With the 11th article in Wilson's draught and the 11th article in the Committee's failing to respond to the requirements of the reference, and with Pinckney's article 11 responding fully and exactly to it, there is but one conclusion left which is that Randolph when he wrote "Insert the 11 article" intended article 11 of the Pinckney draught.
When the fact is established that the Committee of Detail had before them the Pinckney draught 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 probandi will then be upon the other side; and the issue being whether the Committee used the Pinckney draught or Pinckney copied from the Committee's, the presumption must be, until the contrary be shown, that all identical provisions in the two draughts originated in Pinckney's.
If James Wilson were now living, and asserting that he was the true and unassisted author of the Committee's draught these papers would be strong, though not conclusive, evidence to maintain his claim; and if Pinckney had never prepared a draught of the Constitution and his draught 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 draught of the Constitution, these papers would justify historical scholars in saying that Wilson should occupy the place which Pinckney 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 draught: are propositions which are now sustained only by conjectures.
Against such conjectures, there stand the consistent silences of all the members of the Committee. Gorham lived nine years and said nothing of his colleague's great work. Wilson lived eleven 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 draught. But Rutledge lived two years, and Ellsworth nine years, and Randolph fifteen years, and gave no sign.