ARGUMENT, points, and
amendments

TO THE

PROPOSED EDUCATION LAW

BEFORE THE

NEW YORE LEGISLATURE, 1899,

ON BEHALF OF

the catholic interests
of the

STATE OF NEW YORK,

BY

NELSON G. GREEN.





The delivery of the following argument before the

joint Committee on Education was interrupted and

forbidden by the ruling of Chairman White, of that

Committee, at a special hearing, appointed at the

request of the Catholic Club of The City of New

York, for the afternoon of February 8, 1899, which

hearing had been specially granted pursuant to such

request.

Mr. Nelson G. Green, representing the Catholic

interests of the State, after earnestly protesting

against the ruling of the Chairman, obtained per-

mission to submit his Address and Brief to the

Committee and the Legislature in writing.

The following argument, therefore, has never been

before the Committee, or considered by it, and

embodies the earnest protest, on the part of the

Roman Catholic citizens of the State of New York,

against the passage of the Education Bill in its

present form.





Mr. Chairman and Gentlemen : Whenever a

legislative body undertakes to pass laws relating to

any one of the great departments of ’State govern-

ment it at once becomes the right and bounden

duty of every citizen to examine and carefully scru-

tinize each word, each sentence, each sentiment, ex-

press or implied, which may in any degree affect or

modify the rights and privileges of each individual

in that commonwealth.

It is, none the less, the duty of each one of you

upon whom devolves the additional privilege of

finally passing upon such provisions to weigh and

conscientiously pass judgment upon every sugges-

tion, however simple, which maybe honestly made,,

involving these same rights and privileges, the

daily duties and burdens of each and every citizen

in the State.

When one is called upon to pass judgment upon

proposed legislation affecting business interests, the

mind at once demands information upon two topics,

namely : the source from which such proposed legis-

lation has sprung, and the real scope and purpose

of it. What is true in legislation relating to busi-

ness affairs is pre-eminently true when we are called

upon to pass similar judgment upon so important

and weighty a topic as that of public education.

In considering, therefore, the proposed measure,

known as “The Education Bill,” which is before

us to-day, it is of the utmost importance that we

ascertain the real source from which it has sprung,

and minutely examine and understand the full

- purpose and object of each and every paragraph

thereof.

The Education Bill had its birth in a commission,

whose existance, powers and limitations have been

fixed by law. The Commission of Statutory Re-

vision was first authorized by statute of 1839, hav-

ing for its object the re-arrangement, revision and



4

codification of all of the laws of the State, under

appropriate titles and paragraphs, so that out of

the chaos of statutes existing upon our books, order

might be brought, whereby all of the legislation

would be made available to the citizens and the

State, topically arranged. So long as the powers of

this commission were limited to that purpose, and

were confined strictly to revision of existing statutes,

no serious danger could arise from their operation
;

but, in 1893, after that commission, and several

others, had been created, and had ceased to exist

by limitation, new and additional powers were given

to the present committee, which constituted it

not onl}^ a committee of revision upon existing

statutes, but has made it the adviser of both bodies

of the Legislature and the standing committees

thereof, with power to promulgate new legislation

and prepare new statutes under the suggestion and

advice of the Legislature and the standing com-

mittees.

That this power has been deemed broad enough to

enable this committee to undertake the introduction

of absolutely new legislation upon the question of

education, is evident from the scope of the bill that

has been presented. When we compare the former

revisions upon other subjects, which have emanated

from this committee, with the very broad provisions

embodied in the Education Bill, one can but be

startled at the revolutionary character of the powers

exercised by it, for they have not only undertaken

to deprive one board of authority, and deposit it

it in another
;
to take rights and privileges from one

official and transfer them to another
;
but they have

overturned and subverted the doctrine and ground

principle upon which our public school system has

been established.

The real danger resulting from the exercise of such

extraordinary powers must be apparent to every

thoughtful man, because it is a custom of most

legislative bodies, and presumably of this, that

legislation presented from a revision committee, is



5

to be considered and believed to be strictly revision-

ary, and where, as in this case, it may have a two-

fold influence behind it, it will be regarded as em-

bodying only those amendments which are essential

to the production of a uniform measure, without in

any detail amending the true spirit, or overturning,

the underlying principle, of the existing statutes.

A further custom of legislative bodies accentuates
this danger, for it is well known that most revisions

are reported from the standing committees upon the

suggestion of a revision commission with little or no

scrutiny on the part of either the committee or the

Legislature and passes both bodies as matter of

course.

I venture to say to-day that the provisions of the

Education Bill are understood and appreciated by

but a small proportion of the citizens of the State

interested in the topic of education, while the great

mass of the people have no information upon it

whatever. As matter of fact, the Ahearn Bill,

having for its laudable purpose the increase of

salaries of the teachers of the City of New York, has

been more thoroughly discussed and exploited by

the journals of that city than any portion or pro-

vision of the present measure
;
while, as matter of

fact, this Bill has embodied in it more of serious

danger to the rights of the citizens at large than any

single measure that has been before the Legislature

for many years.

In searching, therefore, for the real source of the

Education Bill, we And that at its head-waters it

divides into two streams, the one, narrow, slow and

sluggish, confined within the banks prescribed by

the laws of its own creation, finds lodgement in the

revision commission
;

while the other, broader,

deeper, swifter, more aggressive, gathering to itself

the powers of this Board and the duties of that, tak-

ing from the Comptroller, the State Treasurer,

and the Governor himself, powers which now

are vested in those officials, gathers them all to-

gether into that already swollen stream, which finds.



6

Its spring in the personality of that individual known

upon onr statute books as “The State Superinten-

dent of Public Instruction.”

This dual source will assist us materially in un-

derstanding the real scope and purpose of the Bill.

So long as the commission coniines its operations to

the avowed purpose of revision and codification,

no serious criticism will be attempted, although, in

The manner in which the whole topic has now been

brought before the Legislature, it is fair that every

feature of the bill, including both new and the ex-

isting laws, should be carefully criticised.

And, it is well to call attention here to the fact

that there are provisions upon the statute books to-

day relating to our public education, which should

never have been allowed to become a law, every pro-

vision of which should be most carefully scrutinized

and revised if this Bill should be enacted under any

modified form.

(At this point the Speaker was interrupted by Mr.

Lincoln, of the Revision Commission
;
and, there-

upon, Senator White, Chairman of the Joint Com-

mittee, stated that as the time of his Committee

was limited, an exhaustive oral argument upon any

feature of the Bill would not be permitted. Under

the Rule laid down at the beginning of the hearing,

that each Speaker should be limited strictly to fif-

teen minutes, Mr. Green, protesting earnestly that

such ruling was unfair to the three million Roman

Catholics of the State of JMew York, whom he rep-

resented, thereupon withdrew from the floor, having

obtained permission to subsequently submit the

Argument and Brief in writing.)

But, when we come to examine the unacknowl-

edged and unavowed purpose of the Bill, the real

object of embodying in the State the complete

control of the education of children in con

tradistinction to the right of the parent thereto,

becomes so apparent that I declare to you now that

if this Bill shall become a law, as it lies upon this

table, unmodified and unamended, our children can



7

be taken from us, and the physical, mental, moral

and spiritual education of every child will be deliv-

ered over absolutely into the control of the hired

servants of the State, who, in turn, are responsible

solely to a single, irresponsible, autocratic head.

Mr. Chairman and Gentlemen : It is my privi-

lege to-day to stand here, representing over three

million Roman Catholics of the State of New York,

who, however much they may differ upon questions

political and social, are a unit upon the doctrine of

the education of their children, and three million

tongues concentrated in one now plead with you

and pray that you will not permit a law to be placed

upon our statute books which will take from the

parents the custody of their children, the care and

training of their blind, the support and education

of their deaf-mutes
;
that you will not permit an

irresponsible officer to enter unbidden, and without

consent, into our houses and take these unfortunate

defectives from our care, and turn them over into

the charge of a single official, whose power for evil,

under the provisions of this very bill, are only

limited by his ability or his inclination.

As we stand before you, a body of Catholics, it is

essential that you should understand and appre-

ciate the underlying principles and doctrines which

move us and unite us upon the question of educa-

tion
;
and to that end it is necessary that there shall

be called to your attention some of the underlying

doctrines and principles governing Catholics in the

training of their children, and to some facts ante-

dating this proposed legislation.

It is a sound Catholic doctrine that three

agencies must be reckoned with in the practical

education of our youth. The first may be

called the original jurisdiction of the parent over

the training and uprearing of his offspring. That

is the right that the father has by nature to

control and conduct the education of his child. This

right is inalienable, and he can be deprived of it



8

only in two ways—(1) by consent, and (2) by sucli
neglect as wdl operate as a forfeiture. In this

original jurisdiction there is no authority, human or

divine, which can against his will, wrest from the

parent the right to control the education of his

child.

The second agency is that of the Church. It is

an unqualified doctrine among Catholics that the

Church is the sole repository,' by the grace of

Almighty God, of the authority to teach in matters

of religion and morals. You may not believe this,

and, for the purposes of this discussion, you are not

obliged to
;
but, it is necessary that you should

understand the doctrine itself that you may ap-

preciate to the full the gravity of the questions in-

volved. The authority which the Roman Catholic

Church has over the education of the children of its

penitents, is not the natural right of the parent, but

is an authority delegated to it by the father, or such

person as may stand in parental relation to the

child, either by consent, on the one side, or by rea-

son of neglect or failure on his part, on the other,

to exercise this natural right, thus resulting in the

spiritual degradation of the child. Even the divine

authority of the Church to teach morals and religion

does not justify it, and will not uphold it, in assum-

ing an authority over the children except by the

operation of these two rules.

The third agency is that of the State. The au-

thority of the State in the matter of education is

neither the natural right of the parent nor the

delegated right of the Church, but is a duty and an

authority inherent in its own sovereignty, whereby

the State is empowered, and is bound, to furnish to

its citizens a means of education whereby all of the

children within its boundaries, may be educated at

the public expense. The authority of the State is

limited to this, and the Legislature can only pass

such laws and provisions relating to the system as

will best preserve its efficiency and usefulness to

the great body of citizens taking advantage thereof.



9

It is Emerson who says : i<; No one lias yet made

a catalogue of the capabilities of man, any more

than a bible of his opinions.” This is a broad doc-

trine of human capacity, and, as it is well known

that a man’s power for good, or for evil, increases or

diminishes with his natural and acquired habits of

mind, which are the result of mental and moral

training, the Church recognizes that underlying

these features of human development must be laid

a broad ground of ethical training. Ethics underly

good morals as correct religious dogma underlies

and governs both.

These are the essential ground, principles

which control us as Catholics in considering and de-

termining all questions of education. The two

topics necessary to this discussion are the inalien-

able right of the parent to control the education of

his child, on the one side, and the limited authority

and no less important duty of the State to provide

means of education, and to supply all deficiencies

which the parent either will not, or cannot supply.

One more doctrine is necessary to be understood

and clearly defined, and that is the right of the

parent to delegate his natural prerogative and the

duty on the part of the State to recognize that dele-

gated authority. Whenever a parent transfers his

right to control the education of bis child to any

institution or individual, it is the duty of the State

to recognize that delegated authority and to refrain

from interfering with its exercise until such dele-

gate has so far failed in the exercise of it as to en-

danger the good citizenship of the infant.

Prior to 1894, the common school system of the

State of New York was dependent entirely upon

legislative enactment, and under it the State had

the authority to impose upon the public school

system any and every condition which might seem

appropriate or wise, and it was not within the

authority or power of the citizen to criticise or gain-

say it.

It is necessary that one should understand this-



10

historically, so that there may be no misapprehen-

sion arising from the many decisions that have been

rendered by the courts of this State upon questions

of public schools arising prior to that date.

The State, at that time, was under no constitutional

duty to furnish for its citizens a system of i-mblic

schools, nor, on the other hand, was there any con-

stitutional right express or implied, in the citizen

to exact from the State the establishment of such a

system of schools. The state was the donor, and

the citizen the recipient. The donor was empow-

ered to fix as a condition precedent to the accept-

ance of the gift, any condition that might appeal to

a giver, while the citizen, being the recipient, was,

upon the other hand, bound to respect those con-

ditions, because there was not involved in the pro-

posal on the part of the State the obligation binding

upon the citizen to accept.

This will clear away many of the difficulties that

have arisen heretofore in the discussion of the com-

mon school system of this State, for with the adop-

tion of the Constitution of 1894, a new order of

things was introduced. Under the provisions of

Section 1. Article IX, of the Constitution, the state

was bound to provide, maintain and support a sys-

tem of free common schools, wherein all of the

•children of the State might be educated.

Now there is invested in the citizen a right, abso-

lute and inalienable. There is taken from the legis-

lative authority of the State both the necessity and

the authority to provide a system of public schools

as a gift or favor to the citizens, and the power of

the Legislature to impose conditions upon the public

school system, also vanishes with the adoption of

this provision. That which was right and autho-

rized under the old order of things becomes uncon-

stitutional and impossible under the new order of

things.

That is, the Legislature has no authority to im-

pose conditions, or enact laws, relating to our

system of education, which will, in any degree,



11

modify or impair the rights and privileges granted

and defined by the Constitution.

Gentlemen, what is good Catholic doctrine is also,

under the present constitutional provisions of the

State of New York, the constitutional law of this

State.

The duty of the State of New York is to furnish

to its citizens a means whereby all of the children

within its boundaries may be educated at the public

cost. The citizen is not bound to take advantage of

that system, and the State cannot compel the atten-

dance of its children upon those proposed schools

except where the parent, or his authorized delegate,

has failed to provide suitable education for any par-

ticular child in the State (what is defined as “suita-

ble education” will be taken up under a later topic);

but the State may not impose upon this constitu-

tional right of the citizen any condition which will

impair or weaken or interfere with any and all of

his other constitutional rights and privileges of re-

ligious and individual liberty in all matters involv-

ing the conscience of each citizen in the Siate.

Under this provision of the constitution, the right

of the Legislature to interfere in the matter of edu-

cation is limited to such practical matters of admin-

istration as will best preserve and maintain for

the benefit of the citizens a system of public school

'education which will supply any and all deficiencies

resulting either from the failure to maintain private

schools or from the neglect or inability of parents

to provide, either personally or by delegated

.authority for the proper education of their children.

Mr. Chairman and Gentlemen : You have ex-

amined with us the principles and doctrines govern-

ing the Catholic rules of education. You have

listened to the constitutional provisions of the State

and. ascertained the difference between the old and

the new conditions before and after the the adoption

of the Constitution of 1894. The imposed duty of

State authority in the matter of providing a public



12

school system under the provisions of the Constitu-

tion, and the Catholic doctrine of State authority

are identical. The good Constitutional Law in this

State and sound Catholic doctrine relating to the

public school system are one and the same.

