legislators who are attentive to everything except the interests of 90 per cent of the people.

Post Hoc Propter Hoc.

A

RECENT issue of a Chicago periodical under a heading "Child Court Makes Murderers" bases an attack on the juvenile court system on the fact that a homicide. has recently been committed by two boys who were at one time in the custody of that court. It is difficult to believe that any one will be seriously impressed. Homicides by ex-convicts are far from unknown, so by the same logic our prisons make murderers. There have been homicides by school boys, and a sixteen year old choir boy has just

been convicted of murder in New York. Does homicide lurk in the multiplication table and between the pages of the hymnal? The form of argument is one which is dear to the heart of the knocker. The courts, the jury system, any institution you may mention, has its failures. Every organization shelters its quota of black sheep. There is nothing in our civilization which may not be condemned by isolating its imperfections and regarding them as its sole product. There is no institution better fitted to bring up a child than a good home, yet children of good homes have turned out badly. The juvenile court takes those have turned out badly. The juvenile court takes those unfortunates to whom the benefits of a good home are denied; takes them handicapped by an evil heredity and bad early associations. Naturally it will have its failures. Naturally they will be more numerous than those of wise and affectionate parentage. It may be that the system can be improved; the state as parens patriæ is merely an aggregation of exceedingly fallible natural parents. But

full of cases in which it has been pointed out that the prosecuting attorney is the representative of the government which seeks only justice, but the actual practice of that lofty precept is rare enough so that it reflects peculiar credit on the attorney to whom it is a rule of practice and not a vague sentimentality. In the establishment of facts by forensic controversy, pride of opinion is almost certain to obscure the fairmindedness of the average man, and this conspicuous example of a prosecutor seeking justice and not success cannot but have a salutary effect. The case of U. S. v. Hoxie, 1 Paine 265, Fed. Cas. No. 15,407, affords an apt illustration of the contrary attitude. that the accused and his associates forcibly took certain The prosecution was for treason and the proof was merely property from the hands of the collector of customs who had seized it. Mr. Justice Livingston in charging the jury said: "The court cannot help thinking that the district attorney must have been greatly deceived in the information which was given to him, of the prisoner's conduct, and that the proofs on trial have fallen very far short of his expectations, or that you would never have been put to the trouble of deciding on this case. But as, notwithstanding the discussion which has taken place, he seems seriously and sincerely to believe treason has been committed, the court has thought it a duty to state to you its opinions, most explicitly, the other way; so that, if any mistake be committeed by so great an extension of the crime of treason, neither of us may be chargeable with it."

The Balanced Scales.

NOTHER illustration of the fact that among Anglo

criticism.

Paying Fines in Instalments.

T HERE has been presented recently to the New York legislature a bill providing that a magistrate before committing an offender to prison for the nonpayment of a fine for disorderly conduct or intoxication shall ascertain if he can be relied on to pay the fine, and if so satisfied shall release him conditionally and prescribe instalments in which the fine may be paid. The whole matter of punishment by fine involves an injustice, though perhaps an unavoidable one. The payment of a certain fine may to one man be trivial, to another difficult and to a third impossible, and an obvious inequality of punishment for identical offenses results. The New York records for 1916 show 18,600 petty offenders sent to jail for the nonpayment of fines, and consequently punished much more severely than others who were able to pay. The proposed measure, tending to relieve in some measure this inequality, seems to embody a just principle and the difficulties of its administration are certainly not insurmountable.

A Conscientious Prosecutor.

HE spirit by which a public prosecutor should be animated was well exemplified in the recent prosecution of Paul Hennig for treason. United States District Attorney France, being convinced that no evidence warranting a conviction had been adduced, did not await, much less resist, a motion by the defense, but promptly requested that an acquittal be directed. The books are

tration of law rises above even the excitements of war is afforded by a recent case in Ontario. One Hanselman, an employee in a munitions plant, was convicted under a statute relating to fraud or deception in the manufacture of military supplies. His offense consisted of plugging certain small holes or fissures in shells which would have caused their rejection by the government inspectors. was in evidence that the defects were not trivial but were apt to cause an explosion of the shell while still in the gun. gun. In suspending sentence and releasing the accused on his own recognizance Chief Justice Sir Glenholme Falconbridge said:

It

"One cannot but reflect that, according to the finding of the jury, you acted upon instructions received from others, who should, perhaps, be considered the prime offenders. Whether or not the authorities intend to take any proceedings against any others I have no knowledge, but it is to be borne in mind that whilst, so far, no others have suffered, you have been incarcerated for nearly two months. If your crime had consisted of an intention to assist the enemy, or even of participation in an act or acts which to your knowledge might result in injury to his majesty's forces in any manner or degree, the maximum of the punishment imposed by section 436a-that is to say, imprisonment for two years and a fine of $5000-would be quite inadequate. Giving you the benefit of the doubt in the particulars just adverted to, and taking into consideration the following facts, namely, that you have already been confined for nearly two months, that you were acting under instructions, that you have hitherto borne a high character, and that leniency is asked for by the jury, suspended sentence would seem to be the most fitting adjudication. It is hoped and believed that that will act as a deterrent in your case."

Cussing the Cop.

IN

N a recent case in the Bronx County Court (People v. Fenton, 58 N. Y. L. J. 1034) a driver who made a profane and abusive answer to a police officer who had cautioned him against the use of a wagon which was liable to break down and obstruct the traffic was held to be guilty of disorderly conduct. A contemporary (Bench and Bar, Jan., 1918) points out that the case illustrates the prevalent impatience of that police supervision which is essential in a large city, saying most justly that "not only does the police officer represent law and order, but he is a man striving to do his best and should be accorded the treatment due to such a man." There is how

ever some conflict as to whether profane abuse of a policeman constitutes disorderly conduct. There is an earlier New York case (Peo. v. Lukowsky, 94 Misc. 500, 159 N. Y. S. 599) wherein it was said: "I do not think that any remark, however insulting, addressed, while under lawful arrest, to the police officer making the arrest (there being no evidence that the remark was made in a loud voice or public manner), can be deemed disorderly conduct tending to, or intended to provoke, a breach of the peace. The law does not contemplate that the officer would assault a person in his custody by reason of a remark addressed to him, yet in no other way could the remark tend to provoke a breach of the peace."

To the same effect see State v. Moore, 166 N. Car. 371. The contrary view has been taken in several jurisdictions. (Elmore v. State, 15 Ga. App. 461; Warwick v. State, 17 Ind. App. 334; Davis v. Burgess, 54 Mich. 514; De Soto v. Hunter, 145 Mo. App. 430. Compare Salem v. Coffee, 113 Mo. App. 675.) In the Georgia case, the argument advanced in the New York case was answered as follows: "If words used would naturally and ordinarily tend to produce a breach of the peace when addressed to a normal man, not prevented by circumstances or physical limitations from properly resenting them by an assault and battery on the person of the offender, surely words of like character when addressed to one who is prevented by the solemn obligations of office from resenting gross insults (and therefore is legally as helpless as a paralytic) would constitute an offense under the statute, where no provocation for them appears. Again, though, on account of circumstances or obligations imposed by office, one may not be able at the time to assault and beat another on account

of such language, it might still tend to cause a breach of the peace at some future time, when the person to whom it was addressed might be no longer hampered by physical inability, present conditions, or official position." Apart from the legal aspect, not only courtesy but prudence forbids too much reliance on the constructive inability of the officer to be provoked.

Who Is a Subscriber.

T HE large part which the circulation of a paper or

periodical plays in fixing its advertising rates gives considerable importance to decisions determining the manner in which that circulation is computed. At one time it was the habit of certain publishers to inflate their circulation by sending out regularly a large number of gratuitous copies. The post office regulations have largely put an end to this practice, and in at least one instance (Ashton v. Stoy, 96 Iowa 197) a court refused to be im

