by the greater compre- 
 hensiveness and detail and breadth and com- 
 pleteness of the draught which the committee 
 produced in a printed form on the morning of 
 the 6th of August. 
 
 Besides the provisions in the draught which 
 have passed into, and in a literal or modified 
 form, have become parts of the Constitution, 
 there was some work of the committee which 
 must have involved consideration, discussion, 
 and a waste of time. These hindrances left 
 a perilously narrowed period within which a 
 committee must draught the Constitution of 
 the United States. 
 
 It was therefore no time to stand upon tri- 
 fles or to pause to adjust formal niceties. 
 Within the closed doors of Independence Hall 
 would be impatient men who had given their 
 time since the 25th of May and who were sit- 
 ting unceasingly through the heat of the Phil- 
 adelphia summer, defraying in whole or in 
 part their own expenses, though many of them 
 
 235 
 
THE PINCKNEY DRAUGHT 
 
 were men of narrow means, ill able to give 
 either their time or their money. To their 
 anxions eyes the end seemed far away, and 
 success far from certain, and they would re- 
 sent unnecessary delay. It would be just to 
 young, ambitious Mr. Pinckney to return his 
 draught, unsullied, to the Secretary that it 
 might tell the story in future years, unques- 
 tioned and unquestionable, of his splendid con- 
 tribution to the Constitution. It would be 
 proper and according to parliamentary usage 
 for the committee to hand in their draught 
 in writing, covered by a report attested by 
 their signatures, both of which would remain 
 in the archives of the Convention and perhaps 
 in the archives of a future government. But 
 the committee could not linger for these desir- 
 able things. Pinckney 's draught must be sac- 
 rificed to hasten the good work along, to save 
 time, if it were but a day ; and their own report 
 and draught must be ^^ delivered in'' figura- 
 tively, that is to say by the mouth of their 
 chairman and by the means of the printed 
 copies, one for each member. The committee, 
 so all the circumstances unite in telling us, took 
 Pinckney 's draught and considered it; some 
 
 236 
 
WHAT BECAME OF THE DRAUGHT 
 
 provisions they retained ; some they corrected, 
 some they amended, some they changed, some 
 they struck out. The amendments they wrote 
 on the broad margin of the large foolscap 
 sheets or wrote out on separate slips of paper 
 which they waf ered to the margin. When they 
 had fininshed this work Pinckney's draught 
 had become ^ Sprinter's copy." For one brief 
 week it served a great purpose and was the 
 most useful document in the world. Then it 
 was scrupulously destroyed ; and concerning it 
 no man of the men who knew its contents is 
 known to have spoken a single word. 
 
 Apart from the inferential and conjectural 
 statements of the preceding paragraph, the 
 stricter principles of law lead to or toward the 
 same conclusion. The draught was placed in 
 the committee's hands to be used but not to 
 be destroyed. Nevertheless the right to use, 
 like the right of eminent domain, was com- 
 mensurate with the necessities of the situation, 
 and the committee might use it by destroying 
 it. 
 
 The law allows within certain limitations, 
 the presumption of fact that where an admin- 
 istrative officer had a certain, specific official 
 
 237 
 
THE PINCKNEY DRAUGHT 
 
 duty to perform, he performed it. The Secre- 
 tary of the Convention and the members of the 
 Committee of Detail were not public officers 
 but were charged with duties which, if not 
 official, were still public, and the obligations 
 and presumptions belonging to administrative 
 officers may properly be applied to them. The 
 Secretary's entry in the Journal of the Con- 
 vention says, '^The report was then delivered 
 in at the Secretary's table, and being read 
 once throughout, and copies thereof given to 
 the members, it was moved and seconded to 
 adjourn." All that there was to be ^'deliv- 
 ered in," was placed upon the Secretary's 
 table, and it became his duty to preserve what- 
 ever the Committee had placed there subject 
 to the future commands of the Convention. 
 The '* copies thereof" were the printed copies 
 of the draught; and 'Hhe report" which was 
 ''then delivered in at the Secretary's table" 
 was one of the printed copies accompanied by 
 the oral explanation of the chairman. 
 
 What the Secretary did with the papers in 
 his charge is told in the following note and 
 extract : 
 
 238 
 
WHAT BECAME OF THE DRAUGHT 
 
 ** Monday Evening. 
 
 ''Major Jackson presents Ms most respectful 
 compliments to General Washington. . . . 
 
 ''Major Jackson, after burning all the loose 
 scraps of paper which belong to the Conven- 
 tion, will this evening wait npon the General 
 with the Journals and other papers which 
 their vote directs to be delivered to His Excel- 
 lency. ' ' 
 
 Indorsed by Washington : 
 
 "From Maj^ Wm. Jackson, 17th Sept., 
 1787.'' 
 
 "Monday, 17th. 
 "Met in Convention when the Constitution 
 received the unanimous assent of 11 States 
 and Col" Hamilton's, from New York (the 
 only delegate from thence in Convention) and 
 was subscribed to by every Member present 
 except Gov"" Randolph and Col'' Mason from 
 Virginia — & Mr. Gerry from Massachusetts. 
 The business being thus closed, the Members 
 adjourned to the City Tavern, dined together 
 and took a cordial leave of each other. — after 
 which I returned to my lodgings — did some 
 business with, and received the papers from 
 
 239 
 
THE PINCKNEY DRAUGHT 
 
 the secretary of the Convention, and retired 
 to meditate upon the momentous wk which 
 had been executed, after not less than ^ve^ for 
 a large part of the time six, and sometimes 7 
 hours sitting every day, Sundays & the ten 
 days' adjournment to give a Com^^ opportu- 
 nity & time to arrange the business, for more 
 than four months/' Washingtoit 's Diary. 
 
 The Secretary of the Convention has gen- 
 erally been censured as incompetent and negli- 
 gent. Nevertheless the papers which he trans- 
 ferred to Washington witness for him that he 
 did preserve and keep whatever papers came 
 within his official custody. The Secretary of 
 State certified, March 19th, 1796, that in addi- 
 tion to the Journals then received from Wash- 
 ington ''were seven other papers of no conse- 
 quence in relation to the proceedings of the 
 Convention. ' ' One of these is a ' ' draught of 
 the letter from the Convention to Congress to 
 accompany the Constitution''; one is an order 
 from ''the directors of the Library company 
 of Philadelphia" to the Librarian directing 
 him to "furnish the gentlemen who compose 
 
 240 
 
WHAT BECAME OF THE DRAUGHT 
 
 the Convention now sitting with, snch books as 
 they may desire during their continuance at 
 Philadelphia, taking receipts for the same''; 
 one is a letter from ' ^ one of the people called 
 Jews'' setting forth that by the Constitution 
 of Pennsylvania ''a Jew is deprived of hold- 
 ing any publick office or place of Government. ' ' 
 The others are even of less consequence. They 
 make plain by their unimportance the impor- 
 tant fact that Major Jackson scrupulously kept 
 every paper which Rutledge ^^ delivered in at 
 the Secretary's table" on the 6th of August. 
 That is to say, it is made plain that on the 6th 
 of August, Rutledge did not deliver in at the 
 Secretary's table either a written report of 
 the committee or the Pinckney draught. 
 
 Judging in the light of all the facts which 
 the case discloses we must conclude that the 
 only thing which would have justified the Com- 
 mittee of Detail in not returning the Pinckney 
 draught to the Secretary of the Convention 
 was that it had been destroyed ; the only thing 
 which would have justified the Committee in 
 destroying it, was that they were compelled 
 to use it as printer's copy. 
 
 241 
 
 y 
 
THE PINCKNEY DRAUGHT 
 
 The Committee did well to use it. And yet 
 if there was one thing in the world which jus- 
 tified Pinckney in publishing the Observations, 
 it was that the Committee of Detail had de- 
 stroyed his draught. 
 
 242 
 
CHAPTER IV 
 
 WHAT PINCKNEY DID FOR THE CONSTITUTION 
 
 THE style of the Constitution, we owe to 
 Pinekney. Behind him, perhaps, was 
 Chief Justice Jay, whose hand appears in the 
 first Constitution of New York, but none of 
 the men connected with the Convention, not 
 even Hamilton, had attained what we may 
 term the style of the Constitution — the clear, 
 concise, declarative, imperative style which 
 seems a characteristic part of the great 
 instrument. Pinekney appreciated the differ- 
 ence between a constitution and a statute and 
 in maintaining this difference his hand rarely 
 erred. The Committee of Detail corrected 
 Pinekney 's language, occasionally, and some- 
 times rendered the meaning more certain by 
 amplification but whenever they departed from 
 his draught, there is an immediate falling off 
 in style. A flagrant instance of this is in 
 article IX, sections 2 and 3. In the hands of 
 
 243 
 
THE PINCKNEY DRAUGHT 
 
 the Committee the provision relating to dis- 
 putes and controversies between States ex- 
 pands into a string of minor provisions con- 
 taining more than 400 words with all the 
 involved petty particularities of an incoher- 
 ent statute. Exempli gratia, **The Senate 
 shall also assign a day for the appearance 
 of the parties, by their agents before that 
 house. The agents shall be directed to ap- 
 point, by joint consent, commissions or judges 
 to constitute a court for hearing and deter- 
 mining the matter in question. But if the 
 agents cannot agree, the Senate shall name 
 three persons out of each of the several 
 States ; and from the list of such persons, each 
 party shall alternately strike out one, until 
 the number shall be reduced to thirteen; and 
 from that number not less than seven, nor 
 more than nine, names, as the Senate shall 
 direct, shall in their presence, be drawn out 
 by lot ; and the persons whose names shall be 
 so drawn, or any five of them, shall be,^'. etc., 
 etc. The person who remembers that this and 
 more like it, was actually prepared and 
 printed and reported to the Convention as a 
 proposed part of the Constitution of the 
 
 244 
 
WHAT PINCKNEY DID 
 
 United States, may well wonder what kind of 
 a Constitution the Committee of Detail would 
 have framed, if they had not had Pinckney 
 to block out their work for them. 
 
 When dealing with the number of repre- 
 sentatives in the first or lower house, Pinck- 
 ney provided (Art. 3) for a specific number 
 from each State, in the first instance, and then 
 by one of his terse emphatic sentences, ^^and 
 the legislature shall hereafter regulate the 
 number of delegates by the number of inhabit- 
 ants, according to the provisions hereinafter 
 made at the rate of one for every thou- 
 sand. ' ' The Committee adopted this verbatim 
 but they prefaced it with an extraordinary apol- 
 ogy or explanation, bearing some resemblance 
 to the preamble of a statute (Art. 14, sec. 4) : 
 **As the proportions of numbers in different 
 States will alter from time to time; as some of 
 the States may hereafter be divided ; as others 
 may be enlarged by addition of territory; as 
 two or more states may be united; as new 
 states will be erected within the limits of the 
 United States — the legislature shall, in each of 
 these cases, regulate the number of representa- 
 tives by the number of inhabitants, according 
 
 245 
 
THE PINCKNEY DEAUGHT 
 
 to the provisions hereinafter made, at the rate 
 of one for every forty thousand/' 
 
 This '^as,'' ^'as," ^'as/' ''as/' ''as" would 
 be slovenly work even for a statute. It sounds 
 little like a law, not at all like a constitution, 
 much like an extract from a committee's re- 
 port, justifying their work, explaining why 
 a proposed provision may become at some 
 unforeseen time, necessary or desirable. 
 
 It is true that the former of these provi- 
 sions was taken from the Articles of Confed- 
 eration; and that the latter is a paraphrase 
 of the 8th resolution, but that only makes the 
 matter worse. Their verbosity and incongru- 
 ity were thereby placed before the eyes of 
 every member of the Committee ; and the fact 
 that such provisions, flagrantly verbose and 
 inexcusably incongruous, went into a draught 
 of the Constitution shows that not one of the 
 "Oyb members commanded what may be called 
 the style of the Constitution; while the addi- 
 tional fact that not one instance of such pro- 
 lixity of detail is to be found in the Pinckney 
 draught shows that he was the master of its 
 style and not the Committee. 
 
 There are unquestionably clauses and sen- 
 
 246 
 
WHAT PINCKNEY DID 
 
 tences and provisions in the Committee's 
 draught which show the hand of the thought- 
 ful statesman or of the good lawyer. Thus to 
 Pinckney's provisions relating to the action 
 of Congress on bills returned by the Presi- 
 dent with his objections, we have, ^^But, in all 
 cases, the votes of both Plouses shall be de- 
 termined by yeas and nays; and the names 
 of the persons voting for or against the bill 
 shall be entered on the Journal of each House 
 respectively." And to Pinckney's provisions 
 concerning the conviction of treason, there 
 is added, ''No attainder of treason shall work 
 corruption of blood, nor forfeiture, except 
 during the life of the person attainted.'' In 
 a word there is manifestly more than one hand 
 in the Committee's work. In Pinckney's 
 draught the warp and woof is of one texture 
 from beginning to end. Even when an article 
 is made up entirely of cullings from State 
 constitutions and from the Articles of Con- 
 federation, the finished fabric is unquestion- 
 ably of Pinckney's weaving. 
 
 It is not to be inferred that the members of 
 the Comittee of Detail were mediocre men or 
 that they were negligent of the grave duty as- 
 
 247 
 
THE PINCKNEY DRAUGHT 
 
 signed to them. Yet the work which they 
 actually did only demonstrates that for them 
 to have produced a complete draught of the 
 Constitution — as complete as the one which 
 they reported — entirely the work of their own 
 hands, in the limited time allowed them would 
 have been an impossibility. The reduction of 
 the Constitution to a written form with all its 
 details required research, reflection, patient 
 work and unhurried thought. Through the 
 wide field of State and Federal relations, 
 through State constitutions and the Articles 
 of Confederation the framer needed to search, 
 weighing State prejudices and national neces- 
 sities, taking what was desirable, but with 
 equal care leavng what was objectionable. 
 There were not five men in the world working 
 in each other's way, discussing each other's 
 work, who, unassisted, could have drawn up a 
 constitution in which so much was embodied 
 and so little overlooked and have brought their 
 patchwork contributions into one harmonious 
 whole within the time prescribed. The coun- 
 try was well filled with men of talents, of abil- 
 ity, of energy, of patriotic fervor, with men 
 who knew the conditions of our national af- 
 
 248 
 
WHAT PINCKNEY DID 
 
 fairs, the difficulties of acting, the perils of 
 inaction, and yet the fact, undeniable, is that 
 only one man foresaw the coming necessity of 
 the situation and had the forethought to pre- 
 pare a draught of the Constitution for the use 
 of the Convention. The more I have surveyed 
 the situation, the greater has appeared the 
 necessity for some such work at the time ; the 
 more I have studied the work of Pinckney, the 
 more perfectly adapted to the necessities of 
 the situation does it appear to have been. 
 
 When Pinckney, foreseeing that a national 
 Convention would be held and that if it failed 
 to frame a constitution which would give to 
 the waning Confederation the character and 
 authority of nationality, the nationality of the 
 Confederated States might disappear, he reso- 
 lutely assigned to himself the task of framing 
 one in which nationality should be secure and 
 a national government above and independent 
 of the States be the result. While yet a mem- 
 ber of Congress he saw plainly these things — 
 that the government of the Confederated 
 States was drifting toward insolvency, for 
 New York and Massachusetts alone had paid 
 in full their quota of the Federal expenses; 
 
 249 
 
THE PINCKNEY DEAUGHT 
 
 that it was drifting towards war ; for at least 
 one of the States was jflagrantly violating the 
 treaty of peace with Great Britain; that the 
 Congress could neither raise money nor main- 
 tain a treaty; for the only power which it 
 practically possessed was to beseech the States 
 to pay their respective shares of the Feder^tl 
 expenses, and to pass as recently as March 21, 
 1787, resolutions urging on the States a repeal 
 of all laws contravening the treaty of peace 
 with Great Britain. 
 
