You called attention to that, did you not?

Miss BORCHARDT. Yes, sir.

Senator DONNELL. That is the one, 2 years before this deal was made, in which these two lots that I am going to refer to

Miss BORCHARDT. I say again, Senator, I did not in any way seek to present to this committee any analysis of the various powers and pressures that motivated the Continental Congress at that time, and I will say that I am always at a loss to interpret pressures at a long distance. When I am close at hand and can see them operating, as in the case now being heard, I have little difficulty in interpreting such pressures. But it is very difficult at a distance to do that.

Senator DONNELL. I would like to read into the record this language from Professor Swift's book, at page 46:

It will be seen that this Ordinance of 1787 contains no general or specified provisions for the reservation of lands for education. Article III, frequently quoted as the source of our national land policy, might mean much, little, or nothing. The benevolent school land policy adopted by Congress, and which has frequently and erroneously been attributed to this ordinance, cannot be found here. Indeed, the action of Congress during the next 10 days would seem to indicate that it deserved little of the praise which has ever since been heaped upon it. The ordinance of 1785 and the contract for the sale of western territory are the two instruments out of which the federal policy of reserving funds for education institutions arose.

I quote further from the ordinance passed on July 23, 1787, which is that which refers to lot 16 and lot 29, and it reads this way:

Complete returns whereof to be made to the Treasury Board. The Lot No. 16, in each township or fractional part of a township, to be given perpetually for a purpose contained in the said ordinance. The Lot No. 29 in each township or fractional part of a township to be given perpetually for the purposes of religion.

That is quoted, and is stated here, and is in the paragraph which had previously referred to Dr. Cutler's threat to buy lands from individual States added to Congress' pressing need for money which the author, as I said, stated, and I will quote:

resulted in the passage of an ordinance which authorized the Board of Treasury to contract for the sale of lands on the terms and with the reservations demanded by the company.

I call your attention to this further significant language, or at least it seems significant to me where it says on page 47, and I quote:

The next large purchase of land was made by John Cleve Symmes, who, in the year 1787, made a contract with the Board of Treasury which later resulted in a purchase of over three hundred eleven thousand (311,682) acres of land in Ohio. Symmes' contract reserved lands for schools, religion, and one township for an institution of higher education.

And then quoting from page 48:

Lot 29 for the support of a ministry was granted by the United States in no instances except in land purchased by the Ohio Company and by Symmes.

I would like to call your attention also, Miss Borchardt, to the following excerpts from the book by Rev. Richard J. Gabel-by the way, he is in Tiffin, Ohio, is he not?

Miss BORCHARDT. I do not know.

Senator DONNELL. I think he is a pastor in Tiffin, Ohio. I will read note 61 on page 175 of his book entitled "Public Funds for Church and Frivate Schools."

The reservation of Lot 29 for the support of a ministry in the Ohio Company purchase and in the Symmes purchase was not repeated in subsequent grants.

I want to call your attention also, and I will bring this to a close in just a moment-I want to call your attention, please, to this language appearing in Professor Blackmar's book entitled "History of Federal and State Aid to Higher Education," at page 215:

The contract between the Ohio Company and the Federal Government embodied, among other things, that Lot No. 16 in each township be given perpetually by Congress to the maintenance of schools, and Lot No. 29 to the purposes of religion, and that two townships of good land near the center be also given for the support of a literary institution, to be applied to the intended object by the Legislature of the State. In the same year John Cleve Symmes contracted with

the Board of the Treasury for a large tract of land in the Territory in which reservations were made for schools and religion similar to those in the grant to the Ohio Company, and one entire township was reserved for the support of a seminary of learning.

Miss Borchardt, I call your attention again to the fact that two of these authors, and possibly in my haste I have overlooked some reference, but two of the authors at any rate mentioned the fact that no further provisions of that kind were ever made by the Federal Government such as was made in the contract that lot No. 29 be given to the purposes of religion.

I call your attention also to this note which I overlooked in Professor Blackmar's book at page 215, note 2, and this is referring to the Ohio Co. and the Symmes grant to which I have referred and which contains this provision for lot 29 for religion:

These two grants were the only support ever given by Congress for the benefit of religion.

This is a book by Frank W. Blackmar, Ph. D., sometime fellow in history and politics in the Johns Hopkins University, and professor in the State University of Kansas, and the date on the flyleaf is

1890.