Mr. Chairman : We entered this chamber some
moments since, three million Catholics, pleading for

recognition. We now cast aside the garb of the
church and stand here three million citizens, de-

manding our constitutional rights, and insisting

that you shall place upon these statute books no

laws distinguishing or degrading us as a class. We
demand why you presume to pass laws effecting or

attempting to modify our rights in the matter of

education any more than you will undertake to pass

any other law affecting or curtailing any other con-

stitutional right of any other body of citizens upon

any other topic. It is, therefore, as citizens, dis-

cussing our mutual relations and duties to the

State, and to each other, that we undertake

to examine into and discuss the very broad

provisions of the Education Bill.

That there may be no question as to our rela-

tions to each other and to the State, it is neces-

sary to define the mutual duties and rights of

the citizens and the State-—what is the State

and what are the relations of the citizens to it.

The State is organized as a body politic by an

aggregation of individuals, who are endowed by

nature with certain inalienable rights of propaga-

tion, personal liberty, and the right to accumulate

and enjoy such property as may be the result of

individual effort.

It is Daniel Webster who so well defined the prin-

ciple underlying the foundations of our Federal

Government. The Government of the United States

was founded by the consent of all of the independent

sovereignties uniting in the Constitution of 1789.

Each took from its own sovereign authority certain

inalienable rights and irrevocably ceded them to the



13

central government, whereby federal authority

might be empowered to perform those acts and do

those things necessary to a national existence, the

levying and collection of taxes, maintenance of

armies, the imposing and collecting of import duties,

and certain other questions relating to the inter-

communication of the states. This authority was

ceded absolutely, but was limited and defined by the

conditions and wording of the Constitution itself.

Those sovereign powers which were not specifically,

or by fair implication, delivered over to the Federal

Government at the time, remained and still exist in

the individual sovereignty of the State.

What was true of the relation between the Federal

Government and the State is true of the relation be-

tween the State government and its citizens. Man

originally was endowed with certain rights, which

were his inalienably
;
some in the earlier history of

the world maintained these rights by personal

prowess and individual leadership
;
some by uniting

with a number of other individuals of equal power

against a common enemy, each conceding such of

his natural rights to the whole body so combined

as would best preserve the safety and comfort of the

whole and would least encroach upon the essential

individual rights of each
;
others conceding some

essential rights by reason of individual weakness or

insufficient following, placed themselves under

strong leadership, content to relinquish personal

freedom in a degree for the assurance of safety to

person and property.

The State, under the present civilization, s(ands in

the relation of the all powerful leader to whom each
citizen has ceded certain inalienable and inherent

rights and privileges, for the purpose of obtaining

that protection and freedom of individual action,

which would render his reserved rights more avail-

able and the accummulations of his individual

efforts safer and more enduring.

Those rights and privileges which are ceded by

the individual to the State are either express or



14

evidently implied by the constitution defining the

relative rights and privileges of citizens and the

State
;
those rights and privileges which have not

been ceded by express grant to the State continue,,

and inalienably remain, in the individual citizen.

We are yet to find in the records of constitutional
conventions, or the expressions of the constitution

itself, a provision whereby the individual citizens

of this State have ceded to the government the

natural and inalienable right of the parent to main-

tain, rear and educate his off-spring
;
and until it

can be proven that such right has been ceded to the

State, it must remain in the individual, and, as such,

must be recognized in all legislation, involving or

affecting the question of education.

The underlying doctrine of State rights is the

absolute inviolability of the individual, subject only

to those restrictions necessary to health, preserva-

tion of life and property or police regulation.

Having defined our relations as citizens, we ap-

proach the discussion of the bill in hand, and find

under Article I, the doctrine of Bible reading in the

public schools.

That there may be no misunderstanding as to the

real status of that question in the State to-day, it is

wise that its history be placed before you at the

outset.

The reading of the Bible in the public schools has

never extended beyond the limits of the City of

New York in this State. In 1844 it was permitted

within the then limits of this city
;
again revived

in 1851, and again in 1882. Under the charter

of our greater city, the following provision was

introduced :

“ But nothing herein contained shall authorize the

Board of Education to exclude the Holy Scriptures

without note or comment, or any selections there-

from in any of the schools provided for by this

chapter
;
but it shall not be competent for the said

Board of Education to decide what version, if any,

of the Holy Scriptures, without note or comment,



15

shall be read in any of the schools, provided that

nothing herein contained shall be so construed a a

to violate the rights of conscience as secured by the

Constitution of this State and of the United

States.”

The provision of the present Bill reads as follows

(Art. I., Paragraph 5, sub-division 2): “Good

Morals
;
and for this purpose the Bible may be read

either as a part of the school exercises or other-

wise
;
such reading may be from any version, but

must be without note or comment.”

This extends the doctrine of .Bible-reading

throughout the whole State and is not the provision

now permitted under the Charter of the City of

New York.

The doctrine of Bible-reading in the public schools

must be considered in the light of the constitutional

provisions of the United States on the one hand,

and the specific provisions of the Constitution of

the State of New York, on the other.

The Constitution of the United States provides

two things
: (1) That no person shall be compelled

to adopt or practice any specific religious belief,

and (2) that no person shall be deprived of the

right to adopt and practice any religious belief.

This latter clause has only one limitation, which has

grown up from practice and interpretation by the

courts, namely, that no person shall practice a re-

ligious belief to the impairment of the rights and

privileges of the other citizens of the State or to the

disturbance of the peace.

In the State of New York this principle has been

engrafted into the law and defined clearly in the

case of Lindenmuller v. People *. It was there

held that individual conscience might not be en-

forced, but that every man, and every citizen, might

be restrained from acts interfering with Christain

worship, or which would tend to revile or bring the

same into contempt. That every religious right

tnust be so exercised that it shall not interfere with

See Points, p. 21.



16

the other equally important religious and political

rights of every other citizen in the State
;
that the

Christian religion is not the religion of the State,

but that in the State of New York and in the United

States, possibly with the exception of Utah, that

the religion of the inhabitants of the State is Chris-

tian, and that must be taken and recognized as a

fact.

In other words, this is the attitude of the State

of New York upon the question of individual reli-

gious liberty. The State has no relgiion. The ma-

jority of the inhabitants of the State are Christian,

and, therefore, the Christian religion must be rec-

ognized as a fact existing in the State
;
no person

shall be compelled to practice or acknowledge the

Christian religion
;
no person shall be prevented

from practicing and accepting the Christian reli-

gion
;
and no person or individual in the State shall

be compelled or prevented from practicing any re-

ligion whatsoever, provided that such acceptance

and such practice shall not interfere with the other

rights of the citizens of the State or disturb the

public peace.

Now, let us apply this principle of individual lib-

erty in matters religious to the doctrine of Bible-

reading, as proposed by this Bill. Referring to

Article 1, Paragraph 3, ‘‘Common Schools,” we find

that the term “ Common Schools” includes not

only public schools in all its branches, but schools

for the blind, deaf-mutes and other defectives.

Under Paragraph 5, sub-division 2, we find that

the Bible may be read either as a part of the school

exercises or otherwise, such reading, however, to be

from any version, but without note or comment.

There is a further provision of the Constitution of

the State, forbidding the teaching of sectarian reli-

gion in any of the common schools of the State, and

a further provision that no public money shall be

devoted to the support of common schools where

sectarian religion is taught.

If, under the provisions of this Bill, the reading



17

of the Bible, as prescribed, shall not be found to be

the teaching of sectarian religion under the meaning

of the Constitution, then is it within the limits of

our Constitution, and not a violation of the rights

of the citizens. But, if we find that such reading

of the Bible, under the restrictions named, is sectar-

ian teaching, within the provisions of the Con-

stitution, then the introduction of the Bible

in our public schools will make it impossible for

the authorities to use the public moneys for the

support of our common schobl system, and will

thus vitiate and violate those rights which result

from the duty of the State to provide a system

whereby all the children may be educated at the

public expense.

The school authorities, (under sub-division 3, of

paragraph 5, article i), or the superintendent, or the

Legislature, would be empowered to choose the

Bible, or any version, subject to the restriction that

it should be read without note or comment as a text-

book, to be used by the scholars of any common

schools for any length of time, ordinarily given to

any other study prescribed by law.

It is not necessaiy, for the purposes of this discus-

sion, to go into the effect which the introduction of

this principle may have upon the ordinary common

day-school throughout the State
;
but, in view of the

legislation proposed, relating to deaf-mutes, and the

blind and truant schools, it will be sufficient to point

out the dangers and the position in which the State

is placed should this portion of the Bill be adopted.

The pupils in the truant schools, and in the schools

for deaf-mutes, and the blind, are prisoners, and, as

such, their freedom of choice has been taken from

them. In these schools it is within the power and

authority of the State Superintendent, either through

the local boards or by himseli in person, to define

all of the conditions, and all of the regulations for

their conduct and government. This becomes pal-

pably important and essential to the discussion in

relation to those children either truant, incorrigibles,



18

deaf-mutes or blind, who may be committed to insti-
tutions by the State Superintendent without consent

of the parents. (If sectarian instruction in the

public schools is unlawful and the reading of the

Bible, under the conditions named in the Bill before

us is “ sectarian instruction,” within the meaning

of the Constitution, then the reading of the Bible,

though without note or comment, is unlawful.

In the case of State v. District Board (76 Wis.,

192), the Supreme Court of Wisconsin has clearly

defined the doctrine of sectarian instruction in so

far as it relates to the reading of the Bible, without

note or comment, in public schools, and so im-

portant is the doctrine enunciated there that we

will take your time to read it at this point.

“The courts will take judicial notice of the contents

of the Bible, that the religious world is divided into

numerous sects, and of the general doctrines main-

tained by each sect, for these things pertain to gen-

eral history, and may fairly be presumed to be
subjects of common knowledge, 1 Greenl. Ev., §§5, 6,
and notes. Thus they will take cognizance, without

averment, of the facts that there are numerous reli

gious sects called ‘Christians,’ respectively main-

taining different and conflicting doctrines
;
that

some of these believe the doctrine of predestination,

while other do not
;
some the doctrine of eternal

punishment of the wicked, while others repudiate

it
;
some the doctrines of the apostolic succession

and the authority of the priesthood, while others

reject both
;
some that the Holy Scriptures are the

only sufficient rule of faith and practice, while

others believe that the only safe guide to human
thought, opinion and action is the illuminating

power of the Divine Spirit upon the humble and

devout heart
;
some in the necessity and efficiency

of the sacraments of the church, while others reject

them entirely
;
and some in the literal truth of the

scriptures, while others believe them to be allegor-

ical, teaching spiritual truths alone or chiefly. *
* *

That the reading from the Bible in the schools, al-

though unaccompanied by any comment on the

part of the teacher, is ‘ instruction,’ seems to us too

clear for argument. Some of the most valuable in-

struction a person can receive may be derived from
reading alone, without any extrinsic aid by way of



19

comment or exposition. Tlie question, therefore,

seems to narrow down to this : Is tlie reading of the

Bible in the schools—not merely selected pas-
sages therefrom, but the whole of it—sectarian in-
struction of the pupil \ In view of the fact already

mentioned, that the Bible contains numerous doc-

trinal passages, upon some of which the peculiar

creed of almost every religious sect is based, and

that such passages may reasonably be understood

to inculcate the doctrines predicated upon them, an

affirmative answer to the question seems unavoid-

able. Any pupil of c rdinary intelligence who listens
to the reading of the doctrinal portions of the Bible

will be more or less instructed thereby in the doc-

trines of the divinity of Jesus Christ, the eternal

punishment of the wicked, the authority of the

priesthood, the binding force and efficacy of the

sacraments, and many other conflicting sectarian
doctrines. A most forcible demonstration of the
accuracy of this statement is found in certain reports

of the American Bible Society of its work in Cath-

olic countries (referred to in one of the arguments),

in which instances are given of the conversion of

several persons from ‘ Romanism’ through the read-

ing of the Scriptures alone
;
that is to say, the read-

ing of the Protestant or King James version of the

Bible converted Catholics to Protestants without

the aid of comment or exposition. In those cases,

the reading of the Bible certainly was sectarian in-

struction. We do not lenow how toframe an argu-
ment in support of the proposition that the reading

thereof in the district schools is not also sectarian

instruction.”

With this doctrine established, therefore, the

reading of the Bible in the common schools of the

State, and the breadth of the definition of “com-

mon schools” introduced into the Bill, the State

school authorities are in a dilemma
;

if the per-

mission granted to read the Bible in the public

schools be, as it probably will be, interpreted as

an actual reading (as permission by statute may
be interpreted as an act done,) then the school

authorities will be prohibited, and are, by law,

so prohibited, from using the public moneys for

the support of any school wherein sectarian instruc-

tion is given, that is to say, that the passage



20

of this portion of the bill, in its present condition,

will deprive the citizens of the State of their right

to a public school system, because it deprives the

authorities of the power of using the money fur-

nished by the citizens of the State for the support

of a system of free, non-sectarian public schools.

But, we have not yet reached the limit of our

troubles in connection with this portion of the bill.

Under these same provisions the State undertakes

to absorb into its own control the education of all

of the children of the State, and in effect to make

such education compulsory, not only in the ordi-

nary branches, but in the matter of good behavior

and morals.

It is necessary that we should again define at this

juncture the relation of a citizen to State authority.

As we have found, the authority of the State is

limited to the exercise of that portion of the natu-

ral rights of the individual which have been speci-

fically ceded and delegated to it by constitutional

provision, and the State is limited thereby in the

exercise of its supervision over the inhabitants and

their offspring.

We have found that the State has imposed upon
it the limited duty of providing a means for the

education of its children, which would supplement

the defects of any educational system adopted by

the parents, either from their poverty, ignorance or

failure to provide such education.

The State has only the right to insist that the

parent shall give to his child an education suffi-

ciently broad to enable him to perform the ordinary

proper functions of citizenship, and has no right of

control over the higher education of the individual.

In an argument made by Hon. Nathan Matthews,

Jr., before the Legislature of the State of Massa-

chusetts, in 1889, upon a somewhat similar bill

before that body (which, by the way, failed of

passage), he makes the following remark :



21

u Mr. Chairman and Gentlemen of the Committee:
u
I have the honor to appear on behalf of sixteen

private Protestant schools, established in the city

of Boston, to remonstrate against the passage of

any law that shall subordinate the methods and

details of education in such schools to the control

of State or town authorities, or that shall in any

manner prohibit the parent from educating his

children as he pleases.

