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The Fourth AmendmentOrigins and Original Meaning 602 - 1791$

William J. Cuddihy

Print publication date: 2009

Print ISBN-13: 9780195367195

Published to Oxford Scholarship Online: January 2009

DOI: 10.1093/acprof:oso/9780195367195.001.0001

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(p.872) APPENDIX K The Authorship of the State Constitutions of 1776–84 and of Their Statements on Search and Seizure

(p.872) APPENDIX K The Authorship of the State Constitutions of 1776–84 and of Their Statements on Search and Seizure

Source:
The Fourth Amendment
Publisher:
Oxford University Press

Outside Massachusetts, the individual authors of the provisions on search and seizure in the state constitutions cannot be identified; still less can those responsible for specific words or phrases be determined. No collection of the debates in any of these conventions, manuscript or printed, has ever come to light. Only the journals survive, and not even that in New Hampshire. These journals list more than a hundred persons who served on the committees that drafted the state constitutions and bills of rights but give no hint of who contributed which words regarding general warrants or most other subjects in the constitutions.

New York

Procs., 1 Aug., 12 Dec. 1776; 12 Mar. 1777, “Journal of the Provincial Convention,” N. Y. Provincial Convention et al., Jnls., vol. 1, pp. 552, col. 1; 749, col. 2; 833, col. 1.

Pennsylvania

Procs., 18, 22, 25 July 1776, Pa. Const. Convention of July–Sept. 1776, Mins., pp. 6, 8, 11.

Delaware

Procs., 2 Sept. 1776, Delaware Convention, Aug.–Sept. 1776, Procs., p. 9.

New Jersey

Procs., 24 June 1776, N. J. Convention of June–Aug. 1776, Jnl., p. 35.

Maryland

Procs., 17, 27, 30 Aug.; 17 Sept.; 31 Oct. 1776, Md. Const. Convention of Aug.–Nov. 1776, Jnl., pp. 8, 12, 14, 28–29, 50, 52.

Virginia

Procs., 15, 16, 18, 21, and 27 May 1776, Va. Const. Convention of 1776, Jnl., pp. 32–33, 35, 40–41, 49, 53, 57.

North Carolina

Procs., 13–18 Nov. 1776, Provincial Congress of North Carolina, Jnl., pp. 13–14, 17.

South Carolina

Only incomplete fragments of the journals survive, noting the final report of the constitution but not the members of the committee that wrote it: S. C. Provincial Congress, Extracts from the Journals (Charlestown, 1776), passim. Procs., 10 Feb. 1776, idem., Feb.–Mar., 1776, ibid. (p.873) (Charlestown, 1776), p. 24. United States, Library of Congress, Guide to State Records, sub “Journals,” p. 252; “Constitutional,” p. 32; “Addenda,” p. 25.

Georgia

Procs., 24 Jan. 1777, “In Convention, January 24, 1777,” The Constitution of the State of Georgia (Savannah, 1777): the convention’s journal, an unpaginated preface to the foregoing.

Correspondence, memoirs, and reminiscences, are the principal source on the authorship of the state bills of rights and constitutions, but they usually originated decades after the fact, reported second–hand knowledge, or relied on tradition and rumor. For example, nearly a half–century after the New Hampshire Constitution of 1784 was written, Paine Wingate declared that he had taken “an active part in and had a large share” in producing it. Wingate to Rev. Dr. Paul Coffin, n.p., 2 May 1831, Wingate, Letters (1930), vol. 1, p. 169.

Two anonymous letters in newspapers, fifteen and thirty–four years after the New York Constitution of 1777 was written, are the paramount source identifying John Jay as that constitution’s author. “To M, Esquire, Representative of County,” New York Jnl. & c. Extraordinary, Sat., 31 Mar. 1792 (no. 2650: vol. 46, no. 26), p. 1, col. 2. “Schuyler,” The New York Columbian, Sat., 16 June 1821 (no. 3367), p. 2, col. 4. See also John Adams’ letter to Thomas Jefferson of 17 Sept. 1823, which implied that Jay modeled the New York constitution on a letter that Adams had written to George Wythe. J. Adams, Works, vol. 10, p. 410.