posed on, saying that "a person to whom a paper is sent without his knowledge or consent either expressed or implied is not a subscriber." In the recent case of Cream of Wheat Co. v. Crist, decided by the New York Court of Appeals, the question what constitutes a "paid subscriber" within an advertising contract was determined. The court, disdaining the subtle technicalities which the lay press are so fond of attributing to the judiciary, held in substance that a paid subscriber is a subscriber who has paid or in the ordinary course of business procedure may be expected to pay his subscription. The court said: "A suggestion that an individual resident in some distant state who had paid a subscription for some years, ten, twenty or more years before the year 1911, and had not formally and expressly discontinued his subscription might be liable under an implied contract although not paying for said year and be considered under the contracts in question a 'paid subscriber' for the year 1911 and for as many years thereafter as a publisher may keep his name on a mailing list and fail to mark it off his books, does not merit acquiescence on our part." All of which suggests the reflection that the prevalence of the impression that the law is a system of sharp practice which has no relation to justice is a prolific source of litigation. If the press would give more space to the many instances of judicial fairness and common sense and less to moss grown jokes about tricky lawyers, fewer men would go into court in the hope of being the beneficiary of one of those mythical technicalities.

THE FEDERAL PROHIBITION AMENDMENT. It is not the writer's purpose to discuss prohibition per It would be a thankless task. Temperance the very tum, we applaud. Teetotalism, as a matter of personal word presupposes use in all things the great desideraconviction and habit, we respect. But "prohibition" we hedrin of the infallibly right in matters of conscience, must leave to that private circle of elect saints, the Sanconduct and morals, whose inspired duty it is, by grace of some divine illumination, to regulate things in general and human nature in particular, by law. They could not be controverted by argument or changed by disproof, even if argument and disproof were founded on the teachings thority of Sinaitic descent, were fortified by Holy Writ of history, the experience of mankind, had all the auRevelation. Fortunately no prohibitionist has been able and illumined by the first recorded miracle of the new by a chemical analysis of words to extract a precipitate that would rob the pale Galilean of his most gracious miracle.

John Stuart Mill taught that "the sole end for which mankind are warranted individually and collectively in interfering with the liberty of action of any of their number is self-protection; the only purpose for which power can be rightfully exercised over any member of a civilized community against his will is to prevent harm to others." And Herbert Spencer declared that "Every man is free to do that which he wills, provided he infringes not the liberty of another." But the prohibitionist regards law as co-extensive with morals-his morals. Not "How shall I live?" but "How shall I compel my neighbor to live?" Not "What may I drink?" but "What may my neighbor

of

not drink?" Of course his motives are lofty, his intentions are good. But hell, Sam Johnson tells us, is paved with good intentions and history records that good intentions were behind every iniquitous and tyrannical law ever passed. The men who burned witches at Trèves and hanged them in Massachusetts were actuated by the same. good intentions that we find behind the sumptuary laws preposterous fame, the heresy laws of detestable memory and the fanatical prohibition propaganda of the present hour, which if successful would but destroy its own ends. No man or woman was ever regenerated or reformed by legislation. As wild fire can be fought effectually only with fire, so intemperance can be combated only with temperance, supplemented by education, moral suasion, precept and example. The introduction of beer, preeminently the worker's drink, and light wines, classified by the French Government as "boissons hygieniques," hygienic beverages, and recognized throughout Europe as temperance agents, has done more for true temperance in the United States than all the temperance societies, so called, and prohibition laws combined.

The proposed federal prohibition amendment should not be written into the Constitution of the United States. It is not constitutional law. Illogically, it ignores the fundamental distinction between statute law and constitutional law. It is an attempt to legislate by constitutional addition and to impose upon the people, without manifestation of the sovereign will, perhaps in defiance of it, a regulative law that is arbitrary, unwise, unjust and tyrannical. More than this, it is an attempt to revolutionize the Government without the consent of the governed. It is contrary to the whole spirit of our popular government. Its proponents contend that as Congress did not avail itself of the clause in Article V which empowers it to prescribe the election of conventions through which the popular will might be expressed, the amendment must be submitted to the legislatures without reference to the people.

When the article defining the manner of amending the Constitution was adopted, the United States had less than four million population and the various states were fairly balanced. Manifestly the conditions are now so entirely changed that the original provision should be interpreted in the spirit of the instrument of which it is a part and in connection with the method of exercising constituent power by the people in the states to-day. But however construed, it does not declare that a proposed amendment must be submitted to the legislatures of the states, instanter, to legislatures the members of which were elected at the time the resolution was adopted by Congress, and who consequently have no mandate on the subject from the people. Nor has it ever been held to prevent the legislatures from seeking the opinion of the people before ratifying or rejecting. The action of the people would be merely an instruction to their legislatures, a thing in no way violative of the Constitution. The membership of the The membership of the combined legislatures of the country is approximately ten thousand. Did the framers of the Constitution intend that a two-thirds majority of ten thousand men should arbitrarily regulate and control a normal habit of one hundred millions without reference of the question to them?

