Classic Audiobook Collection - The Mystery of the Pinckney Draught by Charles C. Nott ~ Full Audiobook [mystery]

Episode Date: November 4, 2022

The Mystery of the Pinckney Draught by Charles C. Nott audiobook. Genre: mystery Charles Pinckney, member of the South Carolina legislature, Confederation Congress, U.S. Congress, and notably the Constitutional Convention of 1787, may have been regarded by some as perhaps the true author of the U.S. Constitution, although most likely James Madison would vehemently argue the point. This book investigates what may, or may not have happened to the draft of the Constitution which was drawn up by Charles Pinckney and submitted to the Constitutional Convention in May of 1787, and how (or if) it differed from the Constitution which was adopted. The questions which are delved into most deeply revolve around the following mystery: why, if, and by whom Pinckney's version of this important document was overlooked, or was it possibly destroyed intentionally (or for other reasons). Author Charles C. Nott was formerly Chief Justice of the United States Court of Claims, appointed by president Lincoln. For ad-free listening try our premium subscription Chapters (Approximate) (00:00:00) Chapter 01 (00:17:25) Chapter 02 (00:26:27) Chapter 03 (00:33:49) Chapter 04 (00:49:03) Chapter 05 (01:14:18) Chapter 06 (01:24:00) Chapter 07 (01:52:07) Chapter 08 (02:19:39) Chapter 09 (03:10:49) Chapter 10 (03:31:11) Chapter 11 (04:36:29) Chapter 12 (05:02:31) Chapter 13 (05:25:45) Chapter 14 (05:45:32) Chapter 15 (06:14:09) Chapter 16 (06:34:33) Chapter 17 (06:53:28) Chapter 18 Learn more about your ad choices. Visit megaphone.fm/adchoices

The Mystery of the Pinckney Draft by Charles C. K. K. K. K. K. KATH Chapter 1. Statement of the case. When I began the studies which have resulted in this book, someone asked me what I was doing, and I chanced to answer that I was looking into the mystery of Pinkney's draft of the Constitution. Afterwards, I received a letter from Professor J. Franklin Jameson, in which he spoke of the uncertainties. attending the draft as mysteries. 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 retained the term which I chanced to use. A true mystery, instead of ending discussion, calls for more. What constitutes a mystery is the unknown, which is certainly connected with the known. A mystery, therefore, is unfinished knowledge. Dr. William Hanna Thompson, Brain and Personality. Page 278 At the opening of the convention which framed the Constitution, Charles Pinckney of South Carolina presented a draft of a Constitution that was referred to the Committee of the Whole.

This draft 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 30 years afterwards, the draft of Pinckney was not found.

John Quincy Adams, then Secretary of State, applied to Pinckney for a copy, and he, on the 30th of December 1818, sent to the Secretary of State the duplicate, or copy of the draft, 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 Madison's Journal and in Elliot's debate, and then the Pinckney draft slept unnoticed in constitutional publications, until a review in the columns of the nation awakened an interest in Mr. Worthington C. Ford, and he, in 1895, published the letter which accompanied the draft when it was placed in the State Department. Nevertheless, if the copy in the

department is identical in terms, or substantially identical in terms, with the paper which Pinkney 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 draft, so prepared by him, was so largely adopted in a silent way that the law student 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 Pinkney draft has received so little attention and he has received no credit at all for what apparently is an extraordinary piece of constitutional work, can be readily explained. The statement of Madison is written in temperate 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 Pinkney,

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. not the paper, that it is not a substantial copy of the paper which was before the convention. Story had been appointed 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 commentator, that it was not for lesser men to reverse him. Madison's comment, and Story's silence, have united to condemn the draft so effectively that while printed and reprinted, it has been as unnoted as if it had never been

written. The final judicial edict of George Bancroft expressed the general judgment when he wrote of the original draft which was actually before the convention, no part of it was used and no copy of it has been preserved. Moreover, Madison is too great in 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 cannot be a true copy of the other. He designates provisions which he says originated in the Convention, and could not have been predetermined by Pinckney, and still more conclusively, as he thinks, he points to the fact that the paper in the Department contains provisions

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 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 draft as a memorandum and had interlined in it provisions 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 authenticity 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 pinkney begins and ends there are some extrinsic facts which hitherto unknown should be noted in the first place this letter of pinkney 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 congress to revise the state laws in certain cases and in giving the exclusive power to the senate to declare war thinking it safest to refuse the first altogether and vest the latter in congress hans madison three page twenty two as to one of these things concerning which pinkney says he changed his mind after the convention met the power of congress to revise the laws of the states

the assertion is not sustained by madison's record of the proceedings he undoubtedly did change his mind but not until after the adjournment of the convention there was however another provision in his draft 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 convention met this is the provision which declares that members of the lower house shall be chosen by the people of several states article three as early as the sixth of june he proposed that they should be chosen by the legislatures of the several states writing thirty-two 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 the letter is a contemporaneous declaration given at the moment when he produced the document and placed it on file in the department of state that the copy like the original contained provisions which he opposed in the convention with this contemporaneous notice to the secretary of state one of madison's objections which at first seemed insuperable if it does not fall to the ground at least become susceptible of explanation and the retention in the copy of the draft of these apparently inconsistent things accompanied at the time as they were by pinckney's declaration not only removes the objection of madison but tells strongly in favor of the draft being what pinkney represented it to be in the second place pinkney speaks of having several rough drafts of the constitution four or five drafts he says

and he adds that they are all substantially the same differing only in words and the arrangement of the articles pinkney had preserved them certainly until the end of the year eighteen eighteen and numerous numbers notes and papers which he had retained relating to the Federal Convention. 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 Convention 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 the proceedings than myself these numerous notes and memorandums more numerous and particular than those preserved by any other person madison alone accepted and with them the several rough drafts which he found with the other papers on his return to charleston in eighteen eighteen existed when pinckney wrote his letter and placed his copy of the draft in the state department

they existed both to refresh his memory and to refute him if he was not acting in good faith he acknowledged madison to be his superior in notes and memorandums and a particular knowledge of the proceedings of the convention and madison was still living and pinckney by placing his copy of the draft 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 pinkney's death and the death of every other member of the convention before he spoke like many another young lawyer i came upon pinckney's draft 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 extolled 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 publication of pinkney's letter in eighteen ninety five 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 corroboration i therefore prepared the following inquiries in the hope that i could persuade some historical scholar to take up the work of constitutional investigation 1. Does the draft in the State Department upon its face appear to be an author's draft, a rough draft, as Pinckney called it, with his corrections, erasures, interlineations, and alterations,

or does it appear to be a duplicate or a fair copy of an original or rough draft? 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 appears to be an engrossed copy, though in Pinkney's handwriting, that is a copy of the rough draft with its alterations and corrections engrossed therein, then the historical critic must proceed to try the issue of Pinkney's truthfulness. He tells the Secretary of State at the time when he produces the paper that,

it is impossible for me now to say which of the four or five drafts i have is the one but in closed i send you the one i believe was it i repeat however that they are substantially the same differing only in form and unessentials if this language be taken literally it means that he is about to place in the archives of the department of state one of those original four or five drafts and as he believes the very one of which he prepared an 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 drafts is there anything in the draft to refute either representation 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 pinkney as he sat in his study early in seventeen eighty seven making draft after draft for the consideration of the coming convention three finally it will be apparent on reflection that even if all of the foregoing issues should be decided against pinkney that is to say if it should be found that the paper in the state department is not an original draft is not one of the four or five drafts to which pinkney alludes or that it contains interlineations of which pinkney 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 criticism and careful analysis will be made to measure this residuum, and give us a fair estimate of its value, so that we can know, with tolerable certainty, how much 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 Constitution 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. End of Chapter 1. Chapter 2 of The Mystery of the Pinckney Draft

This Libervox recording is in the public domain. The Mystery of the Pinkney Draft by Charles C. K. K. K. K. Knot. Chapter 2. The draft in the State Department The Pinkney Draft in the Department of State is written on unruled paper, larger than common foolscap, handmade, and with untrimmed 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 three the draft says the house 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 margin 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 X days shall be laws, unless the legislature, by their adjournment, prevent their return, was originally written, unless the legislature by their adjournment prevent its return, in which case it shall not be the law.

The words it's and it are erased with the pen and the words there 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 draft is erroneously printed, printed in almost all editions. Pinkney did not write Art 1, Art 2, etc.

Above the first article of the draft 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 Arabic figures 2, 3, 4, etc, without the word article. The second particular, in which many printed copies are erroneous, is in Article 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 four.

A new sentence then begins, until a census of the people shall be taken in the manner herein after mentioned, the House of Delegates shall consist of, blank, to be chosen from the different states in the following 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, does the draft in the State Department upon its face appear to be an author's draft, a rough draft 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. Gilliard Hunt in his edition of the writings of Madison? the penmanship of all three papers the draft and the letter to the secretary of state and a previous letter to the secretary december eighth eighteen is contemporaneous and the letter of december thirtieth and the draft were written with the same pen and ink this may possibly admit of a difference of opinion because the draft is in a somewhat larger chirography than the letter having been as befitted its importance written more carefully but the letter and the draft are written upon the same paper and this paper was not made when the convention sat in seventeen eighty seven there are several sheets of the draft and one of the letter and all bear the same one of the letter and all bear the same Watermark, Russell and Company, 1798.

Volume 3, page 16. The draft, as before shown, contains a few verbal corrections, one or two trivial erasures, two or three obviously necessary interlineations, 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 thoughts applied, the correction are one and all clerical. The document, therefore, upon its face does not appear to be a rough draft.

When the Secretary of State had written to Pinkney, I now take the liberty of addressing you to inquire if you have a copy of the draft proposed by you, and if you can, without inconvenience, furnish me at an early day with a copy of it. And Pinckney replied that among his notes and papers he had found several rough drafts of the Constitution, and that, I send you the one I believe was it, and with the letter sent a document which obviously was not a rough draft 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 draft 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 draft is may be seen by referring 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 pinkney draft must have been cut transposed changed added to over and over again to be intelligible it would require editing and the secretary had informed pinkney 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 executive department in a word pinkney 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 draft and now to the printed copy of the draft and note the extent of Article 6, containing the enumeration of the powers of Congress, and the extent of the second paragraph of Article 8, setting forth the powers and duties of the President, and if we remember that all this matter is to be found in the Constitution, it becomes instantly apparent that absorption of all these provisions by interlineation,

as suggested by Madison, was absolutely impossible. in a word the bridge which madison built breaks down therefore we must face the inexorable alternative either pinkney gave to the convention a draft substantially like that in the state department or he fraudulently fabricated that draft after the secretary of state had called upon him for a copy End of Chapter 2. Chapter 3 of the Mystery of the Pinkney Draft. This Libravox recording is in the public domain. The Mystery of the Pinkney Draft by Charles C. Not. Chapter 3.

Of the issue of fraud. On this issue of fraud, we must first look at the circumstances as they existed in December 1818. Pinkney had been a sussure. senator of the United States, governor of South Carolina, ministered of 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 egotistical. 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 contributed 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 Constitution, the citizens of each state shall be entitled to all privileges and immunities of citizens of the several states, if it was Pinckney's, passed through the Committee of Detail, the Committee of

Style and the Convention, without the change of a single word. It was one of those rare sentences of which everybody approved, and it is not likely to be assumed that in 1818 Pinkney would steal such a conspicuous sentence from the Constitution and place it at the head of one of his own articles. Moreover, if the draft was a tissue of fraud detection was always possible, and detection would have blasted the life of Pinckney nowhere with greater severity than in his own state. In 1818, 16 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 Cotsworth Pinckney and Pierce Butler, had been delegates from South Carolina. letters too from members might disclose the fatal truth a son of some member might come forward with his father's draft of some of these provisions autobiographies diaries and personal reminiscences 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 pinkney draft the temptation too was relatively small the constitution was not then in the estimation of the american people what it is now no one then had proclaimed it to be the greatest work ever thrown off by the brain and purpose of man in eighteen eighteen the first work on the constitution ral's had not yet been written monroe was president and the country was just emerging from the poverty which followed the war of eighteen twelve to fifteen pennsylvania and georgia had defied the federal power and the latter had passed a statute, making it a crime punishable with death to enforce the process of the

Supreme Court of the 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 first written, All acts made by the Legislature of the United States, pursuant to this case, Constitution, and all treaties made under the authority of the United States shall be the supreme law of the land. It must also be noted that Pinckney was not a volunteer in this matter, that he did not thrust his draft upon the Secretary of State, that he never came before the public claiming to have contributed this or anything to the Constitution. The subject was

introduced by Mr. Adams, and not by Pinkney, and the draft was produced in response to Mr. Adams's inquiries concerning it. Pinkney 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 anything more than a personal explanation. It was due to Mr. Adams to tell him that this draft, which he enclosed, 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 certainly did not suppose that he was writing history or biography when he wrote that letter.

The letter demonstrates how inadequately Pinckney estimated the greatness of the Constitution 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 molding 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 Carolina. For Pinckney to have asserted publicly that he was the chief author of the instrument 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 the state rights were involved, it was at best ambiguous, and that if he was the author of the draft, he, more than any other man, had enabled the judges to interpret the Constitution in favor of federal supremacy. 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 defraud. End of Chapter 3. Chapter 4 of the Mystery of the Pinkney Draft.

This Librevox recording is in the public domain. The Mystery of the Pinkney Draft by Charles C. Not. Chapter 4. Madison as a witness. Having now seen what Pinkney said in 1818, and what he did and where he stood let us turn to the other party in the controversy madison and examine the testimony which he gave and the evidence on which he relied his journal as edited by gilpin after setting forth the speech of randolph on the twenty ninth of may and the reference of the fifteen resolutions of the virginia delegates to the committee of the whole contains this record mr charles pinkney laid before the house a draft of a federal government to be agreed upon between the free and independent states of america ordered that the same be referred to the committee of the whole appointed to consider the state of the american union

but yates's minutes give us one thing more mr pinkney a member from south carolina then added that he had reduced his ideas of a new government to a system which he then read madison's report of pinkney's speech on the twenty fifth of june stops with the subject of state governments and the propriety of having but one general system but yates gives in a condensed form the conclusion of pinkney's me speech and contains the following sentences. I am led to form the second branch of the legislature differently from the report. I have considered the subject with great attention, 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 extraordinary, the seemingly inexplicable course which Madison pursued in relation to the Pinckney draft, 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 Madison's to state the contents of the Pinckney draft, and I asked myself the question, is it possible that Madison never knew what the draft 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 draft, etc., had been taken word for word from the entry of the Secretary of the Convention in the official journal. I found also that at four different times in the course of the debates, Madison designated the draft by four different terms. as mr pinkney's plan as mr pinkney's resolutions as mr pinkney's motion as mr pinkney's propositions not one of which expressed the idea of a formulated constitution it is therefore evident that madison did not hear pinkney read his draft 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 draft, 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 silent as to Pinkney having read the draft, and which describes it in language entirely different from Yates's and entirely different from Pinkney's. For Pinkney's draft does not profess to be an agreement between the free and independent states of America, but is avowedly an act of the people of the United States. It therefore appears both positively and negatively that Madison was not present when Pinkney presented his draft,

that he could not have heard Pinkney's designation of it as a system and could not have heard Pinkney 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 contents that he did not read it because of its length. Madison had a poor opinion of Pinkney, a very poor opinion, and he held fast to it all through his life.

during the sitting of the convention the draft was referred to repeatedly in discussions and motions and references madison recorded what was said and the more important of the motions and references but his opinion of pinkney was so poor that he did not put himself to the trouble of stepping to the secretary's desk and reading the draft much less of taking a copy of it in october seventeen eighty seven after the disillusion of the convention he wrote from new york to washington and jefferson the following letters james madison to general washington new york october fourteen seventeen eighty seven i add to it a pamphlet which mr pinkney 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 opinion 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 fulfil his wishes only gailard hunts writings of madison volume five page nine madison to jefferson new york october twenty fourth seventeen eighty seven 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

same as above page thirty nine madison to general washington new york october twenty eighth seventeen eighty seven mr charles pinkney's character is as you observe well marked by the publications which i enclosed his printing the secret paper at this time could have no motive but the appetite for expected praise for the subject to which it relates has been dormant a conceit a conceit for the subject to which it relates has been dormant a conceit considerable time and seems likely to remain so. Same as above, page 43. In the memorandum for Mr. Paulding, written shortly before April 6, 1831, reappears Madison's poor opinion of Pinkney. It has occurred to me that a copy, of the observations, may be attainable at the printing 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 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 concede. conversing on the subject. As you will have less occasion than you expect 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 draft, some conforming most literally to the adopted Constitution,

which, it is ascertainable, could not have been the same in the draft laid before the Convention. The conformity and even identity of the draft in the journal with the adopted Constitution, 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, 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 constitution of the united states and on the fifth of june eighteen thirty five he wrote to william a dur 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 am 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 suggestive in the way he uses the word delicate.

Neither Mr. Paulding nor Mr. Sparks, nor Mr. Grimke, nor Judge Dure, could have doubted that there was something wrong in the draft, something so wrong that Madison did not wish to speak of it. It is manifest that when Madison first read the draft in the State Department, he was surprised. He does not say so, and is very guarded in what he does say, yet it is perfectly plain that the magnitude of this contribution to the Constitution was something absolutely new to him. he better than any other 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 records of the convention and of its contents he had been ignorant until the document was laid before the world by the state department between eighteen eighteen eighteen thirty six the magnitude of this and its importance as an historical document 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 astounded 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 cavillings and descents of lesser men had placed his imperishable impress upon 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 draft where it was before the convention. I studied it. I knew the contents well.

The paper in the State Department is not a substitute duplicate of that paper. There remained then, but this alternative. He must confess that he knew no more about the Pinckney draft than did the men who were interrogating him, or he must do precisely what he did do. He must attack it on documentary evidence as an advocate and must remain silent as a witness. If he had testified as a witness,

if he had said of his own knowledge that 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 consideration, that would have been the end. 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 contributed so much to the Constitution, which they had regarded as the composite, at 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 testified, 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 Pinkney draft, the original draft, the one which was before the convention, and he answered, not a word. We must reject Madison as a witness, because he rejected himself.

End of Chapter 4. Chapter 5 of the Mystery of the Pinkney Draft. This Libravox recording is in the public domain. The Mystery of the Pinkney Draft by Charles C. Not. 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, but his best appreciated work was 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 Pinkney draft was doing in an unnoticed way.

madison spared no effort to make his journal complete and no little 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 twenty-fifth of june and yet he did not procure and apparently did not even read and certainly did not insert in his journal pinkney's plan or draft he seems to have felt sadly a certain self-conviction of this and to have realized the fact that the omission of the pinkney draft from his record was an irretrievable error to a man holding the author of the draft in contempt it must have seemed preposterous in eighteen for the shade of Pinckney to stock 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 draft was changed and modified, and the conflicting views of the framers were welded together

by notable compromises and persuasive arguments. But nevertheless, I contributed 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 marshal from the written record of the case why the draft in the State Department was an impossible verity. At what time the Pinckney draft was first brought to Madison's attention, I have not been able to discover, but on the 5th of May, 1330, 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 Pinkney's draft of a Constitution. He says it was furnished by Mr. Pinkney. 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 seventeen eighty seven as published 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 pauling dated april eighteen thirty one on the twenty first of june eighteen thirty one he wrote to jared sparks may i ask you to let me know the result of your correspondence with charleston on the subject of mr pinkney's draft 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 draft sent by Mr. Pinkney 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 of May 1787, and I regret to say that the evidence that that was not the case is irresistible. He instances the election of members of Congress by the people and the debate of June 6 as a sufficient example. But what decides the point is a letter, from him to me, dated March 28th, 1780. a letter quoted by Gilpin, of which I shall hereafter speak. Madison is guarded in all he says, but it is perfectly plain that while he wished to impress upon Paulding and Sparks, the idea that the draft which Pinkney placed in the State Department was not the draft which he presented to the convention. He, at the same time, shrank from bringing on a controversy and from irritating the friends of Pinkney

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 countryman. Paulding and sparks were his friends and followers. What he wished to have said passed into Gilpin's edition of the journal

and Elliot'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 draft without needlessly smirching the good name of Pinkney, and without inciting a controversy on the subject, has been so successful that for seventy years, the draft has remained silently condemned,

and no man has ever thought that an investigation could possibly reverse the accepted judgment. But on the 25th of April, 1835, William A. Dure of New York wrote to Madison on the same subject and making the same inquiry. Judge Dure 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 disturb 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 Dorr was not such a personal 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 unquestionable. He, therefore, with characteristic caution, lingered until the 5th of June, and then in his reply to Judge Dorr made a supreme, if not, final effort. In this letter he brings up again

the election of members by the people, and Pinkney'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. Pinkney soon after the close of the convention. Pinkney's observations. A friend who was examined and compared the two documents has pointed out the discrepancies noted below. one conjecture explaining the phenomenon has been that mr pinkney interwove with the draft 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 examined hereafter but there is one which should be considered now for it affects madison more than it affects pinkney the discrepancy referred to is this in the observations pinkney says that in the best instituted legislatures of the states we find not only two branches of the states 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 pamphlet refers to the following provisions which are not found in the plan furnished to Mr. Adams as forming a part of the plan presented to the convention. The executive term of service seven years. Two, a council of division. The statesmen who framed the Constitution were sufficiently statesmen to know that what we call the veto power is not really a veto power, and that the President, unlike the Crown, is not a part of the lawmaking 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 history 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 decisive votes. The Convention adopted the principle of revision, but being mindful, as Rutledge 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 most unfit to be concerned

in the Revisionary Council, struck out Randolph's convenient number of the National Judiciary, and left the power of revision to the President alone. At a later day, August 6th, Rutledge delivered in the report of the Committee of Detail the Committee, which embodied the previously ascertained view of the Convention in a draft 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. If upon such revision he approve it, he shall sign it. If upon such revision it shall appear to him improper for being passed into a law, he shall return it. On the 15th of August, with this word revision three times repeated, the 13th 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 reconsidered, and rediscussed. The views of members swung between the extremes of absolute affirmative power in Congress and absolute negative power in the President. The proposition of Hamilton to 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 Madison to add the judges of the Supreme Court in the revision of bills was likewise rejected.

