Fragment of Constitution's early version deciphered

Just over a year ago, I stumbled upon a fragment of an early version of the Constitution at the Historical Society of Pennsylvania (HSP). The n ews went viral and prompted a discussion about who played the largest role in the Constitutional Convention and how the fragment became separated from its fellows.

After transcribing the Constitution's drafts in preparation for their publication in the upcoming July issue of Pennsylvania Magazine of History and Biography and canvassing other Philadelphia archives over the past year, these questions can now be answered more definitively.

The fragment I happened upon briefly outlined the Constitution on both sides of a small sheet, beginning “Continuation of the Scheme,” authored by James Wilson. This was from his service on the Committee of Detail, assigned to write a working draft of the Constitution midway through the Constitutional Convention of 1787. Instead of being filed at HSP in Volume 1 with other Committee of Detail documents, the fragment was filed as document 63, Volume 2, among Wilson's political papers.

The fragment was paired, appropriately, with another fragment from Volume 1 written upside down on an inside page of another draft of the Constitution by Yale historian Max Farrand in 1911. It began, “We, the People,” followed by the first rough draft of the Preamble and two provisions on representation. Farrand followed the “We, the People” fragment with the “Continuation of the Scheme” fragment and, without any notation that the two were separated into different volumes and on different sheets, labeled them together as “Document V” among other Committee of Detail documents.

Seven more Committee of Detail documents are in Wilson's handwriting. These include a copy of 24 referred resolutions from the Convention, excerpts from other plans proposed by Charles Pickney and William Patterson, and two drafts of the Constitution, the last with edits by committee chairman John Rutledge. There is also an early sketch that builds upon the referred resolutions in Edmund Randolph's hand with emendations by Rutledge but checkmarked throughout by Wilson. Curiously, this appears to be on the same kind of sheet as Document V.

After the last year of research, the question of how and when the fragments were separated can be answered with some precision. Based on overwhelming evidence, including a physical inspection of the documents themselves, letters between HSP president John Wallace and Wilson's granddaughter Emily Hollingsworth in 1876-77, a facsimile taken in 1972 of both volumes, and labels indicating binding and disbinding dates, we now know with certainty that both Volumes 1 and 2 were bound by HSP shortly after receipt from Hollingsworth in 1877 and disbound in 1986 before the Constitution's bicentennial. As they were bound separately for approximately 110 years, we can fix the fragment's separation date sometime before binding in 1877.

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We do not know the order of documents when they were gifted by Hollingsworth in 1876 and 1877, which means we do not know exactly when the fragments were separated. We do have clues, however, that point to their being separated after receipt by HSP and before binding in 1877.

Wallace wrote to Hollingsworth on Jan. 23, 1877, thanking her for the documents “relating to your grandfather Wilson, & to your uncle (Byrd Wilson)” gifted in June 1876. Too, we find Hollingsworth's card with “best respects to John W. Wallace” handwritten on the back, placed before letters between Byrd and several of Wilson's friends clearing Wilson of coup d'etat conspiracy allegations. These, evidently, were those documents “relating” to Wilson and Byrd.

In the same letter, Wallace asks for more documents, specifically any written by James Wilson. Hollingsworth responded immediately, selecting several and sending them the very next day. Among these she identified a letter to Alexander Hamilton and a copy of George Washington's letter to the first Supreme Court. Of the rest (including the Committee of Detail documents and Wilson's famous State House Yard speech), she writes, “Do not feel obliged to retain any of the Papers you deem inadmissible to the repositories of your Society.”

The drafts of the Constitution were not mentioned in either gift; presumably, Emily did not know of them, let alone their import.

It is therefore likely that the Committee of Detail documents came in Hollingsworth's second gift. Too, it is most likely a historian at HSP, more familiar with the Constitutional Convention than Hollingsworth or Byrd, who recognized the value of the drafts and formed them into a first volume while compiling the rest of Hollingsworth's gifts — including the Byrd letters and Wilson's important political papers — into a second.

In separating out the most valuable documents, the HSP historian may have left one smaller document behind in Volume 2. This document in outline format beginning “Continuation of the Scheme” was that which I came across.

Because of its value, “Continuation of the Scheme” is now also found among its Committee of Detail fellows in a special HSP vault. Yet it remains, I believe appropriately, catalogued as Document 63, Volume 2, preserving the historical trail of its placement and provenance.

The significance of this humble document lay not necessarily in its abbreviated contents but in the clue it provides, along with a careful review of other Committee of Detail documents, in discerning Wilson's role in compiling the Committee of Detail's report.

Document V's being abruptly stopped and then continued in outline format evidences Wilson's frame of mind — rushed, disjointed, writing “out loud.” The public Wilson, however, was poised, polished and entirely put together. He thought before he spoke and was eloquent when he did so. It is difficult to imagine Wilson permitting another to witness Document V's frazzled thinking.

Next is that we see evidence of the committee's participation, via Rutledge and Wilson's later marks, when they meet. Rutledge edited, then Wilson checked Randolph's sketch. Rutledge also edited Wilson's draft, who, in turn, edited Rutledge's notations at least twice, providing evidence of live collaboration. They left footprints of collaboration. Had committee members worked on Wilson's earlier documents, they presumably would have left similar evidence.

Third is simple practicality: It is difficult to write, especially something like a constitution, in a crowd.

Finally, we understand Wilson's role more clearly in his having personally copied all documents necessary to writing a draft. Wilson was also in possession of Randolph's sketch, made clear from his careful checking of the document and that Document V was written on the same sheet as the sketch.

If “drafting” is defined as influencing creation, it may be said that all 55 delegates to the Constitutional Convention “drafted” the Constitution, with some having more influence than others. Madison may be credited with the initial political framework from the Virginia Plan, Gouverneur Morris the final stylistic flourishes, and Pickney and Patterson with many congressional powers. Even John Adams, not at the Philadelphia Convention but author of the Massachusetts Constitution, should be given credit for first penning the phrase “We the people,” which Wilson borrowed. Yet if constitutional drafting is defined as welding together ideas into legally binding prose, credit should be given to James Wilson, who most probably labored alone to produce the first working draft of the Constitution.

(Picture courtesy Lorianne Updike Toler "Continuation of the Scheme," verso side.)Lorianne Updike Toler is a constitutional legal historian living in London. She received her law degree from BYU and her master's from Oxford. She currently maintains two blogs, amormonatoxford.blogspot.com and constitutionathomeandabroad.blogspot.com

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