Mr. Daugherty’s Liquor Ruling (1922) The Eighteenth Admendment
Full Text of Attorney-General's Opinion on Application of Eighteenth Amendment, with Comment by American Steamship Owners' Association.
The American Steamship Owners' Association has issued the following statement regarding Attorney General Daugherty's ruling:
The association has given careful consideration to the opinion of the attorney general and the effect which the enforcement of the Eighteenth Amendment and the National Prohibition Act will have upon American shipping and American foreign trade if they are enforced in accordance with the construction placed upon them by the attorney general. The association feels that the question of meeting the situation thus produced by the attorney general's opinion is one that should be left to the discretion of the individual companies.
In the judgment of the association, however, it is a foregone conclusion that if the interpretation of the attorney general is ultimately sustained, American ships will be placed at such a great disadvantage with foreign ships that national aid must be immediately given if privately-owned American ships now operating are to be maintained and the merchant marine and foreign trade developed.
The loss in profits to American ships from the sale of liquors will be inconsequential, and really is not a substantial factor in the situation. The serious loss will come from the driving of passengers to foreign passenger ships, not only in the trans-Atlantic trades but more particularly in the trans-Pacific, South and Central American and West Indian trades, where all ships customarily touch at intermediate foreign ports. Passengers between such ports will travel on the ships of foreign lines on which they can obtain their customary wines and other beverages.
In traveling by American ships they will have to forego the opportunity of obtaining such beverages in an open and lawful manner, and either deprive themselves of them or resort to subterfuges. This is certain to arouse animus against American ships, and in driving the passengers to foreign ships will make those ships the instruments by which the trade of our competitors will be advanced and developed.
There is but one way in which this disadvantage can be met, and that is by national aid along the lines now provided for in the national shipping bill. The association believes that the friends of prohibition appreciate the situation and will be among the strongest advocates of giving to American ships every assistance that is necessary to maintain and up build the merchant marine.
Complete text of the opinion of Attorney General Daugherty
THE following is the complete text of the opinion of Attorney General Daugherty, addressed to Secretary of the Treasury Mellon, in which the attorney general holds that the Eighteenth Amendment applies to American vessels "wherever they may be" and to foreign vessels within the three-mile limit. It is this decision that evoked widespread comment.
Comparison of it with the opinions of Elmer Schlesinger, general counsel of the Shipping Board, and of William L. Frierson, acting attorney general during the absence of Attorney General Palmer in 1920, both of which were published in the August issue of Pacific Marine Review, will be found interesting.
October 6, 1922.
My dear Mr. Secretary:
Acknowledgement is made of the receipt of your letter of June 23, 1922, in which you enclosed an opinion of the general counsel of the Shipping Board, holding that the Eighteenth Amendment does not apply to American ships on the high seas and stating that in conformity with said opinion liquor is being furnished for beverage purposes on Shipping Board vessels outside the territorial waters of the United States.
Two Questions Involved
You suggest a reconsideration of the rulings of this department, particularly the opinion of November 1, 1920, relating to the application of the National Prohibition Act to American ships on the high seas and request advice from this department whether the practice of selling liquors on American ships outside the territorial waters of the United States is permissible under the law.
You further request this department to advise you whether under our interpretation of the law and the decisions in Grogan v. Walker and Anchor Line v. Aldridge, cases decided by the United States Supreme Court May 15, 1922, the sale, transportation or possession of intoxicating liquor for beverage purposes on foreign vessels while in American waters is prohibited.
My answer to the first question is in the negative for the following reasons.
The Eighteenth Amendment to the Constitution of the United States provides: "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."
Are They "Territory"?
The fundamental consideration then upon which the answer to your first query rests is whether United States ships while on the high seas fall under the legal interpretation of the phrase "the United States and all territory subject to the jurisdiction thereof."
To arrive at the correct legal interpretation of any constitutional provision, it is necessary to "read it in the light ... of the context . . . and the subject with which the amendment dealt and the purpose which it was intended to accomplish . . ." (Chief Justice White, concurring in the National Prohibition cases, 350 U. S. 350-390.)
