Article 4 relates to the Senate, and here first appear the individual opinions of Pinckney which were shared by no one. His senators were to be chosen by the House of Delegates. "From among the citizens and residents of New Hampshire"--"from among those from Ma.s.sachusetts"--etc., etc. That is the representation was neither by States nor by population but by an arbitrary a.s.signment in the Const.i.tution. Pinckney believed that the Senate should represent the wealth of the country, and he probably intended that this arbitrary a.s.signment should be representative of wealth. The senators from New Hampshire, Ma.s.sachusetts, Rhode Island and Connecticut were to form one cla.s.s; those from New York, New Jersey, Pennsylvania and Delaware another; and the remaining States a third. It was to be determined by lot which should go out of office first, which second, which third. As their times of service expired the House of Delegates was to fill them for a fixed and uniform term. This plan was suggested to Pinckney by the const.i.tution of New York. Its only merit was that it would make the Senate a continuing body, as we now have it, one-third of the members going out at one time. Its errors seem incredible. It would have enabled the delegates from, say, the eastern and middle States to choose senators who would grossly misrepresent the southern States; with every change in the political supremacy of the House one-third of the senators would change, and one-third of the country might be represented by new and inexperienced men; with the people of a section of one political faith, their senators, chosen for them by the House of Delegates, might be of the opposite political belief. It is plain that when the Committee came to Pinckney's Article 4 they found something which would be of no use to them. The Convention had already marked out their work--the senatorial system which we still have--each State represented by two senators, each senator having an individual vote, the senators chosen by the legislatures of the several States. Yet even this article relating to Pinckney's senate, the Committee used, and used in a way which indicates that they took the paper upon which it was written and made it serve their purpose in framing their hurried draught. Art. V.

Pinckney's article begins: "The senate shall be elected, and chosen by the;" and the Committee's begins: "The senate of the United States shall be chosen by the." At this point the Committee struck out the equivalent of 222 words from the Pinckney article and interlined about half the number, 120 words. (The large imperial unruled foolscap with lines well apart and the broad margin readily admitted of this being done.) But the instant that the necessarily new matter was interlined, the Committee resumed with Pinckney's words. His "Each senator shall be ---- years of age" etc., etc., becomes their "Every member of the senate shall be of the age of thirty years at least" etc., etc. Then follow Pinckney's provisions concerning citizenship, concerning the prior period of a senator's citizenship, concerning residence, the article closing as Pinckney's closes, "The Senate shall choose its own President and other officers." Here we have the two most dissimilar articles in the two draughts beginning with the same words, ending with the same words, containing the same provisions, following the same order, and differing only where the instructions of the Convention compelled the Committee to strike out a large and important portion of the earlier draught and to insert a new and important subst.i.tute. If the Committee were rewriting the article, there would be no reason for this extraordinary closeness of adherence--for this moving pari pa.s.su--for this going always as far and never farther over the ground traversed.

Article 5 of the Pinckney draught is notable for containing the veto power. The Convention grouped it in the 23 resolutions with the powers of the Executive; Wilson made of it an entire, independent article, but Pinckney who had taken it, as we have before seen, from the const.i.tution of New York, retained its revisionary character and placed it at the end of an article relating to the legislature and legislative business. The Committee left it where Pinckney placed it (Article VI, sec. 13) as we have seen in the preceding chapter; and in this as we have also seen in the preceding chapter the Committee followed Pinckney and did not follow Wilson.

The 6th article contains another singular instance of an oversight of Pinckney's which the Committee followed. In it he gathers together with care and patience from the Articles of Confederation and from State Const.i.tutions the incidental powers of Congress. The governing clause is, "The Legislature of the United States shall have the power." Then follow some 22 declarations of power, properly paragraphed: "To lay and collect taxes, duties, imposts and excises." "To regulate commerce"

etc., etc., until in a final paragraph he sums up and closes the record of these powers by the paragraph. "And to make all laws for carrying the foregoing powers into execution." The power to punish treason Pinckney placed in a distinct paragraph for reasons stated in chapter XI. But this compelled him to rewrite the governing clause, "The Legislature of the United States shall have the power." In the same sentence he appended the definition of treason, "which shall consist only in levying war against the United States" etc. And he then (following the Act of Edward III), in a separate sentence imposed this condition upon conviction of treason that it shall be "but by the testimony of two witnesses." What Pinckney should have done was what Wilson did; he should have placed this power with the others under the first governing clause, "The Legislature of the United States shall have the power," and have pushed the limitations upon that power over with those relating to "the subject of religion," "the liberty of the press" and "the writ of habeas corpus," into a bill of rights.