 Pinckney was then in the full flush of youth- 
 ful egoism, but the oldest member of the Con- 
 vention, even Franklin, could not have chosen 
 his method of construction more wisely. 
 Wherever constitutional material existed, 
 Pinckney found it, and preferred it to his 
 own. A single paragraph will give an e:ffec- 
 tive object lesson of his careful composite 
 work: 
 
 ^ ' The United States shall not grant any title 
 of nobility '' (Art. Confederation VI). ^'The 
 Legislature of the United States shall pass 
 no law on the subject of religion" (Consti- 
 tution of New York) ; '^nor touching or abridg- 
 ing the liberty of the press'' (Constitution 
 
 250 
 
WHAT PINCKNEY DID 
 
 Massachusetts); ^^nor shall the privilege of 
 the writ of habeas corpus ever be suspended 
 except in case of rebellion or invasion" (Con- 
 stitution Mass.). 
 
 The resolution of March 21, 1787 is as fol- 
 lows: 
 
 ''Wednesday, March 21, 1787. 
 ''Eesolved, That the legislatures of the sev- 
 eral states cannot of right pass any act or 
 acts, for interpreting, explaining, or constru- 
 ing a national treaty or any part or clause 
 of it; nor for restraining, limiting or in any 
 manner impeding, retarding or counteracting 
 the operation and execution of the same, for 
 that on being constitutionally made, ratified 
 and published, they become in virtue of the 
 confederation, part of the law of the land, and 
 are not only independent of the will and 
 power of such legislatures, but also binding 
 and obligatory on them." 
 
 This becomes in the draught: 
 
 ''All acts made by the Legislature of the 
 United States, pursuant to this Constitution, 
 and all Treaties made under the authority of 
 the United States, shall be the Supreme Law 
 
 251 
 
THE PINCKNEY DEAUGHT 
 
 of tlie Land; and all Judges shall be bound to 
 consider them as snch in their decisions." 
 
 I have spoken of the sentence, *'The citi- 
 zens of each State shall be entitled to all priv- 
 ileges and immunities of citizens in the several 
 States" as the most felicitous sentence in the 
 Constitution, which passed through the Com- 
 mittee of Detail, the Committee of Style, and 
 the Convention without the change of a single 
 word. But in the Articles of Confederation 
 the provision stood in this prolix form: 
 
 ^^The better to secure and perpetuate 
 mutual friendship and intercourse among the 
 people of the different States in this union, the 
 free inhabitants of each of these States, pau- 
 pers, vagabonds, and fugitives from Justice 
 excepted, shall be entitled to all privileges and 
 immunities of free citizens in the several 
 States; and the people of each State shall 
 have free ingress and egress to and from any 
 other State, and shall enjoy therein all the 
 privileges of trade and commerce, subject to 
 the same duties, impositions and restrictions 
 as the inhabitants thereof respectively, pro- 
 vided that such restriction shall not extend so 
 far as to prevent the removal of property 
 
 252 
 
WHAT PINCKNEY DID 
 
 imported into any State, to any other State 
 of which the owner is an inhabitant. ' ' 
 
 That the work was Pinckney's we know, 
 for the provisions set forth in articles 12 and 
 13 of his draught are described in the Obser- 
 vations. 
 
 Bnt though the work of Pinckney was built 
 of the thoughts, phrases and provisions of 
 other men, the structure was his own; and in 
 its details as in its general design, he never 
 failed in his intent that the new republic which 
 he was trying to found should be a nation, and 
 that its government should have all the 
 powers, duties, responsibilities and authority 
 essential and incidental to nationality. The 
 thought may have been in other minds but 
 another draughtsman by a slight change of 
 expression might have warped the idea and 
 left it of no avail. It is this comprehensive 
 generality of treatment and expression which 
 I am now inclined to hold was Pinckney 's 
 greatest contribution to the Constitution. In- 
 deed if Marshall had laid his hand on Pinck- 
 ney 's shoulder and said, ''Young man, so 
 frame your constitution that I shall be able 
 to interpret it according to the necessities of 
 
 253 
 
THE PINCKNEY DRAUGHT 
 
 the Republic and in harmony with the general 
 requirements of our nationality," Pinckney 
 would not have needed to change a single line. 
 For more than 70 years, Pinckney has been 
 a condemned and misrepresented man, and 
 what is strange, though not inexplicable, his 
 disgrace was primarily caused by the indis- 
 pensable work which he unselfishly performed 
 for his country without honor and without re- 
 ward. I began the foregoing investigation of 
 the authenticity and verity of the draught in 
 the State Department in consequence of the 
 publication of Pinckney 's letter to the Secre- 
 tary of State in 1818 in which he states 
 frankly that the paper sent is not a literal 
 duplicate of the draught presented to the Con- 
 vention and that the draught contained pro- 
 visions which he subsequently condemned and 
 openly opposed during the debates. I knew 
 of the worst side of Pinckney 's character — 
 his egoism, his garrulousness, his lack of cau- 
 tious common sense — and in my early study 
 of the Constitution the Pinckney draught had 
 seemed too much to be the work of one man, 
 and the charges of Madison with the implica- 
 tions of Elliot and the silence of Story and 
 
 254 
 
WHAT PINCKNEY DID 
 
 the censure of Bancroft had confirmed my sus- 
 picion and left me with a poor opinion of the 
 draught in the State Department and of the 
 man who placed it there. The most which I 
 expected from this investigation was that I 
 should be able to say with tolerable certainty 
 that a section here or a paragraph there in 
 the Constitution, was the work of Pinckney. 
 But when under the pressure of unquestion- 
 able facts, the charges of Madison fell to 
 pieces; and when with the refutation of a 
 charge, just so much of the draught would be 
 positively verified and affirmed ; and especially 
 when it plainly appeared, not only that in sec- 
 tions and articles, and provisions and sen- 
 tences, the one instrument agreed with the 
 other but that in form and style, and phrase- 
 ology and arrangement from the words of the 
 preamble, '^We the people do ordain, declare, 
 and establish the following Constitution for 
 the government of ourselves and posterity" 
 to the words of the last article, ' * The ratifica- 
 tions of States shall be sufficient for or- 
 ganizing this Constitution,'' the draught of 
 the Committee of Detail follows the draught 
 in the State Department, and the Constitution 
 
 255 
 
THE PINCKNEY DEAUGHT 
 
 follows the draught of the Committee of De- 
 tail, I was slowly forced to the conclusion that 
 the young South Carolinian on whom I had 
 placed no high estimate, had rendered a great 
 service at a critical time, and that but for his 
 needed work, the Constitution would be, at 
 least in form, a very different instrument 
 from the one which we revere. My slowly 
 formed conclusion is that if wise and judicious 
 forethought, and much patient work well done, 
 and a breadth of view commensurate with the 
 greatness of the subject, and the production at 
 a critical moment of a paper which all other 
 men in or out of the Convention had neglected 
 to prepare, entitle a man to the lasting rec- 
 ognition of his countrymen, there is no framer 
 of the Constitution more entitled to be com- 
 memorated in bronze or marble than Charles 
 Pinckney of South Carolina. 
 
 256 
 
CHAPTER XV 
 
 CONCLUSIONS ON THE WHOLE CASE 
 
 THERE are three reasons why the Pinck- 
 ney Draught has been too readily dis- 
 credited. The first is our respect for Mad- 
 ison, onr belief that his knowledge far exceed- 
 ed our own, and onr deference to his repeat- 
 edly expressed opinion. The second is that 
 the draught was never before the Convention 
 and consequently never received the recogni- 
 tion of discussion. It was referred at the be- 
 ginning to the Committee of the Whole ; but it 
 was not yet wanted, for the Committee de- 
 bated only abstract propositions couched in 
 formal resolutions. It was referred to the 
 Committee of Detail ; but that Committee re- 
 ported only their own draught and the Con- 
 vention had before them only the Committee's. 
 The draught of Pinckney never came to a 
 vote, was never discussed, and never received 
 the slightest consideration in the Convention. 
 The third reason for discrediting the 
 
 257 
 
THE PINCKNEY DEAUGHT 
 
 draught is to be found in the exaggerated 
 value which has been set upon it. It has 
 seemed to be altogether too great an instru- 
 ment to have been the work of one man. We 
 have felt in a vague way that to concede that 
 one man could have contributed so much to the 
 great instrument would be to detract from the 
 work and fame of the great men whom we call 
 the framers of the Constitution, and from the 
 Constitution itself. 
 
 But the fact is that the draught of Pinckney 
 is not so great as it seems. Coming from a 
 man so well equipped for the work, so ex- 
 perienced in the existing affairs of our mixed 
 governments and with such a clear compre- 
 hension of the conditions of the case, and hav- 
 ing such a mass of material ready to his hand, 
 the draught is not a marvelous production. 
 That is to say the work considered as the work 
 of so young a man is not so wonderful as at 
 first it appears to be. It may come within the 
 range of the improbable but not of the impos- 
 sible. 
 
 Madison has himself borne witness to the 
 fact that the subject of a substitute for the 
 tottering power of the Confederated States 
 
 258 
 
CONCLUSIONS ON THE WHOLE CASE 
 
 was in every man's mind; and that every in- 
 telligent man of that day was more or less 
 fitted to draught a general outline of a new 
 national government: 
 
 *'The resolutions of Mr. Eandolph, the basis 
 on which the deliberations of the Convention 
 proceeded, were the result of a consultation 
 among the Virginia deputies, who thought it 
 possible that, as Virginia had taken so lead- 
 ing a part in reference to the Federal Conven- 
 tion, some initiative propositions might be ex- 
 pected from them. They were understood not 
 to commit any of the members absolutely or 
 definitively on the tenor of them. The reso- 
 lutions will be seen to present the character- 
 istics and features of a government as com- 
 plete (in some respects, perhaps more so) as 
 the plan of Mr. Pinckney, though without be- 
 ing thrown into a formal shape. The moment, 
 indeed, a real constitution was looked for as a 
 substitute for the Confederacy, the distribu- 
 tion of the Government into the usual depart- 
 ments became a matter of course with all who 
 speculated upon the prospective change.'' 
 Letter to W. A. Duer, June 5th, 1835. 
 
 The difficulty of the hour was not in 
 
 259 
 
THE PINCKNEY DEAUGHT 
 
 draughting a constitution, but in draughting 
 one which wonld not arouse the jealous antag- 
 onism of the several States. That difficulty 
 did not trouble Pinckney. His plan contem- 
 plated having the people of each State fairly; 
 i. e., proportionately represented in his House 
 of Delegates, and in making the several States 
 as States unequivocally submissive to the new 
 national authority. 
 
 Pinckney had been for two years immedi- 
 ately before the sitting of the Convention, a 
 delegate in the Congress of the Confedera- 
 tion. He had been the representative of 
 South Carolina in the ^ ^ grand committee ' ' ap- 
 pointed to consider the alteration of the 
 Articles of Confederation. He had been 
 chairman of the subcommittee which draught- 
 ed the committee's report of August, 1786; 
 and (as Professor McLaughlin has pointed 
 out) ''the introducing phrases, as appears by 
 reference to the manuscript papers of the old 
 Congress, were written in Pinckney 's own 
 hand.'' In witnessing the inherent weakness 
 and increasing degradation of the Congress, 
 he had learned to appreciate the incapacity of 
 the confederate system, and the necessity of a 
 
 260 
 
CONCLUSIONS ON THE WHOLE CASE 
 
 National government. No member of the 
 Convention better appreciated those two 
 things, or was better equipped for the task 
 which he undertook; and there was no man 
 in the country, except Madison, who had been 
 through such a preparatory course and had 
 such a combination of resources at his com- 
 mand. He was young, talented, experienced, 
 ambitious, wealthy, unemployed and a cease- 
 less worker. The index of Madison's Journal 
 witnesses to the immense amount of work 
 which Pinckney did irrespective of the 
 draught. If we discard the draught — the 
 original draught, the disputed draught, and 
 the draught described in the Observations, the 
 fact will remain that Pinckney was an im- 
 portant contributor to the work of framing the 
 Constitution. 
 
 Pinckney 's plan of government was precise- 
 ly what we might expect it to be. He was an 
 able but not a sagacious statesman ; that is he 
 saw clearly what he wanted, but he did not see 
 what other men wanted. Neither did he an- 
 ticipate as a sagacious statesman would, the 
 ignorance, the adverse interests and the preju- 
 dices of those who ultimately would have the 
 
 261 
 
THE PINCKNEY DRAUGHT 
 
 power to reject or ordain the work of the Con- 
 vention. Therefore he originated none of the 
 compromises which reconciled antagonistic 
 views and made the Constitution possible. 
 The great and difficult problems which con- 
 fronted the Convention were not solved by the 
 Draught. Pinckney in it provided for two 
 legislative houses and based representation on 
 population, neglecting to place the small 
 States on an equal footing with the large 
 States in the Senate. He provided for one 
 Executive head as did every government in 
 the world, but he devised no means for uniting 
 harmoniously the large and small States in 
 choosing the Executive. The Draught was an 
 admirable instrument for its purpose — an ad- 
 mirable model for the workmen of the Con- 
 vention to correct, alter and enlarge. It was 
 crude and unfinished but it was in well chosen 
 words and simple sentences, eschewing par- 
 ticulars and presenting in a masterly way 
 great declaratory principles of government. 
 Pinckney had a few fanciful provisions in his 
 plan and yet he was a practical and not a fan- 
 ciful constitution-maker, not above taking the 
 best material he could find wherever he could 
 
 262 
 
CONCLUSIONS ON THE WHOLE CASE 
 
 find it, resorting to himself last ; and not above 
 throwing aside his own work and beginning 
 again and again nntil he had patiently wrought 
 out the best that his ability could do. But 
 whert in estimating the Constitutional value of 
 the draught, we have given credit for the ad- 
 mirable construction of the plan of govern- 
 ment and for the clear declaratory, style of the 
 instrument, and for the preamble, and when 
 we have discarded his original schemes, not 
 adopted by the Convention, such as the plan 
 for the Senate, we find that the remainder of 
 the draught is made up for the most part of de- 
 tails suggested by his experience in the Con- 
 gress of the Confederated States, details 
 which were culled by him with extraordinary 
 care from the constitutions of New York and 
 Massachusetts and the Articles of Confedera- 
 tion. 
 
 In a word, the provisions which were reject- 
 ed, such as a Senate chosen by the House of 
 Eepresentatives ; such as a Senate having **the 
 sole and exclusive power" to declare war, to 
 make treaties, to appoint foreign ministers and 
 judges of the Supreme Court; such as a 
 national legislature having power to ''revise 
 
 263 
 
THE PINCKNEY DEAtJGHT 
 
 the laws of the several States'' and ''to nega- 
 tive and annuP' those wliicli infringed the 
 powers delegated to Congress — do not cause 
 either wonder or admiration. It is the val- 
 uable practical provisions of the draught 
 which provoke doubts. Yet these are for the 
 most part the work of selection by an author 
 thoroughly versed in what may be called the 
 Constitutional literature and studies of the 
 day, and who by experience knew precisely 
 what was needed to transmute the Confeder- 
 ated States into an efficient National govern- 
 ment. 
 