The purpose or intent of the States in adopting the Eighteenth Amendment and that of the legislative body in initiating it must be considered in the light of "the mischief to be prevented" (Craig v. Missouri, 4 Pet. 410, 431), the subject, the context and intention of the body inserting the word in the Constitution (McCulloch v. Maryland, 4 Wheat. 316), "all the aids and lights of contemporary history" (Kendall v. United States ex rel Stokes, 12 Pet. 524), "in connection with the known condition of affairs out of which the occasion for its adoption may have arisen ... in a way, so far as is reasonably possible to forward the known purpose or object for which the amendment was adopted." (Maxwell v. Dow, 176 U. S. 581.)
Fifty Years of Struggle
The mischief to be prevented in prohibition enactments has been construed as the use of intoxicating liquor as a beverage (see Crane v. Campbell 245 U. S. 304). A glance at contemporary history and the conditions of affairs out of which the adoption of the Eighteenth Amendment arose compels the admission that it represents the culmination of fifty years' struggle of the American people to effectively settle the problems arising from the use of intoxicating liquor as a beverage.
Beginning by county, and state by state, the area wherein the manufacture, sale and possession of intoxicants were made illegal grew until by the ratification by forty-five of the forty-eight states of the Union, an amendment affirming and extending such prohibition was added to our Federal Constitution.
To hold that the intent of Congress in proposing the wording of the amendment, and of the states in ratifying it, was anything less than to extend its inhibitions where the judicial arm of this government extended for any purposes, is to fail to apply all the rules the Supreme Court has laid down for arriving at the intent of constitutional enactments.
The terms "all territory subject to the jurisdiction thereof" expresses not a limitation just to lands, as the word territory might alone be construed, but rather an extension wherever the jurisdiction of the United States may reach.
Shipping Board Vessels Discussed Certainly Shipping Board vessels operated and owned by our very government itself are "subject to the jurisdiction thereof". Because of their ownership by the government they would, in a double sense, be subject to the restrictions of the Eighteenth Amendment. But every American vessel is for some purposes regarded as a part of American territory and our laws are the rules for its guidance. (The Scotia, 14 Wall. 170, 184.)
"It is often stated that ship on the high seas constitutes a part of the territory of the nation whose flag it flies. In the physical sense, this phrase obviously is metaphorical. In the legal sense, it means that a ship on the high seas is subject to the exclusive jurisdiction of the nation to which, or to whose citizens, it belongs. The jurisdiction is quasi territorial." (Moore's International Law Digest, Vol. 1, p. 930; U. S. v. Rodgers, 150 U. S. 249.)
Vessel Is "Territory"
Our diplomatic correspondence and the opinions of the courts have uniformly considered that in so far as the restraining and protecting jurisdiction of our government is concerned, American ships, whether owned by the government or by private citizens or corporations, are in many respects territory of the United States. Some interesting observations in this connection are:
In the case of United States v. Rodgers, 150 U. S. 249, it is said: "A vessel is deemed part of the territory of the country to which she belongs."
In the case of Crapo v. Kelly, 16 Wall. 610, the Supreme Court said: "The question then arises, while thus upon the high seas was she in law within the territory of Massachusetts? . . . This (the Constitution) gives the power to the courts of the United States to try those cases in which are involved questions arising out of maritime affairs and of crimes committed on the high seas."
In Lindstrom v. International Navigation Company, 117 Fed. 170, the court said: "The St. Paul is an American vessel, registered at the port of New York, and when she was on the high seas was a part of the territory of the state of New York, hence all civil rights of action for matters occurring aboard of her at sea are determined by the laws of that state. McDonald v. Mallory, 77 N. Y. 546, 33 American Reports 664; the Lamington (D. C), 87 Fed. 752; St. Clair v. United States, 154 U. S. 152, 38 L. Ed. 936."
Blaine and Webster Cited
Mr. Blaine, secretary of state, in a letter to Mr. Ryan, minister to Mexico, November 27, 1889 (set forth in Moore's Law Digest, Vol. 1, p. 931), says: "Merchant vessels on the high seas, being constructively considered as for most purposes a part of the territory of the nation to which they belong, they are not subject to the criminal laws and processes of another nation."
Mr. Webster as secretary of state spoke for this government in his letter to Lord Ashburton, August, 1842, as follows: "It is natural to consider the vessels of a nation as a part of its territory though at sea, as the state retains its jurisdiction over them and according to the commonly received custom, this jurisdiction is preserved over the vessels even in parts of the sea subject to a foreign dominion. ...
