The New York herald., 1922-10-24

exception from the nteral lang ud6e
of the act. First, in those cases there
was a statute which gave as much
right of transit across the territory of
The United States as here and that
statute had the support Of treaty
negotiated only five years later. and
assumed in the opinion of Mr.. Justice
Holmes to be still in force.
Assuming that the customs laws
give a positive right to enter ships
stores into the United States, posi-
tion in itself very doubtful, since in
form it only exempted them from GUS
toms duties, at least it must be con-
ceded that the statute, old as 1t Is. rep
resented only the policy. and not the
promise of the nation. 1t is true that
the custom in maritime affairs is OF
long stand ing to treat such stores as
part of the ship, but balancing that
consideration with the Implication
against the repeal of a treaty, cannot
help believing that the second Is the
more weighty. At best 1t can only be
said that the cases are on a parity IN
this regard.
However the motives for positively
assuming that such stores must be
considered as included within section
3, appear to me stronger than any
across our territory. 1t is true that
all such reasoning as to legislative
motives is speculative, but that vice,
If it be one, is of the plaintiffs max
ing, because the language OF the
statute, taken in. it's natural meaning,
Is general and covers the case OF
stores, as Of other merchandise. 1t Is
the plaintiffs who insist upon imply
ing limitations on that meaning. be-
cause of the supposed intent of Con-
gress. Since, therefore, I am asked
to have recourse to implications,
cannot avoid some speculation as to
what Congress would probably have
said, had it been faced with the ac-
tual situation which now arises.
In the decisions cited there was no
conceivable danger in the transit of
liquor across the United States except
the chance OF its escape. 1t Is true,
that as suggested in Grogan vs..
Walker, supra, the provision against
export may have been intended to
prevent the use of stimulants outside
the United States and so far as it was.
the argument applies with stronger
force to the cases at bar.
But taken substantially, the only
evil which the transit could accom-
plish was that some OF the liquor
should not complete its passage. In
the cases at bar the danger OF an
escape is equally present. not perhaps
In the case Of these plaintiffs. but
cannot regard them alone. Less re-
sponsibe owners may not be as scrup-
ulous, and the law runs for all. The
distinction which put these cases
within the law with much greater
certainty is the purpose for which the
liquors are brought and kept here.
ignoring for the moment the crews,
all OF the stocks are avowedly in
tended for the consumption of those
who are now within the Upited States,
of which a substantial part are resi-
dents or citizens, the very persons
whom 1t was the whole purpose OF
the amendment to prevent drinking
liquors.
Naturally, / have nothing to say
| about the wisdom of the amendment or
the law. but. wise or not, one thing Is
clear. that q drink of whisky is as
hurtful to health and morals outside
as inside Ambrose Light. 1t appears
| to me inconceivable, when one Is dis
cussing the implied intent Of Congress,
| that a statute cast in such sweeping
terms should be read as Indifferent, to
\ open preparations within the United
states for the qualification by its citi-
zens of exactly those appetites which
| Il was the avowed intent of the statute
altogether to deny. Nor do l believe
| that any one would hesitate 10 think
so who did not already repudiate the
whole reform. If. for example, we
were to substitute cocaine or opium
for alcohol, can scarcely think there
could be any disinterested difference
| of opinion.
|
Suppose. IL were the habit of Chin
ese vessels to bring TO our ports
among their stores n proper supply
of morphine and opium with the
avowed purpose of dispensing 1t freely
TO passengers from the United States
as soon as they cleared the league
| limit. Could Il be seriously argued
that a constitutional amendment and
a statute in broad language designed
to prevent citizens from using this
| drug did not cover SO palpable a
means of nullifying the very purpose
of the law? The illustration Is ex-
| treme only to those who can see no
parity between the evils of opium and
alcohol But Judge cannot take any
position on that question 1t must be
enough for him that each Is forbidden.
II is indeed different<with so much
of the stocks as are kept for the
crews, and a much stronger argument
can be made for the Legality of their
carriage. though these also seem TO me
to fall within the decisions I have so
often cited. However. that question is
really irrelevant as these cases are
presented. The plaintiffs base their
argument on the improbabity that a
statute in such general words should
! have meant to cover sea stores This
| In turn rests upon the unlikelihood
that what has been for so long treated
as not subject 10 municipal law should
all at once become so. But the argu-
ment breaks down as soon as It APP
! pears that the stores as a whole can
| not fairly be excluded.
To say that the section covered
some OF such stores. but ont ALL
would be to admit that as such they
were not excluded by implication.
What then becomes Of the argument?
There are indeed cogent reasons why
these might be expected. but these
arc not because they are ships stores
Congress may eindeed determine to
make an exception In their favor. as
to the validity Of which / have Moth
ing 10 say, but ] do not think that
a judge can imply the exception be-
cause Of the unquestioned difficulties