The Constitution is above the legislatures but the people are above the Constitution. It came from the people and was not the corporate act of sovereign and independent states. It is true that the convention which framed the

Constitution was elected by the state legislatures but the instrument prepared by that convention was merely a proposal without authority or obligation. It was reported to the then existing Congress with a request that it "be submitted to a convention of delegates, chosen in each state by the people thereof, under the recommendation of its legislature, for their assent and ratification." This procedure was adopted, and by the convention, by Congress and by the state legislatures, the instrument was submitted to the whole people and they acted on it by assembling in convention. From these popular conventions the Constitution derives its whole authority. The people at large were at liberty to accept it or reject it, without the affirmance of state legislatures. That the Constitution was ordained and established not by the states but emphatically as its preamble declares "by the people of the United States" is a proposition supported by the voice of our highest judicial authority. Martin v. Hunter, 1 Wheat. (U. S.) 324; Chisholm v. Georgia, 2 Dall. (U. S.) 471; Barron v. Baltimore, 7 Pet. (U. S.) 247.

That the people regard themselves as the sole depositary of all constituent power may be illustrated by the constitutional history of the individual states. The system of a popular vote upon all constitutional measures first inaugurated by New York is now so firmly and universally established among the states as to have become a fundamental principle of the unwritten public law of the United States. Reference of the amendment to the people is demanded by the spirit of American democracy and republican institutions. It is in accordance with the established practice of the states. It is a recognition of the principle that all constituent authority resides in the people, a principle that is the very corner stone of the Constitution itself.

The resolution is of doubtful validity. It was not proposed in the method prescribed by the Constitution and its mode of adoption was contrary to the spirit of that

instrument.

Article V of the Constitution provides as follows: "The Congress, whenever two-thirds of both Houses shall deem it necessary, shall propose amendments to this Constitution.

...

which... shall be valid to all intents and purposes, as part of this Constitution, when ratified by the legislatures of three-fourths of the several states, or by conventions in three-fourths thereof, as the one or the other mode of ratification may be proposed by the Congress. The prohibition resolution was adopted in the Senate on August 1 by a vote of 65 to 20 and by the House on December 17 by a vote of 282 to 128. The Senate vote gave a two-thirds majority, not only of those present and voting but also of the whole membership, but the House vote did not show a two-thirds majority of all the members, who number 435. Two-thirds of the whole membership therefore did not vote for the resolution.

The Senate of the United States, on July 7, 1856, decided that two-thirds of a quorum only and not two-thirds of the whole Senate, were requisite to pass a bill over the President's veto. This seems to have been regarded since as the legislative construction of the provision "two-thirds of the House." Under the Constitution "a majority of each House shall constitute a quorum," so under this construction it requires only two-thirds of the majority of

each House to pass a bill over the President's veto or to propose a constitutional amendment under Article V.

Consider the grave consequences of such a construction. The present Senate of the United States consists of 96 members, 49 of whom constitute a quorum, and 34, twothirds of a quorum. The present House of Representatives consists of 435 members, 218 of whom constitute a quorum and 145, two-thirds of a quorum. So that 34 Senators and 145 Representatives, a minority of each House, may approve a resolution proposing a federal amendment or may pass a law over the President's veto. Under such construction, this reductio ad absurdum is within the constitutional bounds of possibility.

