benevolent despotism. It is what many attempts at so-called popular governments have ended. We know, however, that the benevolent despot soon ceases to be benevolent and becomes tyrannical. Liberty languishes and dies. “The price of liberty is eternal vigilance." If this is true it means that every citizen must be ready and willing to be a 100 per cent citizen. Then and then only can a government of the people and by the people be eminently successful. This our educators must never forget. To their zeal for the welfare of the child must be added a consuming zeal to raise citizens who are willing to work for the welfare of the State.

The CHAIRMAN. We will now hear from Mr. Marbury.


Mr. MARBURY. Mr. Chairman and gentlemen of the committee, I confess a feeling of a little anxiety in appearing here to-day after what I heard from my friend, Mr. Tucker. When I arrived this morning he told me that some good friends of ours, I think including my friend, Miss Kilbreth, had been going around and telling the committee that they were going to bring a couple of great constitutional lawyers dowm here to-day from Baltimore-Mr. Rawles and myself--and the idea of being able to measure up to any such expectations as might be aroused by an announcement of that kind, seemned rather terrifying. The fact is it made me think of a comical incident that happened in the experience of a friend of mine in Baltimore. The late John K. Cowan, who was in Congress for a short time, and who was a great lawyer, originally from Ohio, but afterwards from Maryland, had a young man in his office as a stenographer, and the stenographer had a small boy. He had promised the small boy to take him to Washington and show him the highest monument in the world some day, and the small boy on every occasion reminded his father of his promise, and would not let him forget it. Finally, the father did take the boy to Washington. The boy's expectations as to the monument had been raised to a great height; he expected a wonderfully high monument. So he took him up to the monument, and the little boy put his hand on it and said: “Is that all the higher it is?

So I think when anybody introduces me as a constitutional lawyer, I always think of that experience. Now, gentlemen, there is a constitutional question here, but it is the kind of question that does not require any great student of the law to appreciate its significance, it seems to me.

This bill purports to be a bill "to encourage the States in the support of education.”. Now, that is a very worthy object. Nobody will deny that. There are a great many good people who are so filled with enthusiasm in their desire to accomplish that object, who regard it as so vital to the welfare of the country that they are willing to accomplish it, to achieve it, by any means within their reach.

A great many of those good people, very sincere people, are totally uninformed as to the nature of that Federal structure which the wisdom of our ancestors built up, and which has secured our liberties thus far, so unappreciative of it and unacquainted with its nature, that they are willing to tear up the very roots, the principal foundations of our structure of constitutional liberty, in order to accomplish this result.


That is, they are in a frame of mind which is more or less dangerous to institutions. They are in the State of mind of the old farmer who was found smashing up the glass cage at the circus in which the snakes were confined. When the attendant remonstrated with the farmer as to what he was doing, his only reply was “Well, I kills 'em wherever I sees 'em."

That is the position of the good people who are insisting upon achieving this desirable result, the destruction of illiteracy, as they call it, by the means proposed in this bill.

I think it can be shown by a little examination of it that this is one of the most dangerous measures, and if enacted it would establish the most fatal precedent that can be conceived of, certainly the most dangerous and most subtle attack on the principles of constitutional government in this country that has ever been brought to my attention.

Let us see, in a few words, what the bill essentially is.

The bill provides for the creating of a department of education and the appropriation of money for the conducting of this department. By section 7 it is provided that

In order to encourage the States to remove illiteracy, $7,500,000, or so much thereof as may be necessary, is authorized to be appropriated annually for the instruction of illiterates 14 years of age and over. This sum to be apportioned. to “the States which qualify under the provisions of this act”

And so forth. This refers only to the States “which qualify under the provisions of this act.' It contains that same provision in several places. Then it goes on to say, page 8 of the bill:

The said sums shall be apportioned to the States which qualify under the provisions of this act one-half in the proportion which the number of children between the ages of 6 and 21 of the respective States bears to the total number of such children in the United States, and one-half in the proportion which the number of public-school teachers employed in teaching positions in the respective States bears to the total number of public-school teachers so employed in the United States

And so forth. Then, how is the State to qualify?

