711.419/61
The Secretary of State to the British Chargé (Chilton)
Sir: I have the honor to acknowledge the receipt of your note, No. 1005, of November 23, 1923, and I am gratified to observe the [Page 215] sympathetic consideration that His Majesty’s Government is giving to the proposals embodied in the draft treaty.
It is hardly necessary to say that in these proposals there has been no intention to violate in any respect the provisions of the Eighteenth Amendment of the Federal Constitution. On the contrary, the purpose is to aid their enforcement.
In the case of the Cunard Steamship Company, Ltd. et al. v. Mellon, Secretary of the Treasury, et al. (decided April 30, 1923), to which you refer, the question of the validity of an Act of Congress, or a treaty, excepting from penalty or forfeiture intoxicating liquor carried as cargo or sealed stores not destined for delivery or consumption within the territory of the United States, but carried under seal while in transit through territorial waters, was not involved, and that decision cannot be regarded as determining that question. In that case it was held that Congress, acting within its authority, had actually imposed penalties upon such carriage, and an injunction restraining the officers of the Government from proceeding against the complaining steamship companies and their ships, under the Act of Congress as thus construed, was denied.
While the precise question raised in your note has not been decided, there are certain applicable principles which are deemed to be controlling. The Eighteenth Amendment provides:
- I.
- After one year from the ratification of this article the manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States and all territory subject to the jurisdiction thereof for beverage purposes is hereby prohibited.
- II.
- The Congress and the several States shall have concurrent power to enforce this article by appropriate legislation.
It is apparent that the first section provides no penalties and that these are left to appropriate legislation. As the Supreme Court of the United States has recognized, a constitutional provision “is self-executing only so far as it is susceptible of execution”. (Davis v. Burke, 179 U. S. 399, 403). As no penalties or forfeitures are prescribed in the Eighteenth Amendment itself, and Congress is empowered to enforce that Amendment by appropriate legislation, it is manifest that to the sound discretion of Congress is confided the determination of what are appropriate penalties and forfeitures. In the judgment of this Government there is no reason to doubt that in the exercise of this authority Congress may consider all the pertinent circumstances and the best means of enforcing the constitutional provision, and may thus consider it entirely appropriate not to impose penalties or forfeitures with respect to intoxicating liquor which is not destined for consumption or delivery [Page 216] within the United States but is simply carried in transit through territorial waters.
The authority which is thus deemed to be possessed by Congress has already been exercised with respect to the transit of intoxicating liquors through the Panama Canal. There is a special provision in the Volstead Act dealing with the Canal Zone which excepts “liquor in transit through the Panama Canal or on the Panama Railroad”. It is true that the validity of this exception has not been the subject of precise adjudication, but it is believed to have been fully recognized by the Supreme Court in the decision which you have cited in your note. The Supreme Court there said:
“Much has been said at the bar and in the briefs about the Canal Zone exception, and various deductions are sought to be drawn from it respecting the applicability of the Act elsewhere. Of course the exception shows that Congress, for reasons appealing to its judgment, has refrained from attaching any penalty or forfeiture to the transportation of liquor while ‘in transit through the Panama Canal or on the Panama Railroad’. Beyond this it has no bearing here, save as it serves to show that where in other provisions no exception is made in respect of merchant ships, either domestic or foreign, within the waters of the United States, none is intended.
“Examining the Act as a whole, we think it shows very plainly, first, that it is intended to be operative throughout the territorial limits of the United States, with the single exception stated in the Canal Zone provision; secondly, that it is not intended to apply to domestic vessels when outside the territorial waters of the United States, and, thirdly, that it is intended to apply to all merchant vessels, whether foreign or domestic, when within those waters, save as the Panama Canal Zone exception provides otherwise”.66
It will be observed that the exception is not criticized nor is it said to lie beyond the power of Congress, but it is stated that the exception shows “that Congress, for reasons appealing to its judgment, has refrained from attaching any penalty or forfeiture” to the transportation described.
It is the view of this Government that Congress has the same authority to except from penalties or forfeitures intoxicating liquor in transit through territorial waters not destined for delivery or consumption within the United States that it has to except from penalty or forfeiture intoxicating liquor in transit through the Panama Canal. Moreover, if Congress made such an exception, it is manifest that there would be no penalty or forfeiture attaching to such transit.
It is also the view of this Government that as the Constitution does not deal with penalties or forfeitures, and these remain within the law-making power, this subject cannot be regarded as withdrawn [Page 217] from the treaty-making power. The treaty-making power is deemed to be quite as broad in this respect as the legislative power. As was said by the Supreme Court of the United States in the case of Missouri v. Holland, 252 U. S. 416,433:
“Acts of Congress are the supreme law of the land only when made in pursuance of the Constitution, while treaties are declared to be so when made under the authority of the United States. It is open to question whether the authority of the United States means more than the formal acts prescribed to make the convention. We do not mean to imply that there are no qualifications to the treaty-making power; but they must be ascertained in a different way. It is obvious that there may be matters of the sharpest exigency for the national well being that an act of Congress could not deal with but that a treaty followed by such an act could, and it is not lightly to be assumed that, in matters requiring national action, ‘a power which must belong to and somewhere reside in every civilized government’ is not to be found”.
You will not fail to observe that the part of the proposed treaty above mentioned relates only to exception from penalties and forfeitures in the particular circumstances described in the treaty and that the treaty as a whole is clearly intended to secure the better enforcement of the Eighteenth Amendment by facilitating measures to prevent the operations which have seriously interfered with that enforcement. The provisions with respect to arrest and search are to be considered in connection with the exception from penalty or forfeiture in case of liquors merely in transit. I have, therefore, no hesitation in saying that while this Government is clearly of the opinion that the proposed treaty would have constitutional validity, there would be no attempt on the part of this Government to insist upon the provisions as to arrest and search in opposition to the desire of His Majesty’s Government to abrogate the treaty in case the proposed exception from penalty and forfeiture should either by final judicial decision or by Act of Congress become inoperative. Such abrogation would, of course, not be deemed to impair any rights possessed by this Government irrespective of the treaty.
Accept [etc.]
- 262 U.S. 128.↩