"Acts of Congress are made 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."

What this different way is is not definitely set forth, but the treaty in question was found to involve "a national interest of very nearly the first magnitude." The inference is that the test of the validity of a treaty is an adequate national interest in the subject matter with which it deals. The fact that the states are individually incompetent to deal with the subject matter seems to be regarded as important. "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." Then follows a plea for a progressive recognition of new national needs:

"When we are dealing with words that are also a constituent act, like the Constitution of the United States, we must realize that they have called into life a being the development of which could not have been foreseen completely by the most gifted of its begetters. It was enough for them to realize or to hope that they had created an organism; it has taken a century and has cost their successors much sweat and blood to prove that they created a nation. The case before us must be considered in the light of our whole experience and not merely in that of what was said a hundred years ago. The treaty in question does not contravene any prohibitory words to be found in the Constitution. The only question is whether it is forbidden by some invisible radiation from the general terms of the Tenth Amendment. We must consider what this country has become in deciding what that amendment has reserved."

The opinion makes clear that a treaty on any subject of national

Its hint that there may be no other test to be applied than whether the treaty has been duly concluded indicates that the court might hold that specific constitutional limitations in favor of individual liberty and property are not applicable to deprivations wrought by treaties. It would be going a step further to extend the same immunity to legislation enforcing treaties. It is of course not safe to take expressions in a judicial opinion as the considered judgment of all the members of the court. Missouri's contention in the principal case received the approval of Justices Pitney and Van Devanter who dissented, but without giving their reasons.17

In the endeavor to allow state workmen's compensation laws to apply to injuries within the admiralty and maritime jurisdiction vested in the federal courts, Congress in 1917 added to the admiralty provision of the Judicial Code a clause saving “to claimants their rights and remedies under the workmen's compensation laws of any state." This provision a majority of the Supreme Court declared unconstitutional in Knickerbocker Ice Co. v. Stewart.18 The basis of the decision seems to be a belief that the Constitution somehow adopted and established the approved rules of general maritime law and that such power as Congress has under the necessary and proper

"See a note in 29 YALE L. J. 114 on the effect of a treaty on a state tax law. Articles on the League of Nations and the Constitution will be found in 89 CENT. L. J. 21, 70, 79, 93, 113, 226, 244, and 370. See also Edward S. Corwin, "The Power of Congress to Declare Peace", 18 MICH. L. REV. 669, John M. Matthews, "The League of Nations and the Constitution", 18 MICH. L. REV. 378, Albert H. Washburn, "Treaty Amendments and Reservations", 5 CORNELL L. Q. 247, and Quincy Wright, "Treaties and the Constitutional Separation of Powers in the United States", 12 AM. J. INT. LAW 64, "The Legal Nature of Treaties", 13 AM. J. INT. LAW 706, "The Constitutionality of Treaties", 13 AM. J. Int. Law 242, “Conflicts of International Law with National Laws and Ordinances”, 11 Am. J. Int. Law 1, “Amendments and Reservations to the Treaty", 4 MINN. L. REV. 14, and "Validity of the Proposed Reservations to the Treaty", 20 COLUM. L. REV. 121.

"253 U. S. — 40 Sup. Ct. 438 (1920). The majority opinion is by Mr. Justice McReynolds. The dissenting Justices are Holmes, Pitney, Brandeis and Clarke. See 8 CALIF. L. REV. 339, 20 COLUM. L. REV. 685, 18 MICH. L. REV. 793, and 29 Yale L. J. 925. For discussions prior to the decision see 8 CALIF. L. REV. 169, 5 CORNELL L. Q. 275, and 4 MINN. L. Rev. 444. A few months before the Knickerbocker case, the Supreme Court had held that the amendment in question is not retroactive. Peters v. Vesey, 251 U. S. 121, 40 Sup. Ct. 65 (1919). See 29 Yale L. J. 363.

clause to add to or change the maritime law is limited to the attainment of the object of relieving "maritime commerce from unnecessary burdens and disadvantages incident to discordant legislation" and the establishment "so far as practicable" of "harmonious and uniform rules applicable throughout every part of the United States." Instead of doing this Congress was thought to have attempted to delegate its powers to the states, which under recognized principles it cannot do. For the minority Mr. Justice Holmes insisted that, since the state compensation law in question was in force when Congress passed the act of 1917, it should be regarded as having been adopted by Congress as part of the federal maritime law. He was further of opinion that it would not be a delegation of power to the states if Congress adopted in advance their future compensation laws, just as Congress has provided that the practice in the federal courts shall conform as near as may be to the practice in the state courts; but he thought it not necessary to go so far in order to allow the application of the law before the court. He denied that the Constitution itself adopted any maritime law by extending the federal judicial power to cases of admiralty and maritime jurisdiction, and he found no implication in the Constitution that such maritime law as Congress may establish must be uniform throughout the United States. It would be extravagant, he declared, to read into the silence of the Constitution "a requirement of uniformity more mechanical than is educed from the express requirement of equality in the Fourteenth Amendment."19