“Among these remonstrants are Chauncev Hall
School and the schools of Mr. G. W. C. Noble and
other well known teachers.
“We concede, Mr. Chairman, the principle of

compulsory education; that is so say, we admit

that the Government may, by appropriate penal-

ties, compel the parent or guardian to furnish the

children under his care with an elementary educa-

tion
;
and we have no fault to find with the cata-

logue of studies which the Legislature has pre-

scribed for such instruction; that is, with the
“ studies required by law,’ which are reading, writ-

ing, arithmetic, English grammar, geography, United

States history, drawing, physiology, and hygiene.

But we claim for every citizen the right to determine

for himself the methods and details of that instruc-

tion which he is bound to furnish to his children
;

we object to the doctrine that all education in these
or any branches of learning should be uniform, the

same for all schools and for all scholars, and we
deny the right of the Legislature to subject the

education of our children to the arbitrary and final

dictation of the local school committee.”

That there may arise no question here, this

limited authority on the part of the State has been

well defined and recognized in the Courts of this

State in the case of People v. Supervisor of West,

diester
(
see points at page 13 ). In that case

the Courts declared that the Legislatures of' this

country were not supreme, and were not the high

est recognized authority. This was defined in the

discussion just had relative to the authority of the

Legislature over the common school system, in

1894. There, in absence of constitutional provision,

the Legislature was entitled to offer to the citizen a

privilege which was not theirs, by reason of a defect



22

in the Constitution
;
but the adoption of that con-

stitutional provision took away from the Legis-

lature its power to further provide in that direction.

Now, the authority in this State, on all matters

of legislation, is vested in the Senate and the Assem-

bly, and the Court says :*

“This is the authority under which our Legis-

lature acts, and, under this clause, it has the power

of legislation within the fair scope of legislation,

except so far as it is restricted by other provisions

of the constitution. But it can hardly be said

that under this general power of legislation it is

omnipotent
;

that it can pass acts against the

natural right and justice, and subversive of decency

and good order. Such power is prerogative of

despotism—not of free government—to suppose
that the people have clothed their representatives

with absolute and despotic power under the general

grant of legislative authority, is to presume them

incapable of self-government and unworthy of the

name of freemen.”

If, as is apparent, it is the object of this Edu-

cation Bill to place the absolute control and exer-

cise of all authority to maintain and manage

the educational system of the State into the hands

of its officials, then the whole Bill is in violation

and subversive of the constitutional rights and

privileges of the citizens, because it is a direct and

unqualified violation of the natural right of the

parent to control the education of his child.

All positive law is founded in natural law. So

absolute is this principle that the Creator himself

will not, and has not, promulgated a direct and

revealed law in contravention of or permanent sus-

pension of the natural law. What the Creator

will not do, the State cannot do, and when State

authority undertakes to deprive the citizen of a

natural right, which has not been ceded to it, and

* The Committee will find the whole of that opinion in the points

printed wdth the argument.



23

which still continues inalienably in the control of

that citizen, or his delegate, it is undertaking to

violate one of those generic laws of God, the

overturning of which invariably brings its own

punishment.

The right of the parent to educate being inalien-

able, and there being no evidence of that right

having been alienated to the State, the sovereign

authority must recognize either the natural right of

the parent, inherent in him, or his duly author-

ized delegate. It is well to say here that his dele-

gated authority carries with it full title, as clearly

as the proper transfer of any material title carries

with it all of the rights inherent in the original

grantor. This natural right of the parent to edu-

cate the child has been recognized by Blackstone,

who declares that it is the duty of every parent to

educate his child for a position suitable to its

station in life.

The doctrine of paternalism, which is so apparent

in the Bill before you, is one that is absolutely in

violation of every American constitutional privilege.

In all practical affairs we recognize that the indi-

vidual so conducts his life as to gain the greatest

possible benefit to himself and to his own, without

violating the privileges or depriving of their rights

the other citizens in the State. The doctrine of

paternalism is un-American and no one principle

involved in it should be permitted place upon

our statute books.

Under this head Chancellor Kent says:

“Several States of antiquity were too solicitous to

form the youth for the various duties of civil life, to

intrust their education solely to the parents
;
but

this was upon a principal totally inadmissable to the

modern civilized world of the absorption of the in-

dividual in the body poolitic and of his entire sub-

jection to the despotism of the State.”

Keep in mind now continuously the doctrine of

the inviolability of the individual and qualified

authority of the Stafr\



24

Again Kent says:

“The education of children in a manner suitable

to their station and calling is another blanch of

parental duty, of imperfect obligation in the eyes of

the Municipal Law, but of very great importance

to the loelfare of the State.”

This defines clearly the qualified authority of the

State to interfere with the educational rights of the

citizen. It is the duty of the State to furnish only

those means of education which will supplement the

failure on the part of the citizen to render his im-

perfect obligation to the State to educate his off-

spring; and this obligation on the part of the citizen

is so meagre, and so limited, as to make the inter-

vention of State authoiity of minor importance, ex-

cept in the treatment possibly of truants and incor-

rigibles.

The attempt, on the part of the State to educate

the children of its citizens is a violation of two

generic principles of life. A violation of the doc-
trine of natural right inherent in the parent which

is inalienable in him; and a subversion of the inherent

right of the child to be educated in accordance with

his natural tendencies and mental qualifications

—

for the State, in becoming an educator (and the

provisions of this very bill, undertake to lay down

a standard whereby the infant mind shall be de-

veloped) absolutely depi ives the child of his natural

right of such education as will best assist him in the

development of those gifts which are a part of his

birth-right.

The attention of your Committee is called to par-

agraphs 17 and 18, known respectively as “duty of

school authorities” and “ duty of superintendent.”

These sections both relate to the mandatory pro-

visions which impose upon school authorities the

duty of erecting common schools, employing school

teachers and furnish text-books in every school dis-

trict. But, under paragiapli 18, the State Superin-

tendent is premitted, in case a city or district fails

to comply with these requirements, to enter into



25

those districts and take possession of the school

property, and to employ teachers and other neces-

sary employees, provide text-books and accommoda-

tions, and maintain the schools; he may pay the

costs of maintaining that school district out of the

funds in his possession, or under his control; or he

may make out a tax-list, issuing a warrant in his

own name to a collector, or may even appoint a new

collector if that one does not suit him.

These provisions are beyond all possible necessity

on the part of any school authorities, and is only

one illustration of the many we will produce of the

determined purpose on the part of the framers of

this Bill to concentrate the power and authority of

the entire school system in one person.

The State Superintendent should not be permitted

to interfere in that question at all, except that he

might be empowered and authorized, or he might be

instructed absolutely by the statute, to bring action

against the proper officers of any district failing to

provide a system of schools, though probably that

is within the scope of his authority at present;

this power should be under the authority of indi-

vidual citizens.

We cannot too earnestly protest against the ten-
dency in this Bill to take authority from the citizens

of the State to supervise their own rights, and to

prosecute their claims, when aggrieved, in the same

general manner provided for the remedying of

wrongs, or alleged wrongs, in any other department

.
of life.

Probably it will be better, at this juncture, to call

attention to paragraph 249, although that properly

should be discussed under the head of compulsory

education.

It will be noticed by the provisions of this sub-

division that the superintendent is given control over

all of the private schools of the State, and special

records are to be kept which shall be subject to his

inspection, or to that of the school commissioners,

. school authorities and truant officers of the city or



26

district. This absolutely subverts the theory of

parental authority, and is, in its nature, inquistor-

ial. The State should not be permitted to interfere

in any degree with private educational institutions.

Again, I would call your attention to the argu-

ment of Mr. Matthews upon this topic :

“We are no enemies of the public school
;
on the

contrary, we are as deeply interested in their suc-
cuss, and as willing to contribute our proportion of

the taxes that support them, as any section of the

people. While declining to accept each and every

public school in the Commonwealth as the best

possible and best conceivable, or to sink our in tell i

gence in the ‘singular delusion that our common
school system, as it exists to day, is perfect and be-

yond improvement, and while emphatically refus-

ing to bow down before the annual school commit-

tee as the sole repository of the educational wisdom

of the people, we yet resent with indignation the

suggestion that has been made by some of the wit-

nesses for the petitioners, that parents and teachers

interested in private schools, and generally every-

body who objects to the petitioners’ demands are
hostile to the maintenance of free public schools.

Nothing could be further from the truth
;
there are

no people more earnestly and honestly devoted to

the cause of free elementary education than those

who have dedicated their lives to the instruction of
the young, though it be in private institutions

;
and

I have never yet seen the parent who was unwilling

to pay his share of the cost of our public schools,

though he sent his own children elsewhere.”

And again :

“Our private schools, Mr. Chairman, are a great
and indispensable help to the cause of education,

partly because they are in many cases better than
the public schools of the same locality, and there-

fore furnish abetter education to children of parents

who can afford to pay tuition fees
;
partly, again,

by affording to our public schools that competition

which is the indispensable prerequisite to progress

in educational matters as in everything else, and

partly by furnishing a means of educational experi-

ment which would otherwise be wanting. The pub-

lic school is not the place for trying experiments,

nor would the people be satisfied to have the school

fund used for such a purpose. The place for experi-



27

merits, essentia] as they are to all advancement, is

the private school supported by voluntary contribu-

tations. The private school, as Colonel Higginson

says, is the 'experimental station of the public

school.’
”

The attempt on the part of the framers of this

bill to deprive parents of the custody of their chil-

dren under the guise of a doctrine of truancy is as

dangerous a feature as any involved therein. The

provision of paragraph 243, where a second arrest

on the part of a truant officer shall constitute the

child an habitual truant, provides that he shall re-

main in the custody of a truant officer until his case

is disposed of.

Should the parent refuse to permit him to be

committed, a police magistrate, under paragraph

244, may in his discretion, commit the child as an

habitual truant, an insubordinate or disorderly

child, to a State institution, either in the district

where he is arrested, or, if there be no State truant

school therein, to the nearest one.

These provisions should absolutely be stricken

out of the Bill as a gross violation of the rights of

the parent.

Under paragraph 233, the State Superintendent is

empowered to take or hire real property, and erect

buildings for the establishment of a State Truant

School : and, under that provision, there is no power

connected with its administration that is not solely

and irrevocably'centered in that one official.

It will appear at once to one giving thoughtful

consideration to this matter that the denomination

of an orphan asylum, or any institution where sec-

tarian religion is taught as a truant school, will,

under the provision of Article 1, bring them under

the name and title of “ common schools,” and that

any contract after the passage of this Bill made for

the support and education of a truant sent to a local

asylum, would be void, and that no public moneys

could be paid therefor.

The inevitable conclusion then arises and explains

the real reason for the embodiment into the Bill of



28

this extraordinary power, given to the State Super-

intendent to establish one or eight truant schools

as he may deem wise. For the denomination of

local truant schools as at present would, be impos-

sible under this interpretation of the law, unless the

local asylums were willing to support and educate

the truants at their own expense.

Just what authority a State has to deprive the

truant children of their liberty, and, at the same

time, of religious instruction, it is difficult to see. If

the State truant schools permit religious instruction

of any kind, grave question may be raised as to

their being institutions wherein sectarian instruction

is given, which is in plain violation of the provisions

of law
;
wherefore, we must conclude that State in-

stitutions must be carried on without any reference

whatever to the religious and moral education of

the children.

Now, if the truant schools of the State are to be

penal institutions, then they should not be classed

with common schools, for even in those institutions

religious instruction is open if the inmates desire it.

General inefficiency of truant schools, or any State

educational institution, is well illustrated by the

condition of the New York City truant school

(which, by the way, is a local school, and

dependent entirely upon local authority), loca-

ted at East Twenty-first street. It has been found,

upon investigation, that prior to May, 1898, the con-

dition of that school was of a most frightful charac-

ter. There were about ninety-seven inmates who

had been committed there and who were not able to

get relief, and about ninety seven day pupils who

were coming and going upon some system of parol.

It was found upon inspection, that the children

were poorly clad, disgracefully ill-fed, and their

bodies covered with vermin and filth. Since that

date no man has been found to take the place, but

under the kindly and womanly supervision of the

present incumbent, order has been brought out of

chaos, and a system adopted that seems to work



29

well
;
and it is wise that the recent history of this

little institution should be taken into consideration.

As a receiving station, as a place where really in-

digent truants or incorrigibles might be retained

pending a decision of the magistrate in their case,

there are excellent reasons to believe that it would

be of incalculable benefit to both the children and the

department
;
but, as a truant school, where children

are to be confined, possibly from October to June

(the limit of commitment under the present bill in

each case, being the remainder of the current school

year), it certainly is inefficient.

The principal features of this article relating to

truancy that are objectionable are, as has been said,

the establishment of State truant schools in each

judicial district, coupled with the power to abolish

the local truant schools and therefor to deprive the

children committed there of any and all religious

instruction
;

the commitment of the children for

long terms, the remainder of any current school

year; the extraordinary' and uncalled for power

vested in truant officers, who are so often political

appointees and unfit to have even the temporary

charge of children whereby they may be taken with-

out warrant wherever found, except in the home of

the parent, and, upon the second arrest, may be

held in the custody of that officer until the case is

disposed of by the committing magistrate, and

finally the power of parole, which is lodged in the

State Superintendent, when a child is committed to

a State school.

That you may understand the full danger of this

last method, your attention is called for a moment

to the practical working, of the theory of parol. In

the first place, it may be stated, without fear of

contradiction, that the real intention of a truant

school is to reform and not punish
;
and from

those who are experienced in the matter, we find

that most of the children who are sent to these

schools as incorrigibles, have misbehaved or run

away from school by reason of some unpleasant or



30

disagreeable surroundings, often times more the

fault of the teacher, or of the school regulations,

than that of the child itself.

To assist in bringing the truant to a clear and fair

understanding of his offense, there has been adopted

in the truant school (to which your attention was

called a moment ago) a system of parol cards, good

for two weeks, which, after the child has had its

bath and has been cleaned up and brought to a full

sense of the value of respectability, is issued to him

with the promise exacted that he is to return to the

school, or to his parents, as the case may be, and

each night the teacher or parent in charge is to

write opposite the signature the word “bad,”

“good,” “fair” or “ excellent,” as may best depict

the conduct of the child during that day. At the

end of the week this card is brought back to the

Supervisor of the truant school who will recommit

or again send out on parol the truant, in accordance

with the actual record found on the card.

The history told of some of these little fellows is

interesting and instructive in the extreme, and to

the average mind is the strongest possible argument

against their confinement in institutions under rigid

unbending State control, wherein the morals and

the religious ideas of the child are left untrained.

Under the proposed system, with eight districts

under his charge, such rules for parole could not

be adopted without violating the express provisions

of the statutes.

