a right to sue the offending State in the federal courts, and to have applied there, not the law of the offending State, but a general or international law. Is not this a strong reason for believing that the Constitution also secured a right to the individuals, not as citizens of Arizona but as citizens of the United States, to have their cases determined in a federal court by federal law?"

Finally, alluding to Justice Miller's famous phrase in the Neagle Case, it was argued that the deportees came within the protection of "the peace of the United States."'35

The court, speaking through the Chief Justice, sustained the lower court in quashing the indictment of Wheeler and his associates. Following the distinction developed in the Slaughter House Cases between the rights of state citizenship and those of national citizenship, it classified the right invoked in this case as belonging to the former category, and pointed out that it was protected by Article Iv, section 2, only against discriminatory action by the states themselves, not against individual action; nor, it was asserted, did Crandall v. Nevada, rightly interpreted, militate against this view in any way.37 The Neagle case and the trespass suffered by the state into which the deportation took place were passed over in silence.

Although the decision unquestionably follows conventional lines,38 it leaves one not entirely satisfied. Perhaps the time will come when, with the spread of the Ku Klux Klan or some equally egregious form

35 135 U. S. 1, 69.

36 16 Wall. 36.

87 The words of the Chief Justice are: "Crandall v. Nevada much relied upon in the argument, is inapplicable, not only because it involved the validity of state action, but because the state statute considered in that case was held to directly burden the performance by the United States of its governmental functions and also to limit rights of the citizens growing out of such functions; and hence it also follows that the observation made in Twining v. New Jersey, 211 U. S. 78, 97, to the effect that it had been held in the Crandall Case that the privilege of passing from state to state is an attribute of national citizenship, may here be put out of view as inapposite." He then appropriately adds: "With the object of confining our decision to the case before us, we say that nothing we have stated must be considered as implying a want of power in the United States to restrain acts which, although involving ingress or egress into or from a state, have for their direct and necessary effect an interference with the performance of duties which it is incumbent upon the United States to discharge."

38 In addition to the cases cited above, see Paul v. Virginia, 8 Wall. 168; Ward v. Maryland, 12 Wall. 418; United States v. Cruikshank, 92 U. S. 542; United States v. Harris, 106 U. S. 629; and the Civil Rights Cases, 109 U. S. 3.

of imperium in imperio, it will become necessary to discard the outworn artificiality of the decisions in the Slaughter House and Civil Rights Cases. Certainly it is rather dismaying to be told in one breath that national citizenship is "paramount and dominant" and in the next that all our most fundamental rights come from the states and are dependent on them for protection.

VII. THE CONSTITUTION-AMENDING POWER

The cases decided last term still left one objection to the validity of the Eighteenth Amendment unanswered, that which was based on the fact that in proposing the amendment Congress had stipulated that ratification to be operative must take place within seven years. In Dillon v. Gloss39 this objection is disposed of in the interesting and convincing opinion of Justice Van Devanter. "That the Constitution contains no express provision on the subject," runs the opinion, "is not in itself controlling; for with the Constitution, as with a statute or other written instrument, what is reasonably implied is as much a part of it as what is expressed.

"We do not find anything in the Article which suggests that an amendment, once proposed, is to be open to ratification for all time, or that ratification in some of the states may be separated from that in others by many years and yet be effective. We do find that which strongly suggests the contrary. First, proposal and ratification are not treated as unrelated acts, but as succeeding steps in a single endeavor, the natural inference being that they are not to be widely separated in time. Secondly, it is only when there is deemed to be a necessity therefor that amendments are to be proposed, the reasonable implication being that when proposed they are to be considered and disposed of presently. Thirdly, as ratification is but the expression of the approbation of the people and is to be effective when had in three-fourths of the states, there is a fair implication that it must be sufficiently contemporaneous in that number of states to reflect the will of the people in all sections of relatively the same period, which, of course, ratification scattered through a long series of years would not do."

Furthermore, there is the general character of the Constitution as a whole:" As a rule the Constitution speaks in general terms, leaving Congress to deal with subsidiary matters of detail as the public interests and changing conditions may require; and Article 5 is no * 256 U. S., decided May 16.

exception to the rule." "Of the power of Congress, keeping within reasonable limits, to fix a definite period for the ratification we entertain no doubt."40

VIII. FEDERAL JUDICIAL POWERS AND THE SUABILITY OF STATES

Ex parte, in the matter of the state of New York involved the question of the right of a district court of the United States to entertain, by virtue of its admirality and maritime jurisdiction, an action in rem against certain tugs which had been chartered by the superintendent of public works of the state of New York, and which had been libelled for damages done their tows. The court held that since, under the Eleventh Amendment, an action in personam would not lie against the superintendent of public works, his liability in the premises being clearly official and not personal,42 the action in rem would not lie either. In a second case of the same title it was further determined that a vessel, the property of a state and employed in public governmental service, is exempt from seizure by admiralty process in rem.43 The two cases

