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ing 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 draught, and I asked myself the question, is it possible that Madison never knew what the draught contained? In an examination of the facts relating to this question I found that the entry in the journal, above quoted, "Mr. Charles Pinckney laid before the house a draught" etc. had been taken word for word from the entry of the Secretary of the Convention in the official Journal. I found also that at four different times in the course of the debates Madison designated the draught by four different terms; as Mr. Pinckney's "plan" as Mr. Pinckney's "resolutions" as Mr. Pinckney's "motion" as Mr. Pinckney's "propositions," not one of which expressed the idea of a formulated Constitution. It is therefore evident that Madison did not hear Pinckney read his draught as Yates did, and did not hear him say as Yates did, "that he had reduced his ideas of a new government to a system." My inference then was and still is, that Madison was temporarily absent from the hall when Pinckney produced and read his draught and that on hearing of it he went to the Secretary's desk and copied the entry in the official journal--an entry which is also silent as to Pinckney having read the draught and which describes it in language entirely different from Yates's and entirely different from Pinckney's, for Pinckney's draught does not profess to be an agreement "between the free and independent States of America," 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 Pinckney presented his draught; that he could not have heard Pinckney's designation of it as a "system" and could not have heard Pinckney read it to the Convention. He regrets in another place that he did not take a copy of it because of its length and it may be inferred from what may be termed his unfailing ignorance of its contents that he did not read it because of its length.

Madison had a poor opinion of Pinckney, a very poor opinion; and he held fast to it all through his life. During the sitting of the Convention the draught was referred to 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 Pinckney was so poor that he did not put himself to the trouble of stepping to the Secretary's desk and reading the draught, much less of taking a copy of it. In October 1787, after the dissolution of the Convention, he wrote from New York to Washington and Jefferson, the following letters:

James Madison to General Washington.

NEW YORK, Octr. 14, 1787.

"I add to it a pamphlet which Mr. Pinckney 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 fulfill his wishes only."

Madison to Jefferson.

NEW YORK, Octr. 24, 1787.

"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."

Madison to General Washington.

NEW YORK, Oct. 28, 1787.

"Mr. Charles Pinckney's character is, as you observe well marked by the publications which I enclosed. His printing the secret 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 considerable time, and seems likely to remain so."

On the 6th of January, 1834, he wrote to Thomas S. Grimke:

And on the 5th of June, 1835, he wrote to William A. Duer:

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 Duer could have doubted that there was something wrong in the draught--something so wrong that Madison did not wish to speak of it.

It is manifest that when Madison first read the draught in the State Department, he was surprised. He does not say so, and is very guarded in what he does say; yet it is 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 1818 and 1836, 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 cavilings and dissents 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 draught when it was before the Convention, I studied it, I knew the contents well; the paper in the State Department is not a substantial duplicate of that paper." There remained then but this alternative; he must confess that he knew no more about the Pinckney draught 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 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 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 Pinckney draught, the original draught, the one which was before the Convention; and he answered not a word! We must reject Madison as a witness because he rejected himself.

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 his keeping the only record which we have of that august assembly. He, who dealt with the great questions of the hour, may not have been aware how much good work the Pinckney draught was doing in an unnoticed way. Madison spared no 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 25th of June; and yet he did not procure and apparently did not even read and certainly did not insert in his journal Pinckney's plan or draught. He seems to have felt sadly a certain self-conviction of this, and to have realized the fact that the omission of the Pinckney draught from his record was an irretrievable error. To a man holding the author of the draught in contempt, it must have seemed preposterous in 1831 for the shade of Pinckney to stalk upon the historic stage and say, I formulated the Constitution. It was my hand that sketched its outline, leaving it to the members of the Convention, myself among the number, to change its provisions and modify its terms. My draught was changed and modified, and the conflicting views of the framers were welded together by notable compromises and persuasive arguments, but nevertheless I 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 draught in the State Department was an impossible verity.

At what time the Pinckney draught was first brought to Madison's attention I have not been able to discover; but on the 5th of May, 1830, Mr. Jared Sparks had been spoken or written to on the subject, for he then replied to Madison, writing from Washington, "Since my return I have conversed with Mr. Adams concerning Charles Pinckney's draught of a constitution. He says it was furnished by Mr. Pinckney." Among Madison's papers there is also a memorandum entitled, for Mr. Paulding in which he says:

"Much curiosity and some comment have been exerted by the marvellous identities in a plan of government proposed by Charles Pinckney in the convention of 1787, as 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. Paulding dated April, 1831.

On the 21st of June, 1831, he wrote to Jared Sparks: "May I ask you to let me know the result of your correspondence with Charleston on the subject of Mr. Pinckney's draught of a Constitution for the United States as soon as it is ascertained?"