At last, the deliberations ended where they had begun. The convention held fast to the principle of a council of revision and left the duties of the council in the president alone. He was to be the Council of Revision. In the words of Madison, the Convention gave the executive alone, without the judiciary, the revisionary control on the laws, unless overruled by two-thirds of each branch. The United States v. Wyle. 29 Court of Claims Reports 523, affirmed in La Abra County v. the United States, 175. U.S. R. 423. Madison forgot that on the 6th of June,

South Carolina had voted no on the motion to make a convenient number of the 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 draft to the convention, Mr. Pinkney had been at first in favor of joining the heads of the principal departments, the Secretary of War, of Foreign Affairs, etc., in the Council of Revision. He had, however, relinquished the idea from a consideration that these could be called on

by the executive magistrate whenever he pleased to consult them. He was opposed to an introduction of the judges into the business, hunts writings of madison three pages eighty nine and one eleven according to madison there was a discrepancy more than a discrepancy a flat contradiction between the observations and the draft in the state department the one saying explicitly that in some of the best instituted legislatures of the states there was a council of revision consisting of their executive and executive and principal officers of government, and that he had incorporated it as part of the system, the other containing no such provision, but, like the Constitution, giving the executive alone to 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 Revision from the draft

for the State Department, and copied from the Constitution the provision which the convention framed. But the brief speech of Pinckney written down contemporaneously by Madison himself singularly vindicates both the observations and the draft, and leaves the latter stronger than it would have been if Madison's friend had not furnished the discrepancies noted below. The significance of the term Council of Revision was not known to the friend who arrayed the observations against the draft and may not have been to Judge Dure. 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 embodiment of the Council of Revision. But Madison knew it, or had known it.

He, too, had personally participated in the work by his repeated efforts to engraft a Council of Revision on the Constitution, and his knowledge he 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 Durr to infer that the discrepancies noted below had received his scrutiny and approval. His journal he knew would be published. He was even then providing for it in his will,

and when published it would contradict the discrepancy noted below and sustain the copy of the draft 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 pinkney's expressed declaration as early as the sixth 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 pinkney of anything which he really believed was actually his due madison was then an old man a very old man in his eighty-fifth year who had lived long and under 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 judgment of many years by an investigation de novo. The word phenomenon in his letter to Judge D'Ur 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 draft, whom he disliked and underrated, that he should appear in 1818 as the chief contributor to as the principal draftsman of the Constitution of the United States,

was indeed to him a phenomenon. It was something which he could not really believe. There is a note of contrition when he was, writes that, the length of the document laid before the convention and other circumstances prevented my taking a copy at the time. He really believed that if he had procured and kept a copy of the draft which Pinkney laid before the convention, it would have blown to pieces this wild pretentious claim which he had laid before the Secretary of State. And Madison made a great mistake when he represented Pinkney to Judge Duhon.

as an old man in 1818, whose waning recollection could not then separate the reel from the fictitious in the draft which he had found among his papers in Charleston. For Madison, in 1835, when he wrote to Judge Dewar, was 25 years older than Pinckney was when he sent the draft to Mr. Adams, and 25 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 52 years since he had made this despondent note in his record of the debate in Congress. Monday, March 17, 1783. A letter was received from General Washington

and closing two anonymous and inflammatory 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 by the general to avert the gathering storm, and his professions of inflexible adherence to his duty to Congress and to his country excited 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 general provision for the public debts. These papers were committed to Mr. Graham, Mr. Dyer, Mr. Clark, Mr. Rutledge, and Mr. Mercer. The appointment of these gentlemen

was brought about by a few members who wished to saddle with this embarrassment, the men who men who had opposed the measures necessary for satisfying the army, viz, the half-pay and permanent 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 variance of our ministers with our ally, and to the difficulty of establishing the means of fulfilling the engagements and securing the harmony of the United States, and to the confusions, apprehended from the approaching resignation of the superintendent of finance, gave peculiar awe and solemnity to the present moment, 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 disgraced by the surrender of the Chesapeake, after 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 twenty-one years since he had seen the army disgraced by the negligence of his own secretary of war and the incapacity of a general of his own choosing, and his capital burnt, and himself 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 president. precious portrait of Washington from its frame, to save it from the ignominy of capture by a British army. The Pinckney draft was but a leaf blown aside in the tumults 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 Pinkney, there remains the ultimate question which every student of the Constitution must desire to have examined, and, if possible, answered, what provisions of the Constitution were contributed by Pinckney?

End of Chapter 5. Chapter 6 of the Mystery of the Pinkney Draft This Libervox recording is in the public domain. The Mystery of the Pinkney Draft by Charles C. Not. Chapter 6. The position taken by Madison. The position taken by Madison, in private letters to individuals, he had 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 impulse of the moment. But the note of Mr. Madison to the plan of Charles Pinckney, Elliot, Volume 5, 578,

deliberately prepared by him for future publication, and intended by him to accompany the draft 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,

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 instances between that and the constitution is adopted having attracted the notice of others was at length suggested to mine on comparing the paper with the constitution in its final form or in some of its stages and with the propositions and speeches of mr pinkney in the convention it was apparent that considerable error had crept into the paper occasioned probably stricken out possibly by the loss of the document laid before the convention neither that nor the resolutions offered by mr patterson being among the preserved papers and by a consequent resort for a copy to the rough draft in which erasures and interlineations following what passed in the convention 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 there is in the paper a similarity in some cases and an identity in others with details expressions and definitions

the results of critical discussions and modifications in the convention that cannot be ascribed to accident or anticipation omitted could not have been anticipated examples may be noticed in article eight of the paper which is remarkable also for the circumstances that whilst it specifies the functions of the president no provision is contained in the paper for the election of such a officer, 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 journal of the convention, the latter in the report of its debates. Thus, in Article 8 of the paper, provision is made for removing the President by impeachment,

when it appears that in the Convention, July 20th, he was opposed to any impeachability of the executive magistrate. In Article 3, it is required that all money bills shall originate in the first branch of the legislature, which he strenuously opposed August 8th and again August 11th. In Article 5, members of each house are made ineligible to, as well as incapable of holding, any office under the Union, etc., as was the case at one stage of the Constitution, a disqualification highly disapproved and opposed by him, August 14th. a still more conclusive evidence of error in the paper is seen in article three which provides as the constitution does that the first branch of the legislature shall be chosen by the people of the several states whilst it appears that on the sixth of june according to previous notice too a few days only after the draft was laid before the convention its author opposed that mode of choice

urging and proposing, in place of it, an election by the legislatures of the several states. The remarks here made, though not material in themselves, were due to the authenticity and accuracy aimed at, in this record of the proceedings of a public body, so much an object sometimes of curious research as at all times of profound interest. as an editorial note to the paper in the handwriting of Mr. M. beginning the length, etc., 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 published 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 Convention on the 28th of May 1787 by Charles Pinckney, etc. But what conclusively proves that the choice of the age of reps by the people could not have been the choice in the lost paper is a letter from Mr. Pinckney to J.M. of March 28th, seventeen eighty nine now on his files in which he emphatically adheres to a choice by the state legislatures 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 the first instance is clearly and practically wrong that it will in the end be the means of borkman 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, beginning 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 beginning. as long before this as 1821 he had determined in his own mind that the publication of the journal should be as he termed it apostimous one letter to thomas richie september fifteenth eighteen twenty one and he carried out the intention by so providing in his will made in eighteen thirty five the expected editor was mrs madison and she he knew would scrupulously and intelligently carry into effect his slightest wish she was not able to perform the editorial task when these charges of madison are analyzed they may be reduced to three the first and most serious charge is that there are coincidences in several instances between the draft and the constitution a similarity 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 draft inconsistent with pinkney's known views with the propositions which he presented 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 draft the third is that pinkney immediately after the sittings of the convention printed and published a paper entitled observations which described the contents of the draft which he had presented to the convention and that the two are utterly irreconcilable end of chapter six chapter seven of the mystery of the pinkney draft this librivox recording is in the public domain the mystery of the pinkney draft by charles c not chapter seven the plagiarisms notwithstanding madison's ignorance of the contents of the draft and the fallacy of the interface which he drew from the fact that pinkney did not adhere to all the provisions of a tentative scheme there remains an objection of the gravest character susceptible of proof or disproof which must rest on facts and not be deduced by inferences the objection that pinkney framed a provision at one time and disapproved of it at another is easily superable the objection that there is in the paper a similarity in some cases and an identity in others with details expressions and definitions the results of critical discussion and modifications in the convention, which could not have been anticipated, is insuperable, if it be well-founded.

That is to say, if there are details, expressions, and definitions in the State Department copy of the draft, which were the results of critical discussion and modifications in the convention, which could not have been anticipated, then the presumption must be well nigh irrefutable that these details, expressions, and definitions in the questionable instrument were taken from the Constitution. And in the absence of extraordinary explanation, we shall be compelled to agree with Madison that the evidence is irresistible,

unless, indeed, it should appear that the expressions and definitions which at first sight appear to have been begun and created in the context, convention had previously existed in the articles of confederation or in a state constitution or in the resolutions of the continental congress or in some source open to all parties to a right understanding of the circumstances and conditions of the subject of investigation we must bear in mind when we begin the inquiry whether there are details expressions and definitions in the pinkney draft which were the results of critical discussion and modification in the convention that the constitution passed through four germinal stages the first began with randolph's fifteen resolutions on the twenty ninth of may and ended on the twenty sixth of july with the twenty three resolutions of the convention the fifteen resolutions had been considered and discussed and modified and expanded into the nineteen resolutions of the Committee of the Whole, June 13th, and the 19 resolutions had also been considered and discussed and modified and enlarged into the 23 resolutions of the Convention,

July 26th. Never in the history of nations did a deliberative public body strive so philosophically, so wisely and well to possess itself of the subjects to be considered, to comprehend its task, know what it was doing and to do. At the beginning, propositions for consideration and discussion were tentatively placed before the convention in an abstract form. These propositions were embodied in 15 resolutions, which were immediately referred to the committee of the whole. They were taken up one by one, and considered and discussed and amended or rejected or adopted or postponed for later consideration. The abstract of a part of a single day's proceedings

will give a clear idea of the way in which the convention worked. Tuesday, June 5th, Mr. Randolph's ninth proposition, the National Judiciary to be chosen by the National Legislature, disagreed to, to hold office during good behavior and to receive a fixed compensation, agreed to, to have jurisdiction over offenses at sea captures cases of foreigners and citizens of different states of national revenue, impeachment of national officers, and questions of national peace and harmony postponed. At the end of two weeks of such consideration and discussion, June 13th,

the Committee of the Whole reported the conclusions which had so far been mentioned, reached in the form of 19 resolutions, 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 26th, when the conclusions of the Convention were referred to the Committee of Detail,

and the work of reducing the abstract to the concrete began. The Convention then adjourned to August 6th to enable the Committee to prepare and report the Constitution. On August 6th, the Committee of Detail reported 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 committees representing every state. Grand committees, they were called, amendments were offered, changes were made, the Committee of Detail incorporated new and additional matters in their draft

until, on September 8th, the work of construction stopped. But not even then did the labors of the Convention 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, the Committee of Style. It reported 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 signed the Constitution. Well might Franklin exclaim in his farewell words to the convention,

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. But he was a great man and saw that a great work had been accomplished. The immutability of the Constitution. Encyclopedia Americana. The second Germanal stage began July 26th with the appointment of a committee,

the Committee of Detail, for the purpose of reporting a Constitution, and continued until August 26th, 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 Convention. with instructions couched in the 23 resolutions, and they return to it with more than half of the Constitution arranged in the form of articles and sections

substantially as we have them in the Constitution. The number of provisions contained in the draft greatly exceeded the number of specific instructions set forth in the resolutions, but the excess was not wholly in excess of authority, for it had been resolved, that the national legislature ought to possess the legislative rights vested in Congress by the Confederation, and, moreover, to legislate in all the cases for the general interests 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 Rutledge held in his hand as he rose to address the convention on the sixth 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 rutledge to the hand of washington was not engrossed on parchment like a second magna carta it was not attested by signature or date it was not even in writing a few pages of printed 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, Rutledge, 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, handmade paper, 10 by 15.5 inches in size. The printed matter is 5.1⁄4 inches by 12.5. There are seven pages carrying from 27 to 53 lines on each. The workmanship is faultless. The type clear, the impression uniform, the ink unfated, the punctuation careful, the spacing, perfect.

There are but two typographical errors, one of which is a misnumbering of the articles. In Pinckney's draft, the first article has inscribed over it Article 1, and the following articles have only their numbers, two, three, etc. The printer followed the same form, the only difference being that Pinckney, writing the draft with his own hand, used Arabic figures, for which the printer substituted Roman numerals. When he reached the seventh article, he repeated V.I. And when he reached the eighth, he entitled it VII, and continued the error through the remaining articles.

Notwithstanding this blemish, I have never seen so faultless a public document. The copy bears this endorsement. Printed draft of the Constitution, received from the President of the United States, March 19, 1796, by Timothy Pickering, Secretary of State. The name of the printer who did his confidential work so well, I regret to say, is not upon the paper. It has been supposed and said that this copy of the draft was Jackson's, the inefficient Secretary of the Convention, and that he used it to save himself the trouble of writing out the proceedings in the journal by noting amendments on the margin this like much other imaginary history is erroneous

when i first saw the draft of the committee 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 calling the attention of mr s b crandall of the bureau of rolls to it he instantly recognized this writing as washington's a further examination showed that a hundred and fifteen notes and interlineations were written by washington and seven by jackson this copy of the draft washington's own copy whether he placed the copy among the papers of the convention on september seventeenth seventeen eighty seven when the secretary brought them to him or whether he transferred his own copy to the secretary of state in seventeen ninety six is unknown and probably unassertainable but the endorsement makes it certain that the paper came to the department directly from washington and the one hundred and fifteen carefully made amendations in his handwriting are for us the highest evidence in the world of its authenticity the notes by jackson are easily explicable they are lengthy amendments which washington could not take down from hearing them read and he handed his printed copy to the secretary to have them correctly and fully written out. For the benefit of those persons who are so fortunate

as to have a copy of the documentary history of the Constitution, Department of State, 1894, I will add that the marginal notes which are in the writing of Jackson are those of Article 5, Section 1, Article 6, Section 3, Section 13, Article 7, Section 1, Article 11, Section 4, Article 15. See Documentary History Constitution, Volume 1, page 285. If the Committee of Detail, Rutledge of South Carolina, Randolph of Virginia, Gorham of Massachusetts, Ellsworth of Connecticut, and Wilson of Pennsylvania,

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 in others. 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 Edmund Randolph died, the secret of the members of the Committee of Detail died with him. The third germinal stage was based on the draft of the Committee of Detail and extended from the 6th of August to the 12th of September.

the draft of the committee constituted the divide in the march of the framers behind them was the plain of philosophical 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 propositions by incorporating them in provisions and conditions to be written into the constitution but the work of the convention and the debates of the members were in connection with the drafted constitution of the committee of detail or in connection with the 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 sufficiently 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 most difficult of the compromises that between the the large and the small states in the choosing of the president was effected in the method first approached by wilson and rejected by the convention june second 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 representatives was taken from the supreme court and given to the senate the power to appoint ambassadors and judges of the supreme 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 draft of the committee of detail the fourth stage began on the twelfth of september with the revised constitution reported by the committee appointed to revise the style of and arrange the articles which had been agreed upon, commonly termed the Committee of Style, but which more correctly might have been termed the Committee of Revision. During that and the next three days, the Constitution was modified by a number of amendments, chiefly of the nature of corrections. The Committee of Style made no changes other than those of arrangement and language. The correction of the language of the Constitution was masterly and is ascribed by Madison to Governor Morris. On Saturday, the 15th of September,

the labors of the convention ended. On Monday, the 17th, the engrossed Constitution was signed. In his note to the plan, Madison specifies some of the details expressions, and definitions which were framed in the convention, the results of critical discussions that could not have been anticipated by Pinckney. Examples of these similarities and identities, he says, may be noticed in Article 8, which is remarkable also for the circumstance that, whilst it specifies the functions of the President, no provision is contained in the paper for the election of such an officer. these are all the specifications of provisions or of language plagiarized from the constitution by pinkney which madison has filed

specifying nothing else we may assume that the plagiarisms contained in article eight were the plagiarisms which dwelt in his own mind and upon which he rested his conclusions these specific charges of plagiarism may be struck down by a single blow not one of the provisions contained in pinkney's article eight was framed in the convention and all were brought before the convention by the draft of the committee of detail all the provisions of the constitution which were framed by the convention were framed subsequently to the sixth of august and belonged to the third and fourth germinal periods all the provisions which are contained in the draft of the committee of detail were framed before the sixth of august and existed before the constructive work of the convention began when the sequence of events is observed the matter is cleared and the phenomenon of madison becomes a simple link in the chain of events pinkney presented his draft to the convention on its first business day before there had been a single link to the chain of events pinkney presented his draft to the convention on its first business day before there had been a single critical discussion the convention immediately referred the draft to the committee of the whole which made it accessible to every member of the convention when a committee was appointed to draft a constitution the draft of pinkney was taken from the committee of the whole and referred to the committee of detail the committee found in the draft matter which they needed and they used it as the basis of their own draft as any committee would have done

and thus the draft of the committee of detail became the vehicle by means of which these provisions and expressions of pinkney 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 perceived the course he did the most diligent member of the convention the chronicler of its transactions the sole survivor of its members and consequently a witness who should speak with the greatest care and yet we find him at one end of the line ignorant of the contents of pygney's draft and at the other silent as to the contents and existence of the draft of the committee of detail When he wrote of the coincidence in several instances between that, the State Department draft, and the Constitution as adopted, and cited Article 8 as containing remarkable examples of these coincidences, he gave unconsciously a curious illustrations of things confounded in the memory after a lapse of more than 30 years, in his case after a lapse of more than 45 years. With the fall of these specifications

falls the general charge of plagiarism. The draft in the State Department ends with the draft of the Committee of Detail. Whatever coincidences there be of details, expressions, and definitions are coincidences in the two drafts and in them alone. The similarities and identities which so impressed Madison were merely similarities and identities between the two drafts. He doubtless selected Article 8 as remarkable because he recognized in it provisions and expressions

which he knew were in the Constitution. But there are others in Article 8 which are not in the Constitution and which are inconsistent with it. the retention of these is sufficient to refute the idea that pinkney changed his draft to make it conform to the work of the convention article eight provides that the title of the president shall be his excellency there is no such provision in the constitution article eight makes exceptions to the appointing power ambassadors other ministers and judges of the supreme court are not to be appointed by the president but by the senate this was not one of the results arrived at in the convention in case of the death of the president and the death of the president of the senate the speaker of the house of delegates shall exercise the duties of the office. Here, all that Pinckney had to do was make his draft conform

was to run his pen through the supplementary clause vesting the succession in the speaker. The president may be removed from office on impeachment by the House of Delegates and conviction in the Supreme Court. Here, all that Pinckney had to do was to erase Supreme Court and insert Senate. finally it is to be noted that those expressions and provisions in article eight which caught the eye of madison and were characterized as remarkable were not results of critical discussion and modification in the convention that could not have been anticipated but were provisions and expressions which had been taken by pinckney from the constitutions of new york and massachusetts generally word for word

the article provides that the president shall from time to time give information to the legislature of the state of the union and recommend to their consideration the measures he may think necessary that he shall take care that the laws be duly executed that he shall commission all officers and shall nominate and with the consent of the senate appoint officers that he shall have power to grant pardons and reprieves and that he shall be commander-in-chief of the army and navy but each of these provisions was taken from the constitution of new york the article also provides that at entering on the duties of his office he shall take an oath faithfully to execute the duties of president and that he shall be removed from his office on impeachment by the office by the office the House of Delegates. But these provisions were taken from the Constitution of Massachusetts. The article also provides that, in case of his removal by death, resignation, or disability, the President of the Senate shall exercise the duties of his office, but this is taken from the Constitution of New York. In a word, when we trace these provisions and expressions to their

respective sources, there is nothing left of the article. Article 8 is indeed remarkable, but it is for reversing the deductions of Madison, for demonstrating with mathematical certainty, so far as it goes, that Pinkney did not make his draft conform to results which had been reached in the convention and which could not have been anticipated. End of Chapter 7. Chapter 8 of the Mystery of the Pinkney Draft This Librevox recording is in the public domain.