So much has been said already by the State Board

of Charities upon the question relating to the new

laws for the care and teaching of the blind and deaf

mutes, that but little is necessary to add, except our

earnest protest against any system that would take

these unfortunate defectives from parental love and

affection without the full concurrence and complete

knowledge, on the part of the parent, as to the in-

stitution in which the child is to be committed, and

the methods to be adopted for teaching him how to



31

take his place during years of maturity in the

ranks of workers.

Bearing in mind now that under the provisions of

Article I, these schools are classed as “common

schools,” and, bearing further in mind the restric-

tion imposed upon the use of public moneys for the

support of any institution where sectarian in-

struction is given, we find that Section 440 is

misleading in the extreme. Under the terms of it,

the State Superintendent may make contracts for

the instruction of the deaf-mutes with one or more

of the following schools or institutions

:

New York Institution for the Instruction of the

Deaf and Dumb, in New York
;

Le Couteulx St. Mary’s Institution for the Im-

proved Instruction of Deaf-Mutes, in Buffalo
;

The Institution for the Improved Instruction of

Deaf-Mutes, in New York
;

St. Joseph’s Institute for Improved Instruction of

Deaf-Mutes, in Fordham
;

The Central New York Institution for Deaf-

Mutes, in Borne
;

Western New York Institution for Deaf-Mutes,

in Bochester

;

The Northern New York Institution for Deaf-

Mutes, in Malone
;
and

The Albany Home School for the Oral Instruction

of the Deaf and Dumb, in Albany.

Many, if not all, of these institutions are chari-

table
;

and, as such sectarian instruction is

not prohibited, and under the present law a

deaf-mute committed by request of the parent is

sent to that institution where the religious tenets of

the parent are taught
;
but, so soon as the State

Superintendent shall undertake to make contracts

for the commitment of the deaf-mutes to any of

these institutions, they become, under the provisions

of Article 1 Common Schools, and thus subject

to the constitutional inhibition. What is the result?

The State Superintendent is then empowered, and

it seems his only remedy is, to establish State



schools for the deaf-mutes; but, as during the

course of this discussion, Judge Lincoln has stated

that that portion of the Bill authorizing the estab-

lishment of State schools for deaf-mutes and the

blind will be withdrawn, it will make tile other

portions of the Bill, to which your attention will

now be called, inoperative, and the whole cum-

bersome method adopted for getting possession of

our defective children of no avail.

Under the proposed Bill, the blind and deaf-mute

children may be committed by a local magistrate,

having been previously arrested and taken from the

custody of the parents themselves from their own

homes and without their consent, to any institution

within the State named by the Superintendent. If

this commitment shall be made to a local contract

school, then there is a provision that the child shall

be committed to that school or asyl um in which the

religion of its parent is taught
;
but such a commit-

ment would be inoperative, because the moment (as

has been said) a contract is made with an institution

where sectarian instruction is given, the State

moneys cannot be paid for the support and educa-

tion of the child so committed. The law-, in its

original form provided that a commitment could

then be made to a State school
;
but, accepting the

word of the spokesman of the Revision Committee

that that feature would be stricken out, it leaves

the commitment of the child by a magistrate to a

local contract school inoperative and of no effect,

as there seems to be no authority for a sug-

gestion that these charitable institutions could be

forced to educate and clothe the child without rec-

eiving compensation from the State or the countjr.

Under the provisions of paragraph 441, the State

Superintendent may upon thirty days’ notice cancel

a contract made under the provisions of paragraph

440, wherein such instruction is not given to his

satisfaction.

The present law governing the education of the

blind and the deaf -mutes operates well, and there is



33

no cause, and no ground, for the establishment of

State schools for the education of these defectives
;

no cause of complaint has been, or can be, made,

except that this is one of the cases in which the

State Superintendent has not had absolute unquali-

fied authority over the institution.

We submit that the present control which the
State Board of Charities exercises over these institu-

tions has been sufficiently well administered to make

a provision, such as that contained in the proposed

law, obnoxious and undesirable in the extreme.

The change proposed by the new law governing

the term of years necessary to the conferring of a

degree by a college is unwise and uncalled for, as it

prescribes a time, and not a standard limit for the

giving of such degree.

And now, Gentlemen, we come 10 a consideration

of a branch of the whole Bill, which is phenomenal

in the powers which it confers and so unusual as to

cause in the mind of every honorable man the very

serious query, not only as to the propriety, but as

to the ulterior design of those who have so far de-

parted from the custom and spirit of American

public affairs as to exact or even tolerate the con-

centration of all the powers of administration and

legislation in the hands of a single official.

To those who have examined the existing law, the

powers granted to the State Superintendent of

Public Instruction have been broad enough and too

broad, and evidently the exercise of these powers for

so man v years has created and fostered the autocratic

spirit so unusual in our public affairs and so dan-

gerous and pernicious in its results.

Before discussing in detail the spirit of the

powers granted to the Superintendent by this

Bill, should it become a law, your attention

should especially be directed to a misleading

feature which will lead to very serious results in

its practical workings. The Bill provides that on all

questions of appeal (and a portion of this was em-

bodied in the old law) by an aggrieved person from



34

any ruling or ant of the school authorities of any

district, the decision of the State Superintendent

shall be final, and no appeal can be taken therefrom

to the courts of the State.

For example, if a deaf-mute, confined, under

the provisions of this Bill in a State or other

school, if it were possible to get him within

the doors, should be aggrieved, and an appeal

should be taken by the parent for some modi-

fication of his instruction upon religious or other

grounds, the decision of the Superintendent would

be absolutely final, and the ordinary rights of the

child would be surrendered by that act. But apx>a-

rently for the purpose of creating the opinion that

this restricted right of appeal only relates to a small

number of cases concerning administration and the

like, another provision is introduced under para-

graph 496, which states that the final acts of the

State Superintendent, or refusal to act, not involved

in an appeal to him, may be reviewed by the

Supreme Court b}^ a writ of certiorari.

Without criticising the nature of the Avrit hit

upon for bringing the delinquent superintendent

before the Courts your attention is called specific-

ally to the large number of duties imposed upon

the State Superintendent which are discretionary

in their character, and the discretionary act of

an official, as is well known, cannot be reviewed

by a Court. So that, if in his discretion the State

Superintendent should undertake to show that

the deaf-mute child of any citizen was not receiv-

ing proper education at home in his own house

and under the care and supervision of his own

parents, and should determine that the child

should be sent to a State school, is an act of

discretion under the provisions 'of this Bill, and

could not be reviewed by the courts. Therefore,

notwithstanding the apparent liberality of the

provisions of the Bill under this head, the fact re-

mains that there are but a few exceptional cases in



35

which the acts of the State Superintendent could

be reviewed by the courts.

This is an extraordinary provision and one which

is seriously inimical to good government, and it is

difficult to see how an obnoxious overbearing in-

cumbent of that office could be removed
;
and, even

should that happen, the same powers remain to

be invested in his successor.

Now, under Article I, the State Superintendent

is endowed with new powers, for he may add to the

list of text-books to be used by the pupils, with-

out let or hindrance on the part of the Legislature

or the local boards. In sub-division 3 of para-

graph 5, Article I, he becomes absolutely equal to

the legislative . authority of the State in adding to

many of the educational features of the different

schools throughout the State.

This is a discretionary power also, and no appeal

could be taken from any act of his in reference

thereto.

Under Article IX, he is clothed with powers

which authorize him to establish, maintain and con-

duct solely and personally the State truant schools

in each district. And it is difficult to see how,

under that provision, any efficient remedy could be

found against acts of tyranny, bigotry or personal

bias. This becomes the more serious when we con-

sider that under the laws proposed the State Super-

intendent will be the only one who can finally de-

termine the character of the religious instruction of

the inmates in the truant schools, or even whether or

not they shall have any instruction of that character.

This right is not taken away from the criminal,

who is confined in our State prison, but the care-

lessness arising from inattention on the part of a

State superintendent to the spiritual welfare of the

enforced pupils in the truant schools, would work

incalculable harm.

The unusual powers granted him in the determina-

tion of the necessity for the commitment of deaf-

mutes, whereby he becomes the sole judge and



86

arbiter of the sufficiency and nature of the instruc-

tion which that defective is receiving, is not only

an unnecessary authority, but imposes upon him

duties which no single man in the commonwealth

could possibly execute honestly, intelligently, or

with decent regard of the interests of either the

citizens or the unfortunates so delivered into his

custody.

Nor does this Bill seem to be satisfied with giv-

ing to the State Superintendent all of the authority

in the administration of the public school system,

but undertakes to deprive the Comptroller and

Secretary of State of the practical veto power now

vested in them, unless they concur with the State

Superintendent in contracts made with Indian bands

for the use and occupation of their lands for public

school purposes.

Under the present law the State Superintend-

ent, in selecting banks of deposit for the funds

in his hands and for all paid-up insurance on

the school property throughout the State, has been

properly subjected to the Comptroller, but under

the provisions of this Bill the supervising authority

of the Comptroller is taken away and another vast

discretionary, unreviewable power is placed in the

hands of the State Superintendent of Public In-

struction. He is not now satisfied with these powers

conferred upon him, even the Governor must be

divested of his authority. Heretofore the Governor

of the State has bad the power of appointment of the

Trustees of the Batavia School for the Blind, which

appointment must be confirmed by the Senate.

Under the provisions of this Bill, not only

is the power of appointment conferred upon the

Superintendent instead of the Governor, but the

right of confirmation in the Senate is taken

away and this protection which is properly and

necessarily drawn about appointments to this

responsible office is absolutely taken away and

vested in the Superintendent. This, too, is a

discretionary act and there seems to be no remedy



37

left whereby the aggrieved citizens may even obtain

a hearing.

In leaving this matter in your hands, Gentlemen

of the Committee, we desire to call your attention,

in addition to the constitutional questions which

have been presented, to our attitude towards educa-

tion in general as Roman Catholics.

We are educators and believers in education in
every department of life. We believe in teaching
good morals, good behavior, good citizenship.

The fact that we ground these qualities in a fixed

religious belief should not disqualify us in a Christ-

ian community, the foundation and the con-

tinuing underlying principles of the prosperity

of which have been the worship of God. The

education of our young has taken a practical form

and in the City of New York itself the great body of

Roman Catholics are educating over 40,000 children

every year, saving thereby to the public treasury of

the State annually the large sum of $3,100,000.

We demand from you our constitutional rights,
the same rights demanded by the Protestants

in the tight before the Legislature in 1888 in

Massachusetts. And what are our constitutional

rights ?

Personal inviolability. The recognition of the

inalienable right of the parent to teach his child.

The right to delegate this authority to whom he

may see fit. The abolition of all paternalism on

the part of the general government as an educator.

And finally, we demand that the Stace furnish to its

citizens a system of public education non-sectarian

in its character, which shall grant to the children of

the State and all of them the opportunity of being

educated at public expense, unrestricted by such

rules and regulations as will enable any official to

enter our homes or our private schools and dictate

the methods and grade of education which we give

to our little ones.



38

In the light of the preceding principles, and as a

necessary deduction from them, the following

amendments are proposed on behalf of the Catholic

Interest’s Committee :

I.—The rejection of

a. Subdivision 2, Section 3, totally and absolutely;

and,

b. As a necessary consequence, the whole of Article

XVI
,
entitled “ Instruction of the Blind and

Deaf-Mutes.”

Because :

The matter therein treated is novel legislation : is based

upon no present need of change : has not been called

for by those who are intimately connected with these

affairs and who, from close and long contact, should

best know the wants of. these unfortunates

:

Because :

The present schools upon which much has already been

expended would be eventually destroyed :

Because :

Since the Superintendent of Public Instruction can

make contracts (Section 439) under this chapter only

for the term of his office, there would be perpetual

disorder and uncertainty : for the incoming Superin-

tendent may have quite an opposite personal bias :

Because :

Some of the institutions mentioned (Section 440) with

which contracts “may” be made are known to be

sectarian : and the moment he tries to pay to them

the very contract price agreed upon he will be

estopped by Section 4, Article IX. of the Constitu-

tion of Xew York :

Because :

He may contract (Section 439) with
“
the trustees or

managers of a school or institution for the blind for



39

the instruction therein of resident blind children.

* * * * * A school or institution with which
a contract is made under this section becomes a school

for the blind, under this chapter, and subject to all

its provisions so far as practicable.”

Because :

What has been said in the preceding paragraph applies

alike to the deaf-mutes; “the provisions of this

article relating to the instruction of blind children

and the powers and jurisdiction of the State Superin-

tendent apply, so far as practicable, to deaf-mutes

and schools for their instruction.” (Section 444).

Kemedy

:

Allow the present law with regard to the blind

and the deaf-mutes to stand as now on our statute

books.

II.—The rejection of
a. Subdivision 2, Section 5, in toto.

Because :

“Good morals” are to be taught by the use of tire

Bible
;
but the reading of the Bible is sectarian in-

struction
;
therefore, according to Section 4, Article

IX., Constitution of New York, the “Common

Schools ” are cutting themselves off from participa-

tion in the very moneys set aside for their main

tenance.

Because

:

Though the Bible has been allowed hitherto in the

schools of The City of New York, this proposed sec-

tion is not in pari materia.

1. Since the present provision applies to The City of

New York only, while the proposed provision would

extend it to the whole State.

2. (And this especially) because Section 4, Article IX.,

Constitution of New York, was adopted and ratified



40

only in 1894; whereas, the present status of the

Bible in the Charter of Greater New York has con-

tinued more or less the same since 1844.

Therefore, whether sectarian instruction could have

been permitted before the insertion of Section 4,

Article IX., Constitution of New York, is not now

the question : we simply say that since it has been

inserted no public moneys can be used in support of

sectarian instruction.

Because :

By comparing the text of the provision in the Greater New

York Charter with the text in the proposed measure, a

free unrestricted and unqualified use foreshadowed by

the use of the word “ otherwise
55

in the latter, com-

pares very unfavorably with the words
u

if any/’

contained in the former.

Because :

The Bible, u without note or comment,'
5

is no safe guide

to good morals even in the hands of the average man,

to say nothing of children.

Because :

l(

Morals
55
cannot be taught without an impression of

the teacher’s sectarianism, be this instruction with or

without the use of the Bible.

b. Subdivision 3, Section 5 : wholly.

Because :

As a necessary consequence to the rejection of Subdi-

vision 2 of the same paragraph, it cannot stand.

Because :

It would nullify the rejection of Subdivision 2, since it

would give to the Superintendent and others the

power to reinstate the very matters just thrown

out.

Because :

It would seem absolutely useless to carefully designate

the studies which are to be pursued in the schools and

then add a provision so broad as the present.



41

Because :

It is a dangerous and unnecessary power to confer upon

any officer.

Remedy : •

Nothing less than the total rejection of subdivisions

2 and 3 of Section 5.