Other articles of the Constitution refer to a two-thirds vote but in different terms. Whenever any number less than all the members of both Houses is required to act, the Constitution explicitly so states. The provision for The provision for the repassage of bills over the President's veto, in Article 1, section 7, reads, "shall be repassed by two-thirds of the Senate and House of Representatives." Article 1, section 5, providing for the expulsion of members declares that "each House may, . . . with the concurrence of two-thirds, expel a member." On the other hand regard Article 2, section 2, which declares that "the President . . . shall have power, by and with the advice and consent of the Senate, to make treaties, provided two-thirds of the senators present concur." And in the provision for the trial of impeachments, Article 1, section 3, we find that "no person shall be convicted without the concurrence of two-thirds of the members present.” Does not this diversity of language imply a diversity of intent? Is it within the range of reasonable construction that "two-thirds of the House" in one provision is identical in meaning with "two-thirds of the members present?" Under the terms of Article V, would it not require twothirds of all the states to make an application to Congress to call a convention, or the ratification by the legislatures of all the states? Would it be seriously contended that a member of the present Senate may be expelled by two-thirds of a quorum or 34 members? The two-thirds provision has never yet received authoritative judicial interpretation and until it has, there would seem to be no room for a rational doubt that the provision requires all of the members of both Houses to be counted on a vote proposing a federal amendment. The resolution is a nullity and the proposed amendment therefore is not lawfully before the various state legislatures for ratification.

The proposed amendment is extraneous to the Constitution, not germane to any of its provisions and therefore is not an "amendment" but an "addition" requiring the unanimous consent of all the states. There is a very fundamental distinction between a constitutional "amendment" and a constitutional “addition." This distinction was recognized by the First Congress which under the Act of September 25, 1789, proposed the so called original Ten Amendments as "Additions and Amendments" to the Constitution and as such they received the unanimous assent of all the states. An "amendment" must have some organic relation and adaptedness to the subject "amended." General powers of legislation inhere in the states. The central government is one of enumerated powers. It is limited in the number of its powers (Tennessee v. Davis, 100 U. S. 257) and it "can claim no powers which are

not granted to it by the Constitution; and the powers actually granted must be such as are expressly given, or given by necessary implication." Martin v. Hunter, 1 Wheat. (U. S.) 304. To what power "expressly given or given by necessary implication" does the proposed prohibition amendment relate? Undoubtedly, all of the states by unanimous concurrence have the power to add anything to the Constitution, even as they have the power to abolish it and commit voluntary national death, but three-fourths of the states may not by amendment destroy another state or confer new and additional power on the government and thereby impose on another state or group' of states tyrannical, unjust and discriminatory legislation, and in opposition to their will.

The amendment is defective in that it does not properly provide for ratification or rejection by the states. Ratification of the present seventeen amendments was made in periods ranging from ten months (the thirteenth) to forty months (the eleventh), the average period being approximately two years. The limit of seven years for ratification would seem to be too long and for this reason -the history of several of the present amendments shows that during their pendency, states have recalled their action. Whether a state may legally recall a ratification is doubtful and this doubt should first be removed. Until it is settled the issue will divide the people of every state, for the long period of seven years, on the question of electing members of state legislatures who may be in favor of or opposed to ratification. There will be a continuous "drive" such as we now see, founded on bigotry, coercion, mendacity, even bribery, destroying the unanimity of our people, at a time when in the language of the President "our whole attention and energy should be concentrated on the vigorous, rapid and successful prosecution of the great task of winning the war." The Constitution confers power on Congress to propose amendments, and "to make all laws which shall be necessary and proper for the carrying into execution" of this power, yet Congress has failed to enact any regulation on the subject. The various state legislatures should decline to consider the amendment until their authority has been definitely defined. The ratification of an amendment creates no contractual relation between the ratifying states until three-fourths have ratified. In the meanwhile it remains, what it is, an unaccepted proposal, and its ratification (or its rejection) should be subject to recall so that ultimate action on it, within the period prescribed, will reflect not only popular sentiment but the reasoned judgment of the people.

The amendment is not demanded by any present national exigency. The claim of its proponents that it is necessary as a war measure is indefensible, disingenuous and absurd. Every resource of the nation, if need be, must be used for a triumphant prosecution of the war. If the necessities of our soldiers, civilian population and our associates demanded, not an ounce of any product useful or usable for human food or animal feed should

be diverted to any other purpose. But by virtue of section 15 of the Act of August 10, 1917, the President as the Commander in Chief of the Army and Navy is given absolute authority to act for the national security in this respect. That section provides as follows: "From and after thirty days from the date of the approval of this act no foods, fruits, food materials, or feeds shall be

