on Labor. In 1886 two additional amendments on this same subject were presented, the one by Mr. Lovering of Massachusetts, the other by Mr. Willis of Kentucky.1

170. EDUCATION.

Among the subjects which were distinctly intended by the Constitution to be left to the States was the regulation of education. The New England States, in 1789, had the best system of public schools, although poor and little developed, but entirely subject to State control. In the Northwest ordinance, provision was made for later free schools, and land was set apart for the purpose. As each Territory was formed a similar reservation of land was made. Later Congresses reserved land for future State universities. In 1862 a large grant of land scrip was made to all of the States for the establishment of agricultural colleges. Still later, Congress appropriated money for schools among the freedmen.3 In 1888 and 1889 a large sum was appropriated for "experimental stations" in the States, and in 1891 new subsidies were given to State universities. Thus the readiness of Congress to cooperate with the States by gifts of land and money has been shown. In addition, a series of amendments have been offered looking either to the establishment of national institutions of learning or to enforce the establishment and support of schools by the States.

171. ESTABLISHMENT OF A NATIONAL UNIVERSITY.

In view of an anticipated surplus, President Jefferson in his annual message of 1806 recommended the adoption of an amendment permitting the application of such a surplus to the purpose of "the public education" and internal improvements. He suggested that a national university should be established. No further amendment on this subject was presented for ten years. In 1816 Mr. Atherton of New Hampshire urged such a measure, but the House declined to consider it. In the next year President Monroe in his first annual message suggested "that it be recommended to the States to

1 App., Nos. 1666, 1669.

* In the convention of 1787 a motion to establish a National University was defeated, 4 to 6, one State divided. Elliot, v, 544.

* Hart's, Disposition of Our Public Lands, in Quarterly Journal of Economics, Vol. I, pp. 169, 251.

4 Story, II, 165, 192. App., No. 376. Adams, Writings of Gallatin, Vol. 1, pp. 313-319. For Washington's plans for a National University, see Dr. Goode's monograph, Am. Hist. Association, Papers, Vol. IV, part 2. B. A. Hinsdale, Views of the Presidents in relation to a National University.

5 App., No. 461.

1

include in the amendment" proposed sanctioning internal improvement "a right in Congress to institute seminaries of learning." Only one other amendment relative to the establishment of a national university has been proposed; this was presented by Mr. Bailey of Massachusetts, in 1825, in his resolution empowering Congress to make internal improvements, to promote education, colonization, and the liberal and useful arts.2

172. THE STATES TO PROVIDE FREE PUBLIC SCHOOLS.

No attempt to secure or control common school education by the National Government was made until the end of the civil war. Soon steps seemed necessary for the elevation of the recently emancipated slaves. The Southern States were at first hostile to any effort to educate the negro. It seemed to statesmen who had freed the slaves that they must not only guarantee to them civil and political rights, but also give them the opportunity of securing an education.

To that end, Mr. Delano of Ohio, in 1865, and Messrs. Kelso of Missouri and Ashley of Ohio, in 1867, introduced amendments providing that each State shall establish and maintain a thorough and efficient system of free public schools through out the State, sufficiently numerous for the accommodation of all the children of the State.3

In 1871 Senator Stewart proposed an amendment stipulating that "there should be maintained in each State and Territory a system of free common schools." 4 In 1874 Senator Stewart presented a new amendment upon the subject, providing that in case any State fail to maintain a common school system under which all persons between the ages of five and eighteen years shall receive free of charge such elementary education as Congress may prescribe, "the Congress shall have power to establish therein such a system and cause the same to be maintained at the expense of such State."5

In 1875 President Grant in his annual message earnestly recommended an amendment "making it the duty of each of the several States to establish and forever maintain free public schools for all the children. Several amendments were shortly

App., No. 466.

2 App., No. 543.

3 App., Nos. 1060, 1197, 1222. In case a State shall neglect to carry this into effect, it

fell to the duty of Congress to enforce the same.

4 App., No. 1342. Reported favorably, but postponed.

App., No. 1384.

App., No. 1397.

submitted in regard to the appropriation of money to sectarian schools. One of these provided that a system of free common schools should be maintained in each State and Territory.2 Since that time only four amendments have been presented. One, introduced by Mr. McCoid of Iowa, in 1880,3 made provision for the establishment and maintenance by each State of a system of free public schools, and stipulated that "no citizen of the United States, born therein after the adoption of this amendment, who has not attended public or other schools for the period of five years, and who is unable to read and write, shall be entitled to vote," or be counted in the enumeration for Representatives. This resolution further provided that the failure of any State within two years after the adoption of this article to carry out its provisions should be deemed a failure to maintain a republican form of government, and Congress may deprive it of its representation in Congress or in the electoral college until it shall comply with the condition imposed by Congress. An amendment, introduced by Mr. Brown in 1884, for the protection of civil rights, aimed to secure the enjoyment of equal privileges and advantages in their attendance upon the common schools, to all persons within the United States.5

The remaining two were offered in the Fiftieth Congress; one empowering Congress to grant aid to the common school system of the several States," the other, championed by Senator Blair, provided that each State should establish and maintam a system of free public schools, and the United States should guarantee the support and maintenance of such a system. Most of the States now show a commendable zeal in taxing themselves for their own educational systems. The Blair bill, appropriating $77,000,000 of the national fund to State schools, finally failed, and it seems likely that no further attempts will be made to amend the Constitution in this particular.