III.—The rejection of Section 18 unconditionally.

Because :

No necessity for it; as the whole matter is provided

for under other sections of this measure.

1st. In Section 60, the trustees are elected by the

district meetings for the performance of these

very duties in so far as they fall within the

area of their jurisdiction.

2d. In Section 81 the boards of education of the

various Union districts are elected for like

purposes with broader jurisdiction.

3d. In Section 460 the Commissioners are elected

by the electors of the district for the per-

formance of duties which also cover in part

those named in Section 18.

Because :

It’is not to be supposed that any district or city, which

must necessarily take pride in everything that tends

to local advancement, would he derelict in this

matter
;

and if perchance and at intervals far between

such should be the case, each local taxpayer has his

remedy in the courts.

Because :

Section 18 would nullify and stultify other provisions

of this very measure.

1st. Section 114, paragraph 4.

2d. Section 81 throughout all of its 12 paragraphs.

Because :

Every municipally {i. e. county, town, school district
,

village and city
,
Sect. 3, Gen. Corp. L.) has by Sec-



42

tion 11 of tlie same law, the “power, though not

specified in the law under which it is incorporated,”

4. “ To appoint such officers and agents as its busi-

ness shall require and to fix their compensa-

tion, and
”

5. “ To make by-laws, not inconsistent with any

existing law
,
for the management of its prop-

erty, the regulation of its affairs,” etc., etc.

Section 18 of the proposed measure is not an existing

law
;

hut in the hill is marked “ new
;

” and would

jeopardize the broad right of every municipality in

its very existence would in fact be tantamount to a

repeal of the charters of every county towm, school

district, village and city in the State.

Because :

No state officer should he vested with the power to

perform the duties which the Constitution intends

should be performed by local officers. No argument

should be needed to show that when the Constitution

Art 10, Section 2, provided that local officers should

be elected by the electors of their district or ap-

pointed by the authorities thereof, it was intended

that their functions should never be usurped by the

legislature nor conferred upon State officers. The

proposed amendment gives the State Superintendent

the only power* he ought to have, viz.: to pursecute

delinquent school authorities and have them removed.

Remedy

:

Amend Section 18 so as to read “ If a city or district

fails to comply with the requirement of the last

section the State Superintendent shall prefer charges

against the officer, board or other school authorities

neglecting the duty imposed by said section to the

end that such officer, board or school authorities shall

be removed from office and others appointed in his

or their places to carry out the provisions of said

section.”



43

IV.—The Rejection of
a. Sections 231 and 249 totally, absolutely, and with-

out qualification :

Because :

They establish the doctrine of State control of educa-

cation, which is un-American and unconstitutional.

Because :

These Sections interfere with the parental duty
;
de-

priving even the intelligent father of the very right

to educate his own child if he should see fit, at home

without restriction, and in that manner he deems best

suited to the child, for whom he alone is responsible.

Because :

These sections give the Superintendent the power to

enter the home where the education of the child is

being personally conducted.

Because :

The State Superintendent has by these provisions the

power of controling and dictating the method of

home education, which is a violation of personal

rights.

Because :

Subdivision 3 of Section 231 is absurd and presents a

physical impossibility. Suppose a child has been

ailing to his tenth or eleventh year, and it is proposed

to begin his education at home, must he receive “ an in-

struction substantially equivalent to that given to

children of like age at the public schools?” The

absurdity is apparent
;
yet is there any alternative if

this section is to stand ?

Because :

Under these two sections, any superintendent, or school

authority, who wishes, can, by persistent and sys-

tematic interference in the minutest and perhaps

most trivial details of discipline, management and

instruction, worry out of existence each and every

private school in the State, if there should be the



44

slightest misunderstanding as to the meaning of

equivalent instruction.”

Because :

Above all, and especially these sections have now no

standing at law
;
are overwhelmingly disproportionate

to the constitutional proviso, Section 1, Article IX,

Constitution of New York.

Because :

The act from which these features were drawn was

passed in May of 1 894, and added to the Consolidated

School Law as Title XYI thereof before the adoption

of Section 1, Article IX, of the Constitution of New

York.

b. Section 233 in its entirety.

Because :

1st Local truant schools as now authorized accom-

plish all of the requirements
;

2d. There is no necessity for State truant schools

;

3d. The tendency would be to make prisons of such,

and degenerate children to the level of criminals
;

4th. They would take away all the saving features of

the parole system

;

5th. They place a little one whose one “crime ” is that

he will not go to the “ public school,” in daily con-

tact, for constructively the whole year, with old and

mature incorrigibles.

Because :

They would reproduce in greater intensity all of those

horrible and yet cruelly true conditions that we have

called attention to in Article IV. of our brief, as ex.

isting but a few years ago in the truant school of New

York City. If there, within stone throw of the very

homes of the incarcerated children, those things were

done, what worse will not be done in a State school ?

Because :

At the discretion of the Superintendent “ any local

truant school ” may be discontinued and thereafter



45

u
children who might otherwise be sent to such school

shall be sent to a State school.” This is unwarranted
;

a bureaucratic despotism that no intelligent, or self-

respecting citizen will for a moment tolerate.

c. The rejection of Section 243 :

Because :

A truant officer, be he of what condition of life, be he
of what morals he may, can take an otherwise harm-

less child into his custody and keep it until he can

bring it before a magistrate. Keep it where ? What

if Saturday night, and Sunday, and Sunday night

must intervene before he can bring the child before

a magistrate ? Cannot the very means taken to sup-

press truancy,—which is no crime, easily be the
child’s first lesson therein ?

Remedy :

Every child in the State has a right to an education in

its common schools or to a proper education else-

where. Let it be a misdemeanor for any parent to

wilfully and arbitrarily deprive his child of this,

right
;

but no parent should be forced to use the

‘
‘ public school system ” so long as he is able to

educate or provide education for his own off-spring.



Points in opposition to proposed

Education Law (Senate Bill No. 108,
Assembly Bill No. 234), on behalf of

the Catholic Club and the Catholic

interests of The City of New York.

Our opposition to the Education Bill, as it lias

eome before this Legislature, is based upon the

generic principle of constitutional inviolability on

the part of the parent in the custody and education

of his children so long as he does not forfeit that

right, by neglect or vicious instruction.

The Constitution of the State of New York,

Article IX, Section 1, embodies the powers and

limitations of the State to interfere with the educa-

tion of our children and the discussion which

follows will be based upon the constitutional, right

of the citizens of this State to retain the custody

and conduct the mental, moral and religious

education of their offspring, whether they be well-

behaved or truant, endowed with all their faculties

or blind or deaf mutes.

I.

This bill, while it emanates from the Committee

of Statutory Revision, has evidences of the handi-

work of the State Board of Education and presum-

ably may be assumed as having been conceived

under the supervision of the State educational

authorities.

The law which created the Statutory Revision

Committee (L; 1889, c. 289) carefully defined its



47

powers and it was obviously not contemplated by

the Legislature that this Commission should do

anything except revise existing statutes. The

statute, by its terms, provides that the Commission

shall “Prepare and report to the Legislature bills

for the consolidation and revision of the general

statutes of the State,” upon certain subjects named.

And further, that the Commission should report to

the Legislature and in its report should “ suggest

such omissions, contradictions and other imperfec-

tions as may appear in the existing statutes so pro-

posed to be revised and consolidated, with recom-

mendations for the amendment thereof.”

The Commission was appointed only for a year

in the first instance, but its existence was continued

from time to time and it was finally made a perma-

nent Commission and its powers and duties were

greatly broadened by Chapter 24 of the Laws of

1893, which added a new section to Chapter 8 of

the General Laws (1 R. S., 9tli ed., p. 349, Sec-

tion 23) and provided as follows :

“It shall be the duty of the Commissioners of

Statutory Revision, on request of either House of

the Legislature or of any Committee, member or

officer thereof, to draft or revise bills, to render

opinions as to the constitutionality, consistency, or

other legal effect of proposed legislation and to re-

port by bill such measures as they deem expedient.”

This statute seems to give the Commissioners the

broadest imaginable powers in submitting bills to

the Legislature.

The danger to be apprehended from the extraor-

dinary powers vested in this Commission consist in

the general apathy concerning all bills which are

presented through any revision Commission, and

their passage as matter of course upon the suppo-

sition that the}' do not contain new matter or what

may be termed new legislation. Under such con-
ditions it is the duty of the Committee to give un-

usual publicity to the bill that the general impres-

sion that this is a revision merely may be removed.



48

II.

The enforcement of the reading of the Bible or

the teaching of morals and good behavior in the

Public Schools is a violation of Constitutional

rights.

Religious liberty, or liberty of conscience, under

the United States Constitution has a double aspect,.

The individual shall not be (1) compelled to worship;

nor (2) prevented from worshipping.

(

u Congress shall make no law respecting an es-

tablishment of religion, or prohibiting the free ex-

ercise thereof.” U. S. Const., First amendment,.

Art 1.)

These two bald statements might, perhaps, be

amplified thus

:

1. No person shall be coerced to recognize, either

by outward action or inward conscience, any par-

ticular form of religion or any religion whatever.

2. The right to openly and freely worship accord-

ing to the doctrines of any particular religion is in-

alienable and shall not be prohibited.

It should be said, at once, that neither of these

propositions is absolutely correct. It should be

noted here also, that there is nothing in the United

States Constitution depriving the various States of

the right to deal with this question. But the prin-

ciples stated above are found in the State Consti

tutions generally. See|Cooley’s Constitutional

Limitations, 6th eel., page, 571 et seq., chapter on

“ Religious Liberty.”

The defect in the first of the foregoing proposi-

tions is due to the principle that the doctrines of

Christianity, are, to a limited extent, part of the law

of the land. This principle is well stated in Linden-

muller v. People (38 Barb., 548, at page 560), aj

follows

:



49

“The constitutionality of the law under which

Lindenmuller was indicted and was convicted does

not depend upon the question whether or not Christ-

ianity is a part of the common law of this state. Were
that the only question involved, it would not be

difficult to show that it was so, in a qualified sense

—not to the extent that would authorize a com-

pulsory conformity in faith and practice, to the

creed and formula of worship of any sect or denom-

ination, or even in those .matters of doctrine and

worship common to all denominations stylingthem-
selves Christian, but to the extent that entitles the

Christian religion and its ordinances to respect and

protection, as the acknowledged religion of the

people. Individual conscience may not be enforced
;

but men of every opinion and creed may be re-
strained from acts which interfere with Christian

worship, and which tend to revile religion and bring

it into contempt. The belief of no man can be re-
strained, and the proper expression of religions

belief is guaranteed to all
;
but this right, like

every other right, must be exercised with strict re-

gard to the equal rights of others and when religions
belief or unbelie 1* lead to acts which interfere with

the religious worship, and rights of conscience of

those who represent t lie religion of the country, as
established, not by law, but by the consent and

usage of the community, and existing before the

organization of the government, their acts may be
restrained by legislation, even if they are not indict-

able at common law. Christianity is not the legal
religion of the state as established by law. If it

were, it would be a civil or political institution,

which it is not
;
but this is not inconsistent with

the idea that it is in fact, and ever has been, the re-

ligion of the people. This fact is everywhere promi-

nent in all our civil and political history, and has

been, from the first, recognized and acted upon by
the people, as well as by constitutional conventions,

by legislatures and by courts of justice.”

Many cases might be cited to the same effect and

all writers on constitutional law recognize this prin-

ciple. Upon it are founded, to a considerable extent,

the various Sunday laws, which have been almost

universally upheld in all the States. In the case

from which the quotation is taken the proprietor of

a theatre had been indicted forgiving a performance



50

on Sunday and it was in affirming his conviction,,

that the Court used the language to which reference

is made.

There is another view that these statutes aro

merely civil regulations and not connected with re-

ligious worship. A case in the Supreme Court of
California announces this doctrine, but the discus-

sion shows that the decision was based upon an un-

derlying religious sentiment. The case is interest-

ing also because the same Court at first held that

such laws were unconstitutional and later overruled

the earlier decision.

That Court, in 1858 (Ex Parte Newman
,

9 CaL

502), declared a statute prohibiting all except certain

classes of business to be transacted on Sunday as a

violation of the State Constitution which provided:
u The free exercise and enjoyment of religious pro-

fession and worship, without discrimination or pre-

ference, shall forever be guaranteed in this State.”

(§4.)

And the further provision

:

“ All men are by nature free and independent and

have certain inalienable rights, among which are

those of enjoying and defending life and property

acquiring, possessing and protecting property,

etc. (§1.)

An Israelite engaged in the business of selling

clothing had been convicted under the statute men-

tioned. The Supreme Court discharged him on

habeas corpus proceedings and held the law uncon-

stitutional. The Court, which was composed of

three judges, divided on the question, Field, J

writing a strong dissenting opinion. This decision

was so far contrary to the settled doctrine of nearly

every State in the Union that it was repudiated

three years later, by the same Court, though dif-

ferently constituted (Ex Parte Andrews
,

18 Cal.,

679), and the doctrine of the last mentioned case

was re-affirmed in Ex Parte Burlie
,
59 Cal., 19.



51

In the Andrews case the Court remarked, at page-

684 :

“It is contended witli more earnestness that this

act is opposed to the fourth section of the first

article. The language of that article deserves par-

ticular notice. It contains a guarantee for the free

exercise and enjoyment of religious profession and

worship, without discrimination or preference. We
understood this to be an interdict against all legis-

lation which invidiously discriminates in favor of

or against any religious system. It does not interdict

all legislation upon subjects connected with religion;

much less does it make void legislation, the effect
of which is to promote religion, or even advance the

interests of a sect or class of religionists. On the
contrary, the interests and even the rites of sects

have been oftentimes protected by law, as by acts

of incorporation of churches, exemption from tax-

ation in some States, protection of meetings from

interruption and the like acts. While the primary

object of legislation, which respects secular affairs,

is not the promotion of religion, yet it can be no

objection to laws, that while they are immediately

aimed at secular interests, they also promote piety.

The Act of 1861 does not discriminate in favor of

any sect, system, or school in the matter of their

religion. It found a particular day of the week

recognized by the large majority of the people of

the country as a day consecrated to divine worship.

It wTas regarded by all of this large class as a

day of rest, but not by all as a day set apart

exclusively for divine worship or religious

observance. In selecting a day of rest

from wordly labor, that day would seem to be

the most convenient, which, while it offended the

scruples of none to observe, was most familiar to

the usage, sense of propriety, and sense of religious

obligation of so many. At least, the mere fact as
we have intimated, that the closing of shops on that
day might be more convenient to Christians, or

might advance their religious aims or views, is no

reason for holding the law unconstitutional. If

Saturday had been chosen, a like objection might

have been urged by different sects
;
and, probably,

any other day of the week might have encountered
objection from still other sects already existing or

to arise. The Act of 1861 requires no man to pro-
fess or support any school or system of religious-



52

belief, or even to have any religion at all
;

it does

not require him to contribute money to any sect,

or to attend any church or meeting. It simply re-

quires him to refrain from keeping open his place

of business on Sunday.