This oversight of Pinckney's, the Committee of Detail attempted to hide but not to rectify. The needless duplication of the words, "The Legislature of the United States shall have the power," they pushed out of sight by inverting the provisions of the sentence and defining treason first; but they retained it; and also in this article, properly relating only to legislative powers, they retained the condition laid upon the judiciary that "no person shall be convicted of treason unless on the testimony of two witnesses" (Article VII, sec. 2), and in doing these things, the Committee overruled Wilson and followed Pinckney.

It is manifest, therefore, that the two draughts, the draught in the State Department and the draught of the Committee, are built upon the same framework. That is to say in structure, arrangement, form and order the two are identical, the one the basis of the other. In other words, the Committee took the draught which had been referred to them, and worked upon it, beginning with the preamble, and continuing to the last sentence, "The ratification of the conventions of ---- States shall be sufficient for organizing this Const.i.tution." They amended, changed, subst.i.tuted, subdivided (articles into sections), and amplified; but it was always Pinckney's draught which they worked upon. They retained every provision of his which was authorized by the instructions of the Convention, and some which were beyond the scope of the instructions and a few which were contrary to the instructions; and whenever they retained a provision, they retained, substantially, the language in which it had been cast by Pinckney. As in mathematics it is held to be self-evident that things which are equal to the same thing are equal to each other, so here it may be said that this extraordinary ident.i.ty of the draught in the State Department and the draught of the Committee of Detail demonstrates that the draught in the State Department is a true and substantially exact duplicate of the lost draught which was referred to the Committee.

CHAPTER XIII

WHAT BECAME OF THE DRAUGHT

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

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

And there was another paper, which should have been found but was not.

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

The draught of the Committee of Detail was the most important of all the papers of the Convention, for the reason that it was the embodiment of all that had been done during the first period of the Convention's work, the abstract stage, and was to be the foundation of all that was yet to be done in bringing the Const.i.tution to its concrete and final form.

For purposes of construction and interpretation the draught is the most valuable paper that exists or that ever did exist, inasmuch as it sets forth in a tangible, practical, unmistakable form the results so far attained and the views which a majority of the members held, and the conclusions which a majority of the States had reached when the work of abstract consideration ceased, and the work of changing their abstract ideas into the concrete provisions of the Const.i.tution began. There was no other report, draught or doc.u.ment which should have been so watchfully guarded and carefully kept as the report of the Committee of Detail, if there were indeed such a doc.u.ment to preserve.

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

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

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

Let the reader imagine, if he can, what would be the public feeling now, if a convention should be sitting from the 29th of May to the 17th of September to frame a new const.i.tution for the United States which should sit with closed doors, and whose members should disclose no act, speak no word, drop no hint from the beginning to the end; and who, when the end was reached, should say absolutely nothing of what had been said and done in the secret proceedings of the Convention. We owe much to the framers of the Const.i.tution; 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 Pinckney were the only publication that gave a glimmer of what had been done, or might have been done in the Convention--of what had been said or might have been said. The Journal of Madison was not published until after Congress had released the secrets of the Convention. The members had taken no solemn oath, nor clasped hands nor pledged their honor to each other, but they kept silence.