It is true that the jurisdiction of a nation over a vessel belonging to it, while lying in the port of another, is not necessarily wholly exclusive. We do not so consider or so assert it. For any unlawful acts done by her while thus lying in port, and for all contracts entered into while there, by her master or owners, she and they must, doubtless, be answerable to the laws of the place . . .
But, nevertheless, the law of nations, as I have stated it, and the statutes of governments founded on that law, as I have referred to them, show that enlightened nations, in modern times, do clearly hold that the jurisdiction and laws of a nation accompany her ships not only over the high seas, but into ports and harbors, or whosesoever else they may be, for the general purpose of governing and regulating the rights, duties and obligations of those on board thereof, and that, to the extent of the exercise of this jurisdiction, they are considered as parts of the territory of the nation herself."
(Webster's Works, Vol. 6, pp. 306, 307.) This case was cited with approval by the United States Supreme Court in the case of United States v. Rodgers (supra).
In the case of St. Clair v. United States, 154 U. S. 134, 152, the court held: "A vessel registered as a vessel of the United States is, in many respects, considered as a portion of its territory and persons on board are protected and governed by the laws of the country to which the vessel belongs."
In a Constructive Sense
Ships are "territory" in a constructive, rather than an actual, sense. This distinction is clearly shown by Justice Field in United States v. Smiley, 6 Sawyer 640, 645: "The criminal jurisdiction of the government of the United States is limited to their own territory, actual or constructive. . . . Their constructive territory embraces vessels sailing under their flag. Wherever they go they carry the laws of their country, and for a violation of them their officers and seamen may be subject to punishment."
Great stress is laid on the argument that the word "territory" in the Eighteenth Amendment must be construed the same as it was in its use in Article IV, Section 3, of the Constitution, and the case of United States v. Cratiot, 14 Pet. 526, is cited to show a construction synonymous with the word "lands". But that the same construction must be given the same word when used in an entirely different context does not follow (Cherokee Nation v. Georgia, 5 Pet. 1).
Furthermore, the definition of the word "territory" in the Gratiot case (supra) is specifically restricted in its application to the use in Article IV, since the Supreme Court says they interpret the word "territory" only "as here used". It there referred undoubtedly only to lands, because Article IV, Section 3, was placed in the Constitution to give the Federal government authority over the western territory claimed by states under their conflicting sea to sea grants. (See Debates in the Constitutional Convention and Watson o.i the Constitution, Volume 21, p. 1255.)
Intent of the Amendment
The construction of the word "territory" in the fourth article of the Constitution to mean lands is in complete harmony with the intent of the framers of that article of the Constitution. I believe from the study of the history of conditions out of which the Eighteenth Amendment grew, it is equally clear that the words "territory subject to the jurisdiction" of the United States carry the intent to extend its provisions over every spot where the flag of America flies.
This intent is a living part of the Eighteenth Amendment and the National Prohibition Act, for as Justice Brown has said in Hawaii v. Mankichi, 190 U. S. 197, 212: "Without going back to the famous case of the drawing of blood in the streets of Bologna, the books are full of authorities to the effect that the intention of the law-making power will prevail, even against the letter of the statute, or, as tersely expressed by Mr. Justice Swayne in Smythe v. Fiske, 23 Wall. 374, 380:
'A thing may be within the letter of a statute and not within its meaning, and within its meaning though not within its letter. The intention of the lawmaker is the law.' A parallel expression is found in the opinion of Mr. Chief Justice Thompson of the Supreme Court of the State of New York (subsequently Mr. Justice Thompson of this court), in People v. Utica Ins. Co., 15 Johns. 358, 381:
'A thing which is within the intention of the makers of a statute is as much within the statute as if it were within the letter; and a thing which is within the letter of the statute is not within the statute, unless it be within the intention of the makers.'"
Eighteenth Amendment Really a Law
It is urged that acts passed under Article I, Section 8, Clause 10, of the Constitution, all carry the express provision that they shall apply on the high seas, whereas the National Prohibition Act does not contain such plain extension.
But the difference between the two provisions of the Constitution, by authority of which the laws emanate, is material. Article I, Section 8, Clause 10, gives Congress power to define and punish piracies and felonies committed on the high seas, which offenses by their nature had formerly remained solely in the power of the states to handle. Article I of the Constitution prohibited nothing, nor did it define an offense.
Of course, therefore, it was necessary for the act of Congress to define the offense, provide for its punishment and make provision as to its jurisdiction, since all the regulatory power lay in the congressional enactment, not in the constitutional provision.