Now, this is the crux of the whole problem, it seems to me. By section 9 it is provided :

That the apportionments authorized by this section shall be made only to such States as by law provide: (a) A legal school term of at least 24 weeks each year for the benefit of all children of school age in such State; (b) a compulsory school attendance law requiring all children between the ages of 7 and 14 years to attend some school for at least 24 weeks in each year.

Now, one would think, or might think, if he only allowed his mind to rest on the one view of the question, on the narrow point, that there was nothing especially unreasonable about that. Twenty-four weeks is a very moderate period for a school term, and all children between 7 and 14 ought to go to school somewhere. So what is the harm of providing for that in this act?

That is the way a good many think or think they think. But just see what that means? Even this condition, light and easy as it may appear, even this condition might produce an intolerable situation in a State. Suppose, for instance, you take the case and there are many of them in some States, at any rate—where a widowed woman, an invalid, bedridden it may be, has no means of support except what is provided from the wages or earning of a boy between 12 and 14 years of age, and the State is required to pass a law which

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would compel that boy to go to school, not allow him to work for the support of his mother, not allow him to work and acquire the work habit—the thing which distinguishes the civilized man from the savage more than any other characteristic--not allow him to work and save money to improve his own condition. And Congress says to the State “ you shall not have a dollar of this money unless you pass a law of that kind."

Mr. Robson. Will the gentleman allow a question? Have not practically all the States such a law as that now?

Mr. MARBURY. They have not in Maryland, not for a moment. On the contrary, if a case of that kind came up the school board or some local institution would consider it, there would be discussion, and that particular case would be dealt with according to the necessities of the case, and it would not be dealt with by some Procrustean rule.

I do not believe you realize the amount of antagonism and hatred of the Federal Government that measures of this kind are engendering among the people in the States of the Union to-day. Never before in the history of the Nation has Congress passed so many laws as it has recently done, creating this feeling of antagonism to the Government on the part of the people. On the contrary, we have always heretofore applauded the enforcement of Federal law. But now, when you make a law the effect of which is hateful to the people and interferes with their judgment and discretion in the management of their own children, you are creating in the hearts of men and women in this country the same kind of feeling against the Government which has caused millions of people in the Old World to flee to the New World.

Mr. Rossion. Has not practically every State in the country to-day a law preventing children under 14 years of age from working in shops or factories?

Mr. MARBURY. I have not the slightest information on that point. That is not what I am driving at.

Mr. ROBSION. If the States have adopted laws like that-
Mr. MARBURY. But they have not.
Mr. Robson. I think they have

Mr. MARBURY. If they have, they have a right to change them, and that is what we are objecting to. You are undertaking to say that unless we pass such laws as Congress chooses to dictate we shall be penalized and punished to the extent of millions of dollars. What they say is this, "Well, you need not qualify, you need not take the money. But if the States do not qualify, do not take the money, they have to pay their share of that seven and a half million dollars just the same, and in time it may be seven hundred and fifty million instead of seven and a half million; and unless you choose to accept such a school law as Congress chooses to dictate to you, you have got to pay your share of that $750,000,000 and not get a dollar in return for the benefit of


State. Mr. Robsion. Let me understand your position. Does the gentleman object to the compulsory school law or the child labor law?

Mr. MARBURY. I have not the slightest objection to any law of that kind which my State may see fit to pass. I object to these gentlemen in Washington undertaking to dictate to the States what laws they shall pass contrary to their judgment. The kind of a compulsory law which might suit one State would be entirely unsuitable to another State. It varies according to the climate, it varies according to the conditions of life, it varies according to the character of the people who live there, the race of people who live there, and the idea of passing one law compulsory upon all, that every one shall conform to such a law as Congress dictates, is abhorrent to my idea of civil liberty.

There are people in this world, gentlemen, that are races of men who do not care for liberty. Perhaps you can not realize that, but there are races of people who do not care for what we call liberty. They are Asiatics largely. There are hundreds of millions of people who do not really desire liberty or what the Anglo-Saxon people call liberty. They prefer a despotic form of government. They do not like a government of law. Remember the revolutions that have taken place in that vast continent through thousands of years? Just a few years ago was the first semblance of any attempt to establish what we call free government. They have alway

They have always wanted a despot to rule them; the people did not want anything else. Our American people, those of the old stock at any rate, are the people of all others who realize what liberty means, and who mean to have it if they can possibly have it, at any cost.