The Mystery of the Pinkney Draft by Charles C. Not. Chapter 8. The Improbabilities The most incisive reason given by Madison against the authenticity of the draft in the Department of State, the reason which he most reiterated, if not the one upon which he most relied, was that the draft was presented to the convention on the 29th of May, and a week later, June 6th, Pinkney moved,

that the first branch of the national legislature be elected by the state legislatures and not by the people. This objection is not only plausible, but it rests on two incontrovertible facts, each of which is a matter of record, that the draft 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 his letter to the Secretary of State that there were provisions in the draft which, on further reflection, he had opposed in the Convention. This declaration, it must be remembered, was made before the publication of Madison'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 afterthought or a defense, but an avowal made in due time. In the second place, the draft was presented 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 wisdoms and excellencies of which he had read and re-read in Blackstone. It was a matter of course for him, when dealing with the legislative power,

to have his Congress consist of two 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 members 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 began, and he avowedly so contrived his Senate, that it should, in fact, though not inform, represent not nobility but wealth. It is probable that when he was drafting 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 7th,000,

of June, the subject had come before the convention and had been discussed, and South Carolina had taken a position against it. Jerry of Massachusetts said that, the evils we experience flow from the excess of democracy, and that he did not like the elections by the people. Butler of South Carolina thought an election by the people an impracticable mode. Rutledge, the strongest man in the state, seconded the motion to have the first branch elected by the state legislatures. Charles Cotworth Pinckney, the most esteemed citizen of the state and Pinkney'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 totally 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 convention. 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. But there is a letter of George Reed which should be considered, for it suggests the question whether this change of Pinckney did not take place before the 29th of May, that is to say, before he presented his draft to the convention. On the 20th of May 1787, Mr. Reed wrote from Philadelphia to John Dickinson, I am in possession of a copied draft of a federal system intended to be proposed, if something nearly similar shall not proceed it. Some of its principal features are taken from the New York system of government, a House of Delegates and Senate for a general legislature 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 others, fixing a number for sending each representative. 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 an annual rotation of a fourth of the members, a president having only executive powers for seven years. Reed's Life of George Reed of Delaware, page 443. This letter is very far from being conclusive.

In the first place, it does not appear that Mr. Reed had seen the original of this copied draft, 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 draft 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 draft was not presented to the convention on the 29th of May. Still, this letter undoubtedly refers to Pinckney's draft 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 description of his plan of government. In the opening paragraph of this paper, he says that he will,

give each article of his draft that either materially varies from the present government or is new. He then goes on to say that the first important alteration is that of the principle of representation. Representation is a sign of the reality. Upon this principle, however abused, the Parliament of Great Britain is formed, and it has been universally adopted by the states in the formation of their legislatures. This is all which Pinckney, writing before the Convention began its work, had to say concerning the lower 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 universally adopted by the states in the formation of their legislatures

the virginia resolutions 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 assuredly if the draft which pinkney was then describing had contained the extraordinary and novel proposition that the popular branch of the national legislature the body which should represent the the people, was not to be chosen by the people, he would have had something new to lay before the convention, something 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 constitution. Knowing Pinckney as we do, his general views, his adherence to the general principles of the British Constitution, his attentive study of state constitutions, his outspokenness,

his belief in his own devices, we know that if his draft had then contained so radical a departure from all existing constitutions as that which he subsequently proposed in the convention, and if he had worked himself into a belief at the time when he wrote the observations, that the election of their representatives by the people was theoretical nonsense, he could not have refrained from saying so. What is said in the observations harmonized with the constitutions of every state in the confederation and with the Virginia resolutions and with the views of every member of the convention, excepting the five great landowners from South Carolina.

The observations, therefore, written before the convention and published afterwards, sustain the draft in the State Department. The words, The People, appear directly and necessarily in Article III of the draft. The members of the House of Delegates shall be chosen every blank year by the people of the several states, and the qualifications of the electors shall be the same as the same as the United States, those of the electors in the several states for their legislatures. They reappear casually and needlessly in Article 5. Each state shall prescribe the time and manner of holding elections by the people for the House of Delegates. The draft, therefore, in these provisions, is consistent with

itself. In the draft of the Committee of Detail, the words of Pinkney's Article 3 again appear with some amplification, but in the same order with the same context and with the same intent. Such agreements come not by chance. And if such agreements come not by chance, could Pinkney, while he was copying the committee's draft for his own Article III have written these two troublesome words, the people, without taking heed of their significance, without realizing what he was doing, without remembering the people, without remembering the people, without taking heed of their significance, without that his own draft had said, the legislatures of the several states?

He could not, for there is another provision in the draft in the State Department, which was not taken from the committee's draft, which did not exist in the committee's draft, 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 draft in 1818, he nevertheless must have fabricated, designedly his Article 5 at the same time, for there is nothing in the committee's draft to suggest it. Then the question immediately arises, what motive could Pinckney have had for falsifying his draft 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 course, will be so that the world should believe 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 draft was to be soon published and that with it would be published the official journal of the convention

and that the publication would disclose to the world this record. Wednesday, June 6th, 1787. Mr. Gorham in the chair. It was moved by Mr. Pinkney, seconded by Mr. Rutledge, to strike the word people out of the fourth resolution submitted by Mr. Randolph, 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 legislatures of the several states. And on the question to strike out, it passed in the negative. If Pinckney's Article III had written, really provided that members of the First House should be chosen by the legislatures of the several states. Certainly, his Article 5 would not have provided that each 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 people, and Article 5 provided for the time and manner when and whereby the people should elect their representatives.

And Article 4 provided 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 draft in the State Department is consistent with itself. It is possible that the person who gave the copied draft to misconducts to Mr. Reed 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 determined to make his draft conform to the views of his fellow delegates from South Carolina. We know, as will hereafter appear, that he contemplated making many amendments to his draft,

before presenting it to the convention, and that he hastily and pre-referralial, and that he, maturely presented it on the twenty ninth of may so that it should go with the virginia resolutions to the committee of the whole the change we are considering may not have been made in the written instrument which he laid upon the secretary's desk though he made the change in his own mind but be that as it may it is as certain as existing knowledge goes that no man saw the original draft 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 draft is shown by positive testimony unequivocal in terms and above suspicion in character the circumstantial evidence that the draft went to the convention with the words the people in the third and fifth articles is overwhelming there are some other things specified in the note not of great importance but which served to show how eagerly madison clutched at anything that would operate as a make-weight against pinkney and his draft article eight is remarkable also for the circumstance that whilst it specifies the functions of the president no provision is contained in the paper for the election of such an officer This is not a complete statement of the case. The article declares that the executive power shall be vested in a president and that he shall be elected for X years. The provisions 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 should 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 complete his draft 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 avowedly nothing but an incomplete, tentative draft prepared for the future consideration of its authors, as well as other persons. Madison notes variances between the draft in the department and the propositions and arguments of

Pinckney in the convention. Thus, in Article 8, he says, Pinkney provides for the impeachment of the President, but on the 20th of July he was opposed to any impeachability of the executive. He was sure they ought not to issue from the legislature who would in that case hold them as a rod over the executive. But the draft says much more than Madison repeats. He shall be removed from his office on impeachment by the House of Delegates and conviction in the Supreme Court. Pinckney did not oppose that in the Convention. Madison, on his own record, clearly had no right to say that Pinckney was opposed to any impeachability of the executive. He did not oppose such an impeachability as his draft provided for, viz, by the Supreme Court,

and his reasons quoted by Madison do not apply to the impeachability provided in his draft. 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 of the Committee of Debt. by which report Pinckney's plan for the organization of the 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 eighth 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 pinkney's real position in regard to this was clearly stated by himself and thus recorded by madison on wednesday june thirteenth mr pinkney 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 otherwise a different principle should be introduced how did the senate stand at present on june thirteenth this is shown by the resolutions of the committee of the whole of the same day that the right of suffrage in the second branch of the national legislature ought to be according to the rule established for the first branch resolution eight the senate therefore was at present a very different representative body than the senate of pinkney's draft 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 draft, is a wild use of terms. In Article 5, members of each house are made ineligible to, as well as incapable of, holding any office. A provision, Madison continues, which was highly disapproved of by him on the 14th of August. What was this disapproval? Article 5 provides 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 create,

or the emoluments of which he had helped to increase, undoubtedly existed in many minds. But under the scheme embodied in the Pinckney draft, there was a peculiar reason why the ineligibility of senators should continue after their legislative terms of office had expired. That reason was because, Article 8, the Senate was to be an appointing power. It was to have sole,

and exclusive power to appoint ambassadors and other ministers to foreign nations and judges of the Supreme Court. Under this scheme, it was obvious 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 colleagues to an important office on the next day. It is, therefore, not a surprising thing to find this provision in the draft, and to find it applied only to the Senate. On the 14th of August, Pinkney had so far modified his own views that he was then in favor of making the members of each House incapable of holding executive-salaried offices while they continued members, with a provision 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 power should be vested in the Senate, when, he said, it would be more easy to judge of the expediency of allowing officers of state to be chosen out of that body. This postponement was agreed to, Nem Khan. It is manifest that the idea of the Senate being an appointee. power was still uppermost 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, Pinkney proposed to make members ineligible to hold any office by which they would receive a salary. This was merely a restriction on the original proposition of the draft, a limiting of its application to salaried offices, but leaving members eligible and capable of filling honorary positions. To say that his original proposition was

thereby highly disapproved by him is certainly an abuse of the term highly disapproved. The objection of Madison, when tested by his own record, the journal, comes down to this, that three months or more after Pinkney wrote the draft, he thought it better to limit the constitutional prohibition to salaried offices. This restriction was a trivial and a sensible modification. To infer from it that Pinckney then highly disapproved 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 letter of his draft into conclusive evidence

that this draft never existed. This brings us to the extrinsic evidence on which Madison relied, the testimony of Pinckney against himself. End of Chapter 8. Chapter 9 of the mystery of the Pinkney draft. This Librevox recording is in the public domain. the mystery of the pinkney draft by charles c not chapter nine the observations the observations of pinckney in madison's estimation fully sustained his arguments and justified his attacks on the verity of the draft in the state department the publication so entitled is a small pamphlet of twenty-seven pages it has the following title page observations of the plan of government submitted to the Federal Convention in Philadelphia on the 28th of May 1787 by Mr. Charles Pinckney, delegate from the State of South Carolina, delivered at different times in the course of their discussions.

New York, printed by Francis Childs. Two copies of this are in the Library of the New York Historical Society, and it is reprinted in Moore's American Eloquence. It bears no date, but 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 disillusion of the convention on the 17th of September. Madison unquestionably relied upon this pamphlet as containing the highest evidence against the verity of the draft 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 matter, make it plain that he regarded the observations as a conservatory of admissions, which Pinckney would not deny if he were living, and which his friends could not controvert now that Pinkney was dead. the first record we have of madison's reliance on this pamphlet is a memorandum found among his papers which bears no date but which must have been written prior to april sixth eighteen thirty one

for mr paulding much curiosity and some comment have been exerted by the marvellous identities in a plan of government proposed by charles pancney in the convention of seventeen eighty seven as published in the journals with the text of the Constitution, as finally agreed to. I find among my pamphlets a copy of a small one entitled Observations on the Plan of Government Submitted to the Federal Convention in Philadelphia on the 28th of May by Mr. C. Pankney, a delegate from South 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 New 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 occurred to me that a copy may be attainable,

in the printing 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 will promote an object of some little 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 Pinkney printed at the close of the Federal Convention of 1787, and on the 6th of June he again wrote to Mr. Paulding, june sixth eighteen thirty one dear sir since my letter answering yours of april sixth in which i requested you to make an inquiry concerning a small pamphlet of charles pinkney printed at the close of the federal convention of seventeen eighty seven it has occurred to me that the pamphlet might not have been put in circulation but only presented to his friends etc in that way i may have become possessed of the copy to which i referred as in a damage state on this supposition the only chance of success must be among the books etc of individuals on the list of mr pinkney's political associates and friends of those who belong to new york i recollect no one so likely to have received a copy as rufus king if that was the case it may remain with his representative and i would suggest an informal resort to that quarter with the hope that you will pardon this further text on your kindness on the twenty seventh of june he wrote to mr pauling for the third time regarding the observations

june twenty seventh eighteen thirty one dear sir with your favor on the twentieth instant i received the volume of pamphlets containing that of mr charles pinkney for which i am indebted to your obliging researches the volume shall be duly returned and in the meantime duly taken care of i have not sufficiently examined the pamphlet in question but i have no doubt that it throws light on the same 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 is relation. On the 25th of November, he wrote at length to Jared Sparks, setting forth all his objections to the draft, and added, Further discrepancies might be found in the observations of Mr. Pinkney, 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 preserved in the United States. I have a copy too mutilated for use, but it may probably be preserved in some of your historical repositories.

On the 5th of June 1835, he wrote to Judge Durr, Other discrepancies will be found in a source also within your reach, in a pamphlet published by Mr. Pinkney soon after the close of the convention, in which he refers to parts of his plan, which are at variance with the document in the printed journal. A friend who has examined and compared the two documents has pointed out the discrepancies noted below. Then follows the list of discrepancies pointed out by a friend, and in this letter he refers Judge Dure to the Library of the Historical Society of New York

as the place where a copy of the observations can be found. The following paragraphs from the observations contain all that bears upon the the contents of the draft, and all upon which Madison 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 enforce. Hardly anything abroad or at home is sound and entire. Disconnection and confusion 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 if your system is accommodated to this situation 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 present confederation, but request permission to submit, with deference to the House, the draft of a government 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 House, but have taken the liberty of mentioning it because it was my duty to do so. The first important alteration is that of the principle of representation and the distribution of the different powers of government.

In the federal councils, each state ought to have await 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 has been universally adopted by the states in the formation of their legislation. In the Parliament of Great Britain, as well as in most and the best instituted legislatures of the states, we find not only two branches, but in some a Council of Revision, consisting of their executive and principal officers of government. This I consider as an improvement in legislation, and have

therefore incorporated it as a part of the system. The Senate, I propose to have elected by the House of Delegates upon proportionable principles, in the manner I have stated, which, though rotative, will give a sufficient degree of stability and independence. The districts, into which the 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 represent the wealth of the nation. The executive should be appointed septennily, but his eligibility ought not to be limited. He is not a branch of the legislature 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 office more respectable. The fourth article, respecting the extending the rights of the citizens of each state throughout the United States, 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 fourth article of the present Confederation, except with this difference, that the demand of the executive of a state for any fugital criminal offender shall be complied with. It is now confined to treason, felony, or other high misdemeanor, but as there is no good

reason for confining it to those crimes, no distinction ought to exist, and a state should always be at liberty to demand a fugitive from its justice, let his crime be what it may. The fifth article, declaring that individual states shall not exercise certain powers, is also founded on the same principle as the sixth 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 revision 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 protection. In it alone can be vested those powers and prerogatives which more particularly distinguish a sovereign state. The members which composed 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 systems. the idea which 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 the states should retain nothing more than mere local legislation which as districts of a federal 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 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 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 Seventh 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 Congress, be necessary and expedient. The eighth article only varies so far from the present as in the article of the post office 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 postage. purpose of raising a revenue. Congress had this in contemplation some time since, and there can be no objection, as it is presumed, in the course of a few years, the post office will be capable of yielding a considerable sum to the public treasury. The ninth article, respecting the appointment 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 Judiciary. The tenth article gives Congress a right to institute all such offices as are necessary for managing the concerns of the Union, of erecting 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 federal funds. In all those important questions, where the present Confederation has made the ascent of nine states necessary, I have made the ascent of two-thirds of both houses, when assembled in Congress, and added to the number the regulation of trade and acts for levying an impost and raising a revenue the exclusive right of establishing regulations for the government of the militia of the 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 divided, to consent to such junction or divest. on the term mentioned in the article. The federal government should also possess the exclusive right of declaring on what terms the privileges of citizenship and naturalization should be extended to foreigners. The 16th article proposes to declare that if it should hereafter appear necessary to the

United States to recommend the grant of any additional powers, that the assent of a given number of the states shall be sufficient to invest 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 alteration of the Constitution by its being first agreed to in Congress, and ratified by a certain proportion of the legislatures, are precisely the same. There is also in the articles a provision respecting 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 penalties under which their attendance is required are such as to ensure 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 freedom of the press and the prevention of religious 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 university there are other articles but of subordinate 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 far as far as my present observations would only permit me to touch the outlines in these i have endeavoured to unite and apply as far as the matter of the union would permit the excellencies of such of the state's constitutions 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 intended but this i think may be safely asserted that upon a clear and comprehensive view of the relative situation of the union

and its members we shall be convinced of the policy of concentrating in the federal head a complete supremacy in the affairs of government leaving only to the states such powers as may be necessary for the federal 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 by him when he presented his draft to the convention. Upon this question of fact, there are two witnesses, Madison and Yates.

The evidence which they have left to us is negative and positive, the one showing in fact. What could not have occurred in the Convention on the 29th of May 1787, and the other stating positively what did occur the one absolutely silent as to any speech by Pinckney The other telling us that Mr. Pinkney a member from South Carolina then added that he had reduced his ideas of a new government to a system which 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 account, showing us the method he pursued, the efforts which he made, and reminding us how much we owe him for his fidelity to his self-imposed task.

The curiosity I had felt during my researches into the history of the most distinguished 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 reasons, 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 while executing its trust, with the magnitude of which I was duly impressed, as I was by the gratification promised to future curiosity by an authentic exhibition of the objects,

the opinions, and the reasonings from which the new system of government was to receive its peculiar structure and organization. Nor was I unaware of the value of such a contribution to the fund of materials to the history of a constitution on which would be staked the happiness of a people great, even in its infancy, and possibly the cause of liberty throughout the world. In pursuance of the task I had assumed, I chose a seat in front of the presiding member, with the other members on my right and left hands. In this favorable position, for hearing all that passed, I noted in terms legible, and in abbreviations and marks intelligible to myself,

what was read from the chair or spoken by the members, and losing not a moment unnecessarily between the adjournment and reassembling of the convention, I was unable to write out my daily notes during the session, or within a few finishing 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 purpose, practice, and by a familiarity with the style and the train of observation 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, unless a very short one. Yates was, at the time of writing his minutes, forty-nine years of age. During the revolution, he had written political essays highly esteemed over the signature of the rough hewer. He had been for 11 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 speakers. His reports of the debates are briefer than Madison's, showing much less of the reporter 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 Pinkney, that of June 25th, when compared with the full speech written out by Pinkney 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 Pinkney neglected to furnish. Madison says in his letter to Judge Dewar,

Mr. Yates's notes, as you observe, are very inaccurate. They are also, in some respects, grossly erroneous. There are indeed mistakes, resulting from his non-acquaintance with the delegates, and especially in his confusing the names of the two Pinkneys, the first name of each being the same as the first name of the other, and both being delegates from the same state. But be that as it may,

Yates correctly characterized the speech of Randolph as long and elaborate, and Pinkney's draft 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 document. The fact, therefore, must be regarded as established as firmly as any fact recorded in the annals of the convention, that on the day when Pinckney presented his draft to the convention, 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 of the pamphlet,

there is a flat contradiction. In the speech he says expressly that, The plan will admit of important amendments, that he does not seem to offer it for the consideration of the House, that he has taken the liberty of mentioning it because it was his, his duty to do so. In the title to the pamphlet, he says, Plan of Government submitted to the Federal Convention in Philadelphia 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 irreconcilable. 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 assembling 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 forgotten. The day fixed for the meeting of the delegates in Convention was Monday, May 14, 1787. Washington, notwithstanding his painful 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 afflicted with a rheumatic 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 ripening age this journey of mine then one hundred miles in the disordered frame of my body will i am persuaded unfit me for the intended trip to philadelphia but washington though he knew it not was then approaching the verge of his third cycle of illustrious service rendered to his country the country he assembled out of chaos madison writing to jefferson then in paris on tuesday the fifteenth of may happily recorded 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 number 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 continued to be felt for his character but a quorum of lesser men did not appear until friday may twenty fifth on that day nine states were represented by twenty-nine delegates among whom was charles pinkney on whose motion a committee was appointed of which he was won to prepare standing rules and orders The only other business was the election of Washington as president and Major William Jackson as secretary. On Monday, May 28th, the convention next met when Mr. Wythe, from the Committee for Preparing Rules, made a report which employed the deliberations of this day. Tuesday, May 29th, was the great day when Randolph opened the main business and, presented the Virginia resolutions, and Pinkney laid before the House the draft of a federal

government. These were not days to be easily confounded, but between the presentation of the draft 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 covering the draft in the department, Pinkney says that he has then four or five drafts of the Constitution in his possession. It is certain that the draft in the department conforms much more closely to the draft which he presented to the convention than to the draft which he describes in the observations. If we consider it,

are the facts established, as we must, that the observations were written before the assembling of the convention, that they were written many months before their publication, that they were not examined or revised when they were published, it is easily within the range of possibilities, if not of probabilities, that the draft which formed the text of the discourse was one of the four or five which Pinckney had drawn at various times, and was not the one which he finally submitted 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 present his draft to the convention, they would be very good secondary evidence of the contents 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 auditors, who never heard it, is not a public declaration 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 must have been written in Charleston before, for the assembling of the convention, or, possibly, in New York after the convention had been dissolved, and, whenever written, Pinckney may have had before him another of the four

or five constitutions which he had drafted. With the uncovering of the fact that this paper was not contemporaneous, and that it did not necessarily refer to the particular copy of the draft which Pinkney presented to the convention on the 29th of May, the supposed value of the observations, as evidence to impeach the integrity of the draft in the State Department, is blown to pieces. If this were a suit between Madison and Pinkney, it might be held that Pinckney would be stopped from questioning

the veracity of the paper which he wrote and made public, or the actuality of the facts which it sets forth, forth. But an estoppel which, in the words of Coke, Concludeth a man to allege the truth, does not extend to the student of constitutional history. He is not a party to that record, and is at liberty to use it for what it may be worth against Pinkney, or for Pankney, to overthrow the draft, or to substantiate the draft, to use it in any way which will tend to clear the situation from error and authenticate the true history of the Constitution.

