Evening star., 1930-12-17
specisl Dispatch to the star.


distinguished counsel to dismiss the
Indictment against William Sprsgue,
an obscure farmer In the hills Of Sus-
sex, who was arrested for transport
ing and possessing so half barrels Of
| real beer on March 3.
All the lawyers in the case served
| without fee. The counsel of record was
! Frederic NJ P. Pearse of this city,
former assistant United States attor-
| ney. His associates were Daniel r.
Cohalan, former Supreme Court JUS
| tice; Selden Bacon and Julius Henry
Cohen. These three, with Prof. Leslie
NJ. Tomplsins Of the Department Of Law
| cf New York University, and other
! members of a special committee of the
| New York County Lawyers Association,
! worked two years on report holding
| that the eighteenth amendment Wss
not part of thu Constitution because
| it had been ratified by the Legislatures
! instead of by the people in conSt.tu-
ti7nal conventions in the several states
Argued in Vermont Case.
Their findings. published in pam
Bacon under his name, and fell into
the hands of Mr.. Pearse, who decided
to test the issue raised in the report in
the Sprague case.
Soon thereafter, Vermont lawyer,
formerly of this city, jeremiah M.
Evarts, used the same arguments In his
motion to sniss an ind ctment against
Louis Thibault, indicted for POSSESS
ing and selling whisky in his home at
w ndsor, VT.
This case was argued two weeks ago
before the United State5 G rcuit Court
of Appeals in New York. with Judge
Martin T, Msnton presiding. Mr..
Bacon and former Justice Cohalan
aided Mr. Evarts in arguing the appeal.
Decision in the IN bault case ls
pending.
The Thibault case will also be ap-
pealed to the United States Supreme
Court Neither case will be reached,
in the opinion of lawyers, for at least
year.
Threats Are Alleged.
Some drys, ever since Judge Clark
reserved decision at the conclusion of
the argument On October 3, have been
threatening to move for his imprach-
on not in accord with their fixed
views. These threats, If they reached
Judge Clark, were received with silence.
But his friends, with their deep respect
for his scholarship and his proved cour-
age-for he was awarded a silver star
for "gallantry in action"-never doubt
ed that anything other than his dis
pass -onate reasoning and fearless in
depreciation of the law would guide
him in reaching decision.
Judge Clark upheld the contention
Of the counsel who appeared before him
in Trenton on October 8, that the
question they raised had not been
passed upon by the United States Su-
preme Court when it upheld the eight
eenth amendment in the national pro-
hib ton cases. But he did not hold
with them that the tenth amendment
overrode, conditioned or contravened
the fifth article.
Again, in holding that the eighteenth
amendment was invalid because 1t had
been ratified by the State Legislatures
instead of by the people in State con-
stitutional conventions, he held with
them but differed In ruling that the
eighteenth amendment attempted
grant Of power from the States and not
from the people.
Cites 1890 Cases.
In his review of the prohibition cases
upheld by the United States Supreme
Court Judge Clark emphasized that the
court In 1920, only considered the con-
stitutionality of the subject matter of
the amendment and not the manner of
adoption. 1n.the two 1Atef decisions the
Supreme Court only dealt with refer
enda provisions of State constitutions
as 1t affected such adoption, holding
that such referenda could not be en-
ployed in ratification
Judge Clark abandoned what he called
the stereotyped form Of constitutional
Interpretation and followed the school
Of thought typif1ed in the writings of
~ ~
lumbia and Justice Holmes. Therefore,
as he explained, he considered the prob
lem as one Of political science end
placed upon the fifth article q con-
struction he held Was in accord with
the principles Of sound government.
In support of this part of his decision
Judge Clark wrote:
1T seems indisputable that local
f-government popular sovereignty,
and the convention system of drafting
and amending Constitutions were the
very warp and woof' Of the political
thought Of the whole period prior to
the. drafting and adoption Of the Fed
eral Constitution. The thought proc
esses OF President lincoln have come
to typify 20 much the spirit Of our in.
sututions that it may not be inappro-
PIRATE TO conclude this phase OF the
subject With a quotation from his FIRST
inaugural address:
Favprs Convention Mode.
"I viii venture to add that to me the
convention mode seems preferable, in
that 1t allows amendments to originate
with the peop,e themselves, instead of
only permitting them to take or reject
propositions originated by others, not
especially chosen for the purpose, and
which might not be precisely such as
they would wish to either accept or
refuse. understand proposed
amendment to the Constitution-which
amendment, however, have not SEEN
has passed Congress. to the effect that
the FEDERAL Government shall not inter-
fere with the domestic institutions Of
the states, including that of persons
! held to service. To avoid misconstrue.
ton OF what have said, depart from
my purpose nm to spsak Of particular
amendments 20 far as to say that, hold
ing such a provision TO now be implied
constitutional law, i have no objection
to its being made express and irrev-
| ceable.' EtichardSon, MeSragss and
Pap2rs of the President u769.Is3D.
Vol. VI, page 10.
1T is only fair to point out that in
the first part of the above quoted pas
sage, Mr.. Lincoln was discu sing the
proposal OF amene ments and not their
| ratification. His arguments appiies. a
fortiori, however TO the latter process.
We have tried in the preceding
pages to do justice to what we have
called the stereotyped method of con-
stitutional Interpretation. In spite OF
Our conscientious efforts. we cannot
, help feeling OF impatience ct It's un-
| reality We prefer to regard cur frame
! OF government as a problem in political
science, to be solved as far rs may be.
according to scientific principles The
/ qualifications as far as NAV be- must
be included besause a written ,'oau-
ment imposes certain Imitation upon
] any approach, scientific or othe. u e
nttgF1 0reo ,r.f4l, f3.s.f Tsa...a ~