The Eighteenth Amendment is quite different. It is "really a law itself, as well as a declaration of an organic constitutional principle. From its terms along flows the real prohibition. Palpably, therefore, since by the force of the amendment prohibition is carried everywhere within the confines of the sovereignty of the United States, the National Prohibition Act, passed to facilitate its enforcement and punish its violation, would be co-extensive therewith.
The Thirteenth Amendment is similar. It, too, names a new prohibition and states the extent of its application. Enactments resulting from it do not carry specific provision for their application to offenses committed on the high seas, and yet no one would advance the theory that because of that fact slavery might be permitted on American ships while on the high seas. (See Section 268, Penal Code; also the Peonage Sections 269, 270, 271, Penal Code.)
Concerning the self-executing effect of the provisions of the Thirteenth Amendment, the observation of Mr. Justice Bradley in the Civil Rights cases, 109 U. S. 3, 20, is interesting in the light of its applicability also to the effect of the Eighteenth Amendment: "
This amendment, as well as the Fourteenth, is undoubtedly self-executing without any ancillary legislation, so far as its terms are applicable to any existing state of circumstances. By its own unaided force and effect, it abolished slavery, and established universal freedom. Still, legislation may be necessary and proper to meet all the various cases and circumstances to be affected by it, and to prescribe proper modes of redress for its violation in letter or spirit."
Another illustration of the application of a provision of the Constitution and laws passed pursuant to it to the high seas, even though there is no specific reference to the high seas, is found in Article III, Section 3, Clause 1, of the Constitution, defining treason.
It does not indicate the territorial scope of its application, nor do the acts of Congress passed to enforce it, but in United States v. Greathouse, 4 Savoy 457, it was held that the purchase "and fitting up of a vessel with arms in furtherance of a design to commit hostilities on the high seas constituted treason. (See also Hawaii v. Mankichi, 190 U. S. 198.)
"Jurisdiction" Covers Vessels
Section 37 of the Penal Code and other general statutes of the United States, having by their terms no specific extension to the high seas, have been held to extend to violations committed on American vessels outside of American waters.
The same rule has been applied in cases of extradition; for instance, where the treaty has provided that persons will be surrendered who commit crimes within the jurisdiction of the demanding country, the word "jurisdiction" has been held to cover vessels on the high seas. (Moore on Extradition, Vol. 1, p. 135, Sec. 104, Vogt. 14 Op. A. G. 281; Whaton's State Trials, pp. 392, 403, 404; Seale's Cases on Conflict of Laws, Sec. 22, p. 506.)
Vessels are taxable as personal property at their home port, although they are actually on the high seas, and have never in fact come within the jurisdiction of the home port. (People v. Commissioner of Taxes, 58 N. Y. 242; Olson v. San Francisco, 82 Pac. 850.) Similarly the pilotage laws (Wilson v. McNamee, 102 U. S. 572, 574) and the laws concerning assignment (Crapo v. Kelly, 16 Wall. 610) have such extended operation.
It is a recognized principle of law that the state has general civil jurisdiction over vessels registered at her ports, even where the cause of action arises on the high seas (Wilson v. McNamee, 102 U. S. 572; Manchester v. Comm. of Mass., 139 U. S. 240; Crapo v. Kelly (supra; Old Dominion Steamship Company v. Gilmore, 206 U. S. 402, 403).
In the Old Dominion Steamship Company case, Mr. Justice Holmes in delivering the opinion of the court said: "In short, the bare fact of the parties being outside the territory, in a place belonging to no other sovereign, would not limit the authority of the state, as accepted by civilized theory. No one doubts the power of England or France to govern their own ships upon the high seas."
Tenants of High Seas The open oceans, outside the territorial waters of nations, have long been regarded as the highway of all, wherein all nations share the privileges of tenants in common. If, then, the United States shares the high seas as a tenant in common with other nations of the world, the Eighteenth Amendment would be broad enough to comprehend the sea as territory of the United States in so far as, and where, and when, t is used by American bottoms.
In an early English case, the King against Brizac and Scott, 4 Easts Term Keports 164, it is held that "an information for conspiracy . . . for planning and fabricating false vouchers to cheat the Crown, which planning and fabricating were done on the high seas, is well triable in Middlesex." (Quoting from the headnote.)