 In our minds we picture the framers of the 
 Constitution as remarkable men, sage in 
 council, experienced in affairs of state. But 
 there were two young men, the one 36, the 
 other 30, who furnished the constructive minds 
 of the Convention. Madison was foremost in 
 framing the Virginia resolutions, which 
 brought before the Convention questions for 
 abstract discussion and bases on which to rest 
 principles of government. Pinckney formu- 
 lated a constitution which became a basis for 
 the most of the concrete work. Both had had 
 the severe practical training of members of 
 
 264 
 
CONCLUSIONS ON THE WHOLE CASE 
 
 the Congress of the Confederated States dur- 
 ing the sorest period of its humiliating help- 
 lessness, the darkening days which preceded 
 its dissolution. Both understood thoroughly 
 the existing system which made the Federal 
 government dependent upon its States and 
 therefore inferior to them; and they knew by 
 what had been to them bitter experience that 
 the solvency of the Federal government was 
 dependent upon the voluntary contributions 
 of each and all of the States, and that a single 
 one of the great States by refusing to pay its 
 quota could bring the nation to bankruptcy. 
 They knew too that while the general govern- 
 ment could make treaties, the States could vio- 
 late them — that they had violated them, and 
 even then had brought the country to the 
 verge of a foreign war. Their minds recoiled, 
 as the minds of young men naturally would, 
 to the opposite extreme, and each believed in 
 the subversion of the States. How fully they 
 agreed a single illustration will disclose. 
 
 On Friday, June 8th, 
 
 *'Mr. Pinckney moved 'that the National 
 Legislature shd. have authority to negative 
 all laws which they shd. judge to be improper.' 
 
 265 
 
THE PINCKNEY DEAUGHT 
 
 He urged that sucli a imiversality of the 
 power was indispensably necessary to render 
 it effectual; that the States must be kept in 
 dne subordination to the nation; that if the 
 States were left to act of themselves in any 
 case, it wd. be impossible to defend the nation- 
 al prerogatives, however extensive they might 
 be on paper; that the acts of Congress had 
 been defeated by this means ; nor had foreign 
 treaties escaped repeated violations ; that this 
 universal negative was in fact the corner stone 
 of an efficient national Govt. ' ' 
 
 '^Mr. Madison seconded the motion. He 
 could not but regard an indefinite power to 
 negative legislative acts of the States as ab- 
 solutely necessary to a perfect System. Ex- 
 perience had evinced a constant tendency in 
 the States to encroach on the federal author- 
 ity; to violate national Treaties; to infringe 
 the rights and interests of each other; to 
 oppress the weaker party within their 
 respective jurisdictions. A negative was the 
 mildest expedient that could be devised for 
 preventing these mischiefs.'' 
 
 But it was for these same reasons that 
 neither Madison nor Pinckney attempted to 
 
 266 
 
CONCLUSIONS ON THE WHOLE CASE 
 
 frame a compromise. Each wanted a nation- 
 al government with unequivocal powers. 
 Each ignored the jealousy of the small States, 
 the apprehensions of the slave States, the in- 
 creasing preponderence of the free States. 
 Both intended that these elements of distrust 
 should be absorbed by the overwhelming 
 power of the new national government. For 
 more than 100 years the American people have 
 kept the cardinal idea of these youthful states- 
 men buried from sight or contemplation as 
 something impractical or dangerous but they 
 are now beginning to ask themselves whether ^^^ 
 an overwhelming national government is not ff 
 the better agency for the control and manage- 
 ment of their modern, complex, national life. 
 
 Considering that Madison and Pinckney ^ 
 worked in such different fields, the abstract 
 and the concrete, it is remarkable that the 
 work of the one repeatedly and constantly 
 agrees with the work of the other. Consid- 
 ering that they had worked side by side for 
 years conferring daily on the same absorbing 
 subject, encountering the same difficulties, 
 thwarted by the same obstacles, defeated by 
 the same incapacities, their minds intent on 
 
 267 
 
THE PINCKNEY DRAUGHT 
 
 the same ends, it is not remarkable that an 
 identity of purpose was followed, though in 
 different forms, by an identity of results and 
 that the work of Pinckney was little more than 
 an embodiment of the propositions of Mad- 
 ison. Together they furnished just what the 
 necessities of the hour required, ideas of gov- 
 ernment for consideration and discussion; 
 formulated constitutional provisions for 
 amendment and adoption. Greatly to be re- 
 gretted it is that the two men who did such 
 valuable interserviceable work for the cause to 
 which their lives were then devoted, and whose 
 names should be most closely associated in the 
 history of the Constitution, now appear so 
 irretrievably antagonistic. 
 
 There are some provisions in the draught 
 which are not sustained by the confirmatory 
 fact of being incorporated in the draught of 
 the Committee of Detail, and notablv the fol- 
 lowing : 
 
 ''The legislature of the United States shall 
 have the power" ''to pass laws for arming, 
 organizing and disciplining the militia of the 
 United States,'' Art. 6. This power to or- 
 ganize and discipline the militia was a radical 
 
 268 
 
CONCLUSIONS ON THE WHOLE CASE 
 
 transfer of authority from the States to the 
 new national government, a power which the 
 committee were not instructed to transfer and 
 which accordingly they did not incorporate in 
 their draught. But it is specifically set forth 
 in the Observations as one of the provisions of 
 the draught ; and on the 18th of August Pinck- 
 ney advocated in the Convention substantially 
 the same thing. 
 
 The draught also provides that the legisla- 
 ture of the United States shall have power, 
 ^^To provide for the establishment of a seat 
 of government for the United States, not ex- 
 ceeding miles square, in which they shall 
 
 have exclusive jurisdiction." Art. 6. This 
 also was a radical innovation which the Com- 
 mittee could not adopt without authority. But 
 it was also specifically set forth in the Obser- 
 vations; and on the 18th of August Pinckney 
 moved in the Convention; 
 
 **To fix and permanently establish the seat 
 of government of the United States in which 
 they shall possess the exclusive right of soil 
 and jurisdiction. '^ 
 
 The draught also provides, *'nor shall the 
 privilege of the writ of habeas corpus ever be 
 
 269 
 
THE PINCKNEY DRAUGHT 
 
 suspended, except in cases of rebelliQn or in- 
 vasion." Art. 6. 
 
 The Convention shrank from the insertion 
 of a hill of rights in the Constitution because, 
 as was subsequently explained, it was feared 
 that it might bring up the subject of slavery, 
 one member insisting that it should contain a 
 declaration against slavery, and another that 
 it should specifically declare that it did not 
 extend to slaves. Accordingly the committee 
 did not incorporate this declaration of right 
 in their draught. But it is set forth in the 
 Observations; and on the 20th of August 
 Pinckney proposed in the Convention a 
 stronger and more explicit provision. 
 
 These provisions, therefore, are sustained 
 by the public, contemporaneous avowal of 
 Pinckney that they were in the draught which 
 he had prepared for the use of the Conven- 
 tion; and by the recorded facts that when he 
 found that the committee had not considered 
 them as within their jurisdiction and had not 
 incorporated them in their draught he brought 
 them before the Convention and sought to 
 have them inserted in the Constitution. As it 
 is certain that the ideas were his, and that he 
 
 270 
 
CONCLUSIONS ON THE WHOLE CASE ' 
 
 formulated them into provisions substan- 
 tially identical with those in the State Depart- 
 ment draught, at the time when the Conven- 
 tion was considering the respective subjects, 
 it requires very little additional assurance to 
 make us accept them as a part of the draught 
 presented to the Convention. 
 
 Conversely, there are provisions which may 
 have been in the draught presented to the Con- 
 vention, but which are not in the draught filed 
 in the State Department. The most notable, 
 of these is the one relating to patents and 
 copyright. Pinckney says in the Observa- 
 tions ** There is also an authority to the na- 
 tional legislature'' *Ho secure to authors the 
 exclusive right to their performances and dis- 
 coveries;" and on the 18th of August he 
 moved in the Convention to insert among 
 other powers * * To grant patents for useful in- 
 ventions." 
 
 If the provision was in the original draught, 
 the Committee of Detail were not authorized 
 to adopt it and did not; but the Conventioi;! 
 did and it became a part of the Constitution. 
 Pinckney was constantly nursing his draught, 
 revising, amending, rearranging, and it is not 
 
 271 
 
THE PINCKNEY DEAUGHT 
 
 improbable that lie inserted this provision in 
 one copy and neglected to insert it in the oth- 
 ers. But he certainly seems to have been the 
 author of it. From one point of view it may 
 seem a needless Constitutional provision; for 
 a national legislature could so legislate without 
 it. But under the British Constitution mo- 
 nopolies were a prerogative of the Crown, and 
 a patent was deemed a monopoly. Pinckney 
 therefore did wisely in expressly assigning 
 patent-rights and copyrights to the legislative 
 branch of the Government, giving to the mind- 
 work of the inventor or author the character 
 of property and the safeguard of the law. 
 
 Another provision is the compromise relat- 
 ing to slave representation. In the State De- 
 partment draught it is provided that the num- 
 ber of the delegates shall be regulated *^by the 
 number of inhabitants'' (Art. 3) and that 
 ''the proportion of direct taxation shall be 
 regulated by the whole number of inhabitants 
 of every description.'' In the Observations 
 he says that his plan contains a provision ''for 
 empowering Congres^s to levy taxes upon the 
 States, agreeable to the rule now in use, an 
 enumeration of the white inhabitants, and 
 
 272 
 
CONCLUSIONS ON THE WHOLE CASE 
 
 three-fifths of other descriptions." In the 
 Convention on the 12th of July, *'Mr. Pinck- 
 ney moved to amend Mr. Eandolph's motion 
 so as to make * blacks equal to the whites in the 
 ratio of representation.' This he urged was 
 nothing more than justice. The blacks are 
 the labourers, the peasants of the Southern 
 States: they are as productive of pecuniary 
 resources as those of the Northern States. 
 They add equally to the wealth, and, con- 
 sidering money as the sinews of war, to the 
 strength of the nation. It will also be politic 
 with regard to the Northern States, as tax- 
 ation is to keep pace with Eepresentation.'' 
 
 This is conclusive as to Pinckney's views. 
 It confirms the draught in the State Depart- 
 ment and shows too that the copy of the 
 draught on which the Observations were 
 founded differed in this detail from the 
 draught presented to the Convention. 
 
 On a review of the entire case I have 
 reached the following conclusions : 
 
 1. The draught in the State Department 
 agrees so closely with the draught of the Com- 
 mittee of Detail, in form, in phraseology, in 
 structure, in arrangement, in extent, in its be- 
 
 273 
 
THE PINCKNEY DEAUGHT 
 
 ginning and its ending tliat unquestionably the 
 
 ^ one draught must have followed the other. 
 
 if There can be no middle ground here. 
 
 2. With the uncovering of the Committee's 
 draught and the bringing of the Observations 
 into the case and the confirmatory matter in 
 the Kandolph and Wilson draughts, it be- 
 comes evident that the suspected fraud was an 
 impossibility. That is to say, when Pinckney 
 described in the Observations the draught 
 which he was subsequently to present to the 
 Convention he thereby described the draught 
 which he was ultimately to place in the De- 
 partment of State. In a word, if a fraud was 
 perpetrated in 1818, it must have been begun 
 in 1787, before the Convention met, which is 
 a reductio ad absurdum. 
 
 3, The Observations were printed and pub- 
 lished during the lifetime of every member of 
 the Convention, including the five members of 
 the Committee of Detail, and Pinckney im- 
 mediately republished them in the South 
 Carolina State Gazette. In 1819 when the 
 copy of the draught was published and circu- 
 lated as a public document there were 16 mem- 
 bers of the Convention still living, among 
 
 274 
 
CONCLUSIONS ON THE WHOLE CASE 
 
 whom was Madison, the chronicler of the Con- 
 vention. 
 
 It must therefore be held that Pinckney did ' 
 not conceal anything or shrink from in- / 
 vestigation; and that all which he did was ' 
 done in dne time, in the light of day and in the 
 most open manner. Indeed it may be asked 
 whether there ever was an historical document 
 which was so doubly published and declared 
 both prior to and at the time when it 
 was produced as the Pinckney draught; or 
 which could have been so easily refuted, if it 
 was really refutable? A court of justice in 
 such a case would say, ''The plea of fraud is 
 sustained by no evidence whatever. To allow 
 a document which was placed in the files 
 of the Government at the instance of a high 
 officer of State to be attacked and discredited 
 because of the doubts and suspicions of indi- 
 viduals, no matter how eminent and intelligent, 
 would be a monstrous abuse of authority which 
 can not be upheld in either law or morals." 
 
 4. A question may be raised as to whether 
 the Journal of Madison can properly be ad- 
 mitted as evidence against the claim of Pinck- 
 ney ; and it must be conceded that Madison oe- 
 
 275 
 
THE PINCKNEY DEAUGHT 
 
 cupied the position of a controversialist ; that 
 during the whole of the period of controversy 
 his chronicle of the Convention was in his ex- 
 clusive possession; and that it was within his 
 power at any moment to obliterate parts or 
 passages which, coming to the knowledge of 
 the world, would weaken his own position and 
 vindicate Pinckney and sustain the draught. 
 But such a suggestion against the integrity of 
 such a man is not to be lightly entertained. It 
 is no more to be believed without evidence 
 (and evidence of the most clear and unequivo- 
 cal character) that Madison, for his own pur- 
 poses, obliterated historical evidence, than 
 that Pinckney fabricated it. Each was a 
 member of the Congress of the Confederation ; 
 each was a delegate to the great Convention; 
 each was eminent for his zeal in the pro- 
 longed and often hopeless work of framing the 
 Constitution; each has left behind him a long 
 record of distinguished public life. The one 
 laboriously prepared the only draught of the 
 Constitution that was made for the use of the 
 Convention; and the other laboriously pre- 
 pared the only chronicle of the framers' work 
 which the world possesses. It is not for the 
 
 276 
 
CONCLUSIONS ON THE WHOLE CASE 
 
 bitterness of controversy, heedlessly, to assail 
 such men. 
 
 5. The Journal of Madison must be received 
 as authentic history. At the same time it 
 must be borne in mind that it was not written 
 with the fulness and precision of the modern 
 stenographer. Madison could not transcribe 
 the words which a speaker uttered and leave 
 us to ascertain the speaker 's meaning from his 
 words. All that such a reporter could do was 
 to record what he believed to be the speaker's 
 meaning. It follows that condensed passages, 
 isolated sentences, casual turns of expression 
 cannot be used as admissions against Pinck- 
 ney, and must be considered with disinterested 
 caution, if they be considered at all. 
 
 Time which destroys, also discloses; and 
 time may bring to light some record which will 
 change the conclusions of to-day. But as the 
 case now stands it must be said that the Pinck- 
 ney Draught in the Department of State is 
 (with the exceptions before noted), all that 
 Pinckney represented it to be. 
 
 277 
 
CHAPTEE XVI 
 
 OF PIKCKlSrEY PERSONALLY 
 
 PINCKNEY was in the fourth generation 
 of a family which had been distinguished 
 for more than one hundred years for its public 
 services. He had been elected to the provin- 
 cial legislature of South Carolina before he 
 had come of age; and he had made himself 
 before the sitting of the Convention a promi- 
 nent member of the Congress of the Confeder- 
 ated States. He had a clearer apprehension 
 of the actual needs of American nationality 
 than any other member of the Convention. 
 This may be seen in his Observations and in 
 his speech of the 25th of June. There is a 
 passage in that speech in which anticipating 
 the Farewell Address of Washington and the 
 peace policy of Jefferson he looks forward 
 through the ensuing century of the Constitu- 
 tion and depicts the practical blessings which 
 it was to bring to the American people with a 
 clearness and accuracy that is extraordinary: 
 
 278 
 
OF PINCKNEY PEESONALLY 
 
 '* Our true situation appears to me to be 
 this — a new, extensive country, containing 
 within itself the materials for forming a gov- 
 ernment capable of extendng to its citizens all 
 the blessings of civil and religious liberty — ca- 
 pable of making them happy at home. This is 
 the great end of republican establishments. 
 We mistake the object of our government, if 
 we hope or wish that it is to make us respect- 
 able abroad. Conquests or superiority among 
 other powers is not, or ought not ever to be, 
 the object of republican systems. If they are 
 sufficiently active and energetic to rescue us 
 from contempt, and preserve our domestic 
 happiness and security, it is all we can expect 
 from them — it is more than almost any other 
 government insures to its citizens." 
 