Madison, in his note to the plan, regarded Article 8 as remarkable also for the circumstance that whilst it specifies the functions of the President, no provision is contained in the paper for the election of such an officer. The plain, unquestionable purpose of Madison, when so writing, was to imply, impress upon the american mind the improbability the almost impossibility of pinkney'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 remarkable for the omission cannot be true copy of the one presented to the convention and the inevitable inference from this is that the real draft, 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 constitutional student to know in what manner Pinkney provided in his draft for the choosing of the president and whether he attempted a compromise. The original draft is lost, but here Madison appears with the observations,

which he fortunately saw in 17. 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 draft contained so fully and accurately that upon the faith of them we can and must reject the copy of the draft which Pinckney produced and placed in the State Department, department therefore we may turn to the observations with unusual interest to ascertain whether pinkney provided and in what manner he provided for the choosing of the president we find that the observations are as silent as the draft in the state department they are not more silent however if the observations said nothing and were absolutely silent on the subject of the president it might be a casual oversight of the writer. But the observations agree with Article 8.

Both recognize the executive as vested in one person. Both limit his term of office. The one to seven, the other to X years. Both expressly declared 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 eight madison regarded the omission to provide for so vitally important a thing as the choosing of the president as remarkable but the more remarkable the omission the more significant the coincidence the explanation of pinkney's conduct and of the contradictions between his statements in the observations and the facts appear 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 40 delegates present, but among them were the most distinguished men of the country. Washington, Hamilton, Rufus King, David Beerley, both robert and governor morris george reed george mason george wythe john rutledge john dickinson and elbridge jerry a painful anxiety existed concerning everything which lay before them the method of procedure the specific subjects to be considered the prejudices of the different states the views and plans and projects of the different states the views and plans and projects of the

different members. Randolph, as heretofore has been said, opened the great business which was to result either in the formation of a national government or in the disillusion of the feeble confederation which existed, by the presentation 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 painney 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 for which he had formulated no compromise it was not the time for the man believed to be the youngest member to harang the convention on his scheme for a new government pinkney 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 discussion what they wanted to formulate he therefore wisely reversed his strategy withholding the speech but presenting the draft 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 constitution had gone forth to the world pinckney knew that his draft 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 certainly he would not resist the temptation of revealing what he had written and of recording the great part he had played among the eminent actors in the convention he avoided violating the pledge of secrecy by revealing no act or proceeding of the convention not even that his plan had been presented and referred 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 draft 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 reported speeches in the convention which bear some resemblance to his discursive rhetorical 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 however 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 draft in the state department in matters of substance but not in order and arrangement the observations also allude to provisions which are not in the draft in the state department provisions which may or may not have been in the state department provisions which may or may not have been in the draft which was presented to the convention and these i shall subsequently examine as to the variance in order and arrangement there are two things which should be considered first as a matter of antiquarian research it would be interesting and satisfactory to ascertain that the one draft was a facsimile or exact duplicate of the other but where the purpose of the inquiry and as in this case, is to ascertain what contributions the draft 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 draft of the Committee of Detail, so far as it agrees in order and arrangement with the draft in the State Department, furnishes us with presumptive evidence of the order and arrangement in the draft which was presented to the convention. A comparison of the two will show that the variances are so trivial that they are not worthy of further consideration. As we have seen, Chapter 6, Madison did not cite the observations in the note of Mr. Madison to the plan of Charles Pinkney, 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 discrepancies set forth in the footnote, but planned and arranged that they should be brought before the public by his editor, has seemed inexplicable hitherto. The reason is now plain. He did not wish to assume the responsibility of citing the pamphlet of Pinkney because he knew that it consisted of a speech which was never made. Madison cited the observations as the eighth article

and the fifth article of Pinckney's draft to secure its condemnation, but of each he might say as Balak the son of Zippor said in the prophet of old, i took thee to curse mine enemies and behold thou hast blessed them he hunted for the observations he found them he brought them to his knowledge of men he appealed to them he made them authority by which pinkney 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 seemed to have been a fateful thing fatal to whichever party relied upon them madison exhumed them and believed that they would destroy the pretensions of pinkney and vindicate himself and they have but demonstrated the superficiality of his 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 reference to another contemporaneous publication his appetite for expected praise improperly 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 end of chapter nine chapter ten of the mystery of the pinkney draft this librivox recording is in the public domain the mystery of the pinkney draft by charles c not chapter ten the silence of madison up to this point the draft in the state department has been considered precisely as madison desired it should be considered 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 pinkney and to the evidence which he adduced to sustain it to wit pinkney's observations 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 supplied. In his letters to Sparks and the others, as in the final note, there is a studious comparison instituted between the draft in the State Department and the Constitution itself. There is also an argument implied that the draft in the department cannot possibly be identical with the draft presented to the convention because it contains some provisions which Pinckney opposed in the convention.

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 draft of the committee of detail. The second, that he had never heard of Pinkney's letter to the Secretary of State, and knew not that Pinkney had notified the Secretary, that the copy which he sent was not a literal reproduction of the lost draft, 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 5, 1830 Since my return, I have conversed with Mr. Adams concerning Charles Pinckney's draft of a Constitution. He says it was furnished 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. Pinkney claims to himself great

merit for the part he took in framing the Constitution. A copy of this letter may doubtless be procured from Mr. Brent, should you desire to see it. Mr. Adams mentioned the draft once to Mr. Rufus King, who said he remembered such a draft, 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 collected them from Mr. Adams, were precisely such as you expressed. Here it may be noted that what Mr. Adams heard from Mr. King is recorded in his memoirs, May 4, 1830, Volume 8, page 225. It is only what Sparks reported to Madison. Mr. King had not seen the draft, and had not heard anyone narrate what its provisions were.

indeed his doubts and suspicion seemed 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 twenty fourth of may eighteen thirty one mr sparks who was then at work on his life of governor morris again wrote to madison boston may twenty fourth eighteen thirty one in touching on the convention i shall state the matter relating to mr pinkney's draft as i have heard it from you and from mr adams as reported to him by mr king justice and truth seemed to me to require this exposition i shall write to charleston and endeavor to have the draft inspected which was left by mr pinkney your explanation that he probably added particulars as they arose in debate and at last forgot which was original and what superadded 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 receive it madison felt so solicitous about the inquiry in charleston that on the twenty first of june he wrote to sparks asking to be informed of the result as soon as it is ascertained but on the sixteenth of june sparks had written to madison the following letter which could not have reached him when he wrote on the twenty first boston june sixteenth eighteen thirty one i have procured from the

Department of State a copy of the letter from Mr. Charles Pinckney to Mr. Adams when he sent his draft 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 draft, which he forwarded, was a compilation made at the time from loose sketches and notes. The letters should have been printed in connection with the draft. I imagine Mr. Pinkney's. and he expected it. He does not pretend that this draft was absolutely the one he handed into the convention. He only believes it was the one, but is not certain. Should you have leisure, I beg you will favor me with your views of this letter. It touches upon several matters

respecting the history and progress of the convention. Do these accord with your recollection? I would not weary or trouble you. but when you recollect that there is no other fountain to which I can go for information, I trust you will pardon my importunity. When Sparks wrote his hasty letter of June 16th, he was evidently writing under two misapprehensions. The first was that he supposed the question involved was whether the draft on file was an exact copy of the lost original.

The second was that its verity depended entirely on Pinkney'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 misapprehensions and freed himself from the authority of Madison's opinion, and his strong and well-trained mind analyzed 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. Boston, November 14th, 1831. My mind has got into a new perplexity about Pinckney's draft of a Constitution. By a rigid comparison of that instrument with a draft of the committee,

reported August 6th, they are proved to be essentially and almost identically the same thing it is impossible to resist the conviction that they proceeded from one and the same source this being established the only question is whether it originated with the committee or with mr pinkney and i confess that judging only from the face of the thing my impressions inclined to the latter here are my reasons one all the papers referred to the committee were randolph's resolutions as amended and patterson's resolutions and pinckney's draft without having been altered or considered the committee had them in hand nine days their report bears no resemblance in form to either of the sets of resolutions and contains several important provisions and contains several important provisions not found in either of them it is probable that they would have deserted these particularly the former which had been examined seriatum in the convention and struck out an entirely new scheme in its form of which no hints had been given in the debates two the language and arrangement of the report are an improvement upon pinckney's draft negligent expressions are corrected words changed and sentences broken for the better in short i think any person examining the two for the first time without a knowledge of circumstances or of the bearing of the question would pronounce the committee's report to be a copy of the draft with a man

in style and a few unimportant additions. 3. If this conclusion be not sound, it will follow that Mr. Pinckney sketched his draft from the committee's report, 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 like not devious ways and would fain have light rather than darkness 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 delicate situation in which such a step would place you and you may

rely upon my discretion. I am greatly puzzled, however, in respect to the extraordinary coincidence between the two drafts. Notwithstanding my reasons above given, I cannot account for the committees following any draft so servile, especially with Randolph's resolution before them, and Randolph himself one of their number. I doubt whether any clear light can be gained till Pinkney's original draft shall be found, which is probably among the papers of one of the committee. It seems to me that your secretary of the convention was a very stupid secretary, not to take care of these things better, and to make a better 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 draft was referred to the committee of detail, that it was never considered in the convention, that the period within which the committee framed their draft was a brief one, that the committee's draft bears no resemblance in form to the resolution of the convention and contains 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 draft 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 person examining the two two, drafts, for the first time without a knowledge of the circumstances, or of the bearing of the question, would pronounce the committee's report to be a copy of the draft with amendments in style and a few unimportant additions, or that Mr. Pinckney sketched his draft from the committees, 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.

in the second clause of the latter alternative sparts 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 pinkney's draft or pinkney must have sketched his draft from the committees and more than that he must have sketched it in so artful a manner as to make it seem the original when one instrument is fashioned after another the natural and even unconscious action of the mind is to correct and improve it is 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 going backward this inferiority in detail runs through the pinckney draft as has repeatedly been shown before when sparks wrote the word artful he used the right word the word which controlled the situation in so artful a manner as to make it seem the original most accurately defines what pinkney did in charleston in eighteen eighteen if he then fabricated a new draft 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 draft and given these artless imperfections these delicate touches of inferiority to the copy for the state department to the specific charge that pinkney must have sketched his draft in 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 narrowed the issue to this did the committee follow pinkney's draft or did pinkney use the committees but madison evaded the issue sparks had shown that the committee did not confine themselves to results arrived at after discussion in the convention but that they had incorporated in their draft important provisions not found in either set of resolutions and he called madison's attention to the extraordinary coincidence between the two drafts and he added that he could not account for the committee following any draft so servilely especially with with Randolph's resolutions before them, and Randolph himself, one of their number. It was for Madison, then, to meet this issue and show definitely where the committee got the many new provisions of their draft, important and unimportant, if they did not get them from the Pinckney draft. On the 25th of November, 1831, Madison replied at length to Sparks's letter, but he said not a word about the draft of the committee or of Pinckney's letter to the Secretary of State.

His answer was, in effect, impossible. Sparks did not acknowledge the receipt of the letter until the 17th of January 1832, and then the acknowledgement was called out by a letter from Madison of January 7. He yielded a reluctant assent, manifestly in defense 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 draft of the committee.

The history of the composition of the draft would be a curious item in the proceedings of the convention. Here Sparks again puts his finger on one of the things that needed explanation, the composition of the draft. his sagacious mind grasped the fact that the structure of the draft of the constitution of the constitution itself would indeed be a curious item in the proceedings of the convention 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 twenty fifth 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 draft of the committee and to direct comparison of the constitution itself

three years later in his letter to judge dur he reiterated what he had said to sparks and again he said nothing upon the point which Sparks had plainly placed before him. Finally, 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 draft, or did Pinckney surreptitiously use the committees? This silence of Madison's is a most curious instance of his sagacious and adroit management.

It was not his business to direct attention 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 Pinkney's letter to the of state and that his weakened mind had overlooked the draft 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 End of Chapter 10. Chapter 11 of the Mystery of the Pinkney Draft This Libravox recording is in the public domain.

The Mystery of the Pinkney Draft by Charles C. Not. Chapter 11. The Wilson and Randolph drafts. Since Madison's time, there have been uncovered four papers of which he knew nothing, and they bring us into an almost new field of inquiry. these papers are in the handwriting of james wilson edmund randolph and john rutledge all members of the committee of detail and they are drafts or sketches for drafts of the constitution the first paper chronologically is not a draft it was discovered by professor mclaughlin and was published by him in the nation of april twenty eighth nineteen o four and is among the wilson papers in the library of the hillson papers in the library of the hilli 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 before the adoption of the 23 resolutions. A single article, or item of the paper, will demonstrate this, and its worthlessness. 20. Means of enforcing and compelling the payment of the quota of each state. This is all that there is concerning the rock upon which the Confederation was already wrecked, the dependence of the general government upon the voluntary action of the state governments for revenue.

Wilson, in 1787, was too intelligent a statesman to even think of retaining this condition of national dependency, and he was too wise a man to talk of enforcing and compelling the several states to contribute to the national treasury. He may have prepared the paper sometime 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 discovered by Professor Jameson

among the Wilson Papers and was published by him in the annual report of the Historical Association 1902, Volume 1, page 151. This paper contains the preamble of the Pinkney draft and consequently of the draft of the committee. Then follow the first three articles of the committee's draft, with some slight variations of language, and then, under the caption

of what should be Article 4, come 29 paragraphs containing provisions, closely agreeing with the provisions of the committees, but unarranged and incoherent in their order. The second sheet of this draft is unfortunately missing. The third sheet contains various provisions, following closely the 17th, 18th, 9th. 19th, 20th, and 21st resolutions, and near the end of the paper, the provisions relating to the veto power taken from the Constitution of Massachusetts, with the term governor of the United States, twice used. The third paper of Wilson was likewise discovered by Professor Jameson. Wilson had prepared the second draft for himself, but this third, or final draft,

manifestly was prepared for the consideration of the other members of the committee. He wrote it on large foolscap in what is called double columns, that is, half of each page was left blank for the comments and suggestions and amendments of the others. The writing is in the clear, neat, legible hand, characteristic of Wilson, and before the work of revision began, there was hardly a clerical error in the paper, A remarkable contrast is stamped upon it, consisting of 43 amendments in the scrawly, slovenly, bold, illegible writing of Rutledge, who really seems to have found pleasure in cutting and slashing the careful work, the almost feminine neatness and niceness of Wilson's pages.

This draft, unlike the second, is divided into articles, but unlike the committees, is not subdivided into sections. The fourth of these recently discovered papers is in the handwriting of Edmund Randolph. Mr. William M. M. M. Miggs, in his growth of the Constitution, has done an excellent piece of historical work in reproducing the draft of Randolph, in facsimile. In its interlineations, erasures, changes, omissions, and marginal queries, we see Randolph's doubts and perplexities, and the incompleteness of his plan and the limitations of his mental view of a draft. And we see this as distinctly as if we stood beside him while he wrote. A more dishelled paper was never reproduced in facsimile.

Upon its margin are annotations and suggestions of omitted provisions which are in the hand of Rutledge. One thing, most meritorious, appears, that Randolph 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 Randolph himself one of their number?

The draft of Randolph begins in this way. In the draft of a fundamental constitution two things deserve attention. One, to insert essential principles only, lest the operations of government should be clogged by rendering those provisions permanent and unalterable, which ought to be accommodated of times and events, and, two, to use simple and precise language and general propositions, according to the example 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 Detail. There is a curious provision in his draft 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 X 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 declare what shall have been the averaged value of wheat during the last six years, in the state where the legislature shall be sitting, and for the first subsequent years, the senators shall receive per diem the average value of X bushels of wheat. This extraordinary provision for the benefit of Senators only illustrates the crudity of Randolph's intentions at the time and the incompleteness of his plan. The annotations of Rutledge are few, but they are valuable, for they authenticate the paper. They prove it was the very paper upon which Randolph and Rutledge worked,

and that it was all which they had then prepared toward a draft of the Constitution. these drafts of randolph and wilson disclose another fact of unusual interest when the randolph draft was found bearing the annotations of rutledge it suggested the idea that the two southern members of the committee of detail had put their heads together to draft a constitution which would be accepted at the south and that probably the three northern members had prepared another which would be accepted at the north but the final draft of wilson dispels that illusion we now know that rutledge gave quite as much attention to the wilson draft as to the randolph draft and that he wrote many more amendments upon its margin nothing has been discovered to show that elsworth and gorham even attempted to draft a constitution and after finding that the other members used and utilized and amended the pinkney draft we know that that there was nothing left for Ellsworth and Gorham to draft. They were not constructive 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 draft of the committee. Every provision in it is traceable to Pinckney, Wilson, Randolph, and Rutledge, and they were its authors. The second and third drafts 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 draft is a paragraph which is unmistakably a rough draft, 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 interlineations began, it stood as follows. We the people of the states of New Hampshire, etc., do agree upon ordain and estesionation, the following frame of government as the constitution of the United States of America, according to which we and our posterity shall be governed under the name and style of the United States of America. Wilson then amplified the first part of this draft,

and the amplifications well illustrate the bent of his mind toward details and particulars, and he next reduced it by omitting the clauses which relate to the government, of ourselves and our posterity, and to the name and style of the future nation, so that it reads as follows. We the people of the states of New Hampshire, etc., already confederated under and known by the style of the United States of America, do ordain declare and establish the following frame of government

as the constitution of the said United States. neither of these versions is the preamble reported by the committee each lacks the bold simplicity in comprehensiveness and directness of pinkneys 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 ten people having the ten 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 pinkney takes the massachusetts 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 what is unquestionably Wilson's work, the preamble for the committee remained to be written, unless it was already written in the Pinkney draft. In the investigation of the charges of Madison against Pinkney, it was found that whenever the

evidence was subjected to a rigorous examination, the case broke down. These drafts of Wilson and Randolph, 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,

examined the evidence, and have again found that it does not sustain the charge. A few illustrations will make this plain. the preamble in the committee's draft is in wilson's word for word when we find that this preamble is in the preliminary draft of wilson a member of the committee and in the finished product the draft 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 draft of pinkney and know that he possessed a copy of the committee's draft we are in danger of taking another step on the pathway of assumption and reaching the conclusion that Pinckney must have taken his preamble from the committee's draft. 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 11 of the 13 states. Its language was taken by Pinckney or by Wilson or by both from the Constitution of Massachusetts by much condensing. Wilson's draft 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 limitation, a word which, taken literally would confine the blessings and government of the Constitution to the men who made it and their posterity. But at the time when these early constitutions were framed, the growth of

the country, it was foreseen, would depend chiefly on immigration. The Constitution of Massachusetts does not use the word citizen and throws the door of the elective franchise open to every male person resident in any particular town and to the inhabitants of each town. And to remove all doubts concerning the meaning of the word inhabitant in this constitution, every person shall be considered 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 constitution 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 pinkney's draft adheres to the unrestricted posterity of the constitution and does not follow the restricted posterity of the wilson draft the charge that pinkney's preamble was necessarily directed from the committee's draft is therefore doubly refuted. There was a source to which Pinckney could go for his preamble, the Constitution of Massachusetts, and he went there. There was a deviation from the Constitution of Massachusetts in the Wilson draft, and Pinckney did not follow it. Wilson probably inserted the word hour 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 circumstantial evidence. But circumstantial evidence 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 11 of the state constitutions containing preambles,

it is inconceivable that Pinckney would have framed his draft 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 submitted another man's, for he was never ashamed of his own work and it must be taken as a fixed fact that pinkney had a preamble for the structure of the draft required it the first article would be meaningless without one the style of this government the government announced in the preamble therefore having the necessity of a preamble and the production of one in eighteen eighteen and the strict adherence in words and intent to the constitution of massachusetts and pinkney's familiarity with that constitution the severally slender strands become a chord of circumstantial evidence which must satisfy an unprejudiced mind that pinkney was the author of the preamble in his draft there are too many clues here to be disregarded and they all lead one way the unquestionable sketches of a preamble in wilson's and randolph'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 chapter eleven the third of the twenty-three resolutions declared that

the members of the House of Representatives ought to receive an adequate compensation for their services, and the fourth 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 twenty second and twenty sixth of june when the convention refused to retain the words to be paid out of the national treasury in the third resolution massachusetts concurred as madison says not because they thought

thought the state treasury ought to be substituted, but because they thought nothing should be said on the subject, in which case it would silently devolve on the national 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 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 22nd of June, the Convention had refused 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, Randolph, King, Wilson, and Madison had said as much. Nevertheless, the Committee of Detail reported a provision that the members should be paid by the states, and not only this, but also that the compensation should be ascertained 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 third and fourth resolution, and using Pinckney's draft as their copy,

inadvertently allowed this provision of his to stand unchanged. In these newly found papers of Wilson, this provision making the compensation of the national legislators, dependent upon the action of the state legislators, appears just as it stands in the draft of the Committee of Detail. Did Wilson originate this, or did he get it from the Pinkney draft? There is is good reason for believing that such a provision would be found in Pinckney's draft. On the 22nd of June, when the clause of the third resolution declaring that members ought to be paid out of the public treasury, had been advocated by some of the strongest men in the convention, and the convention 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 tomorrow, says the journal. A state had this right under the rules of the convention, and the deputies of South Carolina exercised it, Pinkney being one of them. On the following day, they succeeded in defeating 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 state's South Carolina voted, I. But there is no good reason why we might expect to find this provision in Wilson's draft.