Why, this law means this: They may not stop at 14 years of age. . The next appropriation may require that you must send all your children to school, every one of them.

You must have a law in your State as a condition of receiving your share of this $1,500,000, or $2,000,000 appropriation, your share of which you have to pay in taxes in to the Treasury, requiring every child up to 18 years of age, perhaps up to 21 years of age, to be sent to school for-say 10 months in the

year. And what kind of a school? Some school prescribed in this act of Congress some schools which shall teach certain things which the act of Congress specifies, and which the people of Maryland may not want to be taught and may regard with horror.

Mr. ALLEN. Pardon me right there. Would not that remain optional with your State, however?

Mr. MARBURY. The point I am trying to make is this: A State may refuse to accept the appropriations, but it has to pay its share of the millions of dollars which are provided for in the act just the same, and every dollar which it thus pays in taxes is for the benefit of the States which do accept the terms of the bill.

Mr. TUCKER. In other words, if a State does not accept the provisions in this act it is allowed the privilege of paying the taxes for the benefit of the other States, just as the other States that do accept it must pay?

Mr. MARBURY. Yes. It is compelled to pay the taxes. How any man who does not see that that is tyranny, that that is tyranny in its most vicious and intolerable form is not an American.

Mr. ALLEN. I don't agree with you there.

Mr. MARBURY. This is not an academic discussion, it is a feeling with the people. Suppose an act were passed like this, requiring the appropriation of $750,000,000, to be raised by taxes on the people for the purposes of education, provided the different States passed laws requiring their children to be sent to school and taught certain

things, where they would be taught certain things which people did not like, do not believe in some religious doctrine, if you chooseand in order to get its share of that appropriation Maryland would have to accept those terms and pass a law of that kind. What would be our situation ?

You say, why, we would not be obliged to pass such a law, we would not be obliged to accept any share of that money. But we would be obliged to pay our share of the taxes necessary to be levied in order to provide the $750,000,000. In other words, we would have to pay taxes for the benefit of other States, and thus be punishedheavily fined in effect for refusing to pass such a law.

That is the aspect of the thing which it seems to me has escaped attention in all discussions I have heard, and that is the thing that makes it intolerable to men that have any appreciation of liberty or justice. That is what it means. And the appropriations for education, as have been mentioned, are larger than for any other purpose, certainly in times of peace, and they will grow every year, and the State will be in the position where it will have to either surrender its share of the taxes which its own citizens have paid and let that


to the benefit of other States, or it will have to allow its whole educational system to be dictated from Washington.

Now, gentlemen, you will create a bureaucracy before you get through with this thing, you will create a bureaucracy exactly similar to that of Russia. Did you ever stop to think that the tyrrany of the Russian Government did not come from the Czar? It was not the Czar that did all this tyrranizing, that caused such misery and such horror throughout the world. The last Czar, at any rate, was one of the most kindly, Christian gentlemen. He would not hurt a fly. It was that huge bureaucracy that had grown up there that was the real oppressor of the people.

You are building up the same thing here when you are creating all these departments. If I have trouble with an official of the State government I have no difficulty in adjusting the matter. If he does not behave himself I go to see the governor, and it won't take me 15 minutes to see him. Or if I don't care to do that all I have to do is write a letter to the Baltimore Sun or the American and expose the official's conduct. Public opinion will take care of him, and quickly enough. But when it comes to the Federal Government, if one of these officials in the departments at Washington does just as he pleases and acts with injustice or at least acts with a lack of common sense, what redress have you?

The President has no time to hear you. If he tried to hear all complaints he would have no time for anything else, and you can't make 100,000,000 people hear anything.

Mr. MARBURY. Now, gentlemen, I want to call your attention to one aspect of this situation, one feature of this situation that strikes me as of prime importance, and that is this: I do not agree with my friend Doctor Goodnow at all that this act is constitutional, and that it would be held constitutional if the Supreme Court ever had a chance to pass on it. I do not believe that anything could be found in the Constitution which confers upon Congress the power to have anything to do with the education of the people or interfere in any way with the systems of education which the respective States may adopt, and I believe this act would be most oppressive, as I have endeavored to

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