“The operation of the act is secular, just as much
as the business on which the acts bear is secular

;

it enjoins nothing that is not secular, and it com-

mands nothing that is religious
;

it is. purely a civil

regulation, and spends its whole force upon matters

of civil economy.”

This case was cited with approval and a similar

doctrine announced in Commonwealth v. Has
,
122

Mass., 40.

The principle found in these decisions has been

embodied in the Constitution of this State, which

provides:

“ The free exercise and enjoyment of religious

profession and worship, without descrimination or

preference, shall forever he allowed in this State to

all mankind
;
and no person shall be rendered in-

competent to be a witness on account of his opinions

on matters of religious belief ; but the liberty of

conscience hereby secured shall not be so construed

as to execuse acts of licentiousness, or justify prac-

tices inconsistent with the peace and safety of this

State.”

N. Y. Constitution, 1894, Art. 1, §3.

Therefore, turning to the first proposition it is found

that while no person is compelled to recognize any

particular religion, or any religion whatever, still

he must so conduct himself as not to offend the great

mass of the people who profess Christianity. To

this limited extent, atheists, agnostics and those

whose religion is non- Christian, are compelled to

recognize and respect the doctrine of Christianity.

The second proposition that no one shall be pre-

sented from worshiping according to the doctrines

of such religion as his conscience dictates, also has

limitations. They are expressed in general terms

in the New York Constitution. The most conspicu-

ous example of the prohibited practice in this coun-

try, is, of course, polygamy. There are others



53

which are to be found among the older Eastern nat-

ions, which are essentially religious. Christians

consider them immoral and the exercise thereof is

therefore prohibited, notwithstanding the broad

expression in the Constitution of both the United

States and of New York.

The discussion thus far has been for the purpose*

merely of showing, generally, the limitations and ex-

ceptions to the constitutional provision, as broadly

stated, that no one is compelled to recognize any

religion nor prohibited from worshiping in the man-

ner dictated by his conscience. And it is worthy of

remark that the tendency has been towards liberal-

ity as respects Sundaj^ laws. ,The old so-called Blue

Laws of earlier history of the country have been

largely modified in the States where they were in

force and of the newer States the tendency has been

towmrds an even greater liberality.

We read of people being punished in Colonial
times for failing to go to church, in places where

there was only one church available. But that is

one of the particular immunities which the Consti-

tution of this State at least has secured to its citizens.

While the Christian religion must be respected in

the manner already pointed out, no one can be com-

pelled to listen to the teaching of its doctrines. No»

one can be compelled to profess Christianity. Lib-

erty of conscience to this extent is an inalienable

right.

Keeping this in view, put some of the features of

the proposed school law together and see how they

would work out in their practical operation. They

may be stated briefly as follows :

1. Compulsory education of all children of school

age, including the blind and deaf-mutes, in a common

school or equivalent instruction elsewhere. (Note

that the place for instruction of the blind and the

deaf-mutes -are made common schools by section 3.)

2. The Bible .(any version thereof) may be read*,

without note or comment, “ as a part of the school

exercise or otherwise” (§5).



54

(The Bible therefore can be adopted as one of the

text books by the proper authorities, provided it is

msed in the manner indicated.)

These provisions are particularly clear and unam-

biguous. It requires no refined reasoning to demon-

strate that children of Protestants, Catholics, Jews

and Turks alike must attend school where the Bible

is a text-book, provided it has been adopted by the

proper authorities in any particular school district,

and listen to the reading of u any version thereof.”

Omitting for the moment any discussion as to the

effect of this law on the public schools generally;

attention is called particularly to its operation on

truant schools and institutions for the instruction

of the blind and deaf-mutes. The pupils in a truant

school are prisoners. They are restrained of their

liberty and are compelled to attend that particular

•school designated by the Superintendent and receive

the instruction imparted therein. The blind and

the deaf-mutes are, by reason of their unfortunate

condition, confined to the particular schools to which

they are sent. This is essentially true concerning

such of the children as are sent to schools design-

ated by the Superintendent, against their parents’

wishes.

Again it needs no argument or citation of author-

ity to demonstrate that sectarian instruction in the

public schools is unlawful and unconstitutional.

Section 4 of Article IX. of the State Constitution

makes that point clear.

Assume for a moment that the reading of the

Bible in the manner specified in the proposed statute

is “ sectarian instruction ” and it becomes evident

that the
-

Constitutional inhibition is violated. If sec-

tarian instruction is unlawful and the reading of

the Bible, without note or comment, is sectarian

instruction, then the reading of the Bible in the

manner proposed is unlawful.

The whole question turns on the correctness of

the minor premise—is the reading of the Bible,
without note or comment, sectarian instruction ?



55

This question has been carefully and exhaustively

discussed by the Supreme Court of Wisconsin, after

a litigation which was fought with all the warmth

and determination of religious zeal and personal

•conviction. Each of the three judges wrote a sepa-

rate opinion, but they all concurred in the conclu-

sion that the reading of the Bible, without note or

•comment, was “ sectarian instruction,” and there-

fore prohibited in the public schools. State v.

District Board
,
76 Wis., 177,

In discussing this point the Court said, at pages

191, 194:

“The courts will take judicial notice of the con-

tents of the Bible, that the religious world is divided

into numerous sects, and of the general doctrines

maintained by each sect, for these things pertain to

general history, and may fairly be presumed to be
subjects of common knowledge, 1 Green!. Ev. §§5, 6,
and notes. Thus they will take cognizance, without

averment, of the facts that there are numerous re-

ligious sects called ‘Christians,’ respectively main-

taining different and conflicting doctrines
;
that

some of these believe the doctrine of predestination,

while others do not some the doctrine of eternal

punishment of the wicked, while others repudiate

it
;
some the doctrines of the apostolic succession

and the authority of the priesthood, while others

reject both
;
some that the Holy Scriptures are the

only sufficient rule of faith and practice, while

others believe that the only safe guide to human
thought, opinion and action is the illuminating

power of the divine spirit upon the humble and de-

vout heart
;
some in the necessity and efficiencj^ of

the sacraments of the church, while others reject

them entirely
;
and some in the literal truth of the

-scriptures, while others believe them to be allegori-

cal, teaching spiritual truths alone or chiefly.
* * * That the reading from the Bible in the

schools, although unaccompanied by any comment
on the part of the teacher, is ‘instruction,’ seems to

us too clear for argument. Some of the most
valuable instruction a person can receive may
be derived from reading alone, without any

extrinsic aid by way of comment or exposi-
tion. The question, therefore, seems to narrow

down to this : Is the reading of the Bible



56

in the schools—not merely selected passages there-
from, but the whole of it—sectarian instruction of
the pupil? In view of the fact already mentioned,

that the Bible contains numerous doctrinal pas-

sages, upon some of which the peculiar creed of

almost every religious sect is based, and that such

passages may reasonably be understood to incul-
cate the doctrines predicated upon them, an affirma-
tive answer to the question seems unavoidable. Any
pupil of ordinary intelligence who listens to the
reading of the doctrinal portions of the Bible will

be more or less instructed thereby in the doctrines

of the divinity of Jesus Christ, the eternal punish-

ment of the wicked, the authority of the priest-

hood, the binding force and efficacy of the sacra-

ments, and many other conflicting sectarian doc-
trines. A most forcible demonstration of the
accuracy of this statement is found in certain re-

ports of the American Bible Society of its work in

Catholic countries (referred to in one of the argu-

ments), in which instances are given of the conver-

sion of several persons from ‘Romanism’ through

the reading of the Scriptures alone
;
that is to say,

the reading of the Protestant or King James ver-

sion of the Bible converted Catholics to Protestants

without the aid of comment or exposition. In

those cases the reading of the Bible certainly was

sectarian instruction. We do not know how to
frame an argument in support of the proposition

that the reading thereof in the district schools i&

not also sectarian instruction.”

Were this bill to be attacked on sectarian;

grounds merely, the objections would not, it is ap-

prehended, and perhaps, should not, receive the

serious consideration of the Legislature.

The belief of those who oppose the proposed

measure is that such fundamental changes have

been made in reconstructing the law that the entire

common school system, after it has been so care-

fully built up during more than a century, will be

subject to all sorts of attacks, or at least that the

way will be opened for such attacks. If the courts

declare Bible reading to be “ sectarian instruction
”

the schools where it is permitted can receive no

part of the public money. The confusion and em-



57

barrassment which such a condition of affairs would

cause is obvious.

It is true that a statute allowing the Bible to be

read in the puj-Jic schools in New York City has

been in force since 1844, but it should be remem-

bered that the constitutional prohibition (Art. IX.,

4
,
to which reference has been here made, has only

been in force since January 1st, 1895.

If the present provision of the New York City

Charter is to be made applicable to the whole State

it should be at least with such modifications and

restrictions as are found in the present statute.

III.

The right of the State to educate is limited by the

Constitution and is subject to the natural right of

the parent to provide for the mental or moral train-

ing of his offspring.

“ The Legislature shall provide for the mainten-

ance and support of a system of free common

schools, wherein all the children of this State may be

educated.” (Section 1, Article IX, Constitution of

New York.)

Within the evident purport and manifest inten-

tion of these words must all State legislation, in the

matter of education, be contained. The present bill,

with its general features of classification, codifica-

tion and revision of the old, together with a gener-

ous injection of new matter, places the entire ques-

tion of education before the Legislature for its

action. Many of its featured, and indeed, many of

its objectionable features, are old
;
but it is here

sought to re-enact them and to perpetuate them by

placing thereon a new stamp of authority. Be-

cause it has long been the law, makes it none the

less dangerous
;
and deprives us of no right to ques-

tion it whenever we fully awake to the significance

and danger of its existence and of its further per-

petuation.



58

If this measure is to become a law, it must pass,

and must receive its interpretation, authority and

•constitutionality immediately and only from this

present section. If it provides less, then the people

are being deprived of their due constitutional

rights; if it provides more, aud antagonizes the in-

tention and meaning of this section of the constitu-

tion, then is it an assumption perpetuated in the

name of the law, and, hence, most insidious. This

bill, in spirit and words, gives into the hands

of the State absolute and unlimited control of edu-

cation; gives it the unqualified direction in matters

educational of every child between the ages of

seven and fourteen, and a conditional control be-

tween the ages of fourteen and sixteen, that if he

be not in school, he must work; commands and or-

ders a “ system” of education, which shall be the

State system, thus logically constituting every

other system unlawful; and arbitrarily deprives the

parents of all their rights in the matter of educat-

ing their children; and, finally, and most disas-

trously of all, commits this whole system of “pater-

nalism,” with all of its compulsory and dictatorial

features, to the hands of one man—the State Super-
intendent—who is paramount dictator, with the
right to invade the inviolable privacy of the family,

the freedom of all special schools, and even the

sanctity and efficiency of the child’s very home

training, should they not meet his ideas and his

interpretation of this State “ system of education.”

In People v. Supervisors of Westchester
, (4

Barb. 64), the Court says :

“ * * * Here (in* this country) the legislature

is not supreme; it is not the highest authority

recognized. ‘ It is only one of the organs of that

absolute sovereignty which resides in the whole

body of the people. Like other departments of

government, it can only exercise such powers as

have been delegated to it; and when it steps beyond

that boundary, its acts, like those of the most hum-

ble magistrate in the State, who transcends his



59

jurisdiction, are utterly void.’ We have written
constitutions which limit and control the legislative

power; and although, in the absence of a constitu-

tional inhibition, the legislature may be presumea
to have the power it exercises, in most cases, still I

.apprehend that this is not universally true. The

constitution declares that ‘ the legislative power of

this State shall be vested in the Senate and Assem-

bly.’ This is the authority under which our legis-

lature acts; and under this clause it has the

power of legislation within the fair scope

of legislation, except so far as it is re-

stricted by other provisions of the constitu-

tion. But it can hardly be said that under

this general power of legislation it is omnipotent

;

that it can pass acts against natural right and

justice, and subversive of decency and good order.

Such power is the prerogative of despotism—not of
free government. To suppose that the people have

clothed their representatives with absolute and des-

potic power, under the general grant of legislative

authority, is to presume them incapable of self-gov-

ernment and unworthy the name of freemen.

“Protection to life, liberty, and property, is the

great object of human governments. Whatever
tends to this end is within the scope of legislative

authority; whatever plainly destroys this, is beyond

its legitimate scope. The legislature has full power

to enact laws for the punishment of crimes
;
but

suppose it should prescribe a uniformity of dress, or

the quantity and quality of food for each person, or

regulate the hours which every citizen should de-

vote to labor and to sleep; and, attempt to enforce

such arbitary interference with individual affairs,

by pains and penalties
;
would such laws be valid?

€ould any court be found to enforce them ? I am
.aware that these may be called extreme cases

;
and

it cannot be presumed that the representatives of

the people will so far forget their position, as to

enter upon such fields of unauthorized legislation
;

still, experience warns us not to be too sanguine

even upon this point. The past admonishes us of

the necessity of guarding individual right against

the encroachments of the law-making power. * * *

“It cannot be denied that excessive legislation is

the great legal curse of the age. It is the mighty

vortex which is drawing everything within its

grasp. So long as it keeps within the constitutional

bounds and legitimate scope of its authority, it is



60

our duty to enforce the laws
;
but when it tran-

scends these, it is equally our duty to declare them

null and void. * * * *”

The present measure purports to be a scientific

codification and arrangement of the School Law,

and, logically, the Board would seek a starting

place—a germ—constitutional if possible, from
which the law must go on enlarging and ex-

panding into all of its finished and minutest rami-

fications
;

there must be nothing in “the law”

which does not derive its sustenance, and its life,

from this one constitutional germ. The Board has

made its choice and has planted at the beginning

of the bill, as its sufficient raison d'etre, sec-

tion I of Article IX of the Constitution of New

York. The choice has been made, therefore, the

measure, as a whole, and in its smallest detail, must

live or die just as it develops properly and naturally

from that germ. If the words in Section I, Article

IX, “ may be educated ” mean must be educated

,

then the legislature has every right to pass the

present Education Bill with all of its pro-

visions and with all of the objectionable old

laws re-enacted
;

for, if the people gave the

legislature this power, then can they exercise

it, and, in fact, must exercise it. If, how-

ever, the words are to be understood in

their plain English sense, then does the pending

bill throw upon this whole section the odium

of contravening the natural law. All positive

human law has its origin and beginning in

the natural law
;
and so positive and fixed is it

that not even will the Omnipotent Creator Himself

enact a revealed or direct law in contravention or

in perpetual or universal suspension of the law

—

natural—which He lias promulgated from the be-
ginning. If not even He, then how much the more

must individuals and societies, dependent com-

pletely for existence upon Him, follow and respect

the law of nature and of nature’s God. So para-

mount is this principle that it carries within its-



61

very' self its own sanction
;

for, when violated, tlie

very violation is punishment. Hence, the State

will do well to found itself assuredly and firmly

upon that from which must necessarily spring its

life and perpetuity.