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 personal 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 respects, and during the same debate he had moved that the salary,

of the first branch be ascertained by the national legislature. The explanation is that Wilson, working with Pinckney's draft before him, gave his attention to improving its phraseology, and that the other members of the committee, confiding in Wilson's scrupulous carefulness and particularity, 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 distinct 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 of the despatch of business the draft of pinkney 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 blank day of blank in every year the draft of wilson also follows this with little variation the legislative power of the united states shall be vested in in two separate and distinct bodies of men, the one to be called the House of Representatives 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. The 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 House of Representatives, the other the Senate. But the draft 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 distinct bodies of men, a House of Representatives and a Senate, each of which shall in all cases have a negative upon the other. here it was possible that wilson followed the pinkney draft which was in his possession but it was not possible that pinkney copied wilson's draft which was then unpublished and unknown the words that pinkney and wilson both used the one to be called the house the other the senate are clues which lead from pinkney directly to the constitution of new york the committee changed the words and changed the structure of the sentence and thereby rendered it certain that pinkney did not derive his provision from their draft

let us take another illustrative case luther martin's resolution of july seventeenth provided the legislative acts of the united states and all treaties shall be the supreme law of the respective states the seventh of the twenty-three resolutions. Article 8 of the draft of the Committee of Detail varied the phraseology in one word, shall be the supreme law of the several states. The Committee of Style gave us the provision as it stands in the Constitution, Article 6. 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 draft, avowedly drawn up before the work of the convention had even begun, we find in his Article 6,

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, of the land. This assuredly seems to be an instance which confirms Madison, that is to say, an instance where, as Madison said, there are to be found in the draft in the State Department the results of critical discussion and modification in the convention. Must we also add, with Madison, which could not have been anticipated? Moreover, if Pinckney obtained this provision by preloining it, he must have taken it from the Constitution itself. The language in his draft apparently involves and combines three distinct acts of the Convention,

the adoption of the resolution of Martin on the 17th of July, the acceptance of the Committee's draft of the 6th of August, the revision by the committee of style just before the disillusion of the convention this makes a dark charge against pinkney far darker and more specific than any charge that madison preferred against him at first sight it seems as if at last pinkney 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 pinckney took his provision and its verbiage from the congress of the confederated states in the resolution of march twenty first seventeen eighty seven 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 state 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 resolution correcting only one word by the substitution of another several for respective

shall be the supreme law of the several states pinkney had been a member of the congress when the resolution of march twenty first was passed he may have drafted 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 concluding phrase from the resolution of congress or they may have placed it in the constitution on their own motion for trevet v weeden had been heard and educated by the supreme court of rhode island on september twenty fifth twenty sixth seventeen eighty six and the words the law of the land were 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 wilson's draft which are not wilson's these appear on the margin in the handwriting of rutledge and answer to article fourteen fifteen and sixteen of the committee's draft as they are in almost the precise language of pinkney's article twelve and thirteen the much repeated question again arises did rutledge take them from the pinkney draft were they then in the pinkney draft to be taken or did pinkney abstract them from the committee's draft the question is easily and decisively answered these articles are described in the observations

pinkney's title to them cannot be questioned wilson and rutledge had his draft before them and used it when rutledge wrote these articles upon the margin the veto power was cast by the convention in their resolutions with those of the executive pinkney had placed it in his draft 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 choosing 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 American veto

would lack the finality of the Leroy, a visera 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 seven of his draft 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 executive ought to have an absolute negative that without such a self-defense the legislature can at any moment sink it into non-existence unquestionably the veto provision ought to have been placed in the committee's draft as wilson placed in the committee's draft as wilson placed in the 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 House of Representatives, with the business of both houses, and with the privileges of the members of each. The one thing certain here is absolutely certain, that the committee in this did not follow

Wilson's draft, though it was correct and did follow some other draft, though it was incorrect. It is comprehensible that if the provision of the veto power had started wrong, as it did in Pinckney's draft, it might have continued wrong, and its misplacement might have remained unnoticed. But it is incomprehensible 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, and that they must forego either the completion of Wilson's carefully prepared work

or their bringing into the convention printed copies for the use of members, and that they then determined to use Pinkney's, draft as copy for the printer letting Wilson to work into it so far as he could the corrections that he had embodied in his own and the changes which the committee had agreed upon the incompleteness with which this was done shows very plainly that toward the end of the ten days the committee worked in haste there are too many errors in the draft which would be both inexcusable and inexplicable if the committee had had ordinary time to do their extraordinary work. There is a curious omission in Wilson's draft, 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 forgotten that within a dozen years they had had a personal interest in that subject. Pinckney in Article 6 had given Congress 22 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 person 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 two of article seven of the committee's draft but neither the paragraph of pinckney nor the section of the committee is in the draft of wilson wilson did not overlook the subject the legislature of the united states shall have the power his draft 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 specified 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 offenses against the law of nations. But Rutledge did not consent to this. He and Pinckney seemed to have vaguely feared that the law of treason might yet be

administered 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 Wilson, thereupon erased his own provision and struck it out, from among the specific unrestricted powers. Here the significant fact to be noted is that the words written on the margin of Wilson's draft were not taken from Pinckney's. That is to say, the restrictions proposed by Rutledge

were additional to those set forth by Pinckney. What Pinkney wrote and what Rutledge wrote, and nothing more, make the second section of the committee's draft compounded and rearranged. The material was supplied by Pinckney and Rutledge. The reconstruction, judging by the careful and logical way the work was done, was by Wilson. One, the definition of the crime. Two, the power to punish the crime defined. Three, the restriction upon judicial proceedings on the testimony of two witnesses. Four, the restriction.

upon the result of conviction that it should not work corruption of blood or forfeiture, except during the life of the person attained. It is also to be noted that no draft of this Section 2 has been found. For reasons subsequently to be stated, Chapter 12, it must be inferred that it was found on the margin of the Pinckney draft. In Article 8 of Wilson's draft, immediately followed, his treason clause is this provision to regulate the discipline of the militia of the several states in article six of pinkney's draft 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 laws in the general government. It was a radical departure from what had been, a change not

countenanced by the Articles of Confederation, and not authorized by the 23 resolutions. During the debates, no member of the Convention had so much as suggested it, and on the 26th of July, when the Convention adjourned to enable the Committee of Detailed to draft a Constitution, Pinkney alone had ventured to formulate a provision which might alarm the states and aroused the anger in opposition of the militia. He had done so. That we know. It is incontrovertible, for it is specifically described in the observations the exclusive right of establishing regulations for the government of the militia of the United States ought certainly to be vested in the federal government. Yet the committee of detail did not not think so and they did not report such a provision here again it is possible that wilson took his provision from pinckney's draft but it is not possible that pinkney took his from wilson's

the draft of randolph discloses three important pieces of information which tend positively to sustain the pinkney draft the first is in the words of mr megg's that it was drawn up after the connoct Convention had agreed upon the resolutions that were referred to in the Committee of Detail on July 26th, and in numerous instances, its languages modeled upon them with even verbal accuracy. Growth of the Constitution, page 318. Manifestly, this draft was not written, was not even begun, until after Randolph had become a member of the committee. The writing of it, the revising of it, its numerous alterations and corrections, the submission 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 Randolph and Rutledge 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 draft 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 draft. The great improbability against the Pinckney draft is that one man alone and unlawful

and unassisted should have prepared so much of the Constitution. But it is a hundred times more improbable that this committee, unassisted by Pinckney's draft, should have prepared and completed their own, with all its well-selected details, with language carefully taken from many sources, and with provisions far in excess of their instructions, then that Pinckney 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 several states and be able to confer, as he did, with the ablest statesman in the country. The second thing which the Randolph draft does for us is important and most interesting. It enables us to ascertain the fact that the section of the committee's draft, which declares the jurisdiction of the Supreme Court, Article 11, Section 3, was the work of three persons and the very words which each contributed.

The 16th resolution of the Convention was as follows. 16. Resolved that the jurisdiction of the National Judiciary shall extend to cases arising under laws passed by the general legislature, and to such other questions as involve the national peace and harmony. Randolph followed the resolution, but enlarged the jurisdiction, and Rutledge added two provisions in marginal notes, and their proposed section was as follows. The jurisdiction of the Supreme Tribunal shall extend. One, to all cases arising under laws passed by the general legislature, two, to impeachments of officers, and three, to such cases as the national legislature shall assign, as involving the national peace and harmony,

in the collection of revenue, in disputes between citizens of different states. Here Rutledge has added on the margin, in disputes between a state and a citizen or citizens of other states, in disputes between different states, and disputes in which subjects or citizens of other countries are concerned. Here, Rutledge has added, in cases of admiralty jurisdiction. But this supreme jurisdiction shall be appellate only, except in cases of impeachment, 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 assigned to the inferior tribunals as original tribunals. Meigs, page 244. When we pass to the draft of the Committee of Detail, we find that the latter part of this section of Randolph's was adopted, but that the first part was rejected. But that the first part was rejected. This rejection, however, was not a curtailment of jurisdiction, 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 third section? The corresponding declaration of jurisdiction in the Pinckney draft in Article 10 contains only four subjects of jurisdiction. Each of these was suggested by other provisions of the draft.

Article 8, for instance, provides that the President may be removed on impeachment by the House of Delegates and conviction 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 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 impeachment of officers of the United States, to all cases of admiralty and maritime jurisdiction.

If we now turn to the draft of the committee, we shall find that these lines are the first lines of Section 3, and that the two drafts are here identical. They contain the same provision, arranged in the same sequence expressed in the same terms these lines therefore form the substitute which appears to have displaced the first part of randolph section the two things fit together with precision the significant fact to be noted here is that the pinckney draft contains the provisions and words which form the apparent substitute in the committee's draft but contains nothing more in a word not one of the provisions which we now know were prepared by randolph and rutledge are in the pinkney draft four then of the grants of jurisdiction in article eleven section three of the committee's draft apparently were taken from the pinkney draft and the remaining four unquestionably were taken from the randolph draft the section therefore is composite wilson's draft here comes into the case of enabling us to understand how this combination was brought about wilson was in effect rewriting the pinckney draft finding the first four subjects of jurisdiction precisely what he wanted wanted, he retained 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 Randolph's draft, having Rutledge's amendments, and with some revising, thus brought eight subjects of jurisdiction into his draft, which subsequently appeared in the committees. To say that Pinckney was fraudulently plagiarizing from the committee's draft 31 years afterward, and that while so doing, he chanced to take one half of the committee's subjects of jurisdiction,

but not the other half, and that the half which he chanced to take might very well be, be his own, and that the half which he did not take, chanced, as we now know, to be Randolph's, is to state an absurdity. 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 Pinkney. The third piece of information which Randolph's draft gives us is in the nature of positive evidence and establishes directly the fact that the committee recognized Pinkney's draft and used it. Under the heading, the following are the legislative powers, with certain exceptions and under certain restrictions, Randolph 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 powers so granted and placed in his draft the following provision all laws of a particular state repugnant here too shall be void and in the decision thereon which shall be vested in the supreme judiciary all incidents without which the general principle cannot be satisfied shall be considered as involved in the general principle this section he subsequently cancelled and over it he wrote insert the eleven article where then is this article eleven which would restrict the powers of the states and render their laws if repugnant to the constitution void it cannot be article eleven of the articles of confederation for it provides only for the admission of canada as one of the states of this union it cannot be article eleven of the draft of the committee of detail for it relates only to the judicial of the United States, to the judges, to jurisdiction, to the trial of criminal offenses, 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 committee's draft are divided and placed in two articles which are numbered 12-13. It cannot be Article 11 of Wilson's draft, for it relates to the powers of the senate the power to make treaties to appoint ambassadors and judges to adjudicate controversies between two or more states and controversies concerning lands claimed under conflicting grants from different states it being article nine of the committee's draft there is however an article eleven which places restrictions upon the states and meets the requirements of randolph as exactly as if it had been framed to effect his purpose and it is article eleven of the pinkney draft we know too that it is pinckney's own for it is described in the observations with the eleventh article in wilson's draft and the eleventh article in the committee's failing to respond to the requirements of the reference and with pinckney's article eleven responding fully and exactly to it there is but one conclusion left which is that randolph when he wrote insert the eleven article intended article eleven of the pinkney draught when the fact is established that the committee of detail he wrote when the fact is established that the committee of detail had before them the pinckney draft and took from it a single excerpt though of not more than four lines the burden cannot rest on pinckney to account for identities and resemblances

the onus proband i will then be upon the other side and the issue being whether the committee used the pinckney draft or pinckney copied from the committees the presumption of must be, until the contrary be shown, that all identical provisions in the two drafts originated in Pinckney's. If James Wilson were now living, and asserting that he was the true and unassisted author of the committee's draft, these papers would be strong, though not conclusive, evidence to maintain his claim, and if Pinckney had never prepared a draft of the Constitution and his draft had never been presented to the convention, and had never been referred to the Committee of Detail for the express purpose of assisting them

in drawing up a draft of the Constitution, these papers would justify historical scholars in saying that Wilson should occupy the place in which Pinkney occupies and that the alien member of the Convention was the chief individual contributor 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 Rutledge. That they are original matter,

that they are not made up of excerpts from Pinckney's draft, are propositions which are now sustained only by conjectures. Against such conjectures, there stand the consistent silences of all members of the committee. Gorham lived nine years and said nothing of his colleague's great work. Wilson lived 11 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 intimation of having drawn up the most important 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 behooved 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 Constitution, if he was the author of the draft. But Rutledge lived two years, and Ellsworth nine years, and Randolph fifteen. years and gave no sign against such conjectures too there is the record of the other draft a series of incontestable facts each consistent with those that had gone before it and with those which were to come after it

pinkney prepared a draft 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 committee of detail, and thereby placed at the disposal of the committee, and brought directly to the notice and knowledge of every member. The committee never returned it to the convention, and it has not been found among the papers of any one of them. Pinkney published 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 publication of a paper which he certified to be a substantial copy of the draft.

It was immediately published with the first publication of the secret journal of the convention and widely disseminated as a public document. At the time of publication, 16 members of the convention were living who must have desired, we must assume, to see the journal of the proceedings in which they had personally taken part, and when they received the journal, received with it a copy of Pinckney's draft. And yet, when Pinckney died more than six years afterwards, no surviving member of the convention had denied or questioned the verity of the published draft. There are very few historical papers in the world which have such a record of publicity behind them as Pinkney's draft,

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 incontrovertible facts are that at the time when these papers were written, Pinkney's draft was in possession of these same men, Wilson, Randolph, and Rutledge, and that they never returned it to the convention. This examination brings us round a circle to the question at which we started. Did the committee rightly use the draft of Pinckney, or did Pinkney fraudulently copy the committee's draft? The Randolph and Wilson drafts 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 draft,

his own preliminary draft, and Randolph's draft, and Pinckney's draft. Two, the final draft of Wilson was not begun until after his own preliminary draft was finished. The 43 amendments of Rutledge came later, and were all subsequently considered and accepted by the committee. Three, from an intellectual point of view, the final draft of Wilson, with the annotations of Rutledge,

came near to being the draft of the committee of detail, but it was not the completed draft 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 printer's point of view, the material for a written draft which was to be put into type

did not yet exist. For, if a copy of the draft was prepared for the printer, with Rutledge's 43 amendments and the additional provisions and 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, consequently, saved his best. His best is his third, his final draft, but it is not. not the draft 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 conclude, knowing how he saved even scraps of his writing, would have preserved it. Five. The evidence relating to the drafts of Randolph and Wilson, therefore closes with the draft 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, that is the manual labor, ended before they had prepared a draft for the printer,

and that Pinckney's draft, which was in their possession and had been used by them, disappeared during the same eventful work, week, there can be but one inference, that the committee used it. End of Chapter 11. Chapter 12 of the mystery of the Pinckney Draft This Libravox recording is in the public domain. The Mystery of the Pinkney Draft by Charles C. Not.

Chapter 12. The Committee's use of the draft. Up to this point, the subject of consideration has been the charge. preferred by Madison against the copy of the draft 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 draft of which this is a copy or duplicate, and to what extent, and in what manner. In copyright cases where the issues of plagiarism,

it sometimes happens that traces of the earlier work will be found, in the later one, be the language ever so carefully paraphrased, and the plagiarism ever so carefully hidden. Mispelled names, erroneous dates, genealogical mistakes which originated in the one and reappear in the other, are fateful witnesses. If we find such traces in the work of the committee of detail, we may follow them, as detectives follow clues until they find the criminal. that is to say until we find to a certainty that the committee used the draft the first of these traces of pinkney's hand in the committee's draft is a very curious one inasmuch as it discloses the fact that in one provision the committee followed pinkney's leading unconsciously and that their action was unauthorized by the convention if not in violation of their positive instructions twice repeated the subject the pay of senators and representatives had been much discussed but neither in the committee of the whole nor in the convention had it ever been voted that the compensation should be either determined or paid by the states

the proceedings of the convention in regard to this have been examined at length in the preceding chapter and the details need not be repeated here it is enough to recall the fact that the convention resolved expressly that the pay of representatives should be adequate and by implication that the pay of senators should likewise be adequate and that the committee of the whole had previously resolved that both should be paid out of the public treasury how the committee of detail could have so reversed the determination of the convention as to provide that the members of both houses should receive a compensation not necessarily adequate and to be ascertained as well as paid by the state in which they shall be chosen is explicable in only one way to wit pinkney's draft likewise declared also in a single provision article six that the members shall be paid for their services by the states which they represent there is a verbal difference between the committee's draft and the copy of the pinkney draft in the state department a bettering of the english which was done by wilson as we have already seen in this draft and it is certain that the committee reported to the convention a provision substantially that of the pinkney draft a provision which the convention had more than once rejected if the pinckney draft was used as copy for the printer it is plain enough that the clause of six words by the states which they represent may have misled the committee with the many propositions which they had to codify and the brief time within which the work must be done

and the confused and somewhat contradictory action of the committee of the whole and the convention in june and the divided responsibility and scrutiny of five men it is easily possible that the committee were misled by the provision in the pinkney draft but it is not possible that they could have been so misled if there had been no pinkney draft and they had followed the third and fourth resolutions and borne in mind the act of the Convention and the words of its leading members. A second deviation from the instructions given by the Convention relates to the payment of the Executive. The 12th Resolution says that the Executive is to receive a fixed compensation for the devotion of his time to the public service to be paid out of the Public Treasury.

The Pinkney Draft, Article 8, says that the President, shall receive a compensation which shall not be increased or diminished during his continuation in office and stops there. The draft of the committee, Article 10, Section 2, says, He shall, at stated times, receive for his services a compensation which shall neither be increased nor diminished during his continuance in office, and stops there. in a word we find here pinkney's language with a word or two of amplification and a little correction the kind of deviation which one may expect to find in the revision of a statute or legal document and we find as in pinkney the important word fixed omitted and the not increased or diminished clause of pinkney inserted and the provision stop as Pinckney stops without the concluding words of the resolution to be paid out of the public treasury. There is here too much resemblance to Pinckney and too little adherence to the 12th resolution to leave a doubt as to where the committee's provision came from.

A more notable instance relates to the appointing and treaty-making power of the Senate. The 14th resolution declares that the judges of the Supreme Tribunal shall be appointed by the second branch, i.e. the Senate. But the draft of the committee says, Article 9, The Senate of the United States shall have power to make treaties and appoint ambassadors and judges of the Supreme Court. How came the committee to invest the Senate with power to make treaties and appoint ambassadors, when no such authority was conferred by the resolutions, and no such determination had been reached in the convention. Pinkney's draft answers to the question, Article 7.

