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.

4

168. THE MANUFACTURE AND SALE OF INTOXICATING LIQUORS PROHIBITED.

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

7

'App., No. 1399.

2App., No. 1500.

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

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 His resolution provided that "the assent of State to the article shall not be rescinded nor reversed."

any

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

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, noie 5.

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.

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.'

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

App., Nos. 1666, 1669.

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

3 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.

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.

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

App., No. 1384.

App., No. 1397.

submitted in regard to the appropriation of money to sectarian schools.1 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 maintain 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.

1 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.

5 App., No. 1612.

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

7 App., No. 1727.