 Pinckney's experience in the Congress of 
 the Confederation made him despise the exist- 
 ing Federal Government and undervalue the 
 local authority of the States. He came into 
 the Convention its most extreme Federalist — 
 more so even than Hamilton. As he said in 
 the Observations: 
 
 ''In the federal councils, each State ought 
 to have a weight in proportion to its impor- 
 
 279 
 
THE PINCKNEY DEAUGHT 
 tance ; and no State is justly entitled to great- 
 
 er. ' ' 
 
 *^Tlie Senatorial districts into wHcli the 
 Union is to be divided [in Ms plan] will be so 
 apportioned as to give to each its due weight, 
 and the Senate calculated in this as it ought to 
 be in every government, to represent the 
 wealth of the nation.'' 
 
 ^'The next provision [in his draught] is in- 
 tended to give the United States in Congress, 
 not only a revision of the legislative acts of 
 each State, but a negative upon all such as 
 shall appear to them improper." 
 
 ^^The idea that has been so long and falsely 
 entertained of each being a sovereign State, 
 must be given up; for it is absurd to suppose 
 there can be more than one sovereignty within 
 a government." 
 
 *'Upon a clear and comprehensive view of 
 the relative situation of the Union, and its 
 members, we shall be convinced of the policy of 
 concentring in the federal head a complete 
 supremacy in the affairs of government." 
 
 In the Convention Pinckney moved that the 
 members of the lower House should be 
 chosen by the legislatures ''of the several 
 
 280 
 
OF PINCKNEY PERSONALLY 
 
 States''; but this was the one thing which he 
 conceded to ''the several States." The Sen- 
 ate was to be chosen by the House of Del- 
 egates ; and what is more significant, the Sen- 
 ate was not to represent States, with the sav- 
 ing clause, ''Each State shall be entitled to 
 have at least one member in the Senate. ' ' Fi- 
 nally he would strike an absolutely fatal blow 
 at State sovereignty by providing, "the Leg- 
 islature of the United States shall have the 
 power to revise the Laws of the several States 
 that may be supposed to infringe the powers 
 exclusively delegated by this Constitution to 
 Congress, and to negative and annul such as 
 do." 
 
 Knowing as we do of Pinckney's youth (he 
 was not yet 30) and of Madison's poor opinion 
 of him, it is desirable that we should know, if 
 possible, what his contemporaries in the Con- 
 vention thought of him. William Pierce the 
 delegate from Georgia who has left to us the 
 anecdote of Washington before quoted (p. 230) 
 noted at the time his impressions of the lead- 
 ing members of the Convention. From these 
 I select his sketches of four of the young mem- 
 bers of the Convention who had even then at- 
 
 281 
 
THE PINCKNEY DEAUGHT 
 
 tained distinction, Edmund Eandolph, Enfus 
 King, Alexander Hamilton and Charles Pinck- 
 
 ney: 
 
 ''Mr. Eandolph is Governor of Virginia — a 
 young gentleman in whom nnite all the ac- 
 complishments of the Scholar and the States- 
 man. He came forward with the postnlata 
 or first principles on which the Convention 
 acted ; and he supported them with a force of 
 eloquence and reasoning that did him great 
 honor. He has a most harmonious voice, a 
 fine person and striking manners. ' ' 
 
 ''Mr. King is a Man much distinguished for 
 his eloquence and great parliamentary talents. 
 He was educated in Massachusetts, and is said , 
 to have good classical as well as legal knowl- 
 edge. He has served for three years in the 
 Congress of the United States with great and 
 deserved applause, and is at this time high in 
 the confidence and approbation of his Country- 
 men. This Gentleman is about thirty-three 
 years of age, about five feet ten Inches high, 
 well formed, an handsome face, with a strong 
 expressive Eye, and a sweet high toned voice. 
 In his public speaking there is something pe- 
 culiarly strong and rich in his expression, 
 
 282 
 
OF PINCKNEY PEESONALLY 
 
 clear, and convincing in his arguments, rapid 
 and irresistible at times in Ms eloquence but 
 he is not always equal. His action is natural, 
 swimming, and graceful, but there is a rude- 
 ness of manner sometimes accompanying it. 
 But take him tout en semhle, he may with pro- 
 priety be ranked among the Luminaries of the 
 present age.'' 
 
 * * Col. Hamilton is deservedly celebrated for 
 his talents. He is a practitioner of the Law, 
 and reputed to be a finished Scholar. To a 
 clear and strong judgment he unites the orna- 
 ments of fancy, and whilst he is able, convinc- 
 ing, and engaging in his eloquence the Heart 
 and Head sympathize in approving him. Yet 
 there is something too feeble in his voice to 
 be equal to the strains of oratory; — it is my 
 opinion that he is a convincing Speaker, that 
 (than) a blazing Orator. Col. Hamilton re- 
 quires time to think, — he enquires into every 
 part of his subject with the searchings of 
 phylosophy, and when he comes forward he 
 comes highly charged with interesting matter, 
 there is no skimming over the surface of a sub- 
 ject with him, he must sink to the bottom to 
 see what foundation it rests on. — ^His lan- 
 
 283 
 
THE PINCKNEY DEAUGHT 
 
 guage is not always equal, sometimes didactic 
 like Bolingbroke's, at others light and tripping 
 like Sterne's. His eloquence is not so defnsive 
 as to trifle with the senses, but he rambles 
 just enough to strike and keep up the atten- 
 tion. He is about 33 years old, of small stat- 
 ure, and lean. His manners are tinctured 
 with stiffness, and sometimes with a degree of 
 vanity that is highly disagreeable. ' ' 
 
 *^Mr. Charles Pinckney is a young Gentle- 
 man of the most promising talents. He is, 
 altho' only 24 [29] y's of age, in possession of 
 a very great variety of knowledge. Govern- 
 ment, Law, History and Phylosophy are his 
 favorite studies, but he is intimately ac- 
 quainted with every species of polite learning, 
 and has a spirit of application and industry be- 
 yond most Men. He speaks with neatness 
 and perspicuity, and treats every subject as 
 fully, without running into prolixity, as it re- 
 quires. He has been a member of Congress, 
 and served in that Body with ability and 
 eclat." (William Pierce of Georgia; 3 Amer. 
 Hist. Eeview, 313.) 
 
 In this materialistic world of cause and ef- 
 fect there sometimes seem to be recurring fa- 
 
 284 
 
OF PINCKNEY PERSONALLY 
 
 talities wMcli attend individuals that needless- 
 ness lias not caused and that foresight could 
 not have prevented — a fate of fire or flood or 
 shipwreck, of good fortune or of bad fortune 
 of successes or of casualties of escapes or of 
 disasters — a fate that fastens upon an indi- 
 vidual and cannot be shaken off. The fate as- 
 signed to Pinckney seems to have been obliv- 
 ion. Substantially everything which he prized 
 is gone. His house was one of the finest in 
 Charleston, if not the finest, and it was de- 
 stroyed. He believed his library to be the 
 most valuable library in the South and his 
 great gallery to hold the rarest pictures in this 
 country yet but a few volumes remain of the 
 one and but two portraits of the other. His 
 garden was the most beautiful in the State, 
 it was his pride, his delight, and obliteration 
 has indeed been its portion; even the soil 
 which bore him flowers and shrubbery and 
 trees and was laden with all the loveliness of 
 semi-tropical vegetation is gone; for it was 
 carried away during the Civil War to make 
 military defenses. At the beginning of this 
 investigation I began to search for the papers 
 of which Pinckney speaks in his letter to the 
 
 285 
 
THE PINCKKEY DEAUGHT 
 
 Secretary of State — ^papers which might throw 
 new light on the framing of the Constitution 
 or solve the problem of the contents of the 
 draught. In this search General McCrady, of 
 Charleston kindly and sympathetically co-op- 
 erated, but I soon received his assurance that 
 the quest was not a new one for him, and that 
 neither in the Historical Society of South Car- 
 olina of which he was President nor in the pos- 
 session of his friends could a document or pa- 
 per or even a letter be found. At that time I de- 
 sired to obtain a specimen of Pinckney's early 
 handwriting and accordingly carried my pur- 
 suit into the circle of his direct descendants; 
 but the sad reply came from his great-grand- y 
 son, Mr. Charles Pinckney of Claremont, 
 • South Carolina that ^^ all of his papers and 
 private manuscripts were destroyed in the 
 great fire in Charleston in 1861," and that his . 
 descendants possess *^no remains of his hand- 
 writing except the autographs in his books." 
 Letters and papers of eminent men are con- 
 stantly coming to the light from unexpected 
 hiding places and there is the official corre- 
 spondence in the State Department and papers 
 may exist in the public offices of South Caro- 
 
 286 
 
OF PINCKNEY PEESONALLY 
 
 lina, but apart from these, my investigation 
 stops at a point where it mnst be said that not 
 so much as a single line of the writing of 
 Charles Pinckney now exists. 
 
 In 1787 while Pinckney was in the full pos- 
 session of his youthful power and fortune and 
 all those things which give a man a prestige 
 above his fellows, fate seems to have leaned 
 forward and touched the instrument which 
 was the supreme work of his life, the Draught 
 of the Constitution of the United States — and 
 to have set a seal upon the lips of every man 
 who could testify as to its contents. If ever 
 there was a paper of which it might be pre- 
 dicted that it would survive its time and be se- 
 curely kept, that was the paper. The Conven- 
 tion was composed of the most orderly, care- 
 taking and reputable of men, and the author 
 of the draught was one of them. The com- 
 mand of the Convention was that its papers 
 should be preserved. The papers were placed 
 in the custody of the most scrupulous of men 
 and by him transferred to the official guard- 
 ianship of a department of the Government, 
 and there we might expect to find the draught 
 of Pinckney; but fate had touched the great 
 
 287 
 
THE PINCKNEY DEAUGHT 
 
 State paper, and we find only that it liad van- 
 ished mysteriously from the earth. 
 
 The following biographical sketch is by Mr. 
 Wm. S. Elliott, of South Carolina, a grand 
 nephew of Pinckney : 
 
 ^^In the diploma, by which the degree of 
 Doctor of Laws was conferred upon him by 
 the University of Princeton, New Jersey, it is 
 expressly declared, that it 4s conferred on ac- 
 count of high acquirements, learning and 
 ability, and particularly for his distinguished 
 services in Congress and the Federal Conven- 
 tion.' From 1787 to 1789, he was traveling 
 on the Continent and on his return, was 
 elected Governor of the State. While Govern- 
 or, he was a delegate to, and made president 
 of the State Convention for forming the Con- 
 stitution. In 1791 he was chosen a second 
 time, and in 1796 a third time. Governor of the 
 State ; in 1798 a Senator in Congress, where he 
 remained until 1801, when Mr. Jefferson ap- 
 pointed him Minister Plenipotentiary to Spain, 
 with power to treat for the purchase of Louis- 
 iana and Florida. On his return in 1806, he 
 was a fourth time honored with the position of 
 
 288 
 
OF PINCKNEY PERSONALLY 
 
 Governor of the State, and he is the only citi- 
 zen who has been so frequently elevated to the 
 executive chair. From this period he retired 
 from public life, until in 1818, when he was 
 elected under great party excitement to the 
 United States House of Representatives by 
 Charleston District, and he here closed his 
 political life with his speech in opposition to 
 the Missouri Compromise. 
 
 ^^ Family tradition and genealogical history 
 are the very reverse of amber, which, itself 
 a valuable substance, usually includes trifles; 
 whereas, these trifles being in themselves very 
 insignificant and trifling do, nevertheless, 
 serve to perpetuate a great deal of what is 
 rare and valuable in ancient manners, and to 
 record many curious and minute facts, which 
 could have been preserved and conveyed 
 through no other medium. 
 
 ^^ Charles Pinckney professed an exquisite 
 appreciation of the beautiful in nature and in 
 art. His collection of paintings, statuettes, 
 medals, etc., rendered his house almost a mu- 
 seum. His fine library, occupying an entire 
 suite of three large rooms — the floors and 
 windows of which were kept richly carpeted 
 
 289 
 
THE PINCKNEY DEAUGHT 
 
 and curtained, while the ceilings were deco- 
 rated with classic representations— is sup- 
 posed to have contained near twenty thousand 
 of the rarest and choicest books, collected from 
 every part of the Continent, and in every lan- 
 guage spoken in the enlightened world." 
 
 Thomas Pinckney, 
 
 who settled in South Carolina in 1687, 
 
 was the father of 
 
 (2) (3) 
 
 William, Thomas. 
 
 Master in Chancery. 
 
 His Son, 
 
 Col. Chas. Pinckney. 
 
 His Son, 
 
 Governor Charles Pinckney. 
 
 His Son, 
 
 Hon. Henry L. Pinckney. 
 
 '^A life of Charles Pinckney was prepared 
 and in the possession of the Hon. Henry L. 
 Pinckney for revision and addition; with it 
 were his valuable papers. The fire of 1861, 
 which desolated the city of Charleston, de- 
 stroyed almost everything, and this, and the 
 former essay, are compiled from many stray 
 
 290 
 
OF PINCKNEY PEESONALLY 
 
 notes, mutilated manuscripts and a few pa- 
 pers, still in our possession. 
 
 *^A very strange and melancholy feeling 
 overtakes us as we search the remains of 
 Charles Pinckney. Here is a man upon whom 
 Heaven appears to have showered its gifts. 
 Distinguished in ancestry, possessing fine in- 
 tellect, vigorous health, and large fortune, 
 with his political ambition fully gratified, of 
 refined tastes and cultivation, linking his 
 name successfully and eminently, with his day 
 and his race, and yet, here are his memorials 
 in a few tattered bits of paper, scarcely deci- 
 pherable. His ashes are in the family bury- 
 ing ground. The spot is known. No stone, 
 however, marks his final resting-place. His 
 house in Charleston years ago, passed into 
 the hands of the stranger, and has been torn 
 down. The very earth has been removed, and 
 now forms one of the fortifications of White 
 Point Battery, erected during the late war for 
 the defense of the city of Charleston. The 
 library is broken and scattered. The picture 
 of Lady Hamilton^ and his own portrait, are 
 the only two that we know of that remain 
 of his once splendid gallery. The beautiful 
 
 291 
 
THE PINCKNEY DEAUGHT 
 
 grounds of ^'Fee Faem'' have disappeared, 
 and the plough runs its furrows through the 
 grove, and the grave-yard.'' DeBow's Ee- 
 view, April 2, 1866. 
 
 292 
 
APPENDIX 
 
 293 
 
APPENDIX 
 
 Mr. Charles Pinckney's Draught op a Federal 
 
 Government 
 
 We the people of the States of New Hampshire 
 Massachusetts Khode Island & Providence Planta- 
 tions — Connecticut New York New Jersey Penn- 
 sylvania Delaware Maryland Virginia North Caro- 
 line South Carolina & Georgia do ordain declare 
 & establish the following Constitution for the Gov- 
 eiaament of Ourselves and Posterity. 
 