used in the production of distilled spirits for beverage purposes: Provided, That under such rules, regulations, and bonds as the President may prescribe, such materials may be used in the production of distilled spirits exclusively for other than beverage purposes, or for the fortification of pure sweet wines as defined by the act entitled 'An act to increase the revenue, and for other purposes,' approved September eighth, nineteen hundred and sixteen. Nor shall there be imported into the United States any distilled spirits. Whenever the President shall find that limitation, regulation, or prohibition of the use of foods, fruits, food materials, or feeds in the production of malt or vinous liquors for beverage purposes, or that reduction of the alcoholic content of any such malt or vinous liquor, is essential, in order to assure an adequate and continuous supply of food, or that the national security and defense will be subserved thereby, he is authorized, from time to time, to prescribe and give public notice of the extent of the limitation, regulation, prohibition, or reduction so necessitated." That this law affords a complete assurance of a continuously adequate supply of food and adequate protection for the national security and defense is evidenced by the executive order of December 8, 1917, fixing the alcoholic content of beer at not exceeding 234 per cent and providing that not more than 70 per cent of the products used in the last year should now be used. This means that the manufacture of all alcoholic beverages, except light wines and beers, the latter of low alcoholic content, is prohibited. This is rational legislation, tending to establish a true temperance throughout the nation. Can the extreme prohibitionist not realize that the war is to be won not only on the fields of Europe but at home and that the very large percentage of patriotic Americans who do not believe in absolute prohibition and do not favor its arbitrary and tyrannical imposition must contribute in a large measure, perchance to the ultimate sacrifice, to the united efforts made for the winning of the war? Can there be any greater measure-whether of peace or of war -for the national security, than the recognition of the personal rights of all our citizens, even the humblest, and a policy of keeping them satisfied and contented in conditions harmonious with their normal habits and mode of life?

fallacy of the amendment is that it stakes everything on "sale," with no restriction or control in the individual use or gift of intoxicating liquor.

The proposed amendment is an unwarrantable interference with the police power of the several states. The Constitution is a specific grant of certain enumerated powers made to the Union by existing State sovereignties, coupled with prohibitions upon the states. If a given power is not granted to the Union or prohibited to the States, it is a demonstration that it belongs to the states. What is the police power? The police power extends to making regulations promotive of domestic order, morals, health and safety (Hannibal, etc., R. Co. v. Hansen, 95 U. S. 470), to such legislation as is required to protect the comfort, health and lives of all persons within the jurisdiction of the State. (In re Minor, 69 Fed. 236.) And the States possess because they have never surrendered the power to protect the public health, the public morals and public safety by any legislation appropriate to that end, which does not encroach on rights guaranteed by the national Constitution. (Missouri, etc., R. Co. v. Huber, 169 U. S. 628.) The prohibition, regulation and control of intoxicating liquors has never been placed in any other category. If this proposed amendment were passed all the state police power and its machinery safeguarding the provisions of liquor laws might be abrogated. It would mean that the present limited federal jurisdiction of the criminal law would be extended to include every offender under the liquor laws, who might be brought before a federal magistrate and committed to a federal jail. The right of a state to manage and govern in its internal affairs would be taken away. The subject matter is not one which requires a uniform system as between the states, since different laws and regulations may be suitable to different localities. Under our system from the beginning State governments have had the power of self-protection but under this resolution the States might swarm with federal spies and the citizen be placed under the espionage of a federal agent, who under his necessarily inquisitorial powers might enter his home at any time in order to discover whether there had been an infraction of the law. The historic page teaches us that elective governments have declined and fallen on the subversion of the principles that sustained them. One of these cardinal principles is that all rights under the Constitution extend to the person of the citizens who are the guardians of their own liberties. Would they as citizens of a State tolerate the inquisitorial inspections and the seizures permissible under this amendment, by an authority to which the State had never surrendered the power and the right?

The proposed amendment is objectionable, if not fatally defective, in that it provides that the Congress and the several States shall have concurrent power to enforce the article by appropriate legislation. article by appropriate legislation. This provision is an anomaly. It is the opinion of the most influential Bar that the Supreme Court will not tolerate an amendment Associations and leading lawyers and former justices to the Constitution which provides for its enforcement any authority other than federal authority and federal action. It has been urged that since there can be no precedence between the statutes of legislatures given concurrent jurisdiction, inconsistent regulations will nullify each other. LAW NOTES, however, in a recent issue (Feb