meet at Philadelphia in May, 1787. Congress approved the call,
and just eleven years after Congress at Philadelphia had declared
the colonies free, the great convention assembled at Philadelphia
to insure their liberty by establishing their Union.
The constitutional convention was not a large body of men.
There were only fifty-five delegates, but every delegate was an
intelligent giant. The choicest spirits of the colonies were assem-
bled in the solemn consideration of an instrument upon the sue-
HISTORY*OF THE AMERICAN CONSTITUTION. 337
cessful completion of which hung the destiny of the Western
Hemisphere. If the supreme importance of their labors had es-
caped their conception, they might well have been forgiven. They
could not in the nature of things know the extent or resources of
the vast domain to be directly affected by the government they
were to upbuild; and even in a much smaller degree were they
acquainted with the great territory to the south wherein the seed of
liberty would quicken into life under the influence of our success-
ful revolt against monarchy. But they did comprehend in a vague
way, all that the century has brought to pass. There were minds
there assembled, who looked forward with confidence to the time
when from the Arctic ocean to Cape Horn there would be no gov-
ernment that was not based, broad and deep, upon the popular
will. That hour has come to pass. Our neighbors to the north
are free to part company with England, if they chose so to do,
and to the south the last crown took flight to Europe on the
vessel that carried Pedro from a country which, much as it loved
that great and good ruler, loved liberty yet more.
The delegates represented a constituency about one-twentieth
of the present population of the United States. They represented
people whose entire commerce even figured per capita was trifling
compared to that which now exists. No human intellect could
foretell the changes that have occurred, but that changes would
occur, and that they would be momentous was deemed a fore-
gone conclusion. These great men dealt with the problems before
them with great earnestness and deliberation. They knew the
responsibilities which rested upon them, and their labors in dis-
charge thereof extended over a period of four months and three
days.
George Washington of Virginia presided. Among the dele-
gates were James Madison of Virginia, afterwards President of
the United States ; Edmund Randolph, afterwards Secretary of
State; Benjamin Franklin and the two Morris' from Pennsyl-
vania ; Ruf us King and Elbridge Gerry of Massachusetts ; Roger
Sherman and Oliver Ellsworth of Connecticut, the latter after-
wards being the chief justice of the United States; Alexander
Hamilton of New York ; Paterson of New Jersey and the Pinck-
33^ LEO N. LEVI MEMORIAL VOLUME.
neys and John Rutledge of South Carolina. In any convention
composed of such material, whatever the business before it, a
variety of views would be looked for, and every opinion would
have able champions. In the constitutional convention, aside
from the marked individuality of the delegates, there were many
causes and grounds of difference. I have already mentioned some
of them. I shall pass by all of those that were finally set at
rest without making too marked an impression on our govern-
mental chart. There were some contentions, however, that can-
not be passed by without losing the lights by which the consti-
tution must be studied.
The first wrangle arose over the basis of representation in
Congress. The large states desired only a single legislative body,
which should be chosen with reference only to population, and
be clothed with the power of making laws and appointing all
leading officers. This was called the large State plan, because
it would manifestly give the large states the controlling voice in
national affairs. It is worthy of observation that New York, now
the most populous of the States, was then among the small states,
and at one time her delegates withdrew from the convention in
anger, because they thought the small states were not receiving
fair treatment. The small states also wanted a single house, but
insisted that each state, without reference to size or population,
should have an equal voice in the national matters, A deadlock
ensued, and the situation had to be relieved by the first great
compromise. Congress was made to consist of two bodies, in
one of which (the House of Representatives) the large state
plan prevailed, and in the other of which (the Senate) the small
state plan was adopted. The manner of electing the president
after repeated efforts was also reached by a similar compromise.
The second great contention arose over the slave trade, and this
was also settled by an agreement that the traffic should not be
interfered with for twenty years.
The third great difference grew out of the representation from
slave-holding states. This was also composed by the famous
compromise which gave to the slave states representation for
three-fifths of the slaves. In passing I may remark that the basis
HISTORY OF THE AMERICAN CONSTITUTION. , 339
of representation required an enumeration of the people, and thus
was inaugurated for the first time in modern governments a sys-
tematic census. When we reflect what wise lessons are drawn
from statistics, we wonder why in modern times it was only as
an incidental necessity that a census was provided for. The great-
est statesman of any age, Moses, had a census thousands of
years before, but his example was neglected in this respect, as
his precepts in many others have been disregarded.
It will be seen that the constitution was not the creation of
a single mind. Indeed, it was no creation at all. It grew as it
were from the friction of the many intellects engaged in its con-
sideration. It was an evolution which proceeded during the
whole summer of 1787, and when the end was reached there
was not perhaps a single delegate who voted for it who was
wholly pleased with it. Each had been overruled upon some
point and all had been constrained to leave, as unsettled, some
questions that were then too critical to be touched. It was
deemed wiser to defer until after times matters which, if then
pressed to solution, would have wrecked the fabric of union. The
Declaration of Independence proceeded from one brain and pen.
It is a document written in enthusiasm and adopted in a like
fever. It displays the want of calm deliberation; but the con-
stitution is cold, dignified and indicative of the hard battles which
were fought over nearly every word in it. While it was being
formed the people regarded the convention with mild contempt.