 Article 1: 
 
 The Stile of This Government shall be The United 
 States of America & The Government shall consist 
 of supreme legislative Executive and judicial 
 Powers — 
 
 2 
 
 The Legislative Power shall be vested in a Con- 
 gress To consist of Two separate Houses — One to be 
 called The House of Delegates & the other the 
 Senate who shall meet on the day of in 
 
 every Year 
 
 3 
 
 The members of the House of Delegates shall be 
 chosen every Year by the people of the several 
 
 295 
 
APPENDIX 
 
 States & the qualification of the electors shall be 
 the same as those of the Electors in the several 
 States for their legislatures— each member shall 
 have been a citizen of the United States for 
 Years— shall be of Yea of age & a resident of 
 
 the State he is chosen for — until a census of the 
 people shall be taken in the manner herein after 
 mentioned the House of Delegates shall consist of 
 to be chosen from the different states in the 
 following proportions — for New Hampshire, 
 for Massachusetts for Rhode Island . for 
 
 Connecticut. for New York for New Jersey, 
 for Pennsylvania. for Delaware for 
 
 Maryld for Virginie. for North Caroline 
 
 for South Carolina . for Georgia . & the 
 
 Legislature shall hereafter regulate the number of 
 delegates by the number of inhabitants according 
 to the Provisions hereinafter made, at the rate of 
 
 one for every thousand all money bills of 
 
 every kind shall originate in the house of Delegates 
 & shall not be altered by the Senate — The House 
 of Delegates shall exclusively possess the power of 
 impeachment & shall choose its own Officers & Va- 
 cancies therein shall be supplied by the Executive 
 authority of the State in the representation from 
 which they shall happen — 
 
 The Senate shall be elected & chosen by the House 
 of Delegates which House immediately after their 
 meeting shall choose by ballot Senators from 
 
 among the Citizens & residents of New Hampshire. 
 
 296 
 
THE PINCKNEY DRAUGHT 
 
 from among those of Massachusetts. from 
 among those of Rhode Island. from among 
 those of Connecticut. from among those of New 
 York. from among those of New Jersey from 
 among those of Pennsylvanie from among those 
 of Delaware — from among those of Maryland, 
 from among those of Virginia from among 
 those of North Caroline from among those of 
 South Caroline & from among those of Georgia — 
 
 The Senators chosen from New Hampshire Mas- 
 sachusetts Ehode Island & Connecticut shall form 
 one class — those from New York. New Jersey Penn- 
 sylvanie & Delaware one class — & those from Mary- 
 land Yirginie North Caroline South Caroline & 
 Georgia one class — 
 
 The House of Delegates shall number these 
 Classes one two three & fix the times of their serv- 
 ice by Lot — the first Class shall serve for Years 
 — the second for Years & the third for 
 
 Years — as their Times of service expire the House 
 of Delegates shall fill them up by Elections for 
 Years & they shall fill all Vacancies that arise from 
 death or resignation for the Time of service re- 
 maining of the members so dying or resigning — 
 
 Each Senator shall be years of age at leest 
 
 — shall have been a Citizen of the United States at 
 4 Years before his Election & shall be a resident 
 of the state he is chcsen from— 
 
 The Senate shall choose its own Officers 
 
 297 
 
APPENDIX 
 5 
 
 Each State shall prescribe the time & manner 
 of holding Elections by the People for the house of 
 Delegates & the Honse of Delegates shall be the 
 judges of the Elections returns & Qualifications of 
 their members 
 
 In each house a Majority shall constitute a Quo- 
 rum to do business — Freedom of Speech & Debate 
 in the legislature shall not be impeached or Ques- 
 tioned in any place out of it & the Members of 
 both Houses shall in all cases except for Treason 
 Felony or breach of the Peace be free from arrest 
 during their attendance at Congress & in going 
 to & returning from it — both houses shall keep 
 journals of their Proceedings & publish them 
 except on secret occasions & the yeas and nays 
 may be entered thereon at the desire of one of 
 
 the members present. 
 
 Neither house without the consent of the other 
 shall adjourn for more than days nor to any 
 
 Place but where they are sitting. 
 
 The members of each house shall not be eligible 
 to or capable of holding any office under the Union 
 during the time for which they have been respec- 
 tively elected nor the members of the Senate for one 
 Year after — 
 
 The members of each house shall be paid for their 
 services by the State's which they represent— 
 
 Every bill which shall have passed the Legis- 
 lature shall be presented to the President of the 
 United States for his revision— if he approves it he 
 shall sign it— but if he does not approve it he 
 
 298 
 
 ^V"' 
 
THE PINCKNEY DRAUGHT 
 
 shall return it with his objections to the house it 
 originated in, which house if two thirds of the 
 members present, notwithstanding the Presidents 
 objections agree to pass it, shall send it to the other 
 house with the Presidents Objections, where if two 
 thirds of the members present also agree to pass it, 
 the same shall become a law — & all bills sent to the 
 President & not returned by him within days 
 shall be laws unless the Legislature by their ad- 
 journment prevent their return in which case they 
 shall not be laws. 
 
 6th 
 
 The Legislature of the United States shall have 
 the power to lay & collect Taxes, Duties, Imposts 
 & Excises 
 
 To regulate Commerce with all nations & among 
 the several states — 
 
 To borrow money & emit bills of Credit 
 
 To establish Post Offices 
 
 To raise armies 
 
 To build & equip Fleets 
 
 To pass laws for arming organising & disciplining 
 the Militia of the United States — 
 
 To subdue a rebellion in any state on application 
 of its legislature 
 
 To coin money & regulate the Value of all coins 
 & fix the Standard of weights & measures 
 
 To provide such Dock Yards & arsenals & erect 
 such fortifications as may be necessary for the 
 United States, & to exercise exclusive Jurisdiction 
 therein 
 
 299 
 
APPENDIX 
 
 To appoint a Treasurer by ballott 
 
 To constitute Tribunals inferior to the Supreme 
 
 Court 
 
 To establish Post & military roads 
 
 To establish and provide for a national Univer- 
 sity at the Seat of the Government of the United 
 States — 
 
 To establish uniform rules of Naturalization 
 
 To provide for the establishment of a Seat of Gov- 
 ernment for the United States not exceeding 
 miles square in which they shall have exclusive 
 jurisdiction 
 
 To make rules concerning Captures from an 
 Enemy 
 
 To declare the law & Punishment of piracies & 
 felonies at sea & of counterfeiting Coin & of all 
 offences against the Laws of Nations 
 
 To call forth the aid of the Militia to execute the 
 laws of the Union enforce treaties suppress insur- 
 rections & repel invasions 
 
 And to make all laws for carrying the foregoing 
 powers into execution. — 
 
 The Legislature of the United States shall have 
 the Power to declare the Punishment of Treason 
 which shall consist only in levying War against the 
 United States or any of them or in adhering to 
 their Enemies.— No person shall be convicted of 
 Treason but by the Testimony of two "Witnesses.— 
 
 The proportions of direct Taxation shall be regu- 
 lated by the whole number of inhabitants of every 
 description which number shall within Years 
 
 after the first meeting of the Legislature & within 
 the term of every Years after be taken in 
 
 300 
 
THE PINCKNEY DRAUGHT 
 
 the manner to be prescribed by the legislature 
 
 No tax shall be laid on articles exported from 
 the States — nor capitation tax but in proportion to 
 the Census before directed 
 
 All laws regulating Commerce shall require the 
 assent of two thirds of the members present in each 
 house — 
 
 The United States shall not grant any title of 
 Nobility — 
 
 The Legislature of the United States shall pass no 
 Law on the subject of Religion, nor touching or 
 abridging the Liberty of the Press nor shall the 
 Privilege of the Writ of Habeas Corpus ever be sus- 
 pended except in case of Rebellion or Invasion 
 
 All acts made by the Legislature of the United 
 States pursuant to this Constitution & all Trea- 
 ties made under the authority of the United States 
 shall be the Supreme Law of the Land & all Judges 
 shall be bound to consider them as such in their 
 decisions 
 
 The Senate shall have the sole and exclusive power 
 to declare war & to make treaties & to appoint Am- 
 bassadors & other Ministers to Foreign nations & 
 Judges of the Supreme Court 
 
 They shall have the exclusive power to regulate 
 the manner of deciding all disputes & Controver- 
 sies now subsisting or which may arise between the 
 States respecting Jurisdiction or Territory 
 
 301 
 
 / 
 / 
 
APPENDIX 
 
 8 
 
 The Executive Power of the United States shall 
 be vested in a President of the United States of 
 America which shall be his stile & his title shall be 
 
 His Excellency He shall be elected for 
 
 Years & shall be reeligible 
 
 He shall from time give information to the 
 Legislature of the state of the Union & recom- 
 mend to their consideration the measures he may 
 think necessary — he shall take care that the laws 
 of the United States be duly executed: he shall 
 commission all the Officers of the United States 
 & except as to Ambassadors other ministers & 
 Judges of the Supreme Court he shall nominate 
 & with the consent of the Senate appoint all other 
 Officers of the United States — He shall receive pub- 
 lic Ministers from foreign nations & may cor- 
 respond with the Executives of the different states — 
 He shall have power to grant pardons and reprieves 
 except in impeachments — He shall be commander in 
 chief of the army & navy of the United States & 
 of the Militia of the several states, & shall receive 
 a compensation which shall not be increased or di- 
 minished during his continuance in office — At Enter- 
 ing on the Duties of his office he shall take an Oath 
 to faithfully execute the duties of a President of 
 the United States — He shall be removed from his 
 office on impeachment by the house of Delegates & 
 Conviction in the supreme Court of Treason bribery 
 or Corruption — In case of his removal death resig- 
 nation or disability The President of the Senate shall 
 exercise the duties of his office until another Presi- 
 
 302 
 
THE PINCKNEY DEAUGHT 
 
 dent be chosen — & in case of the death of the 
 President of the Senate the Speaker of the House 
 of Delegates shall do so 
 
 9 
 
 The Legislature of the United States shall have 
 the Power & it shall be their duty to establish 
 such Courts of Law Equity & Admiralty as shall 
 be necessary — the Judges of these Courts shall hold 
 their Offices during good behavior & recieve a 
 compensation which shall not be increased or dimin- 
 ished during their continuance in office — One of 
 these Courts shall be termed the Supreme Court 
 whose Jurisdiction shall extend to all cases arising 
 under the laws of the United States or affecting 
 ambassadors other public Ministers & Consuls — 
 To the trial of impeachments of Officers of the United 
 States — To all cases of Admiralty & maritime juris- 
 diction — In cases of impeachment affecting Am- 
 bassadors and other public Ministers the Jurisdic- 
 tion shall be original & in all the other cases appel- 
 late- 
 All Criminal offences (except in cases of im- 
 peachment) shall be tried in the state where they 
 shall be committed — ^the trial shall be open & pub- 
 lic & be by Jury — 
 
 10 
 
 Immediately after the first census of the people 
 of United States the House of Delegates shall 
 apportion the Senate by electing for each State out 
 of the Citizens resident therein one Senator for 
 
 303 
 
APPENDIX 
 
 every members such state shall have in the 
 house of Delegates— Each State however shall be en- 
 titled to have at least one member in the Senate 
 
 11 
 
 No State shall grant Letters of marque & reprisal 
 or enter into treaty or alliance or confederation 
 nor grant any title of nobility nor without the Con- 
 sent of the Legislature of the United States lay 
 any impost on imports — ^nor keep Troops or Ships 
 of War in Time of peace — ^nor enter into compacts 
 with other states or foreign powers or emit bills 
 of Credit or make anything but Gold Silver or Cop- 
 per a Tender in payment of debts nor en- 
 gage in War except for self defence when actually 
 invaded or the danger of invasion is so great as 
 not to admit of delay until the Government of 
 the United States can be informed thereof — & to 
 render these prohibitions effectual the Legislature 
 of the United States shall have the power to revise 
 the laws of the several states that may be sup- 
 posed to infringe the Powers exclusively delegated 
 by the Constitution to Congress & to negative & an- 
 nul such as do 
 
 12 
 
 The Citizens of each state shall be entitled to all 
 privileges & immunities of Citizens in the several 
 states — 
 
 Any person charged with Crimes in any 
 State fleeing from Justice in another shall on de- 
 mand of the Executive of the State from which 
 
 304 
 
THE PINCKNEY DRAUGHT 
 
 he fled be delivered up & removed to the State 
 having jurisdiction of the Offence — 
 
 13 
 
 Full faith shall be given in each State to the 
 acts of the Legislature & to the records & judicial 
 Proceedings of the Courts & Magistrates of every 
 State 
 
 14 
 
 The Legislature shall have power to admit new 
 States into the Union on the same terms with the 
 original States provided two thirds of the members 
 present in both houses agree 
 
 15 
 
 On the application of the legislature of a State 
 the United States shall protect it against domestic 
 insurrections 
 
 16 
 
 If Two Thirds of the Legislatures of the States 
 apply for the same The Legislature of the United 
 States shall call a Convention for the purpose of 
 amending the Constitution — Or should Congress 
 with the Consent of Two thirds of each house pro- 
 pose to the States amendments to the same — the 
 agreement of Two Thirds of the Legislatures of the 
 States shall be sufficient to make the said amend- 
 ments Parts of the Constitution 
 
 The Katifications of the Conventions 
 
 of States shall be sufficient for organiz- 
 
 ing this Constitution. — 
 
 305 
 
DEAUGHT OF THE COMMITTEE OF DETAIL. 
 
 We the People of the States of New Hampshire, 
 Massachusetts, Rhode-Island, and Providence Plan- 
 tations, Connecticut, New York, New Jersey, Penn- 
 sylvania, Delaware, Maryland, Virginia, North- 
 Carolina, South-Carolina, and Georgia, do ordain, 
 declare and establish the following Constitution 
 for the Government of Ourselves and our Posterity. 
 
 Article I 
 
 The stile of this Government shall be, *'The 
 United States of America." 
 
 II 
 
 The Government shall consist of supreme legis- 
 lative, executive and judicial powers. 
 
 Ill 
 
 The legislative power shall be vested in a Con- 
 gress, to consist of two separate and distinct bodies 
 of men, a House of Representatives, and a Senate ; 
 each of which shall in all eases, have a negative on 
 the other. The Legislature shall meet on the first 
 Monday in December in every year. 
 
 306 
 
THE COMMITTEE'S DE AUGHT 
 IV 
 
 Sect. 1. The Members of the House of Repre- 
 sentatives shall be chosen every second year, by the 
 people of the several States comprehended within 
 this Union. The qualifications of the electors shall 
 be the same, from time to time, as those of the 
 electors in the several States, of the most numerous 
 branch of their own legislatures. 
 
 Sect. 2. Every Member of the House of Repre- 
 sentatives shall be of the age of twenty-five years 
 at least; shall have been a citizen in the United 
 States 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. 
 
 Sect. 3. 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 sixty-five Members, of 
 whom three shall be chosen in New Hampshire, 
 eight in Massachusetts, one in Rhode-Island and 
 Providence Plantations, five in Connecticut, six m 
 New York, four in New Jersey, eight in Pennsyl- 
 vania, one in Delaware, six in Maryland, ten in Vir- 
 ginia, five in North-Carolina, five in South-Carolma, 
 and three in Georgia. 
 