In Corpus Juris, Volume XVI, under the heading Criminal Law, p. 169, par. 216, it is said: "In the absence of a statute, the courts of a country have no jurisdiction of an offense committed on the high seas except in the case of piracy, unless the offense is committed on board a ship belonging to that country." Amendment "Absolutely General"
An examination of the National Prohibition Act by itself leads to the conclusion that its operation is extended to American vessels on the high seas, since its terms are absolutely general and have no limits of any sort. The only objection is that crimes on the high seas are all dealt with in Chapters 11 and 12 of the Criminal Code, but the peculiar language of the relevant section, 272, Penal Code, is significant.
All it says is that the crimes and offenses named in the chapter shall be punished when committed on the high seas. It then lists certain ordinary common law offenses such as murder, over which of course the Federal government would not ordinarily by virtue of its limited powers have any jurisdiction whatsoever.
There is no intimation in Section 272 that no other crimes and offenses except those defined in Chapter 11 shall be punished when committed on American vessels on the high seas, and especially is there no suggestion that offenses which violate the avowed constitutional policy of the Federal government itself shall be so exempted from punishment.
On the contrary, the grant in Section 2 of the Eighteenth Amendment of concurrent power to the states and to the Federal government to enforce the provisions of Section 1 thereof would justify the reasonable conclusion that the Federal enactment passed pursuant thereto reached to the jurisdictional limits of other Federal laws.
The provisions of the Criminal Code generally apply to the same territory over which the Judicial Code gives jurisdiction to the United States courts, and Section 41 of the Judicial Code provides: "The trial of all offenses committed upon the high seas . . . shall be in the district where the offender is found, or into which he is first brought." (See Pederson et al v. United States, 271 Fed. 187.)
Shipping Board's Precedent
The Shipping Board has frequently sought to punish offenses committed against its property on the high seas by maintaining the applicability of general criminal statutes such as Section 37 and Section 35 of the Penal Code of the United States, to crimes committed on the high seas. (See United States v. Hawkins, So. District of N. Y.; also United States v. Bowman, et al., now pending in the Supreme Court of the United States [Docket No. 69.]) It would be inconsistent for American vessels to enjoy the protection of laws of general jurisdiction and fail to be governed by the prohibitions of one of similar jurisdiction.
In the case of United States v. 254 Bottles of Intoxicating Liquors, Southern District of Texas, May 4, 1922, the court announces that "the sole question for decision is, had the master the right to possession of the goods on board ship (of United States) on the high seas and was this possession in violation of the National Prohibition Act?" And then holds that such possession was a violation of the law, for which the stores were forfeitable and the owner liable to punishment.
Scharrenberg Case Cited
The case of Scharrenberg v. Dollar Steamship Company, 245 U. S. 122, is greatly relied upon by snipping interests as authority that an American ship is not in any sense a part of the territory of the United States. It was a case based on an alleged violation of an act of congress by which it was a misdemeanor to assist contract laborers into the United States.
A contract laborer was defined as one who comes to perform labor in this country. Clearly the phrases "into the United States" and "into this country" are narrower in extent than "the United States and all territory subject to the jurisdiction thereof."
Had the Eighteenth Amendment stopped after prohibiting the manufacture, sale or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States, the cases would be similar, but the Eighteenth Amendment goes further and says "and all territory subject to the jurisdiction thereof".
We are led inevitably, therefore, to the conclusion that after the prohibition in the United States (which to that point is analogous to the statute considered in the Dollar Steamship Company case) the phrase "and all territory subject to the jurisdiction thereof" was added to extend the scope of the amendment to the very limits of national jurisdiction and sovereignty.
Foreign Vessels Affected
My answer to your second question is in the affirmative. It is a long established principle of municipal and international law that a nation has the right to make and enforce laws covering its territorial waters as well as its land. In United States v. Diekelman, 92 U. S. 520, 525, Mr. Chief Justice Waite states: "The merchant vessels of one country visiting the ports of another for the purposes of trade subject themselves to the laws which govern the port they visit, so long as they remain." (See also Moore's International Law Digest, Vol. II, 275 et seq.)
In 1885 Mr. Bayard, secretary of state, wrote to the French minister as follows: "A foreign merchant vessel going into the port of a foreign state subjects herself to the laws of that state and is bound to conform to its commercial as well as to its police and other regulations during the period of her stay there.