40 For the present writer's review of Hawke v. Smith, 253 U.S. 221, and Rhode Island v. Palmer, ibid., 350, in which important questions as to the validity and construction of the Eighteenth Amendment were dealt with, see the Review for November, 1920 (Vol. 14, pp. 648-54). It should be added that the report of the latter case, as it appears in the bound volume, contains a dissenting opinion by Justice Clarke which was not available when the review cited was prepared. Justice Clarke accepts the first seven and the tenth paragraph of the announced "Conclusions" of the court, but demurs to the eighth, ninth, and eleventh, that, taken together, they, "in effect, declare the Volstead Act to be supreme law of the land,-paramount to any state law with which it may conflict." His own view of the word "concurrent" of the amendment is that it means "joint and equal authority," the view also taken by Justice McKenna, it will be recalled, in his dissenting opinion. Furthermore, Justice Clarke holds that Congress derives no authority from the second section of the amendment to treat as intoxicating liquor which is "expressly admitted" by the court "not to be intoxicating." In this respect its power has not the scope either of the war powers of the national government or of the police powers of the states.

41 256 U. S.-, decided June 1.

42 Citing Beers v. Arkansas, 20 How. 527; Hans v. Louisiana, 134 U. S. 1; Fitts v. McGhee, 172 U. S. 516; Palmer v. Ohio, 248 U. S. 32; Dubine v. New Jersey, 251 U. S. 311.

43 Ibid. The immunity extended by the Eleventh Amendment "even in the case of municipal corporations" to "property and revenue necessary for the exercise" of the powers of government is regarded by Justice Pitney as analogous, citing Klein v. New Orleans, 99 U. S. 149.

He also suggests that the immunity from jurisdiction of public vessels, which is recognized by international law, might furnish a principle applicable to the

therefore illustrate the proposition, which falls in the line of familiar doctrine, that the admiralty and maritime jurisdiction of the federal courts is limited by the Eleventh Amendment.

The orignal jurisdiction of the Supreme Court, however, over controversies between states is not so limited. In New York v. New Jersey,44 accordingly, the court sustained the right of the former state to maintain an original suit against the latter, to enjoin it from discharging sewage into the waters of upper New York Bay, but finally refused the injunction asked for, on the ground that the threatened invasion of New York's rights had not been established by clear and convincing evidence. The suit was, therefore, dismissed, but without prejudice to a renewal of the application "in conditions which the state of New York may be advised require the interposition of the Court."'45

(To be concluded.)

case at bar; but he refrains from deciding the point. See The Exchange v. McFadden, 7 Cranch 116, and The Parlement Belge, L. R. 5 Probate Div. 197.

44 256 U. S., decided May 2.

"See the cases cited in note 34, supra. On the question of what is a case "arising under this Constitution," etc. (Article 1, section 2, clause 1), see note 6, supra; also American Bank and Trust Co. 2. Federal Reserve Bank of Atlanta, 256 U. S. decided May 16.

AMERICAN GOVERNMENT AND POLITICS

THE FIRST (SPECIAL) SESSION OF THE SIXTY-SEVENTH CONGRESS APRIL 11, 1921-NOVEMBER 23, 1921*

LINDSAY ROGERS

Columbia University

The New Administration. Beginning on March 4, 1921, the Republican party, for the first time in ten years, was in complete control of the executive and both branches of Congress. Entirely apart from the issues of party politics, its régime promised to be interesting. Campaign pledges had been made that legislation would be speedily passed relieving the country of the ill effects of what President Harding called "war's involvements;" economy and efficiency were to be secured; more business in government and less government in business were among the promises, and the reorganization of the administration, long talked of, was to be achieved. There were, moreover, two significant possibilities from the standpoint of party government. During the campaign, Mr. Harding said that "government is a simple thing," and that, if he was elected President, Congress would be allowed to play its proper part under the Constitution. He pledged the Republicans to inaugurate "party government, as distinguished from personal government, individual, dictatorial, autocratic, or whatnot." This was a pledge not to follow Mr. Wilson's example and coerce, or even lead, Congress; and the interesting question was, whether Congress would not be helpless without executive direction; whether legislative inefficiency is not the price that must be paid for the absence of some executive autocracy. In the second place, remembering the circumstances of President Harding's nomination and the different Republican elements which came together during the campaign, one was justified in wondering whether the party would continue to present a solid front in its congressional work; whether there would not be a split between progressives and reactionaries resembling that of 1910-1912. The congressional session gave answers to both of these questions: there were unmistakable signs that President Harding regretted his self-denying

* For previous notes on the work of Congress, see American Political Science Review, Vol. 13, p. 251, Vol. 14, pp. 74, 659, Vol. 15, p. 366.