The Senate, it says, shall have the sole and exclusive power to make treaties and to appoint ambassadors and other ministers to foreign nations and judges of the Supreme Court. Here, the committee placed the whole time. treaty-making power and the diplomatic intercourse with foreign nations entirely in the hands of the Senate and for no other reason than that Pinckney had already done so. Such an extension of their work beyond their authority could not have suggested itself. Evidently, when adapting Pinkney's work to their own purposes, they neglected to strike out treaties and ambassadors. In Pinkney's draft is set

4th, Article 3, The House of Delegates shall exclusively possess the power of impeachment and shall choose its own officers, and vacancies shall be supplied by the executive authority of the state and the representation from which

they shall happen. And in the committee's draft, it is similarly set forth, Article 4, Section 6 and 7, the House of Representatives shall have the sole power of impeachment. it shall choose its speaker and other officers vacancies in the house of representatives shall be supplied by rits of election from the executive authority of the state and the representation from which they shall happen section seven

these incongruous things pinkney threw together in a single sentence the committee placed two of them in one section and the third in another and amplified and corrected as usual but not one of these powers is enumerated in the twenty-three resolutions and let it also be noted that the peculiar and awkward phraseology the executive authority of the state and the representation from which they shall happen is in both while the uses and misuses of the pinkney draft conclusively established the fact that the committee of detail did use it and frequently adhere to its test a more comprehensive and just idea of the service which Pinckney rendered, and the manner in which his draft was used in the formation of the Constitution, will be obtained by placing ourselves in the place of the committee and using it as they must have used it. At the convening of the committee, the draft which had been referred by the convention was before them. it was the only draft of the proposed constitution which had been prepared by anyone the only instrument or document so far as our knowledge goes which could be used by them as a pattern or basis for their work unquestionably the committee sooner or later would take up this one instrument of its kind and ascertain how far it would serve their purpose the preamble is the first and chief sentence in the constitution for it declares the source and supremacy of its authority we the people of the united states do ordain declare and establish this constitution

the preamble goes behind state governments asking nothing from them either of authority or consent and invokes the power which established them the people of the united states this supreme power if the constitution should be adopted would allow states and state governments to continue to exist but to exist subordinate to a new power the constitution of the united states and the states and as parts and not units in the first letter which madison then in new york wrote to jefferson then in paris after the adjournment of the convention he said it was generally agreed that the object of the union could not be secured by any system founded on the principle of a confederation of sovereign states a voluntary observance of the federal law by all the members could never be hoped for A compulsive one could evidently never be reduced to practice, and if it could, involved equal calamities to the innocent and the guilty, the necessity of a military force, both obnoxious and dangerous, and, in general, a scene resembling much more a civil war than the administration of a regular government. Hence was embraced the alternative of a government which, instead of operating on the states, should operate without their intervention on the individuals composing them, and hence the change in the principle and proportion of representation.

The chief idea of the preamble is not set forth in any resolution or act of the convention, and no instruction so to declare the source of authority was given to the convention. Committee of Detail. The preamble belongs exclusively to Pinckney, though its words, as we have before seen, were taken from the preamble of the Constitution of Massachusetts, Chapter 11. The only amendment which the Committee of Detail made was in the last line of Pinkney's, the insertion of a single word, our, for the government of ourselves and our posterity. with the exception of this word the committee took pinkney's preamble as they found it and so reported it to the convention during the subsequent sittings of the convention it remained unamended and unquestioned and undiscussed until at last it received the final touch of the committee of style in article one pinkney followed in part the articles of confederation and in part the comfederation and in part the comrade

Constitution of New York. The style of this government shall be the United States of America, and the government shall consist of supreme legislative, executive, and judicial powers. This, the committee broke into two articles, and in the first line changed this to the, but made no other change. Article 2 relates to the legislative power, and was taken by Pinckney almost verbatim from the Constitution of New York. The committee changed House of Delegates to House of Representatives and filled a blank with First Monday in December, and in place of two houses, said two distinct bodies of men,

and introduced a needless provision that each house shall in all cases have a negative upon the other. Article 3 relates to members of the House of Delegates, to the term of office, to the qualifications of the electors, to the qualifications of members, to their apportionment among the states, to their proportion with population, to money bills, impeachment, the choosing of their own officers, and to vacancies. Here, the committee's method of breaking an article, article into sections begins. But the seven sections of the committees follow in the same order and almost in the same words, the sentences of Pinckney. The article, like Pinkneys, begins with the members of the House, and ends, like his, in the representation from which they shall happen.

Article 4 relates to the Senate, and here first appears the individual opinions of Pinckney which were shared by no one. His senators were to be chosen by the House of delegates, from among the citizens and residents of New Hampshire, from among those from Massachusetts, etc., etc. That is, the representation was neither by states nor by population, but by an arbitrary assignment in the Constitution. Pinkney believed that the Senate should represent the wealth of the country, and he probably intended that this arbitrary assignment should be representative of wealth. The senators from New Hampshire, Massachusetts, Rhode Island, and Connecticut were to form one class. Those from New York, New Jersey, Pennsylvania, and Delaware, another, and the remaining

states, a third. It was to be determined by lot which should go out of of office first which second which third as their times of service expired the house of delegates was to fill them for a fixed and uniform term this plan was suggested to pinkney by the constitution of new york its only merit was that it would make the senate a continuing body as we now have it one-third of the members going out at one time its errors seem incredible it would have enabled the delegates from say the eastern and middle states to choose senators who would grossly misrepresent the southern states with every change in the political supremacy of the house one-third of the senators would change and one-third of the country might be represented by new and inexperienced men with the people of a section of one political faith their senators chosen for them by the house of delegates might be of of the opposite political belief. It is plain that when the committee came to Pinckney's Article 4, they found something which would be of no use to them. The convention had already marked out their work, the senatorial system which we still have, each state represented by two senators,

each senator having an individual vote, the senators chosen by the legislatures of the several states. Yet even this article relating to Pinkney's Senate, the committee used, and used in a way which indicates that they took the paper upon which it was written and made it serve their purpose in framing their hurried draft, Article 5. Pinkney's article begins, The Senate shall be elected and chosen by the... And the committees 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 Pinkney article, and interlined about half the number, 120 words.

The large imperial unruled foolscap with lines well apart, and the broad margin readily admitted of this being done. But the instant that the necessarily new matter was in, interlined, the committee resumed with Pinckney's words, His, each senator shall be X years of age, etc., etc., becomes there, every member of the Senate shall be of the age of 30 years at least, etc., etc. Then follow Pinckney's provisions concerning citizenship, concerning the prior period of a senator's citizenship,

concerning residents, the article closing as Pinckney's closes, the Senate shall choose its own president and other officers. Here we have the two most dissimilar articles in the two drafts, beginning with the same words, ending with the same words, containing the same provisions, following the same order, and differing only were the instructions of the Convention compelled the committee to strike.

strike out a large and important portion of the earlier draft, and to insert a new and important substitute. If the committee were rewriting the article, there would be no reason for this extraordinary closeness of adherence, for this moving parapassou, for this going always as far and never farther over the ground traversed. Article 5 of the Pinckney draft is notable for containing the veto power. The convention grouped it in the 23 resolutions with the powers of the executive. Wilson made of it an entire independent article, but Pinckney, who had taken it, as we have before seen, from the Constitution of New York, retained its revisionary character, and placed it at the end of an article relating to the legislature and legislative business. The committee

left it where Pinckney placed it, Article 6, Section 13, as we have seen in the preceding chapter, and in this, as we have also seen in the preceding chapter, the committee followed Pinckney and did not follow Wilson. The sixth article contains another singular instance of an oversight of Pinkney's which the committee followed. In it he gathers together with care and patients from the Articles of Confederation and from state constitutions, the incidental powers of Congress. The governing clause is, The Legislature of the United States shall have the power, then follow some 22 declarations of power, properly paragraphed, to lay and collect taxes, duties, imposts, and excises, to regulate

commerce, etc., etc. Until in a final paragraph, he sums up and closes the record of these powers by the paragraph, and to make all laws for carrying the foregoing powers into execution. The power to punish treason Pinkney placed in a distinct paragraph for reasons stated in Chapter 11. But this compelled him to rewrite the governing clause, the legislature of the United States shall have the power. In the same sentence he appended the definition of treason,

which shall consist only in levying war against the United States, etc. And he then, following the act of Edward III, in a separate sentence imposed this condition upon conviction of treason that it shall be, but by the testimony of two witnesses. what pinkney should have done was what wilson did he should have placed this power with the others under the first governing clause the legislature of the united states shall have the power and have pushed the limitations upon that power over with those relating to the subject of religion the liberty of the press and the writ of habeas corpus into a bill of rights this oversight of pinkneys the committee of detail attempted to hide but not to rectify the needless duplication of the words the legislature of the united states shall have the power they pushed out of sight by inverting the provisions of the sentence and defining treason first but they retained it and also in this article properly relating only to legislative powers they

they retained the condition laid upon the judiciary that no person shall be convicted of treason unless on the testimony of two witnesses article seven section two and in doing these things the committee overruled wilson and followed pinkney it is manifest therefore that the two drafts the draft in the state department and the draft 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 draft 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 blank states shall be sufficient for organizing this constitution. They amended, changed, substituted, subdivided,

articles into sections, and amplified, but it was always Pinkney's draft which they worked upon. They retained every provision of his which was authorized by the instructions of the convention, and some which were beyond the scope of the instructions, and a few which were contrary to the instructions. And whenever they retained a provision, they retained substantially the language in which it had been cast by Pinckney.

As in mathematics, it is held to be self-evident that things which are equal to the same thing are equal to each other. So here it may be said that this extraordinary identity of the draft in the State Department and the draft of the Committee of Detail demonstrates that the draft in the State Department is a true and substantially exact duplicate of the lost draft which was referred to the committee.

End of Chapter 12. Chapter 13 of the Mystery of the Pinkney Draft. This Librevox recording is in the public domain. The Mystery of the Pinkney Draft by Charles C. 9. Chapter 13 What Became of the Draft A question of much interest follows the foregoing investigation, to wit, why was not the Pinckney draft found among the records and papers of the convention? It was the only draft 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 draft of the Constitution, and that committee had used it for that purpose. It was a paper of unique character and unquestionable importance, and one of the records of the Convention. Why was it not found in the sealed package of the Convention's records? And there was another paper which should have been found, but was not. This was the report of the Committee of Detail, containing or accompanying their draft of a constitution. The absence of any other paper that should have been placed in the package might be strange, yet not significant. But these two papers, if there were two, related to the same

subject, contained more or less the same provisions, had been used for the same most important purpose by the same men, and were, on the 6th of August 1787, if they then existed, in the possession, and official custody of the committee of detail. When Rutledge, on the morning of that day, delivered in the most important report ever laid before the convention, he should have laid upon the secretary's desk those two papers, if there were such to lay there. Yet neither Pinckney's draft of the Constitution

nor the Committee's draft of the Constitution was found in the sealed package. Nothing was found but one printed copy of the committee's draft. The draft of the Committee of Detail was the most important of all the papers of the Convention for the reason that it was the embodiment of all that had been done during the first period of the convention's work, the abstract stage, and was to be the foundation of all that was yet to be done in bringing the Constitution to its concrete and final form. For purposes of construction and interpretation, the draft is the most valuable paper that

exists, or that ever did exist, in as much as it sets forth in a tangible, practical, unmistakable form, the results so far attained and the views which a majority of the members held, and the conclusions which a majority of the states had reached, when the work of abstract consideration ceased, and the work of changing their abstract ideas into the concrete provisions of the Constitution began. There was no other report, draft, or document which should have been so watchfully guarded and carefully kept as the report of the Committee of Detail, if there were indeed such a document to preserve. To comprehend and appreciate the significance of the disappearance of these two papers, it is necessary that we understand the condition of the case,

the circumstances which tended toward their destruction, and those which should have secured their preservation. The first of these conditions was secrecy. The convention early determined that nothing spoken in the house be printed or otherwise published or communicated without leave. No reporter was present at the sittings of the convention. No stenographer, typewriter, or amenuensis served the members. No clerical force aided the committee of detail. The secrets of the convention were in the custody of the members, and from the 29th of May to the 17th of September, not one was revealed to the expectant, inquisitive, anxious American world. As the work of the convention drew toward its close,

it was determined that the obligation of secrecy should be continued into the indefinite future. The records were to be placed under seal, and the custodian was to be Washington himself. Washington asked what should be done with the records, and the convention answered that, he retained the journal and other papers subject to the orders of Congress, if ever formed under the Constantine.

For 30 years and more the seals remained unbroken, and for 30 years and more no member of the convention spoke. Let the reader imagine, if he can, what would be the public feeling now if the convention should be sitting from the 29th of May to the 17th of September to frame a new constitution for the United States, which should sit with closed doors, and whose members should disclose no, no act, speak no word, drop no hint from the beginning to the end, and who, when the end was reached, should say absolutely nothing of what had been said and done in the secret proceedings of the convention. We owe much to the framers of the Constitution. They were not common men. The first and highest instance of this sense of obligation is where we should expect to find it in the personal journal of Washington. 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 committee wrote. The unfortunate observations of Pinkney were the only publication that gave a glimmer of what had been done, or might have been done, in the convention, of what had been said or might have been said. The Journal of Madison was not published until after Congress had released the secrets of the convention. The members had taken no solemn oath, nor clasped hands, nor pledged their honor to each other, but they kept silence. A single incident, fortunately, preserved by William Pierce of Georgia, will show how the obligation was regarded,

the sitting of the convention, it grandly displays the personal majesty of Washington and the value which he set upon the secrecy of the convention's deliberations. To a better appreciation of what took place, it must be remembered that the convention, as a mark of respect for their great presiding officer, established this rule. When the House shall adjourn, every member shall stand in his place. until the President pass him. Mr. Pierce says, When the Convention first opened at Philadelphia,

there were a number of propositions brought forward as great leading principles for the new government to be established for the United States. A copy of these propositions was given to each member with an injunction to keep everything a profound secret. One morning, by accident, one of the members dropped his case, copy of the propositions, which, being luckily picked up by General Mifflin, was presented to

General Washington, our president, who put it in his pocket. After the debates of the day were over, and the question for adjournment was called for, the general arose from his seat, and previous to his putting the question addressed the convention in the following manner. gentlemen i am sorry to find some one member of this body has been so neglectful of the secrets of the convention as to drop in the state house a copy of their proceedings which by accident was picked up and delivered to me this morning i must entreat gentlemen to be more careful lest our transactions get into the newspapers and disturb the public repose by premature speculations I know not whose paper it is, but there it is, throwing it down on the table. Let him who owns it, take it.

At the same time he bowed, picked up his hat, and quitted the room with a dignity so severe that every person seemed alarmed. For my part, I was extremely so. For putting my hand to my pocket, I missed my copy of the same paper, but advancing up to the table my fears soon dissipated i found it to be the handwriting of another person when i went to my lodgings in the indian queen i found my copy in a coat pocket which i had pulled off that morning it is something remarkable that no person ever owned the paper three american history review three twenty four the obligation of secrecy required that these two papers should not be lost, that they should not be left where they might fall into the hands of someone who would publish them, that they should not remain in the possession of a member, and the final determination of the Convention implied that

these two papers should be delivered by the Committee of Detail into the hands of the Secretary of the Convention and be by him placed in the custody of Washington. The second condition was time, the time within which the committee's work must be done. On Thursday, the 24th of July, the Convention appointed the Committee of Detail for the purpose of reporting a Constitution, and on the 26th referred to the Committee certain resolutions and adjourned until Monday, August 6, that the Committee of Detail might have time to prepare and report the Constitution. This adjournment gave to the committee ten full days in which to prepare and complete their draft,

two of which were Sundays. The committee, moreover, determined to furnish to each member of the convention a printed copy. On Monday, the 6th of August, the committee appeared in the convention, bringing with them the printed copies of the draft. The draft contains about 3600 words. a good printer in the olden days when there was not a type-setting machine in the world would have required according to the computation of a present-day printer three days for doing the work allowing therein a reasonable time for changes and corrections made in the proofs it cannot be supposed that after the admonition of washington the committee would be negligent in their selection of a printer they would not carry their copy into a large printing office if any such there was in philadelphia but would surely place it in the hands of some individual printer recommended to them as trustworthy by wilson or governor 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 given to one man and marked confidential and it is safe to say that the copy must have been

been in the printer's hands by the close of the seventh day. Besides the type-setting, the proofs were to be examined, and the work scanned in the clearer light of printed matter by every member of the committee, and errors were to be corrected and possibly changes made. After these ten days of actual and constructive work, the committee appeared in the convention, bringing with them a draft containing 57 articles, and sections, and some 200 constitutional provisions. Some of these provisions had been prescribed by the 23 resolutions, and some had been suggested

by the Articles of Confederation, but there were others declaratory of the inherent powers of a national sovereignty which had neither been directed by the Convention, nor were contained in the Articles of Confederation. No reflective person beginning the state of the state, and study of the Constitution, can read Madison's journal attentively through to the 26th of July without being astonished by the greater comprehensiveness and detail and breadth and completeness of the draft, which the committee produced in a printed form on the morning of the 6th of August. Besides the provisions in the draft 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 draft the Constitution of the United States. It was therefore no time to stand upon trifles or to pause to adjust formal niceties. within the closed doors of Independence Hall would be impatient men who had given their time since the 25th of May, and who were sitting unceasingly through the heat of the Philadelphia summer, defraying in whole or in part their own expenses, though many of them were men of narrow means, ill-able to give either their time or their money. to their anxious eyes the end seemed far away and success far from certain and they would resent unnecessary delay

it would be just to young ambitious mr pinkney to return his draft unsullied to the secretary that it might tell his story in future years unquestioned and unquestionable of his splendid contribution to the constitution it would be proper and according to parliamentary usage for the committee to hand in their draft in writing, covered by a report attested by their signatures, both of which would remain in the archives of the convention, and perhaps in the archives of a future government. But the committee could not linger for these desirable things. Pinckney's draft must be sacrificed to hasten the good work along, to save time, if it were but a day.

and their own report and draft must be delivered in figuratively, that is to say, by the mouth of the chairman and by the means of the printed copies, one for each member. The committee, so that all circumstances unite in telling us, took Pinckney's draft and considered it. Some provisions they retained. Some they corrected. Some they amended.

Some they changed. Some they struck out. the amendments they wrote on the broad margin of the large fool-skaft sheets or wrote out on separate slips of paper which they wafered to the margin when they had finished this work pinkney's draft had become printer's copy for one brief week it served a great purpose and was the most useful document in the world then it was scrupulously destroyed and concerning it no man of the men who knew its contents is known to have spoken a single word. Apart from the inferential and conjectural statements of the preceding paragraph, the stricter principles of law lead to or toward the same conclusion. The draft was placed in the committee's hands to be used, but not to be destroyed. Nevertheless, the right to use, like the right of eminent domain, was commensurate

with the necessities of the situation, and the committee might use it by destroying it. The law allows within certain limitations the presumption of fact that where an administrative officer had a certain specific official duty to perform, he performed it. The Secretary of the Convention and the members of the Committee of Detail were not public officers, but were charged with duties which, if not official, were still public, and the obligations and presumptions belonging to administrative officers may properly be applied to them. The Secretary's entry in the Journal of the Convention says,

The report was then delivered in at the Secretary's table, and being read once throughout, and copies thereof given to the members, It was moved and seconded to adjourn. All that there was to be delivered in was placed upon the Secretary's table, and it became his duty to preserve whatever the committee had placed there subject to the future commands of the convention. The copies thereof were the printed copies of the draft, and the report, which was then delivered in at the Secretary's table,

was one of the printed copies, accompanied by the oral explanation of the chairman. What the secretary did with the papers in his charge is told in the following note and extract. Monday evening, Major Jackson presents his most respectful compliments to General Washington. Major Jackson, after burning all the loose scraps of paper which belonged to the convention, will this evening wait upon the general with the journal. and other papers, which their vote directs to be delivered to his excellency, endorsed by Washington, from Major William Jackson, 17th September, 1787.

Monday, 17th. Met in Convention when the Constitution received the unanimous assent of 11 states and Colonel Hamilton's from New York, the only delegate from Thence in Convention, and was subscribed to by every member present except governor randolph and colonel mason from virginia and mr jerry 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 the secretary of the convention and retired to meditate upon the momentous work which had been executed after not less than five for a large part of the time six and sometimes seven hours sitting every day sundays and the ten days adjournment to give a committee opportunity and time to arrange the business for more than four months washington's diary the secretary of the convention has generally been censured as incompetent and negligent nevertheless the papers which he transferred to washington witness for him that he did preserve

and keep whatever papers came within his official custody. The Secretary of State certified, March 19, 1796, that in addition to the journals then received from Washington, were seven other papers of no consequence in relation to the proceedings of the Convention. One of these is a draft 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 gentleman who composed the convention now sitting with such books as they may desire during their continuance at Philadelphia. Taking receipts for the same. One is a letter from one of the people called Jews, setting forth that the Constitution of Pennsylvania a Jew is deprived of holding any public office or place of government. The others are even of less consequence. They make plain by their unimportance

the important fact that Major Jackson scrupulously kept every paper which Rutledge delivered in it that 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 Pinkney draft. Judging in the light of all the facts which the case discloses, we must conclude that the only thing which would have justified the committee of detail in not returning the Pinckney draft to the Secretary of the Convention was that it had been destroyed. The only thing which would have justified the committee in destroying it was that they were compelled to use it as printer's copy.

The committee did well to use it, and yet if there was one thing in the world which justified Pinckney in publishing the observations, it was that the committee of detail had destroyed his draft. End of Chapter 13. Chapter 14 of the mystery of the Pinkney's draft. This Libravox recording is in the public domain. The mystery of the Pinkney Draft by Charles C. K. Knot.