The fishermen of New England, the hunters of the West and the
planters of the Middle and Southern States, as a rule, either ig-
nored the action of the men who labored so long and so faith-
fully in their behalf, or sneered at their efforts to accomplish
what was deemed almost impossible. At length the work was
done and submitted to the Continental Congress with certain
recommendations in reference to its adoption. The arbitrary
provision for ratification of the constitution by nine of the states
was carefully ignored, and Congress, fearful of its own powers,
refused to do more in the premises than to send the constitution
to the Colonial legislatures for consideration.
Then began the learned and exciting debates in which every
340 LEO N. LEVI MEMORIAL VOLUME.
phase of the constitution was carefully analyzed. In every legis-
lature the battle raged fiercely, and for a while the fate of the
constitution hung in a critical balance. The newspapers teemed
with able discussions, and many of these are still preserved as
literary, political and legal classics. The efforts of Hamilton,
Madison and Jay in the newspapers and pamphlets of the day
have long since been gathered into a volume, in which the con-
stitution is thoroughly analyzed, explained and defended. The
work is known as the Federalist, and no higher praise can be
accorded to it than to say that it is everywhere used as a text
book on Constitutional law, and is regarded as authority in all
our courts.
Nine states ratified the Constitution before New York or Vir-
ginia voted, and when these did vote the Constitution carried
only by slender majorities. North Carolina refused in the first
instance to ratify at all, and in Rhode Island it was not even
considered. After its ratification by eleven states Congress pro-
ceeded to organize the new government, so far as it could. An
election was ordered, and George Washington was chosen presi-
dent and John Adams vice president. The inauguration took
place March 4th, 1789, and in due time all of the departments
were organized.
This in brief is an account of how the Constitution was
framed and adopted. It remains but to state that the first ten
amendments grew out of the legislative debates and were adopted
in 1 79 1, so shortly after the Constitution itself as to be consid-
ered almost a part of it from the beginning.
Let us now proceed to consider the Constitutional Amend-
ments.
They are not voluminous. Over four months of steady labor
by the able delegates assembled produced a work not exceeding
4,300 words. Over a century has passed since their deliberations
ceased, and despite the vast changes in all conditions during that
time we have added only about fifteen hundred words, making
the total organic law, as it now exists, comprised within 7,000
words. When it is remembered that the first ten amendments
were adopted almost with the Constitution, and grew out of the
HISTORY OF THE AMERICAN CONSTITUTION. 34I
discussion of the latter when submitted for ratification, we can
appreciate the great foresight of those who framed our govern-
mental system. Let us pause to make a few comparisons. The
convention at Philadelphia represented a population of about
three millions. Their system has endured successfully for a
century, requiring practically only five amendments, and now is
regarded with the highest favor, not only by the sixty millions
who live under it, but by all the liberty loving people of the
earth. The stage coach has given place to vestibuled trains ; the
canal boat to the fast steamboat ; the lugger to the ocean grey-
hounds ; the slow mails to the telegraph. All the material con-
ditions and relations of life have been radically changed ; a new
civilization has replaced the old, but so well conceived was the
Constitution, so well expressed, and its factors so nicely bal-
anced that it has never been seriously suggested in all these years
that altered conditions required any material change in the or-
ganic law.
In this state, formed with the United States as a model, we
have in a little over fifty years had five constitutions, and to-day
we are heartily dissatisfied with the one we have. The present
Constitution of Texas is several times more voluminous than the
National Constitution, and was designed to meet all the ills that
flesh is heir to — and herein we see how its framers departed from
the model set before them. Congress has only such powers as
are granted by the Constitution; the legislature of the state has
all the powers not denied by the State Constitution and the
National Constitution, laws and treaties. The National Consti-
tution is brief, leaving details of legislation to the changing re-
quirements that may present themselves ; — the State Constitution
enters into details, as if no other body of men that should follow
its framers would ever possess the patriotism or wisdom which
characterized them. These latter, distrusting the people, ignored
the fundamental principle of our government, while the framers
of the National Constitution, jealous, as they were, of concen-
trating power, recognized this truth, that wherever the people so
far forgot their rights and surrendered their liberty as to sub-
mit to an abuse of power, no written instrument, howsoever vo-
342 LEO N. LEVI MEMORLAL VOLUME.
luminous or clear, could stay the rule of tyranny. Accordingly,
they simply framed our system in its broadest outlines, leaving
the details to develop themselves. The government was divided
into three co-ordinate branches, each independent of the others,
viz., the Legislative, Judicial and Executive branches. The first
makes the laws, the second construes them, the third executes
them.
The Constitution in which this division is made and the ma-
chinery of government provided is divided into a brief preamble
and seven articles.
The first article relates exclusively to the legislative depart-
ment; the second to the executive and the third to the judicial.
The fourth deals with the States in their relations to one another
and to the nation. The fifth makes provision for amending the
Constitution. The sixth relates to the existing public debt, the
supremacy of the national law and the oath of fealty. The sev-
enth provides for the ratification of the Constitution by not less
than nine states.
The first ten amendments were adopted in 1791 ; the nth, in
1798; the I2th, in 1804; the 13th, in 1865; the 14th, in 1868,
and the 15th, in 1870.
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