contract, when either of the parties engages to perform a particular act, the treaty addresses itself to the political, not the judicial department; and the legislature must exe cute the contract, before it can become a rule for the court." The foregoing principle has since been on various occasions reaffirmed: Taylor v. Morton (2 Curt. 454); Whitney v. Robertson (124 U. S. 190); Butler Treaty-Making Power of the United States (vol. 2, p. 66).

Article 1 of the London convention provides that: "The high contracting parties bind themselves to apply the provisions of the present convention to all radio stations (both coastal stations and stations on shipboard) which are established or worked by the contracting parties and open to public service between the coast and vessels at sea. "They further bind themselves to make the observance of these provisions obligatory upon private enterprises authorized either to establish or work coastal stations for radiotelegraphy open to public service between the coast and vessels at sea, or to establish or work radio stations, whether open to general public service or not, on board of vessels flying their flag."

And it is further provided by the convention:

66

"ARTICLE 19.

The high contracting parties bind themselves to take, or propose to their respective legislatures, the necessary measures for insuring the execution of the present convention.

"ARTICLE 20.

"The high contracting parties shall communicate to one another any laws already framed, or which may be framed, in their respective countries relative to the object of the present convention."

It is to be further noted that by virtue of the last sentence of Article XI of the Service Regulations affixed to the international convention emergency installations are not required in the case of vessels the regular installations of which fulfill the requirements of that article, whereas the act in question, notwithstanding its provisions apply to steamers "of any foreign country," contains no similar

provision, but, on the contrary, the language of section 1 clearly excludes such an interpretation.

It is apparent that in order to make effectual the requirements contained in Article XI of the Service Regulations affixed to the convention legislation looking to the due enforcement thereof is indispensable. The significance of Articles I and XIX of the convention is, moreover, unmistakable. These considerations when tested by the principle stated in Foster v. Neilson lead to the conclusion that Article XI of the Service Regulations was not designed to be self-executing, and, obviously, its character in this particular is not altered by reason of the fact that there was in existence at the time of the ratification of the convention by the Senate a statute relating to the subject, the terms of which, however, are in conflict with that article.

It follows therefore that, unaided by an appropriate enactment of Congress, the article in question does not effect a modification of the terms of section 1 of the act of July 23, 1912, to which you refer.

Respectfully,

GEORGE W. WICKERSHAM.

The SECRETARY OF COMMERCE AND LABOR.

CONSTITUTIONALITY

DI

OF PROPOSED LEGISLATION VESTING INTOXICATING LIQUORS OF THEIR INTERSTATE CHARACTER IN CERTAIN CASES.

The bill entitled "An act divesting intoxicating liquors of their interstate character in certain cases" (S. 4043, 62d Cong., 3d sess; 37 Stat. 699), is repugnant to the Constitution of the United States, since it delegates to the States the power to regulate interstate commerce.

DEPARTMENT OF JUSTICE,
February 28, 1913.

SIR: I have examined with as much care as the very limited time at my disposal would permit the bill S. 4043, entitled "An act divesting intoxicating liquors of their interstate character in certain cases," which was passed by both Houses of Congress and presented to you on February

17th inst. This bill consists of but one section, which is as follows:

"Be it enacted, etc., That the shipment or transporta· tion, in any manner or by any means whatsoever, of any spirituous, vinous, malted, fermented, or other intoxicating liquor of any kind, from one State, Territory, or District of the United States, or place non-contiguous to but subject to the jurisdiction thereof, into any other State, Territory, or District of the United States, or place non-contiguous to but subject to the jurisdiction thereof, or from any foreign country into any State, Territory, or District of the United States, or place non-contiguous to but subject to the jurisdiction thereof, which said spirituous, vinous, malted, fermented, or other intoxicating liquor is intended, by any person interested therein, to be received, possessed, sold, or in any manner used, either in the original package or otherwise, in violation of any law of such State, Territory, or District of the United States, or place noncontiguous to but subject to the jurisdiction thereof, is hereby prohibited.

Senator Kenyon, the sponsor of the bill during debate, said "that honest lawyers, frank with themselves, must concede that the questions involved are exceedingly troublesome; but inasmuch as the Supreme Court has expressly left open the question, it would seem that this was a proper case to place the matter squarely before them in order that a question of great importance might be determined." Whether or not the doubts concerning the constitutionality of this measure, thus frankly expressed, are so well founded as to require you to disapprove it, or are of a character which in view of the meritorious purpose of the legislation you should disregard, leaving them, as Senator Kenyon suggests, to be dealt with by the courts, is, I take it, the matter for your immediate consideration and determination.

In the Senate, Senators Root and Sutherland, among others, expressed in careful and forceful reasoning their conviction that the act was wholly beyond the constitutional powers of Congress, in which view Representative Brantley and other lawyers of high standing in the House of Representatives concurred.

Traffic in liquor has been the subject of much discussion both in Congress and before the courts of the United States ever since the decision in Leisy v. Hardin (135 U. S. 100), which held that a statute of a State prohibiting the sale of any intoxicating liquors, except for pharmaceutical, medicinal, chemical, or sacramental purposes, and under a license from a county court of the State was, as applied to a sale by the importer into the State, and in the original packages or kegs, unbroken and unopened, of such liquors, manufactured in and brought from another State, unconstitutional and void, as repugnant to the clause of the Constitution granting to Congress the power to regulate commerce with foreign nations and among the several States.

This case was decided April 28, 1890, and on August 8, following, Congress passed an act known as the Wilson Act (26 Stat. 313, c. 728), providing―

"that all fermented, distilled, or other intoxicating liquors or liquids transported into any State or Territory, or remaining therein for use, consumption, sale, or storage therein, shall upon arrival in such State or Territory be subject to the operation and effect of the laws of such State or Territory enacted in the exercise of its police powers, to the same extent and in the same manner as though such liquids or liquors had been produced in such State or Territory, and shall not be exempt therefrom by reason of being introduced therein in original packages or otherwise."

That act was sustained in the case of In re Rahrer (140 U. S. 545) as a valid exercise of the power of Congress to regulate commerce among the States.

In delivering the opinion of the court, Fuller, C. J., said:

"The Constitution does not provide that interstate commerce shall be free, but, by the grant of this exclusive power to regulate it, it was left free except as Congress might impose restraint. Therefore, it has been determined that the failure of Congress to exercise this exclusive power in any case is an expression of its will that the

C SCEPAS PAL, VNous, fermented of Ceram heces within the limits of a Siate, to be there så de bartered for general use as a bevorngo does not pensserly infringe any right, privilege or un munity served by the Constitution of the Inod. Soon or by the amendments thereto,"

He referred to the language of Mr. Justice CCAS 12 DE License cases (5 How. 504, 399) to the effect its nature an article did not belong to commerce, condition. from putrescence, or other cause, is en it is about to enter the State that it no longer * commerce, or, in other words, is not a compa then the State power may exclude its introduction That is to say, that which does not belong to cotesse se within the jurisdiction of the police poter of

and that which doe belong to commerce & diction of the Being Status

A