The power of Congress to attach conditions to the appropriation of money to pay private claims raised a sharp difference of opinion in Calhoun v. Massie.20 The court had previously sustained a clause in the statute providing that not more then twenty per cent. of the

"For a note on Chelentis v. Luckenbach S. S. Co., 247 U. S. 372, 38 Sup. Ct. 501 (1918), holding the common-law rules of liability inapplicable to an injury within the admiralty jurisdiction, see 33 HARV. L. REV. 300, 309. For a note on Union Fish Co. v. Erickson, 248 U. S. 308, 39 Sup. Ct. 112 (1919), holding a state statute of frauds inapplicable to a maritime contract, see 8 CALIF. L. Rev. 114.

* 253 U. S. ——, 40 Sup. Ct. 474 (1920). Justices McKenna, Van Devanter, Pitney and McReynolds dissent. The same statute was declared to be valid in Newman v. Moyers, 252 U. S.

-, 40 Sup. Ct. 478 (1920).

— 15—

money paid by the government should be paid to or received by any attorney on account of services rendered in connection with the claim. In that case21 Mr. Justice McKenna had said that if the judgment of the attorney against his client sought to reach only assets other than those received from the Government, "the limitation in the act appropriating the money to 20 per cent. as the amount to be paid to an agent or attorney would have no application or be involved." In the principal case, Calhoun who had received from the Government twenty per cent. of the amount awarded to his client Massie, sued in a state court to get an additional thirty per cent. under a contract made before the passage of the appropriation bill containing the limitation previously referred to and also this additional one:

"It shall be unlawful for any agent or agents, attorney or attorneys to exact, collect, withhold or receive any sum which in the aggregate exceeds twenty percentum of the amount of any item appropriated in this bill on account of services rendered or advances made in connection with said claim, any contract to the contrary notwithstanding."

Massie insisted that this clause protected him from paying from any source more than twenty per cent. of what he received from the government, and a majority of the Supreme Court agreed with him. Mr. Justice Brandeis found the clause in question so clear as to leave "no room for construction." Mr. Justice McReynolds, for the minority, without quoting or discussing the paragraph in question, rebuked his colleague for not quoting or discussing the previous dictum of Mr. Justice McKenna by saying that "the result is necessarily injurious both to the court and to the public." It is doubtful whether this dictum was intended, as Mr. Justice McReynolds assumes, to apply to the paragraph of the statute adduced by Mr. Massie. If it did, it is pretty obviously erroneous. The dissent is not confined to the question of construction, though Mr. Justice McReynolds says nothing more specific on the constitutional issue than to remind us that "the Fifth Amendment was intended to protect the individual against arbitrary exercise of federal power" and that its

"Capital Trust Co. v. Calhoun, 250 U. S. 208, 39 Sup. Ct. 486 (1919).

"inhibition protects every man in his right to engage in honest and useful work for compensation." His earlier mention of the fact that the contract in question was made prior to the statute regulating the fee to be charged leaves it doubtful whether his dissent would apply to such a regulation that is wholly prospective. He rests his objections wholly on grounds of due process, without touching on the possible point that the regulation of private contracts goes beyond the field of federal power and poaches on the reserved preserves of the states. For the majority, Mr. Justice Brandeis posits the constitutionality of the statute on the fact that the appropriation to pay the claim is a condition precedent to liability on the part of the client to the attorney. Calhoun's chance to get anything is dependent on congressional grace or favor. Therefore the favor may be extended on terms. He has no constitutional right to bite the hand which feeds him. Since he undertook to get his client's claim approved by the government, his assent to the terms under which the approval was given may be implied. He is also estopped from repudiating the statute after he has received his authorized twenty per cent. under it. Of these "special reasons", Mr. Justice McReynolds says that one "can only serve to mislead" and the other "lacks substance and can serve no good purpose". Both, he insists, assume the construction and the constitutionality of the statute. Cases cited in the majority opinion "as authority for such oppressive legislation" are said to "give it no support," and it is pointed out wherein the statutes therein sustained stop short of the one before the court. Mr. Justice McReynolds takes much more pains to prove Mr. Justice Brandeis wrong than to prove himself right. His peppery opinion gives interesting evidence of the human factors that enter into the solution of constitutional issues.

In Ervien v. United States the answer to an interesting constitutional question is assumed without discussion or citation of authority. The Enabling Act under which New Mexico was admitted to the Union granted the new state certain public lands on specified trusts. The state later proposed to spend three per cent. of the proceeds from the sale of the lands in advertising the advantages of the state as a place to live in. The District Court thought this a wise