Chapter 14 What Pinkney did for the Constitution. The style of the Constitution we owe to Pinkney. Behind him, perhaps, was the Chief Justice J. whose hand appears in the first Constitution of New York, but none of the men connected with the convention. not even Hamilton had attained what we may term the style of the Constitution, the clear, concise, declarative, imperative style, which seems a characteristic part of the great instrument. Pinckney appreciated the difference between a constitution and a statute,

and in maintaining this difference, his hand rarely erred. The Committee of Detail corrected Pinckney's language occasionally, and sometimes rendered the meaning more certain by amplification, but whenever they departed from his draft, there is an immediate falling off in style. A flagrant instance of this is in Article 9, Sections 2 and 3. In the hands of the committee, the provision relating to disputes and controversies between states

expands into a string of minor provisions, containing more than 400 words with all the involved pity particularities of an incoherent statute. Exemptly gratia, the Senate shall also assign a day for the appearance of the parties by their agents before that house. The agents shall be directed to appoint, by joint consent, commissions or judges to constitute a court for hearing and determining the matter in question. But if the agents cannot agree, the Senate shall name three persons out of each of the several states, and from the list of such persons, each party shall alternately strike out one, until the number shall be reduced to 13, and from that number not less than seven, nor more than nine, names,

as the Senate shall direct, shall be in their presence, be drawn out by lot, and the persons whose names shall be so drawn, or any five of them, shall be, etc., etc. The person who remembers that this and more like it was actually prepared and printed and reported to the convention, as a proposed part of the Constitution of the United States, may well wonder what kind of a constitution the Committee of Detail would have framed, if they had not had Pinckney to block out their work for them. When dealing with the number of representatives in the first or lower house, Pinkney provided, Article 3,

for a specific number from each state in the first instance, and then by one of his terse emphatic sentences, and the legislature shall hereafter regulate the number of delegates by the number of inhabitants, according to the provisions herein after made at the rate of one for every blank thousand. The committee adopted this verbatim, but they prefaced it with an extraordinary apology or explanation, bearing some resemblance to the preamble of a statute, Article 14, Section 4, as the proportions of numbers in different states will alter from time to time,

as some of the states may hereafter be divided, as others may be enlarged by addition of territory, as two or more states may be united, as new states will be erected within the limits of the United States, the legislature shall, in each of these cases, regulate the number of representatives by the number of inhabitants, according to the provisions herein after made, at the rate of one for one for,

every 40,000. This as, as, as, as, would be slovenly work even for a statute. It sounds little like a law, not at all like a constitution, much like an extract from a committee's report justifying their work, explaining why a proposed provision may become at some unforeseen time necessary or desirable. It is true the former of these provisions was taken from the Articles of Confederation, and that the latter is a paraphrase of the Eighth Resolution, but that only makes the matter worse. Their verbosity and incongruity were thereby placed before the eyes of every member of the committee, and the fact that such provisions, flagrantly verbose and inexcusably incongruous, went into a draft of the Constitution,

shows that not one of the five members commanded what may be called the style of the Constitution, while the additional fact that not one instance of such prolixity of detail is to be found in the Pinckney draft shows that he was the master of its style and not the committee. There are unquestionably clauses and sentences and provisions in the committee's draft, show the hand of the thoughtful statesman or of the good lawyer thus to pinkney's provisions relating to the action of congress on bills returned by the president with his objection we have but in all cases the votes of both houses shall be determined by yeas and nays

and the names of the persons voting for or against the bill shall be entered on the journal of each house respectively and to pinckney's provisions concerning the conviction of treason there is added no attainer of treason shall work corruption of blood nor forfeiture except during the life of the person attained in a word there is manifestly more than one hand in the committee's work in pinkney's draft the warp and woof is of one texture from beginning to end even when an article is made up entirely of cullings from the state constitutions and from the articles of confederation the finished fabric is unquestionably of pinkney's weaving it is not to be inferred that the members of the committee of detail were mediocre men or that they were negligent of the grave duty assigned to them yet the work which they actually did only demonstrates that for them to have produced a complete draft of the constitution as complete as the one which they reported entirely the work of their own hands in the limited time allowed them would have been an impossibility the reduction of the constitution to a written form with all its details required research reflection patient work and unhurried thought through the wide field of state and federal relations through state constitutions and the articles of confederation the framer needed to search weighing state prejudices and national necessities taking what was desirable but

but with equal care leaving what was objectionable. There were not five men in the world working in each other's way, discussing each other's work, who, unassisted, could have drawn up a constitution in which so much was embodied and so little overlooked, and have brought their patchwork contributions into one harmonious whole within the time prescribed. The country was well filled with men of talents,

of ability of energy of patriotic fervor with men who knew the conditions of our national affairs the difficulties of acting the perils of inaction and yet the fact undeniable is that only one man foresaw the coming necessity of the situation and had the forethought to prepare a draft 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 pinkney the more perfectly adapted to the necessities of the situation does it appear to have been when pinkney foreseeing that a national convention would be held and that if it failed to frame a constitution which would give to the waning confederation the character and authority of nationality the nationality of the confederated states might disappear, he resolutely assigned to himself the task of framing one in which nationality should be secure, and a national government above and independent of the states be the result. While yet a member of Congress he saw plainly these things, that the government of the confederated states was drifting toward insolvency,

for New York and Massachusetts alone had paid in full their quota of the federal expenses, that it was drifting towards war, for at least one of the states was flagrantly violating the Treaty of Peace with Great Britain, that the Congress could neither raise money nor maintain a treaty, for the only power which it practically possessed was to beseech the states to pay their respective shares of the federal expenses, and to pass as recently as March 21, 1787, resolutions urging on the states a repeal of all laws contravening the Treaty of Peace with Great Britain. Pinckney was then in the full flush of youthful egoism, but the oldest member of the convention even franklin could not have chosen his method of construction more wisely wherever constitutional material existed pinkney found it and preferred it to his own

a single paragraph will give an effective object lesson of his careful composite work the united states shall not grant any title of nobility articles of confederation 6. The Legislature of the United States shall pass no law on the subject of religion, Constitution of New York, nor touching or abridging the liberty of the press. Constitution, Massachusetts. Nor shall the privilege of the writ of habeas corpus ever be suspended, except in case of rebellion or invasion. Constitution, Massachusetts. The resolution of March 21, 1787 is as follows. Wednesday, March 21, 1787.

Resolved that the legislatures of the several states cannot of right pass any act or acts for interpreting, explaining, or constructing 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 draft 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 of the land and all judges made under the authority of the united states shall be the supreme law of the land and all judges shall be bound to consider them as such in their decisions i have spoken of the sentence the citizens of each state shall be entitled to all privileges and immunities of citizens in the several states as the most felicitous sentencing in the constitution

which passed through the committee 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 paupers vagabonds and fugitives from justice accepted 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 imposition and restrictions as the inhabitants thereof respectively provided that such restriction shall not extend so far as to prevent the removal of property imported into any state to any other state of which the owner is an inhabitant that the work was pinkney's we know for the provision set forth in articles twelve and thirteen of his draft are described in the observations but though the work of pinkney 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 draftsman 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. Indeed, if Marshall had laid his hand on Pinkney's shoulder and said, Young man, so frame your constitution that I shall be able to interpret it

according to the necessities of the Republic, and in harmony with the general requirements of our nationality, Pinkney would not have needed to change a single line. For more than seventy years, Pinckney had been a condemned and misrepresented man, and what is strange, though not inexplicable, his disgrace was primarily caused by the indispensable work which he unselfishly performed for his country without honor and without reward. I began the foregoing investigation of the authenticity and verity of the draft in the State Department, in consequence of the publication of Pinkney's letter to the Secretary of State in 1818, in which he states, frankly, that the paper sent is not a literal duplicate of the draft presented to the convention,

and that the draft contained provisions which he subsequently condemned and openly opposed during the debates i knew of the worst side of pinkney's character his egoism his garrulousness his lack of cautious 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 implications of elliot and the silence of story and the censure of bangcroft had confirmed my suspicion and left me with a poor opinion of the draft 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 but when under the pressure of unquestionable facts the charges of madison fell to pieces and when with the refudiation of a charge just so much of the draft would be positively verified and of affirmed and especially when it plainly appeared not only that in sections and articles and provisions and sentences the one instrument agreed with the other but that in form in style and phraseology 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 ratification of blank states shall be sufficient for organizing this

Constitution. The draft of the Committee of Detail follows the draft in the State Department, and the Constitution follows the draft of the Committee of Detail. 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 inform, 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 recognition of his countrymen, there is no framer of the Constitution more entitled to be commemorated in bronze or marble than Charles Pinckney of South Carolina. End of Chapter 14. Chapter 15 of the mystery of the Pinckney draft. This Librevox recording. is in the public domain. The mystery of the Pinkney Draft by Charles C. K. K. Knot. Chapter 15. Conclusions of the whole case.

There are three reasons why the Pinkney draft has been too readily discredited. The first is our respect for Madison, our belief that his knowledge far exceeded our own, and our deference to his repeatedly expressed opinion. The second is that, that the draft was never before the convention, and consequently never received the recognition of discussion. It was referred at the beginning to the Committee of the Whole, but it was not yet wanted, for the Committee debated only abstract propositions couched in formal resolutions. It was referred to the Committee of Detail, but that Committee reported only their own

draft, and the Convention had before them only the Committees. The draft 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 draft is to be found in the exaggerated value which has been set upon it. It has seemed to be altogether too great an instrument 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 draft of Pinckney is not so great as it seems. Coming from a man so well equipped for the work, so experienced in the existing affairs of our mixed governments, and with such a clear comprehension of the conditions of the case, and having such a mass of material ready to his hand, the draft 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 impossible. Madison was himself born witness to the fact that the subject of a substitute for the tottering power of the confederated states was in every man's mind,

and that every intelligent man of that day was more or less fitted to draft a general outline of a new national government? The resolutions of Mr. Randolph, 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 leading a part in reference to the federal convention, some initiative proposition might be expected from them. They were understood not to commit any of the members absolutely or definitively on the tenor of them. The resolutions will be seen to present the characteristics and features of a government as complete, in some respects, perhaps more so, as the plan of Mr. Pinckney, though without being thrown into a formal shape.

The moment, indeed, a real constitution was looked for as a substitute for the Confederacy, the distribution of the government into the usual departments became a matter of course with all who speculated upon the prospective change. Letter to W. A. Dure, June 5, 1835. The difficulty of the hour was not in drafting a constitution, but in drafting one which would not arouse the jealous antagonism of the several states. That difficulty did not trouble, Pinckney. His plan contemplated having the people of each state fairly, that is proportionally represented in his House of Delegates, and in making the several states as states unequivocally submissive to. to the new national authority.

Pinckney had been for two years immediately before the sitting of the convention, a delegate in the Congress of the Confederation. He had been the representative of South Carolina in the Grand Committee appointed to consider the alteration of the Articles of Confederation. He had been chairman of the subcommittee which drafted 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 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 command. He was young, talented, experienced, ambitious, wealthy, unemployed, and a ceaseless worker. the index of madison's journal witnesses to the immense amount of work which pinkney did irrespective of the draft if we discard the draft the original draft the disputed draft and the draft described in the observations

the fact will remain that pinkney was an important contributor to the work of framing the constitution pinkney's plan of government was precisely 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 anticipate as a sagacious statesman would the ignorance the adverse interests and the prejudices of those who ultimately would have the power to reject or ordain the work of the convention therefore he originated none of the compromises which reconciled antagonistic views and made the constitution possible the great and difficult problems which confronted the convention were not solved by the draft pinkney 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 draft was an admirable instrument for its purpose an admirable model for the workmen of the convention to correct alter and enlarge it was crude and unfinished but it was in well-chosen words and simple sentences eschewing particulars and presenting in a masterly way great declaratory principles of government

pinkney had a few fanciful provisions in his plan and yet he was a practical and not a fanciful constitution maker not above taking the best material he could find wherever he could find it resorting to himself last and not above throwing aside his own work and beginning again and again until he had patiently wrought out the best that his ability could do but when in estimating the constitutional value of the draft we have given credit for the admirable construction of the plan of government 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 draft is made up for the most part of details suggested by his experience in the Congress of the Confederate States, details which are culled by him with extraordinary care from the Constitution of New York and Massachusetts

and the Articles of Confederation. In a word, the provisions which were rejected, such as a Senate chosen by the House of Representatives, such as a Senate having the sole and exclusive power to declare war, to make treaties, to appoint foreign ministers, judges of the Supreme Court, such as a national legislature having power to revise the laws of the several states, and to negative and annul those which infringed the powers delegated to Congress,

do not cause either wonder or admiration. It is the valuable practical provisions of the draft which provoke doubts. Yet there 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 confederated states into an efficient national government. In our minds, we picture the framers of the Constitution as remarkable men, sage in counsel, 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 formulated a constitution which became a basis for most of the concrete work. Both had the severe practical training of members of the members of the Constitution. the Congress of the confederated states during the sorest period of its humiliating helplessness, the darkening days which preceded its disillusion, 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 federal government could make treaties, the states could violate 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 should have authority to negative all laws which they should judge to be improper. He urged that such a universality of the power was indispensably necessary to render it effectual, that the states must be kept in due subordination to the nation, that if the states were left to act of themselves in any case, it would be impossible to defend the national 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 cornerstone, of an efficient national government. Mr. Madison seconded the motion. He could not but regard an indefinite power to negative legislative acts of the states as absolutely necessary to a perfect system. Experience had evinced a constant tendency in the states to encroach on the federal authority, 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 Pinkney attempted to frame a compromise. Each wanted a national government with unequivocal powers. Each ignored the jealousy of the small state, the apprehensions of the slave state, the increasing preponderance 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 a hundred years, the American people have kept the cardinal idea

of these youthful statesmen, 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 the better agency for the control and management 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. Considering 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 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 madison together they furnished just what the necessities of the hour required ideas of government for consideration and discussion formulated constitutional provisions for amendment and adoption greatly to be regretted it is that the two men who did such valuable interservisable 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 draft which are not sustained

by the confirmatory fact of being incorporated in the draft of the Committee of Detail, and notably the following. The Legislature of the United States shall have the power to pass laws for arming, organizing, and disciplining the militia of the United States. Article 6. This power to organize and organize and, discipline the militia was a radical 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 draft. But it is specifically set forth in the observations as one of the provisions of the draft, and on the 18th of August, Pinkney advocated in the convention substantially the same thing. The draft also provides that the legislature of the United States shall have power to provide for the establishment of a seat of government for the United States, not exceeding X miles square, in which they shall have exclusive jurisdiction. Article 6.

This also was a radical innovation which the committee could not adopt without authority. But it was also so. specifically set forth in the observations, 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 draft also provides, nor shall the privilege of the writ of habeas corpus ever be suspended, except in cases of rebellion or invasion. Article 6

The Convention shrank from the insertion of a Bill 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 rights, in their draft, but it is set forth in the observations, and on the 20th of August, Pinkney proposed in the convention a stronger and more explicit provision. These provisions, therefore, are sustained by the public contemporaneous avowal of

Pankney that they were in the draft which he had prepared for the use of the convention, 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 draft, 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 formulated them into provisions substantially identical with those in the State Department draft, at the time when the Convention was considering the respective subjects, it requires very little additional assurance. to make us accept them as a part of the draft presented to the convention.

Conversely, there are provisions which may have been in the draft presented to the convention, but which are not in the draft filed in the State Department. The most notable of these is the one relating to patents and copyright. Pinckney says in the observations, There is also an authority to the national legislature to secure to, the exclusive right to their performances and discoveries and on the eighteenth of august he moved in the convention to insert among other powers to grant patents for useful inventions if the provision was in the original draft the committee of detail were not authorized to adopt it and did not but the convention did and it became a part of the constitution pinkney was constantly nursing his draft revising amending rearranging and it is not improbable that he inserted this provision in one copy and neglected to insert it in the others

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 Monoplies were a prerogative of the Crown, and a patent was deemed a monopoly. Pinckney, therefore, did wisely in expressing assigning patent rights and copyrights to the legislative branch of the government, giving to the mindwork of the inventor or author the character of property and the safeguard of the law. Another provision is the compromise relating to slave representation. In the State Department draft, it is provided that the number of the delegates shall be regulated by the number of inhabitants, Article 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 Congress to levy taxes upon the states agreeable to the rule now is. in use, an enumeration of the white inhabitants, and three-fifths of other descriptions.

In the convention on the 12th of July, Mr. Pinckney moved to amend Mr. Randolph'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 laborers, 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 considering money as the sinews of war, to the strength of the nation. It will also be politic with regard to the northern states, as taxation is to keep pace with representation. This is conclusive as to Pinckney's views.

It confirms the draft in the State Department, and shows too that the copy of the draft on which the observations were founded differed in this detail from the draft presented to the convention on a review of the entire case i have reached the following conclusions one the draft in the state department agrees so closely with the draft of the committee of detail in form in phraseology in structure in arrangement in extent in its beginning and its ending, that unquestionably the one draft must have followed the other. There can be no middle ground here. Two, with the uncovering of the committee's draft and the bringing of the observations into the case and the confirmatory matter in the Randolph and Wilson drafts, it becomes evident that the suspected fraud was an impossibility. That is to say, when Pinckney described in the observations the draft which he was subsequently to present to the convention he thereby described the draft which he was ultimately to place in the department of state

in a word if a fraud was perpetrated in eighteen eighteen it must have begun in seventeen eighty seven before the convention met which is a reductio ad absurdum three the observations were printed and published during the lifetime of every member of the convention including the five members of the committee of detail and pinkney immediately republished them in the south carolina state gazette in eighteen nineteen when the copy of the draft was published and circulated as a public document there were sixteen members of the convention still living among whom was madison the chronicler of the convention it must therefore be held that pinkney did not conceal anything or shrink from investigation and that all which he did was done in due 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 draft, 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 individuals, no matter how eminent and intelligent, would be a monstrous abuse of authority which cannot be upheld in either law or morals. 4. A question may be raised as to whether the Journal of Madison can properly be admitted

as evidence against the claim of Pinkney, and it must be conceded that Madison occupied the position of a controversialist, that during the whole period of controversy his chronicle of the convention was in his exclusive 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 pinkney and sustain the draft 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 unequivocal character that madison for his own purposes obliterated historical evidence than that pinkney 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 prolonged 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 draft of the constitution that was made for the use of the convention and the other laboriously prepared the only chronicle of the framers work which the world possesses it is not for the bitterness of controversy heedlessly to assail such men five 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 Pinckney, 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 reference, which will change the conclusions of today. But as the case now stands, it must be said that the Pinkney draft in the Department of State is, with the exception before noted, all that

Pinkney represented it to be. End of Chapter 15. Chapter 16 of the mystery of the Pinkney Draft This Librevox recording is in the public domain. The mystery of the Pinkney Draft. draft by Charles C. K. K. K. Knotch. Chapter 16. Of Pinkney personally. Pinkney was in the fourth generation of a family which had been distinguished for more than 100 years for its public services. He had been elected to the provincial legislature of South Carolina before he had come of age,

and he had made himself before the sitting of the convention a prominent member of the Congress of the Confederate 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 Constitution and depicts the practical blessings which it was to bring to the American people with a clearness and accuracy that is extraordinary.

Our true situation appears to be this, a new, extensive country containing within itself the materials for forming a government capable of extending to its citizens all the blessings of civil and religious liberty, capable 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 respectable abroad,

conquests or superiority among other powers is not, or ought not ever to be, the object of Republican systems. If they are sufficient, 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 ensures to its citizens. Pinckney's experience in the Congress of the Confederation made him despised the existing 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 importance, and no state is justly entitled to greater. The senatorial districts into which the union is to be divided, in his plan, will be so apportioned as to give to each its due weight, and the Senate calculated on this as it ought to in every government to represent the wealth of the nation. The next provision, in his draft, is intended 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 support. that 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 states. but this was the one thing which he conceded to the several states.

The Senate was to be chosen by the House of Delegates, and what is more significant, the Senate was not to represent states with the saving clause, Each state shall be entitled to have at least one member in the Senate. Finally, he would strike an absolutely fatal blow at state sovereignty by providing, the legislature 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 annull 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 convention thought of him. William Pierce, the delegate from Georgia, who has left to us the anecdotes of Washington before quoted, noted at the time his impressions of the leading members of the convention.