Contemporaries disputed authorship of the Pennsylvania Constitution vehemently. George Bryan, James Cannon, Timothy Matlack, Thomas Paine, Dr. Thomas Young, and Benjamin Franklin were the leading candidates. Graydon, Memoirs, p. 266. Diary entry, 21 June 1779, J. Adams, Works, vol. 3, p. 220. Adams to Samuel Perley, Quincy, 19 June 1809, ibid., vol. 9, pp. 622–23. Benjamin Rush to Charles Nisbet, Philadelphia, 27 Aug. 1784, Rush, Letters, vol. 1 (1761–92), p. 336. Paine denied authorship. [Paine], “Common Sense,” Dunlap’s Pennsylvania Packet, or the General Advertiser, Tue., 18 Mar. 1779 (vol. 6, no. 279), p. 2, col. 2.

Six contemporary letters (20, 23, 30 Aug.; 13 Sept.; 10, 18 Oct. 1776) by Charles Carroll of Carrollton to his father (“Charles Carroll of Carrollton Papers, 1749–1832” nos. 543–45, 547, 550, 551, Md. Hist. Soc., Baltimore) provide significant documentation on the Maryland Constitution of 1776. The only clue of authorship in the Carroll letters, however, is the hint that Samuel Chase and William Paca were influential, for consideration of both the declaration of rights and constitution was postponed until their return. Carroll Jr. to Carroll Sr., n.p., 13 Sept. 1776, [fol. 2], ibid., no. 547. Further support for Chase’s authorship derives from a pseudonymous author, “Albert,” who told “the German Voters of Baltimore Town” on 11 Sept. 1788 that Chase had “principally suggested, and draughted” the state’s constitution and declaration. The Maryland Gaz.; or the Baltimore Genl. Advtr., Fri., 12 Sept. 1788 (vol. 6, no. 411), p. 2, col. 3.

Thomas McKean was widely reputed to have written the Delaware Constitution of 1776 and claimed sole authorship in 1813. John Smilie, Pa. Ratifying Convention, 28 Nov. 1787, Pennsylvania Herald and Genl. Advtr., Wed., 12 Dec. 1787 (no. 305: vol. 5, no. 97), p. 2, co1. 2. McKean to C. A. Rodney, Philadelphia, 22 Aug. 1813, “McKean Papers,” vol. 4, fol. 27 (453), Pa. Historical Soc., Philadelphia. McKean’s statement was an exaggeration regarding the constitution generally and a clear falsehood respecting its search and seizure article. According to McKean, he wrote the entire state constitution, in a single night, in a (p.874) tavern, “without a book or any assistance.” Ibid. The Delaware statement on general warrants, however, duplicated that by Maryland (George Read to Caesar Rodney, Newcastle, 17 Sept. 1776, Rodney Letters, p. 119 [no. 114]), and the identical words could not have occurred to the authors of both constitutions spontaneously and simultaneously.

In 1870, William T. Read asserted that George Read, his grandfather, had written the Delaware Constitution of 1776 because a draft of it in the elder Read’s hand was among the papers of his ancestor. W. T. Read, Life of Read, [1870], p. 186. The mere existence of such a draft, however, neither did nor does prove the authorship that William T. Read claimed. In any event, no such copy survives in the three institutions that now hold George Read’s papers: the Delaware Hall of Records and the Historical Societies of Delaware and Pennsylvania. Nor do the papers of the Read Family and of William T. Read at the latter institution have such a copy. Joanne A. Mattern, Supervisor of Archives Branch, Delaware Hall of Records, to the author, Dover, 11 Apr. 1983. Amy L. Hardin, H. S. P., to Same, Philadelphia, 14 Apr. 1983. Barbara E. Benson, Director of the Library of the H. S. D. to Same, Wilmington, 31 May 1983, author’s files.