On the 27th of June, he again wrote to Mr. Paulding saying that he has "received the volume of pamphlets containing that of Mr. Charles Pinckney."

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 draught which Pinckney placed in the State Department was not the draught which he presented to the Convention, he at the same time shrank from bringing on a controversy and from irritating the friends of Pinckney and forcing them into an investigation of the matter. It was, he evidently thought, a case of "least said, soonest mended." Madison was a sagacious and an experienced statesman who thoroughly understood his countrymen; Paulding and Sparks were his friends and followers; what he wished to have said passed into Gilpin's edition of the Journal and 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 draught without needlessly smirching the good name of Pinckney, and without inciting a controversy on the subject has been so successful that for seventy years the draught has remained silently condemned, and no man has even thought that an investigation could possibly reverse the accepted judgment.

But on the 25th of April 1835, William A. Duer of New York wrote to Madison on the same subject and making the same inquiry. Judge Duer was an eminent and brilliant member of the New York bar and was then President of Columbia College and had been a well known judge. For three years the ghost of Pinckney had not been raised to 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 Duer 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 Duer made a supreme, if not final effort.

In this letter, he brings up again, the election of members by "the people" and Pinckney's speech against it on the 6th of June. "Other discrepancies," he says, "will be found in a source also within your reach, a pamphlet published by Mr. Pinckney soon after the close of the Convention" . "A friend who has examined and compared the two documents has pointed out the discrepancies noted below." "One conjecture explaining the phenomenon has been that Mr. Pinckney interwove with the draught sent to Mr. Adams passages as agreed to in the Convention in the progress of the work and which after a lapse of more than thirty years were not separated by his recollection."

The "discrepancies noted below" are for the most part unimportant; and will be examined hereafter; but there is one which should be considered now, for it affects Madison more than it affects Pinckney. The discrepancy referred to is this: In the Observations Pinckney says that, "in the best instituted Legislatures of the States we find not only two branches 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 7 years. 2. A council of revision."

"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 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 as 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. Pinckney in the Convention, it was apparent that considerable errour had crept into the paper; occasioned possibly by the loss of the Document laid before the Convention, , and by a consequent resort for a copy to the rough draught, 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 could not have been anticipated.

"The remarks here made, tho' not material in themselves, were due to the authenticity and accuracy aimed at, in this Record of the proceedings of a Publick 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 hand writing of Mr. M. beginning 'The length, &c.'"

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, "a posthumous one" , and he carried out the intention by so providing in his will made in 1835. The expected editor was Mrs. Madison; and she, he knew, would scrupulously and 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 draught 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 draught inconsistent with Pinckney'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 draught. The third, is that Pinckney immediately after the sittings of the Convention printed and published a paper entitled "Observations" which described the contents of the draught which he had presented to the Convention and that the two are utterly irreconcilable.

THE PLAGIARISMS

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 Pinckney draught 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 15 resolutions, on the 29th of May, and ended on the 26th of July with the 23 resolutions of the Convention. The 15 resolutions had been considered and discussed and modified and expanded into the 19 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--to know what it was doing and to do.

"At the end of two weeks of such consideration and discussion, June 13, the Committee of the Whole reported the conclusions which had so far been 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 26, 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 6, to enable the committee to 'prepare and report the Constitution.'

"On August 6, 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 draught, until, on September 8, 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 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. Encyclopaedia Americana.

The second germinal 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 6th when "Mr. Rutledge delivered in the report of the Committee of Detail--a printed copy being at the same time furnished to each member."

The Committee had retired from the Convention with instructions couched in the 23 resolutions, and they returned to it with more than half of the Constitution, arranged in the form of articles and sections substantially as we have them in the Constitution. The number of provisions contained in the draught greatly exceeded the number of specific instructions set forth in the resolutions, but the excess was not wholly an 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 6th of August, was placed on the table before Washington, the moment witnessed the birth of the Constitution. Provisions which it contained were to be stricken out, and some of the great compromises were yet to be forged and inscribed upon the scroll, but the written Constitution was now in being. And yet this is but figurative language. The great state paper which passed from the hand of Rutledge to the hand of Washington was not engrossed on parchment, like a second Magna Charta; it was not attested by signature or date; it was not even in writing; a few pages of printer's paper, plain and unpretentious; a mere copy, one of a number of printed copies, as we gather from the record. But it was to receive the severest scrutiny of some of the great men of the world, of Washington, Franklin, Madison, Ellsworth, Wilson, Rutledge, Hamilton.

The copy bears this endorsement:

"Printed Draught of the Constitution, received from the President of the United States, March 19th, 1796 by

"TIMOTHY PICKERING

"Sec'y of State"

The name of the printer who did his confidential work so well, I regret to say, is not upon the paper.

It has been supposed and said that this copy of the draught was Jackson's, the 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.

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