Miss BORCHARDT. Senator, in answer to the authorities you have quoted, I should simply like to refer to the actual citations in the record as I gave them yesterday, referring to the institutions that did receive the aid, and let the facts speak for themselves.

Senator DONNELL. Yes; I would be glad for you to do that.

Miss BORCHARDT. It will take some time to compile a complete list. I do not have a research staff, you see.

Senator DONNELL. The last quotation I shall read on this point is the following note on page 92 of Cubberley's book, and I quote:

In 1787 and 1788 two large parcels of land on the Ohio had been sold to companies, and to effect the sale the Continental Congress had been forced to grant each a township of land for a future college, and to reserve section 16 in every township for schools and section 29 for religion. The actuating motive was more to raise much needed cash than to aid either education or religion, but these reservations and grants became the basis for a future national land policy.

I take it, by the way, from the historical facts given in the other works, that the Symmes and Ohio Co. were the only instances of grants by the Government.

Miss BORCHARDT. May I clarify my testimony?

Senator DONNELL. Yes.

Miss BORCHARDT. My testimony simply referred to the fact that the Congress of the United States has given funds to institutions, denominational institutions and for work carried on through such institutions, and the giving of such funds was in no way a recognition.

of any particular religion itself, for I think every American citizen would deplore any effort to have the United States of America support a church as such.

I do refer to the fact, and I repeat the fact that my testimony was, to the effect that the United States Government has given and continues at this moment to furnish funds to educational institutions of sectarian organizations.

Senator CHAVEZ. But not based on the religion?

Miss BORCHARDT. They are based upon the fact that the work done by the institution serves a public purpose.

As far as I know, I know of no educational organization or any part of the labor movement that would support a grant to any particular religion, as such. I think we would fight it harder than you, Senator Donnell.

Senator JOHNSTON. But the minute you give money to any sectarian institution you are immediately giving them that money and they use it, is that not true?

Miss BORCHARDT. They use it, and I trust their integrity; they use it for the purpose for which it is given, and I think the unanimous vote of this Congress for the GI bill shows that Congress places faith in those institutions.

Senator JOHNSTON. They will use it to carry on their school wherever it is, whatever they are teaching and whatever they have there to carry it on in their way; is that not true?

Miss BORCHARDT. They carry on for the purpose, I hope, for which the funds were given and the Congress voted unanimously to give money for that purpose under the GI bill.

Senator JOHNSTON. I believe you are an attorney, Miss Borchardt? Miss BORCHARDT. Yes; I am.

Senator JOHNSTON. You would not want to do indirectly what you cannot do directly, would you?

Miss BORCHARDT. I would think it would be improper to seek to perform an improper act, directly or indirectly.

Senator JOHNSTON. You think the supreme court decisions of many States and of the United States Supreme Court which plainly state you cannot violate the Constitution indirectly if you cannot get around it directly. Is that not true?

Miss BORCHARDT. I do not think there is here involved a question of violating any constitution, but rather of finding a constitutional means of promoting the welfare of all.

Senator JOHNSTON. There are decisions which say you cannot do indirectly that which you cannot do directly.

Miss BORCHARDT. That is fundamental law, Senator. But I should say you must first define what you are doing. I would point out to you, sir, that the Congress of the United States has, in many instances, enacted legislation which will circumvent in effect certain State provisions. I would refer to the Fair Labor Standards Act protecting the children of our country through Federal law. We have fought for such laws through the labor movement, and we will fight to keep them. Senator CHAVEZ. And it has been approved by the Supreme Court of the United States.

Miss BORCHARDT. It has been approved by the Supreme Court of the United States.

Senator DONNELL. Miss Borchardt, the points particularly which I was emphasizing in connection with this matter of the 1785 and 1787 ordinances which, by the way, were enacted by the Continental Congress and not by the present United States Congress-that is correct, is it not?

Miss BORCHARDT. Certainly, Senator, I have already referred to the Continental Congress. The dates, of course, would indicate it, because they antedate the Constitution. When it was confirmed in practice, I do not know.

Senator DONNELL. First, the language which you recited yesterday: Religion, morality, and knowledge being necessary to good government and the happiness of mankind, schools, and the means of education shall be forever encouraged.

They were not the effective words and had nothing to do with the effective words which gave lots 16 and 29 for the respective purposes testified to, and in the second place, lots 16 and 29 transaction to the Ohio Co. and to Symmes were bargains which were made, at least in part, by the necessities of the case, the need of Congress for cash; and, in the third place, never again, according to these authors, has the Federal Government ever given land for religion except in those two cases.