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

Mr. Pierce says:

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

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

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

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

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

The draught contains about 3,600 words. A good printer in the olden days when there was not a typesetting machine in the world would have required (according to the computation of a present day printer) three days for doing the work, allowing therein a reasonable time for changes and corrections made in the proofs. It cannot be supposed that after the admonition of Washington, the Committee could be negligent in their selection of a printer. They would not carry their copy into a large printing office, if any such there was in Philadelphia, but would surely place it in the hands of some individual printer recommended to them as trustworthy by Wilson or Gouverneur Morris or some other delegate from Philadelphia, perchance by Franklin, the greatest printer in the world.

In a word, the printing would not have been confided to a shop full of men but would have been given to one man and marked "confidential"; and it is safe to say that the copy must have been in the printer's hands by the close of the 7th day. Besides the typesetting, the proofs were to be examined, and the work scanned in the clearer light of printed matter by every member of the committee; and errors were to be corrected, and possibly changes made.

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

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

It was therefore no time to stand upon trifles or to pause to adjust formal niceties. Within the closed doors of Independence Hall would be impatient men who had given their time since the 25th of May and who were sitting unceasingly through the heat of the Philadelphia summer, defraying in whole or in part their own expenses, though many of them were men of narrow means, ill able to give either their time or their money. To their anxious eyes the end seemed far away, and success far from certain, and they would resent unnecessary delay. It would be just to young, ambitious Mr. Pinckney to return his draught, unsullied, to the Secretary that it might tell the story in future years, unquestioned and unquestionable, of his splendid contribution to the Const.i.tution. It would be proper and according to parliamentary usage for the committee to hand in their draught in writing, covered by a report attested by their signatures, both of which would remain in the archives of the Convention and perhaps in the archives of a future government. But the committee could not linger for these desirable things. Pinckney's draught must be sacrificed to hasten the good work along, to save time, if it were but a day; and their own report and draught must be "delivered in" figuratively, that is to say by the mouth of their chairman and by the means of the printed copies, one for each member.

The committee, so all the circ.u.mstances unite in telling us, took Pinckney's draught and considered it; some provisions they retained; some they corrected, some they amended, some they changed, some they struck out. The amendments they wrote on the broad margin of the large foolscap sheets or wrote out on separate slips of paper which they wafered to the margin. When they had finished this work Pinckney's draught had become "printer's copy." For one brief week it served a great purpose and was the most useful doc.u.ment in the world. Then it was scrupulously destroyed; and concerning it no man of the men who knew its contents is known to have spoken a single word.

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

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

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

"MONDAY EVENING.

"Major Jackson presents his most respectful compliments to General Washington....

"Major Jackson, after burning all the loose sc.r.a.ps of paper which belong to the Convention, will this evening wait upon the General with the Journals and other papers which their vote directs to be delivered to His Excellency."

Indorsed by Washington:

"From MAJ'R WM. JACKSON, 17th Sept., 1787."

"MONDAY, 17th.

"Met in Convention when the Const.i.tution received the unanimous a.s.sent of 11 States and Col'n Hamilton's, from New York (the only delegate from thence in Convention) and was subscribed to by every Member present except Gov'r Randolph and Col'n Mason from Virginia--& Mr. Gerry from Ma.s.sachusetts. 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 wk which had been executed, after not less than five, for a large part of the time six, and sometimes 7 hours sitting every day, sundays & the ten days' adjournment to give a Com'ee opportunity & 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 19th, 1796, that in addition to the Journals then received from Washington "were seven other papers of no consequence in relation to the proceedings of the Convention." One of these is a "draught of the letter from the Convention to Congress to accompany the Const.i.tution"; one is an order from "the directors of the Library company of Philadelphia" to the Librarian directing him to "furnish the gentlemen who compose the Convention now sitting with such books as they may desire during their continuance at Philadelphia, taking receipts for the same"; one is a letter from "one of the people called Jews" setting forth that by the Const.i.tution of Pennsylvania "a Jew is deprived of holding any publick office or place of Government." The others are even of less consequence. They make plain by their unimportance the important fact that Major Jackson scrupulously kept every paper which Rutledge "delivered in at the Secretary's table" on the 6th of August. That is to say, it is made plain that on the 6th of August, Rutledge did not deliver in at the Secretary's table either a written report of the committee or the Pinckney draught.

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

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