The whole question is at issue in the proposition

that the essential duty to educate the child resides

in the parent
;

in other words, that the natural

law gives the duty to educate, and, as a conse-

quence, the right, to the parent, as an essential

duty
;
and that therefore, as a necessary conse-

quence, the essential duty is not within the State.

By the very law of nature, must the parents sup-

ply the child with the means of earning a decent

living, and therefore is it their strict duty to edu-

cate the child.

‘
‘ The last duty of parents to their children is that

of giving them an education suitable to their station

in life
,
a duty pointed out by reason, and of the

greatest importance of any.”

Blackstone, Book 1, Chap. 16.

Looking at the question from another side, and

going deeper down into nature, do we not find a

natural and universal impulse in parents, shared

with them by the very animals, which tends to the

performance of these very duties; could there be a

natural and universal tendency to the performance

of such duties unless these duties were built upon

nature and upon the laws of nature’s Supreme

Ruler ?

Coming at the question from another side: Who
is there so irrational as to choose means for effect-

ing a given and fixed purpose, other than those

which have a special and natural aptness for the

performance of that very purpose ? And, is it not

the parents and they only, who have the special

and natural fitness for the performance of these

duties of maintenance, protection and education \

If such is the case, and no one can doubt it, to whom

better then must such duties be left %



62

“ Several States of antiquity were too solicitous to

form the youth for the various duties of civil life, to

intrust their education solely to the parents; but,

this was upon principle, totally inadmissable to the

modern civilized world, of the absorption of the in-

dividual in the body poolitic and of his entire subjec-

tion to the despotism of the State.”

Kent, Com., Lee. XX V.

Enough has been said to show that there is in the

parents an essential duty,—and if we take it away
from them, what other purpose has the family for

its existence ? It becomes in consequence a creature

—an entity without a purpose.
Since, therefore, the essential duty of education

is with the parents it necessarily follows that it can-

not be elsewhere; or, in other words, in the State;

since the very human reason will see clearly the

truth of the axiom that “ non sunt multi-

plicanda entia sine necesitate ”—that two
beings, essentially different, cannot have an object

or a purpose essentially the same. If, therefore,

the State has not the essential right to educate the

children, it can only exercise any power whatever

in this matter as it is delegated to it by the parents

—in otherjwords, no matter what the right in an-
other, in the same subject-matter, it must be in

abeyance to the right of him who holds the essen-

tial duty, and this is based upon the supposition

that the parent perform his whole duty in this

respect.

From the distinction that has been made so far

between the essential right and right in general, one

would infer that the State had some right in this

matter—and so it has.

“The education of children in a manner suitable

to their station and calling
,
is another branch of

parental duty, of imperfect obligation in the eyes

of the Municipal Law, but of very great importance

to the welfare of the State.”

Kent, Com.



63/

Herein it is granted, and can be well granted, that

the State has an imperfect duty, or an imperfect

obligation, which, however, cannot be exercised

against the holder of a corresponding essential duty

except in certain cases which we shall see hereafter

where there is absolute and positive menace to the

State’s existence. If, then, the State has a duty

—

and a duty, even though imperfect, is still a duty

—

let us see just where the line must be drawn.

By State or civil society we mean u a union of the

individuals and families under a certain form of gov-

ernment for the purpose of securing those temporal

advantages and facilities which individual and do-

mestic efforts alone are unable to secure.” Civil

society is also based upon the natural law, and is

a necessary institution independent of the free will

of men and founded upon the sense of universal

interdependence which exists in mankind for its

perfect development. Therefore, since it has its

very existence and being from the individual, and

from the family, hence its only object is to promote

the temporal welfare of the individual and family
r

and to protect their natural and acquired rights.

It may, indeed, direct its members to temporal pros-

perity, and it may also protect their rights from

unjust aggressors
;
but, it must not, in so doing,

transgress the natural rights of the individual or of

the family. But,. rather, even from a sense of self-pro-

tection, should it guard and defend them and keep

inviolate their rights whether personal or domestic.

In taking to itself the sole right to educate, the

State does destroy the personal right of the child,,

the domestic right of the family, besides, at the

same time, thwarting the intent of the Creator. It

violates the personal right of the child because it

fixes a standard of education and deprives and

hampers him in obtaining'that education which his

Creator wished for him personally; it violates the

domestic rights of the parents, as we have suffi-

ciently proved.

Therefore, the rights and duties of the State are



64

to promote, and to facilitate, as far as possible, the

rights of the individual and of the family, without

impugning personal or domestic rights. Then you

would deprive the State of all power to legislate in

this matter of education? By no means. Cannot

the State make law with regard to property ? But,

does it thereby become a real estate broker ? Can-

not the State make laws for the protection of the

rights of religion, and even of the various denomina-

tions ? But, does the civil government therefore

become an established church ? Allow the State to

make all the laws it may wish along the lines that

the natural law would suggest
;

but, should it

therefore become an educator—the only educator?

What then may the State do ? It may and must

supply the deficiency of the individual—that is,

supply schools in sufficient number for those whose

parents cannot, or will not, educate them—encour-

age the dissemination and increase of knowledge by

founding libraries, museums, etc. In other words,

it may do, in the matter of educating its people, all

that the individual and the family cannot, or will

not do.

The State, therefore, may teach—it may, indeed,
instruct—any one who chooses to go to it for such
instruction as it may give

;
but, educate

,
that is,

train the minds and hearts of its pupils, and teach

them morals, religious or Christian, it cannot.

The right to suppress immoral education, the right

to nromote education by supplying means which

private enterprise or family exertion cannot

attain; standing in the place of parents when

dead or vicious, and where there is no

one nearer to assume the charge, are within

the rights of the State.

The State must promote the general welfare by

social means and not* by controlling individual

activity nor by invading the family. Parents,

alone, are the judges of the natural and intellectual

needs of their children; hence, control is due to

them in strict justice, and any abridgement thereof

is a violation of justice.



But, we may say, cannot the State interfere

because the right of the child is being violated?

The natural right of the parent to educate is in-

alienable. The State may not interfere until this

natural right has been forfeited. The right which

the parent has by the law of Nature to educate his

offspring being inalienable includes his right to

alienate by consent where the delegated educator of

the child has been called upon.

Such delegated authority must be recognized by

the State and its right to interfere for the so-called

protection of the child does not accrue, until both

the natural and the delegated authority have either

been exhausted or proven to be inefficient.

At the outset certain dangerous and insidious

features were noted, and ascribed to the “Educa-

tion Law.”

Let us see where and in what very words.

Section 5, Article I, says :

“Instruction in Public Schools. — The public
schools shall provide instruction in the English lan-

guage in the following subjects :

1. Reading, writing, spelling, arithmetic, English

grammar and composition, geography, drawing,

physiology and hygiene, American history, civil

government, and good behavior.

2. Good morals
;
and for this purpose the Bible

may be read either as a part of the school exercises

or otherwise. Such reading may be from any ver-

sion, but must be without note or comment.

3. In such .other subjects as may be prescribed or

permitted by the school authorities, the superin-

tendent or by law.”

In the light of the preceding principles, paragraph

2 must be totally rejected.

In paragraph 1 the words “good behavior” may

be harmless, but upon the rejection of paragraph 2

they may be contorted into meaning “good morals,”



66

especially should there be any attempt upon the

part of the teacher to instruct in the intrinsic and

underlying principles upon which “ good behavior 5 ’

should be based. Replace by “deportment,” i. e.,

“conduct or behavior viewed with reference to the

propriety of intercourse.”

Again it would seem to be absolutely useless to

carefully designate the studies which are to be

pursued in the schools and then to add a provision

so broad as that contained in subdivision 3 of sec-

tion 5.

It is a dangerous and unnecessary power to con-

fer upon any officer or set of officers, who have

anything to do with the public schools.

IV.

The establishment of State truant schools and the

additional powers conferred upon the school

authorities is a retrograde movement in violation

of paternal rights.

The Commissioners frankly admit that the scope

of the compulsory education law has been consider-

ably enlarged in this bill. The old law has been in

active operation only a short time and from all

reports has not been an unqualified success, al-

though a few features have met with approval in

some quarters.

For example, it was not long ago that the

condition of one of the truant * schools or-

ganized pursuant to the power contained in the

present statute was an absolute disgrace to the

State. It was in a state of disgraceful chaos. The

inmates were covered with vermin and were ill

from poor food and long confinement. The whole

place was filthy, dirty. The children, it was found,

had been unjustly committed and were badly

treated. It was* ascertained that there had been



67

more truants from this one truant school than there

had been from all the other schools in two populous

districts. And it was discovered that boys were

required to do work unfitted for even a man.

Other things might be mentioned showing that
*

the condition of this school was such that the treat-

ment accorded to Oliver Twist and his unfortunate

companions was homelike and cheerful in com-

parison. This all happened while the schools were

few, were still a novelty, and were supposed to

be under strict and careful supervision.

The tendency of this bill is to make prisons of

such schools and degrade young boys and girls,

when in a very large majority of cases their truancy

is due to their parents and their teachers. The

tendency of confinement in these schools is to

harden particularly the boys, and if this proposed

law should go into effect, the harm which would be

done to these children in making them incor-

rigibles would be much greater than the good

accomplished in a reformatory or an educational

way.

It must be admitted that the object of this Article

is to compel children who for some reason refuse to

be instructed to receive a common school education.

The title so declares. It is compulsory education

that is sought, not reformation. Of reformatories

and reformatory schools there is a great plenty at

the present time.

But if it is admitted for a moment that these

institutions are to be reformatories, it certainly is

a great outrage to mix children who merely stay

away from school, often through the fault of their

parents or teachers, with those who are really vicious

and depraved. The result will be not to reform the

vicious but to contaminate the others.

The principal features of this bill which are

seriously objectionable and which are not found in

the statute now in force may be classed as follows

:

1. Establishment of State schools, one in each

judicial district.



68

2. The power to abolish local truant schools.

3. Commitment of children for long terms (the

whole school year).

• 4. The power of truant officers to arrest children

without warrants and detain them in their own

custody.

5. The power of parol in the State Superintend-

ent where child is committed to a State school.

Those who have had experience with such schools

declare it to be of the utmost importance that the

children should not remain in these institutions for

long periods. It is asserted that if this happens

they become hardened, and as one teacher expressed

it, institutionalized, so that they are actually pre-

vented from making good citizens.

If the pupils are sent to State schools some dis-

tance from their homes a practical system of parols

where they are put on their honor, and only taken

back to the truant schools in case they break their

parols, is impossible. And yet this is the most im-

portant feature of the institution so far as it tends

to stop truancy.

An application to the State Superintendent for

a parol is a cumbersome method. If the plan

is curried out on the lines of this bill it will require

the assistance of several persons in the Superin-

tendent’s office to pass on applications for parols.

Those who decide are not so well fitted to determine

when they should or should not be granted as the

teacher or local superintendent of a particular

school. If the action of the Superintendent, on

the other hand, depends, as it naturally will, on

the recommendation of the teacher, there seems to

be no objection whatever to placing the power in

the hands of the latter. This is particularly true

as an appeal always lies to the Superintendent from

any action of the teacher or local school authority.

The provision allowing truant officers to arrest

and keep children in their own custody until the



69

cases are disposed of by the magistrates seems to

be so absurd as to need no argument to defeat it.

Children are not like stolen goods that the parents

may smugglethem away and out of the reach of the

law. They may be easily compelled to bring their

children to Court, and any possible inconvenience

in this direction would not compensate for the

dangerous practice of putting young children abso-

lutely in the power of a truant officer, who may

have (and undoubtedly will, in man}7 cases) received

his appointment through political favor, and whose

morality may not always be of the highest standard.

V.

The new provisions relating to the support and

education of the deaf-mutes, permit the school

authorities to enter the homes and commit the un-

fortunate to a State institution, under secular con-

trol, without the consent of the parent
;
making

contracts with institutions under religious control

is thus rendered impossible or inoperative.

The enforced instruction of the blind and the

deaf-mutes is somewhat in the nature of novel leg-

islation, to say the least. Considered in its consti-

tutional aspect there seems to be great danger that

the present schools will be destroyed to a very large

extent, leaving the work of reconstruction in the

hands of the State, through the medium of future

Legislatures. If this assertion cannot be substan-

tiated, a large portion of the argument against this

feature of the bill falls to the ground.

Secs. 439 and 440 provide respectively for the

making of contracts by the Superintendent with

certain schools now in existence for the education

of the blind and the deaf-mutes and that a school

with which such a contract is made becomes a

school for the blind (439, last sentence) and the pro-



70

visions of this article “ relating to the instruction of

blind children and the powers and jurisdiction of

the State Superintendent apply so far as practicable

to deaf-mutes and schools for their instruction.”

Section 3 of the bill provides that “ the term

‘common schools’ includes :

* * * * *

“ % Schools for the blind, deaf-mutes or other

defectives under this chapter.”

Sec. 440 names several institutions which are-

known to be sectarian with which the Superin-

tendent may make the contracts and unlimited

power is giveu to him to make contracts with other

institutions.

Just as soon, therefore, as these contracts are

made with any of these institutions they become
u
schools ” for the purposes of this act and part of

the common school system. The very minute this

happens, such institutions as are “ wholly or in part

under the control or direction of any religious de-

nomination, or in which any denominational tenet

or doctrine is taught” (Const., Article IX, Section

4) cannot receive any of the public moneys, and this

applies to the very amount which the Superintendent

agrees to pay. Not only this, but the very act of

the Superintendent in making the contract is un-

lawful.

Thus while the proposed law seems to favor the

institutions mentioned in Section 440, it will really

operate as a stab in the back, and will practically

destroy them, so far as their usefulness is concerned

in educating these poor unfortunates. The years

of experience which their teachers have gained in a

task where experience must necessarily be invaluable

is therefore to be thrown to the winds, without any

visible advantage to compensate for the loss.

It has been said that the natural progress of

things is for liberty to lose and for government to

gain ground, Patrick Henry doubtless had this



71

tendency in mind when, in his fervent way, he de-

clared that eternal vigilance was the price of liberty.

