In the tariff act of 1890 a contrary tendency was visible. Congress authorized the President, by law, to reestablish certain duties as to particular nations, unless he could secure treaties by which these nations granted certain commercial privileges.

162. WAR POWERS-DECLARATION OF WAR.

Since the Government of the Confederation had been created with express reference to carrying on the war with Great Britain, the powers in that respect were more complete than in its powers over foreign affairs. There was no difficulty in securing a liberal clause in the Constitution as to the declaration of war, the maintenance and discipline of armies, and the raising and employment of militia. These powers have been little disputed except during the war of 1812 and the civil war, and few efforts were made in these crises to curtail them.

Two attempts have been made to place the power to declare war under a special restriction. The New York and Rhode Island ratifying conventions proposed that an amendment should be made to the Constitution, to the effect that Congress should not declare war without the concurrence of two thirds of both Houses. No similar amendment was suggested until the report of the Hartford convention was presented to Congress, in 1815. One of the amendments of this interesting series proposed a like restriction upon the powers of Congress, the only exception permitted was for the defense of the territories of the United States when actually invaded.2

Another of the propositions of the indefatigable convention of North Carolina was that Congress should not introduce foreign troops into the United States without the consent of two-thirds of the members of both Houses.3 Still another, submitted by the Rhode Island convention in 1790, stipulated that no person should be compelled to do military duty otherwise than by voluntary enlistment, except in cases of general invasion.*

163. WAR POWERS-THE ARMY.

A curious evidence of the prevalent fear that the republican government might be destroyed is seen in the amendments

'App., Nos. 54, 117.

2 App., Nos. 429, 437, 445. For replies of other States, see ante, pars. 22, 157. The report of the New York committee declares, if this amendment were adopted, "no nation would ever fear our power." Niles', Vol. VIII, p. 100.

3 App., No. 103.

4 App., No. 109.

proposed in 1788-89, relating to the war power. The ratifying conventions of five States' desired that no standing army should be kept up in time of peace without the consent of a very large majority of both Houses of Congress. Some of these placed the majority required at three-fourths of the members of each House, others at two-thirds. Two amendments of a similar character were rejected by the Senate in 1789.3

The same effect was sought by other amendments urged by the Virginia and North Carolina conventions. They would have prohibited the enlistment of soldiers for any longer term than four years, except in time of war, and then for no longer term than the continuance of the war. Two attempts in the First Congress to secure similar amendments were defeated."

164. THE MILITIA.

6

Even the paragraph as to the militia did not escape censure. The Virginia and North Carolina conventions proposed still another amendment on the war power, which conferred upon each State the power of organizing, arming, and disciplining its own militia, whenever Congress should omit to provide for the same, and in addition that the militia should not be subject to martial law except when in actual service. This amendment, also, the Senate in 1789 declined to recommend to the States.8

The New York ratifying convention proposed an amendment providing that the militia of a State should not be compelled to serve without its limits for a longer term than six weeks without the consent of the legislature of its State."

No further amendments in regard to the militia were proposed until after the war of 1812. In that war the militia, upon which great reliance had been placed, proved inefficient,

I New Hampshire, Virginia, New Jersey, North Carolina, and Rhode Island. Story, 11, 88, note. Individual liberty was guarded from the military power by the second and third amendments.

2 App., Nos. 23, 34, 52, 86, 115.

3 App., Nos. 252, 280.

4 App., Nos. 35, 87.

5 App., Nos. 252, 281.

6" Congress shall have power to provide for organizing, arming, and disciplining the militia, and for governing such part of them as may be employed in the service of the United States." Const., Art. 1, sec. 8, cl. 16.

7 App., Nos. 36, 88.

8 App., No. 282. See Story, II, 112-114.

9 App., No. 74.

and the New England States had declined to send their militia outside of their own borders on the call of the Government. It is not surprising, therefore, that in 1817, and again in 1818,1 General Harrison of Ohio introduced an amendment which should give Congress power, concurrently with the States, to provide for the training of the militia, and also "for teaching in the primary schools and other seminaries of learning in the several States the system of discipline prescribed for the mili tia," in order that the militia might become "a safe and effectual national defense."

165. MILITARY PENSIONS.

One consequence of the war and financial powers, taken together, seems to have escaped the attention of the Convention. The question of half pay to the Revolutionary officers had caused the Newburgh address of 1783. Under the new Constitution, Congress made many grants, and especially very liberal land grants to old soldiers. As the arable lands were not sufficient after the civil war, a very liberal and even wasteful scale of pensions was adopted. One amendment has been proposed to prevent the repeal of the general pension laws, or the decrease of the rate of pension granted under the same It was introduced in the Fiftieth Congress, by Mr. Peters of Kansas. No such provision seems necessary; the payment once begun can hardly be withdrawn, except by the gradual dying off of the recipients.

