"Under their respective constitutions and the acts of Congress that admitted Oregon and Washington to the Union, they have concurrent jurisdiction over the Columbia River. Both States passed laws by which they regulated the taking of salmon in the river.

"One Desjeiro was convicted of violating a statute of Oregon, which differed in the regulations and in the punishment imposed for violation thereof from the statute of Washington. In discharging the prisoner, the court said: 'It is the act of concurrence between the two States in the exercise of legislative authority that validates the act and gives it the force of law, and unless there is a concurrence or assent by both States to the enactment, it cannot have that force.'-Ex-parte Desjeiro, 152 Fed., 1004, 1907.

"When, in 1909, the Supreme Court of the United States was confronted with the question of the meaning of the same provision that arose in Re Desjeiro, the court, per Brewer, J., said: 'Obviously, the grant of concurrent jurisdiction may bring up * * * many, and some curious and difficult questions. So we promptly confine ourselves to the precise question presented.' That question the court decided without passing on the correctness of the decision in Re Desjeiro, Niolsen v. Oregon, 212 U. S., 315.

"Concurrent' is defined as 'in conjunction, agreeing in the same act of point, contributing to the same event or fact, contributing.'-Webster's Dictionary.

"It was Calhoun's passionate contention that the Constitution gave no more than concurrent power to the Congress and the States on any subject unless an exclusive jurisdiction, or power, was given to Congress by the express language of the Constitution. Such an exclusive power he found nowhere except in the grant of exclusive legislative power over the District of Columbia. Notwithstanding the clause by which it is provided that 'this Constitution and the laws of the United States which shall be made in pursuance thereof *** shall the supreme law of the land,' Calhoun argued that the power of the States was at least equal to that of the Congress.

"Therefore, he argued that as there is no common judge between equals, each may determine finally for himself what his conduct shall be.

"Had the Constitution provided, in terms, that 'the Congress and the States shall have concurrent power to enforce this Constitution by appropriate legislation,' what would have been the answer to Calhoun's doctrine of 'concurrent sovereignties'?

"Such a clause could not have found its way into this Constitution, nor into any document that was intended to be the fundamental law of a nation rather than of a federation.

"The Constitution made a nation; a compact may make a confederation. And, according to Calhoun, it was a mere compact that the States had made.

"Of course, it matters not whether the dispute between concurrent sovereignties relates to a question of power or to a question of expediency. In the language of his biographer, Von Holst, 'if Calhoun's theory had been applied, the "German bund" of bygone days would have had a most formidable rival.'

"Of course, if the power in the Congress to legislate is only concurrent with that of a State, the asserted right of a State to nullify acts which a State considered unconstitutional included 'the right to invalidate a constitutional Federal law * * by passing a conflicting law on the same subject.'-Von Holst's, 'Life of Calhoun,' page 145.

*

"Why should we now establish in terms 'confused sovereignty' over the same subject? Are we not invited by this amendment to give life again to Calhoun's theory of 'concurrent sovereignties,' which we supposed was answered by Webster and destroyed by the Civil War?"

A PROTEST FROM THE BENCH

Speech of Vice-Chancellor Merritt Lane of New Jersey to the Bar Association of Hudson County, Feb. 11, 1919

You have just seen grafted upon the American Constitution a sumptuary law of the most drastic character, a proceeding quite opposed to every fundamental of our theory of government. The forefathers came here in the name of religious liberty. But underlying the idea of religious liberty was the broader idea of liberty, liberty not only of conscience but of action.

The individual parted with his individual liberty only so far as necessary for the peaceful continuance of community life, and the unit was the smallest conceivable, the town, the affairs of which were managed by the town meeting. In the town meeting resided all police power, and it consented to no abridgement of its powers or gifts except such as was absolutely necessary for the common defense.

Times have changed but fundamentals have not. We were not put upon this globe to be bred as animals. The ultimate desideratum is not a succeeding generation better than the present. Nor is it the material welfare of the present. If it were, then I conceive that a paternalistic form of government such as we are drifting toward would be the better. History records that such a form, whether under the style of tyranny, monarchy, autocracy, a republic or a democracy, cannot endure.