From these, I select his sketches of four of the young members of the convention who had even then attained distinction. edmund randolph rufus king alexander hamilton and charles pinkney mr randolph is governor of virginia a young gentleman in whom unite all the accomplishments of the scholar and the statesman he came forward with the postulata 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 knowledge 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 countryman. This gentleman is about 33 years of age,

about five feet ten inches high, well-formed and handsome face, with a strong expressive eye and a sweet, high-toned voice. In his public speaking, there is something peculiarly strong and rich in his expression, clear and convincing in his arguments, rapid and irresistible at times in his eloquence but he is not always equal his action is natural swimming and graceful but there is a rudeness of manner sometimes accompanying it

but take him to ensemble he may with propriety be ranked among the luminaries of the present age colonel hamilton is deservedly celebrated for his talents he may with propriety be ranked among the luminaries of the present age colonel hamilton is deservedly celebrated for his talents he is a he is a practitioner of the law and reputed to be a finished scholar to a clear and strong judgment he unites the ornaments of fancy and whilst he is able convincing 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 colonel hamilton requires time to think he inquires into every part of his subject with the searchings of philosophy and when he comes forward he comes highly charged with interesting matter there is no skimming over the surface of a subject with him he must sink to the bottom to see what foundation it rests on his language is not always equal sometimes didactic like bowling brooks at others light and tripping like sterns his eloquence is not so defensive as to trifle with the senses but he rambles just enough to strike and keep up the attention he is about thirty-three years old of small stature and lean his manners are tinctured with stiffness and sometimes with a degree of vanity that is highly disagreeable mr charles pinkney is a young gentleman of the most promising talents he is although only twenty-four twenty-nine years of age in possession of a very great variety of knowledge

government law history and philosophy are his favorite studies but he is intimately acquainted with every species of polite learning and has a spirit of application and industry beyond most men he speaks with neatness and perspicuity and treats every subject as fully without running into prolixity as it requires he has been a member of congress and served in that body with ability and a clah. William Pierce of Georgia, three American History Review 313. In this material world of cause and effect, there sometimes seem to be recurring fatalities which attend individuals that needlessness has not caused, and that foresight could not have prevented, a fate of fire or flood or shipwreck, of good fortune or of fortune or of bad fortune, of successes or of casualties of escapes or of disasters, a fate that fastens upon an individual and cannot be shaken off. The fate assigned to Pinckney seems to have been oblivion.

Substantially, everything which he prized is gone. His house was one of the finest in Charleston, if not the finest, and it was destroyed. He believed his library to be. He believed his library to 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 lived, and 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 Pinkney speaks in his letter to the Secretary of State, papers which might throw new light on the framing of the Constitution, or solve the problem of the contents of the draft. in this search general mccrady of charleston kindly and sympathetically cooperated 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 carolina of which he was president nor in the possession of his friends could a document or paper or even a letter be found at that time i desired to obtain a specimen of pinkney's early handwriting and accordingly carried my pursuit into the circle of his direct descendants but the sad reply came from his great-grandson mr charles pinkney of clermont south carolina that all of his papers and private manuscripts were destroyed in the great fire in charleston in eighteen sixty one and that his descendants

possess no remains of his handwriting except the autographs in his books. Letters and papers of eminent men are constantly coming to the light from unexpected hiding places, and there is the official correspondence in the State Department, and papers may exist in the public offices of South Carolina, but apart from these, my investigation stops at a point where it must 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 possession 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 draft 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 predicted that it would survive its time and be securely kept that was the paper the convention was composed of the most orderly care-taking and reputable of men and the author of the draught was one of them the command of the convention was that its paper should be preserved the papers were placed in the custody of the most scrupulous of men and by him transferred to the official guardianship of a department of the government and there we might expect to find the draught of pinkney but fate had touched the great state paper and we find only that it had vanished from the earth. The following biographical sketch is by Mr. William 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 is conferred on account of high acquirements, learning, and ability, and particularly for his disdainting, for his disson, Services in Congress and the Federal Convention. From 1787 to 1789, he was traveling on the continent and on his return was elected governor of the state. While governor, he was a delegate to,

and made president of the State Convention for forming the Constitution. 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 appointed him Minister Plenipotentiary to Spain, with power to treat for the purchase of Louisiana and Florida. On his return in 1806, he was a fourth time honored with the position of governor, of the state, and he is the only citizen 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 perpetrate 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 pinkney professed an exquisite appreciation of the beautiful in nature and in art his collection of paintings statuettes medals etc rendered his house almost a museum his fine library occupying an entire suite of three large rooms the floors and windows of which were kept richly carpeted and curtained, while the ceilings were decorated with classic representations, is supposed to have contained near twenty thousand of the rarest and choicest books collected from every

part of the continent, and in every language spoken in the enlightened world. Thomas Pinckney, who settled in South Carolina in 1687, was the father of two, William, Thomas, Master in Chancery, his son, Colonel Charles Pinckney, his son, Governor Charles Pinckney, his son, Honorable Henry L. Pinckney. A life of Charles Pinckney was prepared and in the possession of the Honorable Henry L. Pinckney for revision and addition. With it were his valuable papers. the fire of eighteen sixty one which desolated the city of charleston destroyed almost everything and this and the former essay are compiled from many stray notes mutilated manuscripts and a few papers still in our possession

a very strange and melancholy feeling overtakes us as we search the remains of charles pinkney here is a man upon whom heaven appears to have shouted its gifts, distinguished in ancestry, possessing fine intellect, 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 decipherable. his ashes are in the family burying-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 defence 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 grounds of fee farm have disappeared

and the plough runs its furrows through the grove and the graveyard. De Beau's Review, April 2, 1866. End of Chapter 16. Chapter 17 of the Mystery of the Pinkney Draft. This Librevox recording is in the public domain. The Mystery of the Pinkney Draft by Charles C. Not. Chapter 17. Appendix 1

Mr. Charles Pinckney's draft of a federal government. We the people of the states of New Hampshire, Massachusetts, Rhode Island, and Providence plantations, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina, and Georgia do ordain, declare, and establish the following Constitution for the government of ourselves and posterity. article one the style of this government shall be the united states of america and the government shall consist of supreme legislative executive and judicial powers

two 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 blank day of blank in every year year. 3. The members of the House of Delegates shall be chosen every blank year by the people of the several states, and the qualifications 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 blank years, shall be of blank years of age, and 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 blank to be chosen from the different states in the following proportions. For New Hampshire. Blank for Massachusetts. Blank for Rhode Island.

Blank for Connecticut. Blank for New York. Blank for New Jersey. Blank for Pennsylvania. Blank for Delaware. blank for Maryland, blank for Virginia, blank for North Carolina, blank for South Carolina, blank for Georgia, and the legislature shall hereafter regulate the number of delegates by the number of inhabitants, according to the provisions herein after made, at the rate of one for every blank thousand. All money bills of every kind shall originate in the House of Delegates and shall not be altered by the Senate. The House of Delegates shall exclusively possess the power of impeachment

and shall choose its own officers and vacancies therein shall be supplied by the executive authority of the state and the representation from which they shall happen. 4. The Senate shall be elected and chosen by the House of Delegates which House immediately after their meeting shall choose by back, Blank Senators from among the citizens and residents of New Hampshire. Blank from among those of Massachusetts. Blank from among those of Rhode Island.

Blank from among those of Connecticut. Blank from among those of New York. Blank from among those of New Jersey. Blank from among those of Pennsylvania. Blank from among those of Delaware. Blank from among those of Maryland. blank from among those of Virginia, blank from among those of North Carolina,

blank from among those of South Carolina, and blank from among those of Georgia. The senators chosen from New Hampshire, Massachusetts, Rhode Island, and Connecticut shall form one class, those from New York, New Jersey, Pennsylvania, and Delaware, one class, and those from Maryland, Virginia, North Carolina, South Carolina and Georgia, one class.

The House of Delegates shall number these classes, one, two, three, and fix the times of their service by lot. The first class shall serve for blank years, the second for blank years, and the third for blank years. As their times of service expire, the House of Delegates shall fill them up by election for blank years, and they shall fill all vacancies that arise from death or resignation for the time of service remaining of the members so dying or resigning. Each senator shall be blank years of age, at least, shall have been a citizen of the United States at four years before his election, and shall be a resident of the state he is chosen from. The Senate shall choose its own officers. 5. Each state shall prescribe the time and manner of holding elections by the people for the House of Delegates,

and the House of Delegates shall be the judges of the elections returns and qualifications of their members. In each house a majority shall constitute a quorum to do business. Freedom of speech and debate in the legislature shall not be impeached or questioned in any place out of it, and the members of both houses shall in all cases except for treason felony or breach of the peace be free from arrest during their attendants at congress and in going to and returning from it both houses shall keep journals of their proceedings and publish them except on secret occasions and the yeas and nays may be entered thereon at the desire of one blank of the members present neither house without the consent of the other shall adjourn for more than blank 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 respectively 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 which they represent every bill which shall have passed the legislature 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 shall return it with his objections to the house it originated in which house if two-thirds of the members present notwithstanding the president's objection agree to pass it shall send it to the other house with the president's objections where if two-thirds of the members present also agree to pass it the same shall become a law and all bills sent to the president and not returned by him within blank days shall be laws unless the legislature by their adjournment prevent their return in which case they shall not be laws sixth the legislature of the united states shall have the power to lay and collect taxes duties imposts and excises to regulate commerce with all nations and among the several states to borrow money and emit bills of credit to establish post offices to raise armies to build and equip fleets to pass laws for army to pass laws for army organizing and disciplining the militia of the United States, to subdue a rebellion in any state on application of its legislature, to coin money and regulate the value of all coins, and fix the standard of weights and measures, to provide such dockyards and arsenals, and erect such fortifications as may be necessary for the United States, and to exercise exclusive jurisdictions

therein. To appoint a treasurer by ballot. To constitute tribunals inferior to the Supreme Court. To establish post-and-military roads. To establish and provide for a national university 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 government for the United States, not exceeding blank mile square in which they shall have exclusive jurisdiction, to make rules concerning captures from an enemy, to declare the law and punishment of piracies and felonies at sea, and of counterfeiting coin and of all offenses against the laws of nations,

to call forth the aid of the militia to execute the laws of the Union and force treaties, suppress insurrections, and repel in the war. 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 in 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 regulated by the whole number of inhabitants of every description which number shall within blank years after the first meeting of the legislature and within the term of every blank years after be taken in 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 suspended except in case of rebellion or invasion. 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 of the land, and all judges shall be bound to consider them as such in their decisions. 7. The Senate shall have the sole and exclusive power to declare war

and to make treaties, and to appoint ambassions, and other ministers to foreign nations and judges of the Supreme Court. They shall have the exclusive power to regulate the manner of deciding all disputes and controversies now subsisting, or which may arise between the states respecting jurisdiction or territory. 8. The executive power of the United States shall be vested in a president of the United States of America, which shall be his style and his title shall be His Excellency. He shall be elected for blank years and shall be re-eligible. He shall from time give information to the legislature of the State of the Union and recommend 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, and accept as to ambassadors other ministers and judges of the Supreme Court, he shall nominate, and with the consent of the Senate, appoint all other officers of the United States. He shall receive public ministers from foreign nations, and may correspond 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 and Navy of the United States, and of the militia of the several states, and shall receive a compensation which shall not be increased or diminished during his continuance in office. At entering 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 and conviction in the Supreme Court of Treason, Bribery, or Corruption. In case of his removal, death, resignation, or disability, the President of the Senate shall exercise the duties of his office until another President be chosen, and 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, and it shall be their duty to establish such courts of law, equity, and admiralty as shall be necessary. The judges of these courts shall hold their offices during good behavior and receive a compensation which shall not be increased or diminished 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, and councils, to the trial of impeachments of officers of the United States, to all cases of admiralty and maritime jurisdiction, in cases of impeachment, affecting ambassadors and other public,

ministers, the jurisdiction shall be original and in all other cases appellate. All criminal offenses, except in cases of impeachment, shall be tried in the state where they shall be committed. The trial shall be open and public and be by jury. 10. Immediately after the first census of the people of the United States, the House of delegates shall apportion the Senate by electing for each state out of the citizens resident therein, one senator for every blank members such state shall have in the House of Delegates. Each state, however, shall be entitled to have at least one member in the Senate. 11.

No state shall grant letters of mark and reprisal, or enter into treaty or alliance or Confederation, nor grant any title of nobility, nor without the consent 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 copper, a tender impayment of debt. nor engage in war except for self-defense 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 and 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 supposed to infringe the powers exclusively delegated by the Constitution to Congress, and to negative and annull such as due.

12. The citizens of each state shall be entitled to all privileges and immunities of citizens in the several states. Any person charged with crimes in any state fleeing from justice in another shall on demand of the executive of the state from which he fled, be delivered up and removed to the state. having jurisdiction of the offense. 13.

Full faith shall be given in each state to the acts of the legislature and to the records and judicial proceedings of the courts and 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, proposed to the state's amendments to the same, the agreement of two-thirds of the legislatures of the states shall be sufficient to make the said amendments part of the Constitution. The ratification of the blank conventions of blank states

shall be sufficient for organizing this Constitution. End of Chapter 17. 1. Chapter 18 of the Mystery of the Pinkney Draft. This Libravox recording is in the public domain. The mystery of the Pinkney Draft by Charles C. Knot. Chapter 18. Appendix 2. Draft of the Committee of Detail.

We the people of the states of New Hampshire, Massachusetts, Rhode Island, and Providence plantations, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina, and Georgia do ordain, declare and establish the following constitution for the government ourselves and our posterity. Article 1. The style of this government shall be the United States of America. 2. The government shall consist of supreme legislative, executive, and judicial powers. 3. The legislative power shall be vested in a Congress, to consist of two separate and distinct

bodies of men, a House of Representatives, and a Senate, each of which shall, in all cases, have a negative on the other. The legislature shall meet on the first Monday in December in every year. 4. Section 1 The members of the House of Representatives shall be chosen every second year by the people of the several states comprehended within this union. The qualifications of the electors shall be the same, from time to time, as those of the electors in the several states of the most numerous branch of their own legislatures. Section 2

Every member of the House of Representatives shall be of the age of 25 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. Section 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, consists of 65 members, of whom three shall be chosen in New Hampshire, eight in Massachusetts, one in Rhode Island and Providence plantations, five in Connecticut, six in New York, four in New Jersey, eight in Pennsylvania, one in Delaware, six in Maryland, ten in Virginia, five in North Carolina, five in South Carolina, and three in Georgia. Section 4.

As the proportions of numbers in 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, regulate the number of representatives by the number of inhabitants, according to the provisions herein after made, at the rate of one for every 40,000.

Section 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 government. public treasury, but in pursuance of appropriations that shall originate in the House of Representatives. Section 6 The House of Representatives shall have the sole power of impeachment.

It shall choose its speaker and other officers. Section 7. Vacancies in the House of Representatives shall be supplied by rits of election from the executive authority of the state, in the representation from which they shall happen. 5. Section 1. The Senate of the United States shall be chosen by the legislatures of the several states. Each legislature shall choose two members. Vacancies may be supplied by the executive until the next meeting of the legislature. Each member shall have one vote. Section 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 seats of the members of the first class shall be vacated 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. Section 3. Every member of the Senate shall be of the age of 30 years, at least, shall have been a citizen of 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.

Section 4. The Senate shall choose its own president and other officers. 6. Section 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. Section 2 The Legislature of the United States shall have authority to establish such uniformed

qualifications of the members of each house with regard to property as to the said legislature shall seem expedient. Section 3. In each house a majority of the members shall constitute a quorum to do business, but a smaller number may adjourn from day to day. Section 4. Each house shall be the judge of the elections, returns, and qualifications of its own members. Section 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, except treason, felony, and breach of the peace, be privileged from arrest during their attendance at Congress, and in going to and returning from it. section six each house may determine the rules of its proceedings may punish its members for disorderly behavior and may expel a member section seven the house of representatives and the senate when it shall be acting in a legislative capacity shall keep a journal of their proceedings and shall from time to time publish them and the yays and nays of the members of each each other's house on any question shall at the desire of one-fifth part of the members present be entered on the journal section eight 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 powers mentioned in the blank article section nine 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 section ten the members of each house shall receive

a compensation for their services to be ascertained and paid by the state in which they shall be chosen. Section 11 The enacting style 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. Section 12 Each house shall possess the right of originating. bills, except in the cases before mentioned. Section 13. Every bill which shall have passed the House of Representatives and the Senate

shall, before it become a law, be presented to the President 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 revision, it shall appear to him, proper 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 objections 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 voting for or against the bill shall be entered in the journal of each house, respectively. bill shall not be returned by the President within seven days after it shall have been presented to him, it shall be a law, unless the legislature, by their adjournment, prevent its return, in which case it shall not be a law. 7.

Section 1. The Legislature of the United States shall have the power to lay and collect taxes, duties, imposts and excises, to regulate commerce with foreign nations and among the several states, to establish a 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 offenses against the law of nations, to subdue a rebellion in any state on the applicant, of its legislature. 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 and force treaties, suppress 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 constitution, in the government of the United States or in any department or officer thereof. Section 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 enemies 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 convinced, of treason unless on the testimony of two witnesses. No attainer of treason shall work corruption of blood nor forfeiture except during the life of the person attained. Section 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 servitude for a turn. term of years, and three-fifths of all other persons not comprehended in the foregoing description,

except Indians not paying taxes, which numbers shall, within six years after the first meeting of the legislature, and within the term of every ten years afterwards, be taken in such manner as the said legislature shall direct. Section 4 No tax or duty shall be laid by the legislature on Ardicton 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 prohibited section five no capitation tax shall be laid unless in proportion to the census herein after directed to be taken section six no navigation act shall be paid without the assent of two-thirds of the members present in each house. Section 7. The United States shall not grant any title of nobility.

8. 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 constitutions or laws of the several states to the contrary notwithstanding. 9. Section 1. The Senate of the United States shall have power to make treaties and to appoint ambassadors and judges of the Supreme Court. Section 2

In all disputes and controversies now subsisting, or that may hereafter subsist between two or more states, respecting jurisdiction or territory, the Senate shall possess the following powers. Whenever the legislature or the executive authority, or the lawful agent of any state, in controversy with another, shall, by memorial to the Senate, state the matter, 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 legislature or the executive authority of the other state in controversy. The Senate shall also assign a day for the appearance of the parties by their agents before that House. The agents shall be directed to appoint, by joint consent, commissioners or judges

to 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 attend at the day assigned, without showing sufficient reasons, not for attending, or being present, shall refuse to strike, the Senate shall proceed to nominate

three persons out of each state, and the clerk of the Senate shall strike in behalf of the party absent or refusing. If any of the parties shall refuse 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 transmitted to the President of the Senate and shall be lodged among the public records for the security of the parties concerned. Every commissioner shall, before he sit in judgment,

take an oath to be administered by one of the judges of the Supreme or Superior Court of the State, where the cause shall be tried, well and truly to hear and determine the matter. in question, according to the best of his judgment, without favor, affection, or hope of reward. Section 3 All controversies concerning lands claimed under different grants of two or more states, whose jurisdiction, as they respect such lands, shall have been decided or adjusted subsequent to such grants, or any of them, shall, on application to the Senate, be finally determined

as near as may be, in the same manner as is before prescribed for deciding controversies between different states. 10. Section 1 The executive power of the United States shall be vested in a single person. His style shall be the President of the United States of America, and his title shall be His Excellency. He shall be elected by ballot. by the legislature. He shall hold his office during the term of seven years, but shall not be

elected a second time. Section 2. He shall, from time to time, give information to the legislature of the State of the Union. He may recommend to their consideration such measures as he shall judge necessary and expedient. 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 pardons 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 compensation which shall neither be increased nor diminished during his continuance in office.

Before he shall enter on the duties of his department, he shall take the following oath or affirmation. I, blank, 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 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. 11. Section 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. Section 2. The judges of the Supreme Court and of the inferior courts shall hold their offices during good behavior. They shall, at stated times, receive for their services a compensation, which shall not be diminished during their continuance in office. Section 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 impeachment of office,

officers of the United States, to all cases of admiralty and maritime jurisdiction, to controversies between two or more states, except such as shall regard territory or jurisdiction, between a state and citizens of another state, between citizens of different states, and between a state or the citizens thereof and foreign states, citizens, or subjects. In 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 exceptions 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. Section 4. The trial of all criminal offenses, except in cases of impeachments, shall be in the state where they shall be committed, and shall be by jury.

Section 5. judgment in cases of impeachment shall not extend further than to removal from office and disqualification to hold and enjoy any office of honor trust or profit under the united states but the party convicted shall nevertheless be liable and subject to indictment trial judgment and punishment according to law twelve no state shall coin money nor grant letters of mark and reprisal, nor enter into any treaty, alliance, or confederation, nor grant any title of nobility. 13. No state, without the consent of the legislature 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, nor 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. 14. The citizens of each state shall be entitled to all privileges and immunities of citizens in the several states. 15. 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 offense. 16. 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.

17. New states lawfully constituted or established within the limits of the United States may be admitted by the legislature into this government, but to such admission the consent of two-thirds of the members present in each house shall be necessary. 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.

18. The United States shall guarantee to each state a Republican form of government and shall protect each state against foreign invasions and, on the application of its legislature, against domestic violence. 19. On the application of the legislatures of two-thirds of the states in the Union for an amendment of this Constitution, the Legislature of the United States shall call a convention for that purpose. 20. The members of the legislatures and the executive and judicial officers of the United States and of the several states shall be bound by unlawful.

oath to support this Constitution. 21. The ratification of the Convention of Blank States shall be sufficient for organizing this Constitution. 22. 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.

23. 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 Convention of States should appoint and public. a day, as early as may be, and appoint a place for commencing proceedings under this Constitution, that after such publication, the legislatures of the several states should elect members of the Senate, and direct the election of members of the House of Representatives, and that the members 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 end of chapter eighteen appendix two end of the mystery of the pinkney draft by charles c not