'She is as much a subditus temporaneous,' remarks Sir K. Phillimore with reference to such a case, in The Queen v. Keyn, 2 Ex. D. 82, 'as the individual who visits the interior of the country for the purposes of pleasure or business.'" (Moore's International Law Digest, Vol. II, page 308.)
"It is a part of the law of civilized nations that when a merchant vessel of one country enters the ports of another for the purposes of trade, it subjects itself to the law of the place to which it goes, unless by treaty or otherwise the two countries have come to some different understanding or agreement; for, as was said by Chief Justice Marshall in The Exchange, 7 Cranch 116, 144, 'it would be obviously inconvenient and dangerous to society, and would subject the laws to continual infraction, and the government to degradation, if such . . . merchants did not owe temporary and local allegiance, and were not amenable to the jurisdiction of the country.'
United States v. Diekelman, 92 U. S. 520; 1 Phillimore's Int. Law, 3rd ed. 483, Sec. 351; Twiss Law of Nations in Time of Peace, 229, Sec. 159; Creasy's Int. Law, 167, Sec. 176; Halleck's Int. Law, 1st ed., 171. And the English judges have uniformly recognized the rights of the courts of the country of which the port is part to punish crimes committed by one foreigner on another in a foreign merchant ship.
Regina v. Cunningham, Bell C. C. 72; S. C. 8 Cox C. C. 104; Regina v. Anderson, 11 Cox C. C. 198, 204; S. C. L. R., 1 C. C. 161, 165; Regina v. Keyn, 13 Cox C. C. 403, 486, 525; S. C. 2 Ex. Div. 63, 161, 213.
As the owner has voluntarily taken his vessel for his own private purposes to a place within the dominion of a government other than his own, and from which he seeks protection during his stay, he owes that government such allegiance for the time being as is due for the protection to which he becomes entitled." (Wildenhue's Case, 120 U. S. 11, 12.)
Violations Not Permitted
If then the bringing in of liquors by foreign vessels as ship stores or otherwise constitutes a transportation or possession contrary to the Eighteenth Amendment and the National Prohibition Act, it is clearly a violation of the law that no executive or administrative officer of the government has the power to permit.
The Constitution prohibits transportation, which has been denned as "the taking up persons or property at some point and putting them down at another." (Gloucester Ferry Company v. Comm. of Pa., 114 U. S. 196, 203.)
That the innocence of any intent to "put them down" or use them in the United States is not material in determining whether the transportation is a violation of the law is determined by the Walker and Anchor Line cases (supra), where the court decided that intoxicating liquor stored on one British ship could not lawfully be removed to another British ship in the New York harbor, although it was admittedly destined for beverage uses outside the United States.
Furthermore, the National Prohibition Act prohibits possession as well as transportation of intoxicants for beverage purposes, irrespective of where they are to be put to such beverage use. Under the reasoning of the court in the Walker and Anchor Line cases (supra), it is no argument for the legality of foreign ships possessing and transporting intoxicating liquors in and across our waters, that they do not intend to use the liquors until after leaving the jurisdiction of the United States, for the court said in that connection: "
The Eighteenth Amendment meant a great revolution in the policy of this country, and presumably and obviously meant to upset a good many things on as well as off the statute books. It did not confine itself in any meticulous way to the use of intoxicants in this country. ... It is obvious that those whose wishes and opinions were embodied in the amendment meant to stop the whole business.
They did not want intoxicating liquor in the United States and reasonably may have thought that if they let it in, some of it was likely to stay. When, therefore, the amendment forbids not only importation into and exportation from the United States but transportation within it, the natural meaning of the words expresses an altogether probable intent.
The Prohibition Act only fortifies in this respect the interpretation of the amendment itself. The manufacture, possession, sale and transportation of spirits and wine for other than beverage purposes are provided for in the act, but there is no provision for transshipment or carriage across the country from without. When Congress was ready to permit such a transit for special reasons, in the Canal Zone, it permitted it in express words. Title III, Sec. 20; 41 Stat. 322."
Surrender of Sovereignty
Are we then to argue that such inflexible provisions of law, declared by our Supreme Court as the constitutional policy of our country, shall apply to our own citizens, but be abandoned when we deal with ships of a foreign nation? To do so would be a grievous surrender of our sovereignty.