Nothing could demonstrate the truth of both propo-

sitions better than this bill and the manner in which

it has come before the Legislature. Under the guise

of a revision and codification of existing laws, new

principles are introduced, new
T

officers with addi-

tional powers are authorized and the authority of

the old officials is greatly broadened and strength-

ened.

The practice of stuffing education down the

throats of children, whether they or their parents

will or no, which it has been proclaimed from the

house tops had been abandoned for the more intelli-

gent method of making education attractive, is to

be revived in a more odious form than it ever exist-

ed
;
children of tender years, either girls or boys,

may be dragged from their homes and put under

the care of masters of truant schools, the blind and

the deaf-mutes are to be taken from the company

of those who affectionately care for them, or from

institutions where their education was begun and

carried on largely as a labor of love, and locked up

in State schools at the tender mercy of paid agents

of the government.

The final arbiter as to whether or not any

or all of these things are to be done is a

magistrate whose training has not fitted him to de

termine what is and what is not proper education

for young children, but whose experience has hard-

ened his nature and made him unsympathetic—the
very worst quality a man or woman could possess

who has anything to do with the training or edu-

cation of children.

And why are we asked to try all of these danger-

ous experiments % Not because they are in the line

of enlightened progress, not because there is any

popular demand for them, not because the children

may receive a better education in the proposed

State- schools than they are receiving at present,

but because here and there, in an isolated case, the



72

hard necessities of life appear to make a child’s

earnings more desirable than schooling, or the

mother of a blind girl cannot bear to send her

daughter away from home to live among strangers,

and because the few men who have compiled this

revision have come to the conclusion that import-

ant features of our educational system, about which

we have been in the habit of priding ourselves so

highly, are all wrong, we must jump in the dark,

enact laws of doubtful validity and extricate our.

selves as best we can from the embarrassments

when they come.

If Article XVI is to be enacted at all, the fol-
lowing sections should be amended in the manner

indicated. The old provisions to be cut out are in

italics and the new matter is in parentheses.

Sec. 440. Contracts for the Instruction of deaf'

mutes. A contract for the instruction of deaf-
mutes may (shall) be made by the State Superinten-

dent with one or more of the following schools or

institutions : New York Institution for the In-

struction of the Deaf and Dumb, in New York;

Le Couteuix St. Mary’s Institution for the Im-

proved Instruction of Deaf-Mutes, in Buffalo

:

The Institution for the Improved Instruction of

Deaf Mutes in New York
;

St. Joseph’s Insti-

tute for Improved Instruction of Deaf-Mutes,

in Fordham
;

The Central New York Institu-

tion for Deaf-Mutes, in Rome; Western New

York Institution for Deaf-Mutes, in Roch-

ester; The Northern New York Institution for

Deaf-Mutes, in Malone, and the Albany Home

School for the Oral Instruction of the Deaf and

Dumb, in Albany
;
but such a contract shall not be

made unless the Superintendent is satisfied that

the school or institution has adequate accommo-

dations, and can provide the required instruction,

(provided no greater amount shall be paid per capita

for instruction in said institution than is paid at

present.) The Superintendent shall, so far as



practicable, subject to the limitations herein pre-

scribed, make contracts with schools or institutions

so located as to be convenient of access in different

parts of the state. A parent, guardian or other
person who applies for the admission of a deaf-

mute to a school under this article may request the

Superintendent to designate a school specified by

the apjDlicant, for the instruction of such deaf-mute,

if a State school is not available; and the Superin-

tendent shall designate the school so specified, if it

is under contract as jn’ovided in this article, and

has accommodations for such deaf-mute.

Sec. 441. Cancellation of contract. The State

Superintendent may cancel a contract under this

article, on a notice of not less than thirty days, if it

shall appear to his satisfaction that the school

or institution with which the contract is made

neglects or refuses to perform any condition of the

contract, or comply with any (reasonable) rule,

order or decision of the State Superintendent in

relation to children included in such contract, or

their instruction or maintenance in such school or

institution. The contract shall embody this section,

or the substance thereof.

Sec. 444. Instruction of deaf-mutes. The State

Superintendent has exclusive supervision and direc-

tion of the instruction of deaf-mutes of school ag-e,

and shall provide for such instruction in a State

School for deaf-mutes or other school or institution

(provided the said deaf-mutes are not receiving

adequate instruction elsewhere).

Deaf-mutes shall be sent to a State School, or

the State Superintendent shall contract with any

other school or institution for other instruction

therein if in his judgment a state school is not avail-

able or has not sufficient accommodations. The

provisions of this article relating to the instruction

of blind children and the powers and jurisdiction

of the State Superintendent apply, so far as prac-



74

ticable, to deaf mutes and schools for their instruc-

tion. School authorities shall report concerning deaf

mutes in the same form and manner as herein

provided in relation to the blind.

§ 446. Application by school authorities. The

application by the school authorities shall be ad-

dressed to the State Superintendent of Public In-

struction, and shall be substantially in the same form

as if made by the parent, guardian or other relative.

On such application the State Superintendent shall

determine whether instruction can be provided for

such blind child or deaf mute in a school under this

article, and if so, shall designate the school to which

he shall be sent. Such determination shall be under

the hand of the State Superintendent and the seal

of the Department of Public Instruction, and is con-

clusive as to the accommodations for instruction.

(No blind or deaf mute shall be sent to a school or

institution under contract, pursuant to this Article,

other than one which represents the religious faith

of the parent, unless such parent consents in writing

to a commitment elsewhere.)

(Every child sent to the State School for the

Blind, or to the State School for Deaf Mutes, shall

be afforded facilities for receiving religious instruc-

tion, and for the exercise and enjoyment of reli-

gious profession and worship, in accordance with

the religious faith of the parent.)

VI.

By the provisions embodied in the present bill,

the already extraordinary powers of the State Su-

perintendent of Public Instruction have been en-

larged to a degree that bestows upon him almost

irresponsible and autocratic authority upon all

matters relating to the public school system of the

State, either by original jurisdiction or by his de-



75

cisions upon appeal of all persons who may be

aggrieved by the decisions of the local authorities.

Under Article I, is conferred upon him the addi-

tional power of adding to the number and character

of the studies and text books to be used in all of

the schools of the State, and there would seem to be

no remedy or appeal from his decision on the part

of any aggrieved citizen. It will be noted that in

all matters of original jurisdiction wherein the

State Superintendent is empowered to exercise his

discretion, the appeal which the citizen might have

to the courts is nullified by the very fact of the ex-

ercise of that discretion.

Under Article IX of the bill, the State Superin-

tendent is clothed with additional powers which

will authorize him to establish and maintain State

truant schools at such location throughout the

State as he may determine, to which may be com-

mitted all of the truants and incorrigibles without

the consent of the parents.

Under this provision, the superintendent will

have the authority to either grant or refuse the

privilege of religious instruction to the inmates of

any one of them during the term of his commit

ment. Should it happen that under his instruc-

tions such refusal to furnish or permit to be fur-

nished religious instruction out of school hours

during the term of the commitment, should be made

by a local authority and an aggrieved person should

appeal from such decision of such local authority,

by the terms of the bill the State Superintendent is

empowered to promulgate a final decision from

which by the specific terms of the statutes, no ap-

peal will lie.

Under Article XVI, the State Superintendent

will be empowered to make all contracts with spec-

ified or other institutions for the confinement of the

blind and deaf-mutes, during any current school

year. Under his authority also the deaf-mute

child may be committed to any institution named

by him for the current school year without the con-

/



76

sent of the parent, and to that end a truant officer

may be empowered to enter the home of the parent.

Under the provisions of the proposed law, the

State Superintendent has absolutely vested in him-

self the apjjointing power of the Trustees of the Ba-

tavia School for the Blind, which power has hereto-

fore been vested in the Governor with the consent

of the Senate. Under this new provision, therefore,

the State Superintendent makes the appointment

without confirmation and without responsibility to

any authority, and it is therefore impossible to see

how that matter, which is a question of discretion,

could be reviewable by the courts.

By the provisions of this bill there is vested in

the State Superintendent, without supervision on

the part of any other official, the choosing of the

banks for the depositing of the funds in his hands,

and the further depositing of all paid-up insurance

on all the school property throughout the State.

Heretofore this has been in the hands of the

Comptroller and no reason seems to be given for the

transfer from the proper officer to the educational

head of the State.

It will be noted that this is also a discretionary

power on the part of the Superintendent, which it

would be found impossible to have reviewed by the

courts of the State, and therefore, like the other

powers, is autocratic.

It will be further noted here that the provision,

whereby it is specifically stated that all of the acts

of the superintendent are open to appeal to the

courts of the State, becomes practically a nullity

when interpreted in the light of the number of dis-

cretionary powers vested in him, which would make

such review void.

Under the provisions of this bill, also, a new

power is granted to the State Superintendent which

has heretofore been vested in him, but with the

concurrence of the Comptroller - and Secretary of

State, namely, the power to contract with an Indian

band for the use and occupation of their land for

school purposes.



77

There seems be no reason why these various

checks, which have been placed upon this official

for sound public reasons, should be removed unless

the exigency be so great and so apparent as to meet

the approval of the majority of the citizens of the

State.

Additional authority is also given to the State

Superintendent where the local authorities shall

fail to provide and maintain common schools in any

district. These powers conferred are so unusual

that the section will be quoted. Section 17 of Article

I provides as follows :

‘‘Duty of School Authorities: The School Au-

thorities of each city and district shall maintain

common schools therein, and for that purpose shall
employ teachers, provide text books when author-
ized, and adequate accommodations for such

schools, and raise and expend necessary funds.”

Upon the failure of the school authorities of any

district to provide and maintain common schools

as provided in § 17, under the new powers con-

ferred by this act, the State Superintendent may

take possession of the local property and conduct

the local schools, employ teachers, provide text

books and accommodations and maintain such

schools (§ 18). He may make out a tax list and

issue a warrant for the amount therein to the col-

lector of the district, and has even the power con-

ferred upon him to appoint another collector, with

all the powers possessed by a collector elected for

that district.

Should any citizen or person within that district

become aggrieved by any or all of the acts of the

local authorities or their failure to provide school

facilities, as provided by §17, an appeal can be

made by that person to the State Superintendent.

It is well to note here that probably the attention

of the Superintendent to such local conditions would

be called in most instances by such an appeal.

If upon the appeal made by the aggrieved citizen

or local person interested, the State Superintendent



78

should decide not only that his interference in that

district was necessary, but that in such interference

certain property must be taken charge of, certain

text books used, and all of the details necessary to

the public instruction be determined upon, no ap-

peal will lie from such decision, and thereupon the

State Superintendent becomes absolutely an irre-

sponsible autocrat of that particular district.

VII.

The change proposed by the new law, governing

the term of years necessary to the conferring of a

degree upon a student, is pernicious in that it does

not allow for the difference in capacity among the

pupils, but fixes a time rather than a grade stand-

ard for the conferring of university degrees.

Under the existing law, no university or college

can confer a degree after a four years’ course except

that has been preceded by a high school course of

at least three years.

It is true, however, that the University of the

City of New York has arbitrarily ignored that pro-

vision and permitted a degree to be conferred upon

a four years’ course in that institution, preceded by

a one-year in the high school, but, so far as we can

find, that is the only instance of its kind in the

State.

Under the proposed law (Article XXI.) it is

provided that no degree shall be conferred by

any college in the State except the four years’

course in that institution shall be preceded by a

four-years’ course in a high school, which latter

course shall again be preceded by a preliminary

course of study of at least eight years.

This will overturn and upset all of the existing

customs of the colleges of the State without a cor-

responding advantage.



79

It is a well-known fact that students vary in

their capacities, and often one pupil will be able to

do in one year what another pupil could not do in

four, and where another one still could not do at

all.

As this is a case of public education in most in-

stances also, attention should be drawn to the fact

that the increase of the number of years necessary

to a completed course of study, and the conferring

of a degree, is of serious moment to an industrious

pupil who cannot afford the additional number of

years prescribed and which will place him at disad-

vantage with other college graduates from other

institutions.

With the law as it is now, the high-school and

university education can be completed in seven

years, and still comply with its provisions.

Under the proposed measure, nine years is added

to the present requirement, of which, in most

instances, five will be superfluous.

In conclusion, therefore, and by reason of the

foregoing, wTe would ask your Committee in report-

ing this bill back to the respective bodies, to con-

sider carefully the principles and objections that have

been raised and in view of the sound legal and

moral reasons that have been adduced, to insist,

that before the bill shall become a law the following

modifications and amendments shall be made :

First. That the following paragraph shall be

stricken out, namely, Article I, §5, subdivision 3,

as follows

:

“ In such subjects as may be prescribed or per-

mitted by the school authorities, the Superinten-

dent, or by law.”

Second .—That the modifications submitted under
Article IX relating to truants shall be stricken out

and that no law shall be put upon our statute books

that shall not pro.vide for the privilege of religious

instruction of the child after the ordinary school

hours.



80

Third .—That no provision shall be permitted to
become a law which will defeat the operation of the

present statutes relating to the blind and the deaf-

mutes, or that will take them from the custody of

their parents without their consent.

Fourth .—That in all laws relating to the estab-
lishment or conduct of truant schools or schools for

the education of the blind and the deaf-mutes, a

provision shall always be introduced which will per-

mit the parent of the blind, and deaf-mute, truants

or incorrigibles, to insist that the child be sent

to a school which is conducted in accordance with

the religious persuasion of said parent, and that

the child shall have facilities for receiving relig-

ious instruction and attending religious services

conducted in accordance with the parents’ religious

persuasion.

Fifth .—That the passage of that portion of the
bill relating to deaf-mutes not only impairs the au-

thority of the State Board of Charities, but in case

it shall become a law will raise a serious question of

conflict of
j
urisdiction between the school authorities

and the said Board, all of which it is submitted will

work a permanent injury to the school system of

the State.

Sixth . —We further submit that that portion of
the bill which increases the number of years of

study necessary for the conferring of a degree

by any college in the State shall be eliminated,

and suggest that a graded standard rather than

one of years could be established that would much

more effectually tend to promote the efficiency of

collegiate scholarship.

Seventh .— That the extraordinary powers lodged
in the State Superintendent of Public Instruction

should not be permitted to be extended beyond

their present limits, and we hereby suggest that the

same be curtailed and that authority in so serious



81

a matter as that of public education shall not be left

to the wisdom of any single individual in the State.

We submit further that the passage of this bill in
its present state, in so far as the rights and au-

thority granted to the State Superintendent are con-

cerned, will tend to reduce the efficiency of our school

system if not bring it into serious disrepute.

Respectfully submitted,

NELSON G. GREEN.

On behalf of the Catholic Club and Catholic

interests of the City of New York.

Dated, New York, February 8, 1899.

[14421]



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