See post, par. 173.

2 Mr. Sargent of California, App., No. 1401.

3 App., No. 1514.

4"Schools must be kept during eight months of each year, for the attendance of all children between the ages of 5 and 21, without distinction or separation on account of race, color, or social condition." See ante, pars. 79, 132.

App., No. 1612.

6 App., No. 1711. Not to exceed $10,000,000 annually, to be distributed pro rata among

the States.

'App., No. 1727.

An amendment of another character was presented in 1871. It provided that the fourteenth amendment should not be construed as prohibiting the States from making and enforcing laws for the separate education of the white and the colored races. The fourteenth amendment has not been held by the courts as prohibiting the separate education of the two races, so long as equal provisions for their education are made.2

173. RELIGION.

Since the adoption of the first amendment, there has been no amendment suggested on the subject of religion until recent years.3

Included in several of the amendments on education, were clauses setting forth that no sectarian use should be made of public school funds,' and in several cases distinctly guaranteeing religious liberty. President Grant, in connection with his recommendation of public schools, in his message of 1875 further advised forbidding the teaching in such schools of any particular religious tenets and prohibiting the granting of any school funds and school taxes for the benefit of any religious sect. He also suggested an amendment declaring "the church and state forever separate and distinct, but each free within their proper spheres, and that all church property shall bear its own proportion of taxation." In the House immediate action was taken in accordance with the President's recommendation. Mr. Blaine introduced a resolution that embodied a part of the changes suggested by the President. This amendment provided that "no State shall make any law respecting an establishment of religion or prohibiting the free exercise thereof," and it prohibited the appropriation of public school money by any State to sectarian schools. In Mr. Stewart's amendment of 1871 there had been a provision similar to this last clause. The "Blaine amendment," after slight

6

App., No. 1339. Also prohibited the intermarriage of the races. See ante, par. 102. No. 1514 forbade separation (see previous page).

2 Cases cited in Cooley, Principles of Constitutional Law, p. 242, note 3. The constitutions of West Virginia, North Carolina, Tennessee, Missouri, Texas, Georgia, and Alabama provide that white and colored children shall be taught in separate schools. Hitchcock, American State Constitutions, p. 26.

3 See Stevens, Sources of the Constitution of the United States, pp. 214, note 1. 218; Elliot's Deb., V, p. 131.

4 First proposed by Mr. Burdett in 1870, App., No. 1329.

App., No. 1397.

App., No. 1398.

App., No. 1401.

8 App., No. 1342. Ante, par. 172.

modifications, passed the House August 4, 1876, by a vote of 180 to 7. When the amendment was presented to the Senate, Senators Frelinghuysen, Sargent, and Christiancy immediately proposed substitutes.' The Committee on the Judiciary reported the amendment in more explicit terms, and it received 28 votes. The negative votes were, however, 16, and it thus failed for the lack of a two-thirds vote.2

Five other amendments dealing with this subject have since been introduced, three in the House at this same session of Congress. One of these, presented by Mr. O'Brien of Maryland, in addition to provisions similar to those in the Blaine amendment, contained a clause modeled after a provision in the Maryland constitution, excluding ministers and preachers of the gospel of any denomination from holding any office under the United States, and in addition forbade the requirement of any religious test as a qualification for any office in any State or under the United States. Mr. Edmunds, in 1878, attempted to revive the subject in the Senate."

The amendment submitted by Senator Blair, in 1888, in addition to the provision previously considered, stipulated that no State should maintain an establishment of religion, and forbade appropriation for sectarian schools.

The provisions of the State constitutions are in almost all instances adequate on this subject, and no amendment is likely to be secured.

App., No. 1401.

The Republican platform of 1876 recommended an amendment "forbidding the application of any public funds or property for the benefit of any schools or institutions under sectarian control." In 1880 it recommended an amendment to prohibit the legislature of a State making any law respecting the establishment of religion and appropriating public funds to the support of sectarian schools.

App., Nos. 1410. 1413, 1428, 1459, 1514.

4 The following States in their constitutions also excluded clergymen from holding office: Maryland, constitution of 1867, art. 3, sec. 11; also in the constitution of New York of 1821, art. 7, sec. 4; North Carolina constitution of 1776, art, 31; constitution of South Carolina of 1790, art. 1, sec. 23, and constitution of 1865, sec. 30; Delaware, art. 7, sec. 8 (while he continues to exercise pastoral functions); Kentucky, art. 2, sec. 27; Tennessee, art. 9. sec. 1. Active clergy are also excluded from House of Commons. May, Parl. Practice, p. 30.

"App., No 1410.

6 App., No. 1459. The article was not to be construed to prohibit the reading of the Bible in any school or institution.

7 App., No. 1727. Ante, par. 172.

8 At least twenty-three States have constitutional barriers to sectarian appropriations. Many petitions to "put God in the Constitution" have been received, but no formal resolution to amend to that effect has been found during the first century. In the Fiftyfourth Congress such an amendment has been introduced.