Man was created a free agent, put here for the purpose of developing his own soul. I know that Judge Lindsey in his last article written from the other side has indicated that the Biblical question, “What shall it profit a man if he gain the whole world and lose his own soul," is in some disrepute and that the people are now thinking "What shall it profit a man to save his own soul if the whole world is lost."

But this is a mere play of words. The Biblical question still stands for all that it implies. One could not save one's soul in the past emergency except by the exhibition of a desire, and a carrying out of that desire, so far as his power went, to save the world. But humanity as a whole is no higher or greater than the individuals making it up. The whole is not greater than the sum of all its parts. Man to develop must be as near as may be a free agent, and he will be.

I am not speaking in favor of rum. I know and have reason to know its evils. And in the limited sphere in which I have been privileged to act, under the abatement legislation, of which I heartily approve, I have enforced the law against an abuse of the liquor traffic to the limit, and I shall continue to do so until stopped by some higher authority.

I am speaking against the use of the word "prohibit." Man will

listen to "Thou shouldst not," backed by reason. He will not listen to "Thou shalt not," backed by force. That is reserved for the lower animals. If he is pushed too far by "Thou shalt not," even if the force is applied by a majority, he will repel.

Bear in mind that the Constitution recognizes certain inalienable rights as existing. It did not create them. No constitution, no act of a majority, let alone of a minority, can take them away. It apparently is the purpose of some to have this world run as a sort of Utopia, somewhat like the heaven pictured for us when I was a child. I remember thinking that it would be an extremely uninteresting place in which to live.

If the present prohibition amendment can be justified, then any sumptuary regulations, including those dealing with what we should smoke, when we should smoke, what we should eat, when we should eat, what we should wear, when we should retire and so forth, ad nauseum, can be justified. Men will not stand for any such regulations even if in a material sense the world is made a better place to live in. Attempts to enforce such regulations will lead irresistibly to Bolshevism.

The liquor question has now become the football of politics. For years to come probably we will have the question of enforcing the amendment or not an issue in every campaign. This comes at a time when our politics are in a chaotic condition, when our parties are differentiated by name only; when the word "Republican" or "Democrat" means little but a name.

Upon the bar rests the duty of keeping a level head, of reconciling differences, of leading the country to a solution of the problems confronting it that will, while securing the material advantage of man to the greatest extent, yet preserve to him that individual liberty of conscience and of action to which, under any system of law, he is of right entitled.

THE CASE AGAINST NATIONAL PROHIBITION

New York Times Magazine, Feb. 24, 1918

The proposed prohibition amendment which, when it is ratified by the legislatures of thirty-six States, will become a part of the

basic law of this nation is unqualifiedly condemned, both from a legal and a practical standpoint, by Edgar M. Cullen, retired Chief Justice of the Court of Appeals, the highest court in the State of New York.

"You ask my attitude toward the prohibition amendment now pending before the States for adoption,". said Mr. Cullen. "I should think that my views on that question were too well known to those who would be at all likely to pay any attention to them to require restatement now. However, as you ask for them, you may have them. I am opposed to the adoption of such an amendment at any time. I am particularly opposed to its adoption now.

"Let me deal with the second objection first. All honest people must concede that there is a great difference of opinion among our citizens as to whether the use of intoxicating liquors should be prohibited by law. The country is now engaged in a war in which the issue is believed by most of us to involve the continuous existence of democratic government in the world. For that reason, all of our loyal citizens are willing to make almost any sacrifice that the Government may deem necessary for success in the war.

"I am informed, though I am unable to verify the statement from first hand, that they are serving to the English troops when in the trenches rations of rum and to the French strong wine, not to give them fictitious courage, but to protect their health under the great hardships to which they are exposed. I know that many medical men do not believe in the beneficial effects of alcoholic beverages, even under such circumstances, but the experience of the surgeons and officers of the armies of the Allies now extending over three and a half years must entitle their judgment to the greater weight. "Our troops should be accorded the same treatment. The paramount necessity of this time is to win the war. If we lose it, prohibition will have little standing in the world, for America seems to be its home. The victors may even prescribe, as a condition of peace, that we shall import so many thousand casks of Munich beer to aid German commerce and industry.

"I do not know what induced the postponement of the operation of the amendment for a year. If it proceeded simply from a regard for property rights and was intended to give the owners of