166. POLICE POWER.

In the division of powers between the States and the General Government, it seems to have been intended that to the States should be left entire control over internal order, and the relations of man with man, except as the relations grew out of Federal law. Questions of morality, of the relation of employer and employed, of education, have wisely been committed to smaller communities. Four different questions, however, have suggested an extension of the nation's powers; they are polygamy, divorce, the traffic in intoxicating liquors, and the protection of labor.3

'App., Nos. 464, 470.

2 App., No. 1714.

The amendments on divorce are considered under Personal Relations, ante, par. 102.

167. PROHIBITION OF POLYGAMY.

From about 1850 the establishment of the Mormons in Utah has kept the question of polygamy before the public mind. Congress has by repeated measures attempted to stamp it out in the Territories, but no control could be exercised over State action on this subject.

President Grant in his annual message in 1875 suggested that an amendment prohibiting polygamy should be recommended to the States for their adoption. No immediate action was taken on this suggestion. In 1879 the first proposed amendment dealing with the question was introduced by Mr. Burrows. Since 1882 there have been seventeen amendments prohibiting polygamy, or polygamy and bigamy, within the United States, presented to Congress.3 A few of these have been reported favorably from the committees. During the Fiftieth Congress eight such amendments were proposed, one of which was framed by the Committee on the Judiciary,' but Congress has not deemed it necessary to wait for an amendment to enable it to deal with polygamy.

168. THE MANUFACTURE AND SALE OF INTOXICATING LIQUORS PROHIBITED.

5

From the beginning of the Washingtonian movement the States have been urged to pass laws restraining or prohibiting the traffic in liquors. It is only in very recent years that like suggestions have been made as to national legislation. There have been fourteen resolutions presented in Congress to amend the Constitution so as to prohibit the manufacture and sale of intoxicating liquors. The first of these was introduced by Mr. Blair of New Hampshire, at that time a member of the House, in December, 1876. During the same session of Congress the legislature of Maine presented to Congress a resolution praying for the passage of this resolution. Mr. Blair has not failed to introduce a similar amendment in any subsequent Congress. Since 1881 Senator Plumb of Kansas vied with

6

'App., No. 1399.

App., No. 1500.

App., Nos. 1544, 1557, 1584, 1597, 1644, 1677, 1678, 1679, 1680, 1688, 1692, 1709, 1710, 1712, 1713, 1718, 1734.

of

App., No. 1718.

App., Nos. 1433, 1460, 1521, 1522, 1523, 1524, 1549, 1552, 1577, 1616, 1635, 1637, 1690, 1699. "App., No. 1433.

'App., Nos. 1460, 1521, 1522, 1577, 1636, 1690. His resolution provided that "the assent any State to the article shall not be rescinded nor reversed."

him in presenting prohibitory amendments. Although several of these amendments have been reported from the committee, no important action has been secured.

To counteract the prohibitory movement, there was introduced, in 1884, by Mr. Deuster of Wisconsin, an amendment to prevent Congress or the legislature of any State or Territory enacting "any law prohibiting or abridging the manufacture or sale of any article or merchandise composed or prepared in whole or in part of any product of the soil.” 1 Recent decisions of the Supreme Court deny to the States any power to interfere in the traffic in liquors imported from other States and sold in the original packages. The whole subject is however so confused that a constitutional amendment affirming the power of the States to regulate the traffic seems desirable.

169. PROTECTION TO LAROR.

Within recent years, a number of amendments have been proposed which denote a tendency toward paternalism. Congress has passed an act fixing eight hours as the standard day's labor in the Government service,3 and has also prohibited the immigration of persons under contract. Acts have also been passed against the use of convict labor on Government contracts. Repeated efforts have been made to ingraft provisions on all these subjects into the Constitution.. In 1884 Mr. Davis of Massachusetts proposed an amendment, giving Congress power to regulate the hours of labor "which persons may be employed in the manufacture of textile fabrics, and in other industries." This resolution was reported from the Committee on Labor, but was not reached on the Calendar. This same amendment has been reintroduced twice by Mr. Davis." The first amendment prohibiting the contracting of convict labor was introduced by Mr. Fiedler of New Jersey, in 1883.6 The amendment was reported unamended from the Committee

1 App., No. 1613. Prohibition amendments to the State constitution were adopted in the following States: Kansas, in 1880; Iowa, in 1882; Maine, in 1884; Rhode Island, in 1886, since repealed.

2 Leisy v. Hardin, 135 U. S., 100. Congress immediately passed an act extending to the States authority over this subject. 26 Stat. at Large, 313. See Cooley Constitutional Law, p. 70, note 5.

3 The constitution of California of 1879 led the way by prescribing eight hours as a legal day's work on all public works. Seventeen other States, either by statute or constitutional provision, have regulations in regard to an eight-hour labor day.

4App., No. 1604.

5 App., Nos. 1651, 1702.

"App., No. 1592.

H. Doc, 353, pt 2-18