 Sect. 4. As the proportions of numbers m 
 the different States will alter from time to time; 
 as some of the States may hereafter be divided; as 
 others may be enlarged by addition of territory; as 
 two or more States may be united; as new States 
 will be erected within the limits of the United 
 States, the Legislature shall, in each of these cases, 
 
 307 
 
APPENDIX 
 
 regulate the number of representatives by the num- 
 ber of inhabitants, according to the provisions 
 herein after made, at the rate of one for every forty 
 thousand. 
 
 Sect. 5. All bills for raising or appropriating 
 money, and for fixing the salaries of the officers of 
 government, shall originate in the House of 
 Representatives, and shall not be altered or amended 
 by the Senate. No money shall be drawn from the 
 public Treasury, but in pursuance of appropria- 
 tions that shall originate in the House of Repre- 
 sentatives. 
 
 Sect. 6. The House of Representatives shall 
 have the sole power of impeachment. It shall 
 choose its Speaker and other officers. 
 
 Sect. 7. Vacancies in the House of Representa- 
 tives shall be supplied by writs of election from the 
 executive authority of the State, in the representa- 
 , tion from which they shall happen. 
 
 V 
 
 Sect. 1. The Senate of the United States shall 
 be chosen by the Legislatures of the several States. 
 Each Legislature shall chuse two members. Va- 
 cancies may be supplied by the Executive until the 
 next meeting of the Legislature. Each member 
 shall have one vote. 
 
 Sect. 2. The Senators shall be chosen for six 
 years; but immediately after the first election they 
 shall be divided, by lot, into three classes, as nearly 
 as may be, numbered one, two and three. The 
 
 308 
 
THE COMMITTEE'S DEAUGHT 
 
 seats of the members of the first class shall be va- 
 cated at the expiration 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, 
 so that a third part of the members may be chosen 
 every second year. 
 
 Sect. 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. 
 
 Sect. 4. The Senate shall chuse its own Presi- 
 dent and other officers. 
 
 VI 
 
 Sect. 1. The times and places and the manner of 
 holding the elections of the members of each House 
 shall be prescribed by the Legislature of each State ; 
 but their provisions concerning them may, at any 
 time, be altered by the Legislature of the United 
 States. 
 
 Sect. 2. The Legislature of the United States 
 shall have authority to establish such uniform 
 qualifications of the members of each House, with 
 regard to property, as to the said Legislature shall 
 seem expedient. 
 
 Sect. 3. In each House a majority of the mem- 
 bers shall constitute a quorum to do business; but 
 a smaller number may adjourn from day to day. 
 
 Sect. 4. Each House shall be the judge of the 
 
 309 
 
APPENDIX 
 
 elections, returns and qualifications of its own mem- 
 bers. 
 
 Sect. 5. Freedom of speech and debate in the 
 Legislature shall not be impeached or questioned 
 in any court or place out of the Legislature; and 
 the members of each House shall, in all cases, ex- 
 cept treason, felony and breach of the peace, be 
 privileged from arrest during their attendance at 
 Congress, and in going to and returning from it. 
 
 Sect. 6. Each House may determine the rules 
 of its proceedings ; may punish its members for dis- 
 orderly behaviour; and may expel a member. 
 
 Sect. 7. The House of Representatives, and the 
 Senate, when it shall be acting in a legislative ca^ 
 pacity, shall keep a journal of their proceedings, 
 and shall, from time to time, publish them : and the 
 yeas and nays of the members of each House, on 
 any question, shall, at the desire of one-fifth part 
 of the members present, be entered on the journal. 
 
 Sect. 8. Neither House, without the consent of 
 the other, shall adjourn for more than three days 
 nor to any other place than that at which the two 
 Houses are sitting. But this regulation shall not 
 extend to the Senate, when it shall exercise the pow- 
 ers mentioned in the article. 
 
 Sect. 9. 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 respectively be elected : 
 and the members of the Senate shall be ineligible 
 to, and incapable of holding any such office for one 
 year afterwards. 
 
 Sect. 10. The members of each House shall re- 
 
 310 
 
THE COMMITTEE'S DRAUGHT 
 
 ceive a compensation for their services, to be ascer- 
 tained and paid by ,the State, in which they shall be 
 chosen. 
 
 Sect. 11. 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. ' ' 
 
 Sect. 12. Each House shall possess the right of 
 originating bills, except in the cases beforemen- 
 tioned. 
 
 Sect. 13. Every bill, which shall have passed 
 the House of Representatives and the Senate, shall, 
 before it become a law, be presented to the Presi- 
 dent of the United States for his revision: if, upon 
 such revision, he approve of it, he shall signify his 
 approbation by signing it: But if, upon such re- 
 vision, it shall appear to him improper for being 
 passed into a law, he shall return it, together with 
 his objections against it, to that House in which it 
 shall have originated, who shall enter the objections 
 at large on their Journal, and proceed to reconsider 
 the bill. But, if after such reconsideration, two 
 thirds of that House shall, notwithstanding the ob- 
 jections of the President, agree to pass it, it shall, 
 together with his objections, be sent to the other 
 House, by which it shall likewise be reconsidered, 
 and, if approved by two thirds of the other House 
 also, it shall become 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 vot- 
 ing for or against the bill shall be entered in the 
 Journal of each House respectively. If any bill 
 
 311 
 
APPENDIX 
 
 shall not be returned by tbe President within seven 
 days after it shall have been presented to him, it 
 shall be a law, unless the Legislature, by their ad- 
 journment, prevent its return ; in which case it shall 
 not be a law. 
 
 VII 
 
 Sect, 1. The Legislature of the United States 
 shall have the power to lay and collect taxes, duties, 
 imposts and excises; 
 
 To ren^ulate commerce with foreign nations, and 
 among the several States; 
 
 To establish an uniform rule of naturalization 
 throughout the United States ; 
 
 To coin money ; 
 
 To regulate the value of foreign coin; 
 
 To fix the standard of weights and measures; 
 
 To establish post-offices; 
 
 To borrow money, and emit bills on the credit 
 of the United States; 
 
 To appoint a Treasurer by ballot; 
 
 To constitute tribunals inferior to the supreme 
 court; 
 
 To make rules concerning captures on land and 
 water; 
 
 To declare the law and punishment of piracies 
 and felonies committed on the high seas; and the 
 punishment of counterfeiting the coin of the United 
 States, and of offences against the law of nations; 
 
 To subdue a rebellion in any State, on the appli- 
 cation of its Legislature; 
 
 312 
 
THE COMMITTEE'S DRAUGHT 
 
 To make war; 
 
 To raise armies; 
 
 To build and equip fleets; 
 
 To call forth the aid of the militia, in order to 
 execute the laws of the Union, enforce treaties, sup- 
 press insurrections, and repel invasions; 
 
 And to make all laws that shall be necessary and 
 proper for carrying into execution the foregoing 
 powers, and all other powers vested, by this Con- 
 stitution, in the government of the United States, or 
 in any department or officer thereof. 
 
 Sect. 2. Treason against the United States shall 
 consist only in levying war against the United 
 States, or any of them, and in adhering to the ene- 
 mies of the United States, or any of them. The 
 Legislature of the United States shall have power 
 to declare the punishment of treason. No person 
 shall be convicted of treason, unless on the testimony 
 of two witnesses. No attainder of treason shall 
 work corruption of blood, nor forfeiture, except 
 during the life of the person attainted. 
 
 Sect. 3. The proportions of direct taxation shall 
 be regulated by the whole number of white and 
 other free citizens and inhabitants, of every age, 
 sex and condition, including those bound to servi- 
 tude for a term of years, and three fifths of all 
 other persons not comprehended in the foregoing 
 description, (except Indians not paying taxes) 
 which number shall, within six years after the first 
 meeting of the Legislature, and within the term of 
 every ten years afterwards, be taken in such man- 
 ner as the said Legislature shall direct. 
 
 313 
 
/ 
 
 APPENDIX 
 
 Sect. 4. No tax or duty shall be laid by the 
 Legislature on articles exported from any State; 
 nor on the migration or importation of such persons 
 as the several States shall think proper to admit; 
 nor shall such migration or importation be pro- 
 hibited. 
 
 Sect. 5. No capitation tax shall be laid, unless in 
 proportion to the census hereinbefore directed to 
 be taken. 
 
 Sect. 6. No navigation act shall be passed with- 
 out the assent of two thirds of the members present 
 in each House. 
 
 Sect. 7. The United States shall not grant any 
 title of nobility. 
 
 VIII 
 
 The acts of the Legislature of the United States 
 made in pursuance of this Constitution, and all 
 treaties made under the authority of the United 
 States shall be the supreme law of the several 
 States, and of their citizens and inhabitants; and 
 the judges in the several States shall be bound 
 thereby in their decisions ; anything in the Consti- 
 tutions or laws of the several States to the contrary 
 notwithstanding. 
 
 Villi 
 
 Sect. 1. The Senate of the United States shall 
 have power to make treaties, and to appoint am- 
 bassadors and judges of the supreme court. 
 
 Sect. 2. In all disputes and controversies now 
 
 314 
 
THE COMMITTEE'S DRAUGHT 
 
 subsisting, or that may hereafter subsist between 
 two or more States, respecting jurisdiction or ter- 
 ritory, the Senate shall possess the following pow- 
 ers. Whenever the Legislature, or the Executive 
 authority, or the lawful agent of any State, in con- 
 troversy with another, shall, by memorial to the 
 Senate, state the matter in question, and apply for 
 a hearing; notice of such memorial and application 
 shall be given, by order of the Senate, to the Legis- 
 lature 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 constitute a court for hearing and determining the 
 matter in question. But if the agents cannot agree, 
 the Senate shall name three persons out of each of 
 the several States, and from the list of such persons 
 each party shall alternately strike out one, until 
 the number shall be reduced to thirteen; and from 
 that number not less than seven nor more than 
 nine names, as the Senate shall direct, shall, in their 
 presence, be drawn out by lot; and the persons, 
 whose names shall be so drawn, or any five of them 
 shall be commissioners or judges to hear and finally 
 determine the controversy; provided a majority of 
 the judges, who shall hear the cause, agree in the 
 determination. If either party shall neglect to at- 
 tend at the day assigned, without shewing sufficient 
 reasons for not attending, or, being present, shall 
 refuse to strike, the Senate shall proceed to nom- 
 inate three persons out of each State, and the clerk 
 
 315 
 
APPENDIX 
 
 of the Senate shall strike in behalf of the party 
 absent or refusing. If any of the parties shall re- 
 fuse to submit to the authority of such court; or 
 shall not appear to prosecute or defend their claim 
 or cause, the court shall nevertheless proceed to 
 pronounce judgment. The judgment shall be final 
 and conclusive. The proceedings shall be trans- 
 mitted 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 judgment, take an oath, to be ad- 
 ministered 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, according to the best of his judg- 
 ment, without favour, affection, or hope of reward. ' 
 Sect. 3. 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 subse- 
 quent to such grants, or any of them, shall, on ap- 
 plication to the Senate, be finally determined, as 
 near as may be, in the same manner as is before 
 prescribed for deciding controversies between dif- 
 ferent States. 
 
 Sect 1. The Executive Power of the United 
 States shall be vested in a single person. His stile 
 shall be, "The President of the United States of 
 Ameca;" and his title shall be, "His Excellency '\ 
 He shall be elected by ballot by the Legislature. 
 
 316 
 
THE COMMITTEE'S DRAUGHT 
 
 He shall hold his office during the term of seven 
 years; but shall not be elected a second time. 
 
 Sect. 2. He shall, from time to time, give in- 
 formation to the Legislature, of the State of the 
 Union: he may recommend to their consideration 
 such measures as he shall judge necessary, and ex- 
 pedient: he may convene them on extraordinary 
 occasions. In case of disagreement between the two 
 Houses, with regard to the time of adjournment, he 
 may adjourn them to such time as he shall think 
 proper: he shall take care that the laws of the 
 United States be duly and faithfully executed: he 
 shall commission all the officers of the United 
 States; and shall appoint officers in all cases not 
 otherwise provided for by this Constitution. He 
 shall receive Ambassadors, and may correspond 
 with the Supreme Executives of the several States. 
 He shall have power to grant reprieves and par- 
 dons; but his pardon shall not be pleadable in bar 
 of an impeachment. He shall be Commander in 
 Chief of the Army and Navy of the United States, 
 and of the Militia of the several States. He shall, 
 at stated times, receive for his services, a compen- 
 sation, which shall neither be increased nor dimin- 
 ished during his continuance in office. Before he 
 shall enter on the duties of his department, he 
 shall take the following Oath or Affirmation, /'I 
 solemnly swear, (or affirm) that I will 
 faithfully execute the Office of President of the 
 United States of America." He shall be removed 
 from his office on impeachment by the House of 
 Representatives, and conviction in the Supreme 
 
 317 
 
APPENDIX 
 
 Court, of treason, bribery, or corruption. In case 
 of his removal as aforesaid, death, resignation, or 
 disability to discharge the powers and duties of his 
 office, the President of the Senate shall exercise 
 those powers and duties until another President 
 of the United States be chosen, or until the disability 
 of the President be removed. 
 
 XI 
 
 Sect. 1. The Judicial Power of the United States 
 shall be vested in one Supreme Court, and in such 
 Inferior Courts as shall, when necessary, from time 
 to time, be constituted by the Legislature of the 
 United States. 
 
 Sect. 2. The Judges of the Supreme Court, and 
 of the Inferior courts, shall hold their offices during 
 good behaviour. They shall, at stated times, re- 
 ceive for their services, a compensation, which shall 
 not be diminished during their continuance in of- 
 fice. 
 
 Sect. 3. The Jurisdiction of the Supreme Court 
 shall extend to all cases arising under laws passed 
 by the Legislature of the United States ; to all cases 
 affecting Ambassadors, other Public Ministers and 
 Consuls ; to the trial of impeachments of Officers of 
 the United States; to all cases of Admiralty and 
 Maritime Jurisdiction; to Contriversies between 
 two or more States (except such as shall regard 
 Territory or Jurisdiction) between a State and 
 citizens of another State, between citizens of dif- 
 ferent States, and between a State or the citizens 
 thereof and foreign States, citizens or subjects. In 
 
 318 
 
THE COMMITTEE'S DE AUGHT 
 
 cases of Impeachment, cases affecting Ambassadors, 
 other Public Ministers and Consuls, and those in 
 which a State shall be a party, this Jurisdiction 
 shall be original. In all the other cases before 
 mentioned it shall be appellate, with such excep- 
 tions and under such regulations as the Legislature 
 shall make. The Legislature may assign any part 
 of the jurisdiction above mentioned (except the 
 trial of the President of the United States) in the 
 manner and under the limitations which it shall 
 think proper, to such Inferior Courts as it shall 
 constitute from time to time. 
 
 Sect. 4. The trial of all criminal offences (except 
 in cases of impeachments) shall be in the State 
 where they shall be committed; and shall be by 
 jury. 
 
 Sect. 5. 'Judgment, in cases of Impeachment, 
 shall not extend further than to removal from office, 
 and disqualification to hold and enjoy any office of 
 honour, trust or profit under the United States. 
 But the party convicted shall nevertheless be liable 
 and subject to indictment, trial, judgment and pun- 
 ishment, according to law. 
 
 XII 
 
 No State shall coin money; nor grant letters of 
 marque and reprisal ; nor enter into any treaty, alli- 
 ance, or confederation ; nor grant any title of nobil- 
 ity. 
 
 XIII 
 
 No State, without the consent of the Legislature 
 
 319 
 
APPENDIX 
 
 of the United States, shall emit bills of credit, or 
 make anything but specie a tender in payment of 
 debts; lay imposts or duties on imports; nor keep 
 troops or ships of war in time of peace; uor enter 
 into any agreement or compact with another State, 
 or with any foreign power ; nor engage in any war, 
 unless it shall be actually invaded by enemies, or 
 the danger of invasion be so imminent, as not to 
 admit of a delay, until the Legislature of the United 
 States can be consulted. 
 