Miss BORCHARDT. Senator, I dispute the authors, and I shall be very glad to repeat to you the citations of acts showing when land was given these institutions.

Senator DONNELL. We will be glad to have those later.

Senator CHAVEZ. I think we can agree on this, that there is no question whatever but the fact that motivated Congress in passing this legislation was the need at the moment of funds. We know that. Miss BORCHARDT. That, of course, is true.

Senator CHAVEZ. When Congress passed the other things that were incidental to it they naturally were Congress' bills also, and they do it. Miss BORCHARDT. That is correct, Senator.

Senator CHAVEZ. I have just finished a new work on Thomas Jefferson by Claude Bowers; and when he was talking about the Northwest Territory, the insistence was on the need of funds by the Federal Government.

Senator DONNELL. Yes. I think that was the occasion of these land transactions, in part, which was the need and Congress was acceding to the demand for purchases in putting these provisions to which reference has been made about lots 16 and 29.

Senator CHAVEZ. The only place where I disagree with you, Senator-and probably that was the reason, but I still maintain that what passed is the law irrespective of what the motives were.

Senator DONNELL. It is the law, Senator, but to my mind the fact that the motive was not for the advancement of religion is of great importance here, in view of the view that Miss Borchardt has suggested in her testimony, as I understood, that this grant of lot 29 for religion indicated a support by the Government of aid to religion.

Miss BORCHARDT. May I state what I testified to, rather than your interpretation of my testimony? I cited specifically certain Federal acts, and I cited also the aids of the Continental Congress to show that the Congress of the United States has ceded land and goods to institutions of a sectarian character. I cited statutory acts as precedents and court dicta in support of such acts. I did not in any way interpret the

motives of Congress on these measures. I think a very interesting doctor's dissertation could be written on Congress' motives, but I am not the person to do that.

Senator DONNELL. Miss Borchardt, you were kind enough to give us a number of citations from the United States Supreme Court yesterday.

Miss BORCHARDT. Yes, sir.

ARDT.

Senator DONNELL. I would like to note in the record at this moment the case of Huse v. Glover (which referred to the limitations of the provisions of the ordinance of 1787, reported at 119 U. S. 546), and I will quote a few words from it in the part in which the court says this:

The fourth section of the ordinance for the government of the Northwestern Territory was the subject of consideration in the Escanaba v. Chicago case (107 U. S. 678). We there said that the ordinance was passed before the Constitution took effect; that although it appears by various acts of Congress to have been afterward treated as in force in the territory, except as modified by them, and the act enabling the people of the Illinois Territory to form a constitution and State government, and the resolution of Congress admitting the State into the Union, referred to the principals of the ordinance, according to which the Constitution was to be formed, its provisions could not control the powers and authority of the State after her admission; that whatever the limitation of her powers as a government whilst in a Territorial condition, whether from the ordinance of 1787 or the legislation of Congress, it ceased to have any operative force, except as voluntarily adopted by her after she became a State of the Union; that on her admission she at once became entitled to and possessed of all the rights of dominion and sovereignty which belonged to the original States.

On page 645 from American State Papers on Freedom in Religion, a document published by the Religious Liberty Association, Washington, D. C., which I have in my hand, there is this language:

The ordinance of 1787 was superseded by the adoption of the Constitution of the United States.

Now, Miss Borchardt, that relates to this matter of the testimony concerning the transactions way back in 1787. We have already noted, with agreement. I think, you and I, here some of this language in Cubberley. Some of it you did not agree to, but you did agree to the fact, as I recall it, that the most prominent characteristic of all the early colonial schools was the predominance and purpose of religion in education.

Miss BORCHARDT. Yes, sir.

Senator DONNELL. And that in the Colonies, where the parochial school conception of education became the prevailing type, the school remained under church control until after the founding of our National Government. I am not sure whether you agreed to that, but that is a statement of Professor Cubberley.

Miss BORCHARDT. No one denies the religious character of colonial education.

Senator DONNELL. At any rate, what I direct your attention to is the subsequent phase of the school history of the country which is referred to by Professor Cubberley as the "battle to control the system."

Miss BORCHARDT. May I make a statement at this point?

Senator DONNELL. I think his statement was "in the battle for free State schools."