And it is outside the province of an executive or administrative officer of the government to read into the law and the Constitution an exception not specifically contained therein. Particularly should it be avoided when the results of granting the privilege to foreign ships would be to produce manifestly unfair conditions of competition for our own citizens and shipping interests.
Chief Justice Marshall puts the situation clearly in "The Exchange," 7 Cranch 135, 143: "The jurisdiction of the nation, within its own territory, is necessarily exclusive and absolute: It is susceptible of no limitation not imposed by itself." . . .
"When private individuals of one nation spread themselves through another, as business or caprice may direct, mingling indiscriminately with the inhabitants of that other, or when merchant vessels enter for the purposes of trade, it would be obviously inconvenient and dangerous to society, and would subject the laws to continual infraction, and the government to degradation, if such individuals or merchants did not owe temporary and local allegiance, and were not amenable to the jurisdiction of the country. Nor can the foreign sovereign have any motive for wishing such exemption.
His subjects thus passing into foreign countries are not employed by him, nor are they engaged in national pursuits. Consequently, there are powerful motives for not exempting persons of this description from the jurisdiction of the country in which they are found, and no one motive for requiring it. The implied license, therefore, under which they enter, can never be construed to grant such exemption."
Again in the Eagle, 8 Wallace 15, 22, the Supreme Court holds that: "All vessels entering into, or departing from, a domestic or foreign port, are bound to obey the laws and well known usages of the port, and are subject to seizure and penalties for disobedience; and when submitting to them they are entitled to all the protection which they afford."
Treaty Held Repealed
The court carefully considered this whole question in the Walker and Anchor Line cases and went so far as to hold that the Eighteenth Amendment and the National Prohibition Act repealed a prior existing treaty with Great Britain.
Prior to the sweeping and comprehensive construction placed upon the prohibition law in those cases, it might possibly have been arguable whether liquors forming a part of the ship stores on vessels within territorial waters might be regarded as an implied exception to the National Prohibition Act.
Whatever doubts may have previously existed have been swept away by the language of the majority opinion in those cases. It is true that this decision was rendered by a divided court, but the dissenting opinion clearly sets forth the arguments that must have been carefully weighed before the majority opinion was rendered.
It included a consideration of such arguments as: "this country does not undertake to regulate the habits of people elsewhere" and "it has no interest in meddling with transportation across its territory if leakage in transit is prevented." But the very vigor of the dissenting opinion in which three judges joined simply emphasized the sweeping character of the majority opinion by which I feel I am bound in deciding this question.
I am, therefore, of the opinion that the Eighteenth Amendment and the National Prohibition Act prohibit as unlawful the possession and transportation of beverage liquors on board foreign vessels while in our territorial waters whether such liquors are sealed or open.
The Opinion Summarized
By way of summary, therefore, I am of the opinion that under the rules of fair intendment, American ships wherever they may be are included in the terms of the Eighteenth Amendment, "territory subject to the jurisdiction" of the United States, so that manufacture, transportation or sale of intoxicating liquors for beverage purposes is prohibited thereon.
To construe otherwise would, in my opinion, violate the unmistakable intent in the adoption, such intent clearly adduced from the study of the circumstances out of which it grew, and voiced by the Supreme Court in the Walker and Anchor Line cases.
This interpretation is further supported by the many authorities that have held ships to be "constructive territory" of the country whose flag they fly. Such decisions undoubtedly extend the protection as well as the inhibitions of the country's laws.
The National Prohibition Act is an act of general jurisdiction in force wherever the Eighteenth Amendment applies; and the courts of the United States have jurisdiction to punish its violations on the high seas.
I am forced to the opinion, under the ruling of the Walker and Anchor Line decisions (supra), that foreign ships carrying intoxicating beverage liquors as ship stores or otherwise, within the three-mile limit of our shores, are violating the provisions of the National Prohibition Act, prohibiting possession or transportation of intoxicating liquor for beverage purposes.
The Supreme Court therein has held that it is not material that the liquors may not be intended for beverage uses within the United States, because the court emphasized that the Eighteenth Amendment marks a revolution in our former national policy toward intoxicating liquor and does not confine its prohibition in any meticulous way within the United States, but on the contrary its intent was as far as possible to "stop the whole business."
“Mr. Daugherty’s Liquor Ruling,” in Pacific Marine Review: The National Magazine of Shipping, Volume 19, No. 11, November 1922 San Francisco: Pacific Marine Review (1922) P. 615-620.