 XIIII 
 
 The citizens of each State shall be entitled to all 
 privileges and immunities of citizens in the several 
 States. 
 
 XV 
 
 Any person charged with treason, felony, or high 
 misdemeanor in any State, who shall flee from 
 justice, and shall be found in any other State, shall, 
 on demand of the Executive Power of the State 
 from which he fled, be delivered up and removed 
 to the State having jurisdiction of the offence. 
 
 XVI 
 
 Full faith shall be given in each State to the acts 
 of the Legislatures, and to the records and judicial 
 proceedings of the courts and magistrates of every 
 other State. 
 
 XVII 
 
 New States lawfully constituted or established 
 
 320 
 
THE COMMITTEE'S DRAUGHT 
 
 within the limits of the United States, may be ad- 
 mitted, by the Legislature, into this government; 
 but to such admission the consent of two thirds of 
 the Members present in each House shall be neces- 
 sary. If a new State shall arise within the limits 
 of any of the present States, the consent of the 
 Legislatures of such States shall be also necessary 
 to its admission. If the admission be consented to, 
 the new States shall be admitted on the same terms 
 with the original States. But the Legislature may 
 make conditions with the new States concerning the 
 public debt, which shall be then subsisting. 
 
 XVIII 
 
 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 vio- 
 lence. 
 
 XVIIII 
 
 On the application of the Legislatures of two 
 thirds of the States in the Union, for an amend- 
 ment of this Constitution, the Legislature of the 
 United States shall call a Convention for that pur- 
 pose. 
 
 XX 
 
 The Members of the Legislatures, and the execu- 
 tive and judicial officers of the United States, and 
 of the several States, shall be bound by oath to 
 support this Constitution. 
 
 321 
 
APPENDIX 
 
 XXI 
 
 ^ The ratification of the Conventions of 
 
 States shall be sufficient for organizing this Con- 
 stitution. 
 
 XXII 
 
 This Constitution shall be laid before the United 
 States in Congress assembled, for their approbation ; 
 and it is the opinion of this Convention, that it 
 should be afterwards submitted to a Convention 
 chosen in each State, under the recommendation of 
 its legislature, in order to receive the ratification of 
 such Convention. 
 
 XXIII 
 
 To introduce this government, it is the opinion of 
 this Convention, that each assenting Convention 
 should notify its assent and ratification to the 
 United States in Congress assembled ; that Congress, 
 after receiving the assent and ratification of the 
 Conventions of States, should appoint 
 
 and publish a day, as early as may be, and appoint 
 a place for commencing proceedings under this 
 Constitution; that after such publication, the Leg- 
 islatures of the several States should elect Members 
 of the Senate, and direct the election of Members 
 of the House of Representatives ; and that the Mem- 
 bers of the Legislature should meet at the time and 
 place assigned by Congress, and should, as soon as 
 may be, after their meeting, choose the President 
 of the United States, and proceed to execute this 
 Constitution. 
 
 322 
 
INDEX 
 
 323 
 
INDEX 
 
 Adams, Secretary J. Q. 
 
 Applies to Pinckney for 
 
 draught, p. 4, 26 
 Interview with Kutus King, 
 p. 145 
 Ambassadors 
 
 To be appointed by the 
 Senate, p. 82, 102, 210 
 Article III of Pinckney's 
 Draught 
 Relied upon by Madison, 
 p. 61, 62, 93, 99, 100 
 Article V of Pinckney's 
 Draught 
 Relied upon by Madison, 
 p. 61, 101 
 Article VIII of Pinckney's 
 Draught 
 Relied upon by Madison, 
 
 p. 60, 78, 79, 82, 84, 97 
 Sustained by the Observa- 
 tions, p. 134 
 
 Bancroft, George, 
 
 Expresses the general judg- 
 ment, p. 7 
 Bill of Rights 
 
 Not adopted by the Com- 
 mittee or the convention, 
 p. 270 
 But is , in Pinckney's 
 draughts and Observa- 
 tions, p. 270 
 Bridge which Madison built 
 For Pinckney's friends, p. 
 6, 7, 21, 44 
 Butler Pierce of South Caro- 
 lina 
 Thinks election by the peo- 
 ple impracticable, p. 87 ' 
 
 325 
 
 Charges of Madison 
 
 Analysed, p. 58, 62, 63 
 Chesapeak, the frigate. 
 Surrender of, p. 56 
 Citizens. 
 
 The clause securing privi- 
 leges a.nd immunities, p. 
 252 
 City Tavern, 
 
 Members of the Convention 
 dinner at, p. 239 
 Committee of Detail 
 
 Appointed to prepare the 
 Constitution, p. 69, 232 
 
 Renort of the Committee, 
 p. 69 
 
 Names of the Committee, 
 p. 75 
 
 Secrecy of the Committee, 
 p. 75, 76 
 
 Report exceeds instruc- 
 tions, p. 70 
 
 Consistent silences of the 
 Committee until death, 
 p. 200 
 
 How the Committee fol- 
 lowed Pinckney, p. 213 
 
 The printing of the 
 draught, p. 233, 234 
 Committee of Stvle 
 
 Appointed, p. 69 
 
 Really Committee of Re- 
 vision, p. 78 
 
 Correction of language, 
 masterly, p. 78 
 Compensation of Members 
 
 Adequate, p. 173 
 
 Resolution of the Commit- 
 tee of the Whole, p. 173 
 
 Report of the committee of 
 detail, p. 174 
 
THE PINCKNEY DRAUGHT 
 
 In the Pinckney and Wil- 
 son draughts, p. 175 
 Deviation from instructions 
 explained, p. 207, 209 
 Compensation of the Presi- 
 dent. 
 Committee's draught disre- 
 gards the 12th Resolu- 
 tion, p. 209 
 Follows Pinckney 's 
 draught, p. 210 
 Compromises, The, of the 
 Constitution. 
 Neither ]\Iadison nor Pinck- 
 ney attempted a compro- 
 mise, p. 265 
 Conclusions. 
 
 Final conclusions on the 
 whole case, p. 273 
 Confederated States 
 
 Bankrupt and drifting to- 
 wards war, p. 249 
 Helpless as against the 
 
 States, p, 251 
 Dependent upon voluntary 
 
 contributions, p. 265 
 Could not enforce treaties 
 on States, p. 265 
 Congress. 
 
 See Election and Eligibility. 
 Constitution, The. 
 
 Its four germinal stages, p. 
 
 66 
 Methods for consideration 
 
 of, p. 67, 68 
 Birth of, p. 71 
 Eeferences to Committees, 
 
 p. 69, 70, 78 
 The work of the Committee 
 
 of Style, p. 78 
 Estimate of in 1818, p. 25, 
 27 
 Convention, The. 
 
 Surviving members of, p. 
 
 24, 202 
 Philosophical methods of, 
 
 p. 67 
 First days of the, p. 128, 
 129, 130 
 
 The first business day, p. 
 135 
 
 The secrecy of the conven- 
 tion, p. 227, 229, 232, 237 
 
 A lost paper, p. 230 
 
 Its careful preservation of 
 papers, p. 287 
 Copyright and Patents 
 
 Not in the Department 
 copy of the draught, p. 
 271 
 
 But Pinckney the author of 
 those constitutional pro- 
 visions, p. 271 
 
 Copyright cases, p. 206 
 Council of Revision 
 
 Considered, p. 46, 47, 50, 51 
 
 Pinckney 's action regard- 
 ing it, p. 50 
 
 Delicate. 
 
 The word as used by Mad- 
 ison, p. 36 
 Draught of Committee of De- 
 tail 
 
 Reported by committee, p. 
 70 
 
 Description of, p. 71, 72, 
 234 
 
 Washington's copy of, p. 74 
 
 The notes by Major Jack- 
 son, p. 74 
 
 Agreement with Pinckney's 
 draught, p. 79, 81, 255, 
 273 
 
 The " divide " in the march 
 of the framers, p. 76 
 
 The compromises subse- 
 quent to the draught, p. 
 77 
 
 Sparks' analysis of it, p. 
 149 
 
 Sparks' test, p. 153, 156 
 
 Madison's non-reply to 
 Sparks, p. 155, 156 
 
 The misplacing of veto 
 power, p. 183, 220 
 
 The treason provisions, p. 
 185, 221 
 
 326 
 
INDEX 
 
 The Supreme Court juris- 
 diction clause, p. 191 
 
 The draught not yet writ- 
 ten, p. 203 
 
 The preamble taken from 
 Pinckney, p. 214 
 
 How the committee fol- 
 lowed Pinckney, p. 215 
 
 The committee overrule 
 Wilson, p. 222 
 
 Limit of time for prepar- 
 ing, p. 232, 235, 248 
 
 Engrossed on Pinckney's as 
 copy for printer, p. 236, 
 241 
 
 " Delivered in " figurative- 
 ly, p. 236 
 
 The most important docu- 
 ment of the convention, 
 p. 226 
 
 Printing of the draught, p. 
 233 
 
 The real authors of the 
 draught, p. 165 
 Draught of Pinckney 
 
 Presented to the conven- 
 tion, p. 429 
 
 Lost, p. 4, 224 
 
 The Department copy, p. 4 
 
 Description of, p. 16 
 
 Madison's Note to the, p. 
 58 
 
 When written, p. 86 
 
 The term, " The law of the 
 land," p. 179 
 
 Provisions described in the 
 Observations, p. 182 
 
 The misplacing of the veto 
 power, p. 183, 220 
 
 The militia, p. 188 
 
 Randolph recognizes and 
 uses, Art 11, p. 196 
 
 Article 11 described in the 
 Observations, p. 198 
 
 Publicity attending Pinck- 
 ney's draught, p. 201, 
 274 
 
 Used as printers' copy and 
 destroyed, p. 236 
 
 Never discussed in conven- 
 tion, p. 257 
 Exaggerated value set upon 
 
 it, p. 258 
 Provisions not adopted by 
 
 the committee, p. 268 
 Provisions not in the De- 
 partment case, p. 271 
 Provisions rejected, p. 263 
 Its inferiority in detail to 
 the committee's, p. 153 
 Draught of Randolph. 
 Description of, p. 161 
 The annotations of Rut- 
 ledge, p. 164 
 Compensation of Senators, 
 
 p. 163 
 The joint work of Ran- 
 dolph and Rutledge, p. 
 165 
 A disheveled draught, p. 
 
 190 
 Jurisdiction of the Supreme 
 
 Court in, p. 191 
 Recognizes and uses Pinck- 
 ney's Art. 11, p. 196 
 Draughts of Wilson. 
 
 His three draughts, p. 160 
 Description of his 3d, p. 
 
 161 
 The annotations of Rut- 
 ledge, p. 161 
 Wilson's preamble, p. 166, 
 Charges against Pinckney, 
 
 p. 168 
 The word "our," p. 169, 
 
 171 
 Articles which are not Wil- 
 son's, p. 182 
 The proper placing of the 
 
 veto power, p. 183, 220 
 The treason provisions, p. 
 
 185, 221 
 The militia provisions, p. 
 188 
 Draught, rough. 
 What it is, p. 20 
 Pinckney's not a rough 
 draught, p. 10, 11 
 
 327 
 
THE PINCKNEY DRAUGHT 
 
 Wilson's rough draught, p. 
 
 166 
 Duer, William A. 
 
 Madison's letter to, p. 36, 
 
 45 
 His position in New York, 
 
 p. 45 
 
 Election of Representatives 
 
 By the people, p. 9, 85, 91, 
 93, 94, 95, 97 
 
 Pinckney's change of mind, 
 p. 85, 87, 94, 96 
 
 Agreement of Articles III 
 and V with Observa- 
 tions, p. 90, 93, 
 
 Vote of convention, p. 95 
 Election of the President. 
 
 Madison's strictures on the 
 draught, p. 60 
 
 Article VIII does not pro- 
 vide a method, p. 97 
 
 The omission not remarka- 
 ble, p. 98 
 
 Choosing by the electoral 
 colleges, p. 77, 133 
 
 Observations sustain Arti- 
 cle VIII, p. 134 
 Eligibility of Representatives, 
 etc. 
 
 Pinckney on the question, 
 p. 101, 103 
 Elliott, W. S. 
 
 A grandnephew of Pinck- 
 ney, p. 288 
 
 His sketch of Pinckney's 
 life and home; of his li- 
 brary, picture gallery 
 and garden, p. 288 
 Ellsworth, Oliver 
 
 Did not draught a constitu- 
 tion, p. 165 
 
 Contributed nothing to 
 draught of the commit- 
 tee, p. 165 
 Estoppel. 
 
 Characterized by Coke, p. 
 
 132 
 
 Does not extend to histor- 
 ical students, p. 132 
 Federalists. 
 
 Hamilton and Pinckney 
 were, p. 279 
 
 Pinckney the most extreme 
 federalist in the conven- 
 tion, p. 279 
 Ford, Worthington C, 
 
 Publishes Pinckney's letter, 
 p. 5 , 
 Framers of the Constitution. 
 
 Two of the youngest and 
 their work, p. 264 
 Franklin, Doctor. 
 
 His farewell words to the 
 convention, p. 70 
 Fraud and Plagiarism. 
 
 The question of inexorable, 
 p. 21 
 
 Detection probable, p. 24 
 
 Temptation small, p. 25 
 
 The absence of motive, p. 
 27, 28 _ 
 
 Specifications of plagia- 
 risms, p. 78 
 
 Failure of specified charges, 
 p. 79 
 
 Not sustained by evidence, 
 p. 275 
 
 The charge reduced to an 
 absurdity, p. 195 
 
 Gerry of Massachusetts 
 
 Opposes election by the peo- 
 ple, p. 87 
 Gilpin, Henry D., 
 
 Edits Madison's Journal, p. 
 5, 29 
 Gorham of Massachusetts. 
 A member of the committee 
 
 of detail, p. 75 
 Did not attempt to draught 
 a constitution, p. 165 
 Grimke, Thomas S. 
 
 Madison's letter to, p. 35 
 Habeas Corpus. 
 The writ of, not to be sus- 
 
 328 
 
INDEX 
 
 pended is in the draught, 
 
 p. 269 
 Why the committee did not 
 
 adopt, p. 270 
 Hamilton, Alexander. 
 
 " Those who pay are the 
 
 masters," p. 174 
 His not the style of the 
 
 Constitution, p. 243 
 Pierce's description of 
 
 Hamilton, p. 283 
 Historical Questions 
 
 Concerning the draught in 
 
 the State Department, p. 
 
 12 
 Historical Society of N. Y. 
 Possesses Pinckney's Ob- 
 servations, p. 105 
 Referred to by Madison, 
 
 p. 110 
 Hunt, Gaillard. 
 
 Description of the draught, 
 
 p. 18 
 
 Immigration. 
 
 Expected and relied upon, 
 
 p. 170 
 Massachusetts constitution 
 
 encourages, p. 169 
 Impeachment. 
 
 In Pinckney draught, p. 
 
 211 
 In the committee draught, 
 
 p. 211 
 Jackson, Major Wm. 
 
 Elected secretary of the 
 
 convention, p. 129 
 His notes on draught, p. 
 
 74, 75 
 His letter to Washington, 
 
 p. 239 
 Delivers papers of the con- 
 vention to Washington, 
 
 p. 239, 241 
 
 Jameson, Professor, J. Frank- 
 lin. 
 He discovers two of the 
 
 Wilson draughts, p. 159, 
 
 160 
 Jay, Chief Justice. 
 
 His hand appears in the 
 
 constitution of New 
 
 York, p. 243 
 Jefferson, President. 
 
 Madison's letter to, p. 33, 
 
 129 
 Jews. 
 
 " The people called Jews " 
 
 address the convention, 
 
 p. 241 
 Journal, The, of Madison. 
 Its completeness, p. 40 
 Omission of Pinckney's 
 
 draught, p. 40 
 Publication of, p. 52, 63 
 His best appreciated work, 
 
 p. 40 
 To be edited by Mrs. Mad- 
 ison, p. 63 
 Edited by Henry D. Gilpin, 
 
 p. 5, 29 
 Madison method of writing, 
 
 p. 122 
 Is the journal evidence 
 
 against Pinckney, p. 275 
 It must be received as his- 
 tory, p. 277 
 
 King, Rufus. 
 
 Mr. Adams' conversation 
 with King, p. 145 
 
 King considered as a wit- 
 ness, p. 146 
 
 Pierce's description of 
 King, p. 282 
 Knox, General Henry. 
 
 Washington's letter to him, 
 p. 128 
 
 Law of the Land. 
 
 See Supreme Law of the 
 Land. 
 Library company of Philadel- 
 phia. 
 Order to the librarian di- 
 
 329 
 
THE PINCKNEY DEAUGHT 
 
 recting him to " furnish 
 the gentlemen " of the 
 convention with books, p. 
 240 
 McLaughlin, Professor, 
 
 Discovers a draught of Wil- 
 son, p. 158 
 
 Discovers report in confed- 
 erated congress, August, 
 1786, "written in Pinck- 
 ney's own hand," p. 260 
 Madison, President. 
 
 His troubled life, p. 54 
 
 His failing memory, p. 52, 
 54, 81 
 
 His only alternative, p. 38 
 
 His age, p. 53, 54 
 
 His failure to testify, p. 38 
 
 His ignorance of the 
 draught, p. 30, 38, 40, 53 
 
 His " Note " to the " Plan," 
 p. 58 
 
 His " editorial footnote " to 
 the "Note," p. 62, 63 
 
 His charges against the 
 draught, p. 63 
 
 His objections to Pinck- 
 ney's draught, p. 5, 6, 7, 
 43, 45, 46 
 
 His poor opinion of Pinck- 
 ney, p. 32, 53 
 
 Most diligent member of 
 convention, p. 80 
 
 His letters, p. 33, 34, 35, 36, 
 
 42, 43, 45, 54, 63, 107, 
 108, 109, 110, 129, 214 
 
 His comparison of the 
 draught with the Consti- 
 tution, p. 143, 156, 157 
 
 His silence on the primary 
 issue, p. 156 
 
 His adroit management, p. 
 
 43, 157 
 
 Madison on the "object of 
 the Union," p. 214 
 
 His and Pinckney's the con- 
 structive minds of the 
 convention, p. 264 
 
 They agreed as to State 
 legislation, p. 265, 267 
 
 They did not attempt to 
 frame a compromise, p. 
 266 
 
 The work of one agrees 
 with the work of the 
 other, p. 267 
 
 Their names should be 
 closely associated, p. 268 
 Madison's Journal. See Jour- 
 nal. 
 Mrs. Madison 
 
 Her rescue of Washing- 
 ton's portrait, p. 56 
 
 Intended editor of the 
 Journal, p. 63 
 Marshall, Chief Justice. 
 
 Moulded the Constitution, 
 p. 27 
 
 His majestic judicial reign, 
 p. 37 
 Martin Luther. 
 
 His resolution relating to 
 the " Supreme law of the 
 respective States," p. 179 
 
 His language a compro- 
 mise, p. 181 
 Massachusetts 
 
 Constitution furnishes pro- 
 visions for Pinckney's 
 draught, p. 83, 84, 250 
 Massachusetts and New York 
 alone paid in full their 
 quota, p. 249 
 
 Preamble of the Constitu- 
 tion derived from con- 
 stitution of Massachu- 
 setts, p. 169 
 
 The word " posterity " un- 
 restricted, p. 170 
 Meigs, William M. 
 
 His "Growth of the Con- 
 stitution," p. 161 
 
 Reproduces the Randolph 
 draught in facsimile, p. 
 161 
 
 Growth of the Constitution 
 
 330 
 
INDEX 
 
 cited and quoted, p. 189, 
 192 
 Militia, The. 
 
 Pinckney's draught a radi- 
 cal departure, p. 188 
 
 Not authorized by the con- 
 vention, p. 188 
 
 Pinckney's draught fol- 
 lowed by Wilson rejected 
 by the committee, p. 189 
 Money Bills. 
 
 Madison refers to them, p. 
 99 
 
 Pinckney's position regard- 
 ing them, p. 100 
 Morris, Gouverneur. 
 
 His correction of the lan- 
 guage of the Constitution, 
 p. 78 
 Mystery. 
 
 The name, p. 1 
 
 Its definition, p. 2 
 New York, the Constitution 
 of. 
 
 Furnishes the veto power, 
 p. 47, 48 
 
 Furnishes other provisions, 
 p. 83, 84, 216, 218, 250 
 
 New York and Massachu- 
 setts alone pay in full 
 their quota, p. 249 
 
 Notes and Memoranda 
 
 Of Pinckney and Madison, 
 
 p. 11 
 "Note" of Madison to 
 
 plan of Pinckney, p. 58 
 Editorial footnote to same, 
 
 p. 62, 63 
 
 Observations, The Pamphlet. 
 Cited by Madison, p. 33, 
 
 34, 43, 46, 50, 62 
 Cited by Pinckney, p. 90 
 When written, p. 93, 130 
 Description of, p. 105 
 Madison interest in, p. 107 
 Extracts from, p. Ill 
 
 The Observations, a speech 
 never made, p. 122, 126, 
 139 
 
 Madison and Yates evi- 
 dence, p. 122 
 
 Contradictions in it, p. 126 
 
 Significant error in date, p. 
 127 
 
 Considered as a speech, p. 
 131 
 
 Considered as evidence, p. 
 132 
 
 Confirm Articles III, V, 
 VIII, p. 132, 135 
 
 Explanation of Pinckney's 
 publication, p. 135 
 
 Why speech was not deliv- 
 ered, p. 137 
 
 Why published, p. 138 
 
 Why Observations were not 
 cited in Madison's 
 "Note," p. 140 
 
 Tlie Observations fateful, 
 p. 141 
 
 They sustain the copy in 
 the State department, p. 
 139 
 
 Articles in the draught de- 
 scribed in the Observa- 
 tions cannot be ques- 
 tioned, p. 182, 189, 198, 
 253, 269, 270 
 
 Article 11 referred to by 
 Randolph described in 
 the Observations, p. 198 
 
 Patents. See Copyright. 
 Paulding, James Kirke. 
 
 Memorandum for, p. 34, 
 
 42, 107 
 Letters to, p. 43, 108 
 Friend of Madison, p. 44, 
 45 
 Phenomenon, The, of Madi- 
 son, p. 46, 53, 80 
 Pinckney, Charles. 
 His official life, p. 23 
 His age, p. 88 
 
 331 
 
THE PINCKNEY DRAUGHT 
 
 Why lie presented the Ob- 
 servations, p. 135 
 His strategic purpose, p. 
 
 137 
 
 Why he published the Ob- 
 servations, p. 138, 142 
 
 Desired the supremacy of 
 the national government, 
 p. 181, 279 
 
 He alone formulated a con- 
 stitution before the con- 
 vention met, p. 189 
 
 His misplacement of the 
 veto power, p. 183 
 
 The style of the Constitu- 
 tion, p. 243, 245 
 
 His draught the only one, 
 p. 249 
 
 His method of construc- 
 tion, p. 250 
 
 His composite work, p. 
 250, 251, 252 
 
 His generality of treatment 
 and expression, p. 253 
 
 A condemned and misrepre- 
 sented man, p. 254 
 
 His training and prepara- 
 tion, p. 261, 264 
 
 What he did and failed to 
 do, p. 261 
 
 His co-operation with Mad- 
 ison, p. 264, 265, 267 
 
 His family, position, etc., p. 
 278 
 
 His speech of June 25, p. 
 278 
 
 The extremist federalist 
 in the convention, p. 279 
 
 Pierce's description and es- 
 timate of him, p. 281, 
 284 
 
 The destruction of every- 
 thing which Pinckney 
 possessed, p. 285 
 Pinckney, Charles Cotes- 
 worth, 
 
 Opposes election by the 
 
 people, p. 88 
 Proposes that no salary be 
 
 332 
 
 allowed to Senators, p. 
 176 
 
 Living in 1818, p. 24 
 
 The most esteemed citizen 
 in S. C, p. 88 
 Pinckney's Letters 
 
 To Secretary of State, p. 8, 
 12, 26, 27 
 
 Contemporary declaration, 
 p. 10 
 
 Letter to Madison, p. 62 
 Pierce, William. 
 
 His narrative of a lost pa- 
 per in the convention, p. 
 230 
 
 His description of Ran- 
 dolph, King, Hamilton 
 and Pinckney, p. 281 
 Preamble of the Constitution. 
 
 Suggested by the Articles of 
 Confederation, p. 169. 
 
 Derived from Constitution 
 of Massachusetts, p. 169 
 
 Randolph attempted 
 draught of preamble, p. 
 162 
 
 Wilson attempted draught 
 of preamble, p. 166 
 
 The preamble in the com- 
 mittee's draught, p. 168 
 
 It declared the source and 
 supremacy of authority, 
 p. 213 
 
 Ignored State governments, 
 p. 213 
 
 The preamble unquestioned 
 in the convention, p. 215 
 President, The. 
 
 See Election of. 
 Printers — Copy. 
 
 Pinckney draught used as 
 printers' copy. p. 188, 
 208, 237 
 
 Randolph, Edmund, 
 
 The Virginia resolutions 
 
 cited as his, p. 68 
 Opens the main business of 
 
INDEX 
 
 the convention, p. 130, 
 
 136 
 His draught of the Consti- 
 tution, p. 158, 161 
 Read, George. 
 
 Letter to Dickinson on 
 
 Pinckney's draught, p. 89 
 Ritchie, Thomas. 
 ' Madison's letter to, p. 63 
 Rutledge, John. 
 
 Present in the convention, 
 
 May 29, p. 135 
 Se(3onds Pmcbney motion 
 
 to strike out the word 
 
 people and insert Legis- 
 . latures, p. 95 
 Chairman of the Committee 
 
 of Detail, p. 75 
 " Delivers in " the report of 
 
 the committee, p. 70 
 His annotations on the 
 
 other draughts, p. 162, 
 
 164, 182 
 He co-operates with Wilson 
 
 and Randolph, p. 164 
 Used Pinckney draught 
 
 when annotating, p. 182 
 His ruthless slashing of 
 
 Wilson's, p. 161 
 His 43 amendments, p. 161, 
 
 204 
 Strongest man in the State, 
 
 p. 88 
 
 Secrecy. 
 
 The resolution of the con- 
 vention, p. 228 
 
 Secrecy to continue after 
 the dissolution of the 
 convention, p. 228 
 
 Silence of members from 
 May 29 to September 17, 
 p. 229 
 
 Washington recognition of 
 the obligation, p. 229 
 
 The obligation required 
 that the draught be not 
 lost, p. 232 I 
 
 Pinckney draught used as 1 
 
 333 
 
 printers' copy and scru- 
 pulously destroyed, p. 
 237 
 Legal presumption that it 
 
 was destroyed, p. 237 
 Secrecy of Committee of 
 Detail, p. 75, 200, 237 
 Senate. 
 
 Pinckney's Senate, p. 91, 
 
 217 
 To appoint ambassadors 
 and judges, p. 102 
 South Carolina. 
 
 The State postpones action 
 in the convention, p. 175 
 South Carolina Gazette. 
 
 Draught republished in, p. 
 274 
 Sparks, Jared. 
 
 Writes to Madison, p. 42, 
 
 43, 144, 146, 147, 149 
 Madison to Sparks, p. 35, 
 
 42, 43, 110 
 His opinion of the draught, 
 
 148, 152 
 His correct analysis, p. 152 
 His most delicate test, p. 
 153 
 Story, Mr. Justice. 
 
 Ignores the Draught, p. 6, 
 8, 12 
 " Supreme Law of the Land." 
 History of the term, p. 179. 
 The case of Trevatt v. 
 Weeden gives judicial 
 significance to it, p. 182 
 Derived from resolution of 
 Congress, p. 251 
 
 Thomson, Doctor William H. 
 
 Definition of mystery, p. 2 
 Time. 
 
 The second condition im- 
 posed on the committee, 
 p. 232 
 
 Two of these days were 
 Sundays, p. 233 
 
 Three days required for 
 printing, p. 234 
 
THE PINCKNEY DRAUGHT 
 
 200 constitutional provi- 
 sions framed and printed 
 within the limited time, 
 p. 234 
 Treason. 
 
 The punishment of treason, 
 
 P- 185 . ^, 
 
 How defined, etc., m the 
 
 three draughts, p. 186 
 
 Caution of Rutledge and 
 Pinckney, p. 186 
 
 Their provisions combined 
 in the Constitution, p. 
 187 
 The Treaty Making Power. 
 
 Lodged in the Senate ex- 
 clusively, p. 210 
 
 Not authorized by the con- 
 vention, p. 211 
 
 Committee of detail fol- 
 lowed Pinckney errone- 
 ously, p. 211 
 
 Veto Power, The. 
 
 Taken from the constitution 
 
 of New York, p. 47 
 Misplaced by Pinckney and 
 
 by the committee, p. 183, 
 
 220 
 Correctly placed by Wilson, 
 
 p. 183 
 
 Washington, General, The. 
 Madison's letters to, p. 33, 
 
 34 
 His copy of the committee's 
 
 draught, p. 74 
 Letter to Congress, p. 54 
 His illness, and the illness 
 
 of his mother, p. 128 
 His journey to Fredericks- 
 burg, p. 128 
 His arrival in Philadelphia, 
 
 p. 129 
 President of the convention, 
 
 p. 129 
 Letter to General Knox, p. 
 
 128 
 
 Made custodian of the rec- 
 ords, p. 228, 239 
 
 His sense of the obligation 
 of secrecy, p. 229 
 
 Extracts from his diary, p. 
 229 
 
 His admonition to the con- 
 vention, p. 230 
 
 The convention's daily 
 mark of respect, p. 230 
 
 Extracts from his diary of 
 September 17, p. 239 
 Washington, City. 
 
 Capture of, 56 
 
 Burning of the Capitol, p. 
 56 
 Wilson, James. 
 His draughts of the Consti- 
 tution, p. 158 
 
 Intelligent and wise, p. 159 
 
 Opposed the payment of 
 representatives bv the 
 States, p. 175, 176" 
 
 His proper treatment of the 
 veto power, p. 183 
 
 His careful and logical 
 work, p. 165, 187 
 
 Alien member of the con- 
 vention, p. 199 
 
 A judge of the Supreme 
 Court, p. 200 
 
 The hard-worker of the 
 convention, p. 204 
 
 A signer of the Declara- 
 tion, p. 171 
 
 He first suggests the Elec- 
 toral Colleges, p. 77 
 
 Yates, Robert. 
 
 Entry in his minutes, p. 
 29, 122 
 
 Report of Pinckney's 
 speech, p. 30 
 
 His age, position and ex- 
 perience, p. 124 
 
 Value of his minutes, p. 
 125 
 
 334 
 
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