York. At any rate, it is not a case where I think a court of equity should interfere by giv ing injunctive relief. If the complainant has a remedy at law for damages he can avail himself of it, and ought not to be allowed an injunction because he prefers a non-union carrier at so great an apparent expense to public convenience. I shall therefore deny an injunction."

The court also refuses to enjoin the labor unions themselves but we have no criticism to make of this part of the decision in view of the provisions in Section 20 of the Clayton Act prohibiting injunctions in cases of strikes, except where necessary to prevent irreparable injury. This section has not been construed by the Supreme Court. The United States Circuit Court of Appeals has held that this section practically legalizes secondary boycotts if unaccompanied by malice, force, violence or fraud. We are not inclined to object to a restriction on the use of injunction to compel men to work. But we see no excuse whatever for the courts to refuse to enforce by injunction the duty of a common carrier to accept goods simply because somebody has threatened the carrier with some injury if it performs its duty. It were better to tie up all the shipping in New York and elsewhere until it is determined whether the law is supreme or whether there exists a power able at its will to say when a law shall be obeyed and when it shall not be obeyed.

CAN YOUNG CHILDREN BE CONTRIBUTORILY NEGLIGENT?

The law of negligence in respect of very young children has been subject to considerable fluctuation and cannot yet be said to have attained to a definite position. One cause of this fluctuation is that cases in which young children are concerned are usually "hard cases" which enlist the sympathy of judge and jury with a result that the pure doctrine of law is diverted from its strictly proper course. Generally speaking, the decisions have swayed between two extremes. On the one hand, there has been a tendency to hold that young children are in the same position in the eye of the law as are adults, in the sense that if they are

not able to take care of themselves, their parents should take care of them and the helplessness of the child is no ground for inferring negligence against the alleged wrongdoer. On the other hand, there is the tendency, and a very strong one, to hold that young children cannot be guilty of contributory negligence and that it is the duty of those concerned where young children are in possible danger to take every care that they are not hurt.

In the recent leading cases a sort of compromise between these positions has been struck. Beginning with the decision of the House of Lords in Cooke v. Midland Great Western Railway of Ireland,1 we find that according to the headnote in that case "a railway company kept a turntable unlocked (and therefore dangerous for children) on their land close to a public road. The company's servants knew that children were in the habit of trespassing and playing with the turntable, to which they obtained easy access through a well known gap in the fence which the company were bound by statute to maintain. A child between four and five years old, playing with other children on the turntable, having been seriously injured, held that there was evidence for a jury of actionable negligence on the part of the railroad company." Lord Macnaghten quoted the following statement of Lord Denman: "If I am guilty of negligence in leaving anything dangerous in a place where I know it to be extremely probable that some other person will unjustifiably set it in motion to the injury of a third, and if that injury should be so brought about, I presume that the sufferer might have redress by action against both or either of the two, but unquestionably against the first." His lordship continued, "If that proposition be sound, surely the character of the place, though, of course,

(1) (1909) A. C. 229.

(2) Lynch v. Nurdin (1 Q. B. 29).

an element proper to be considered, is not a matter of vital importance. It cannot make very much difference whether the place is dedicated to the use of the public or left open by a careless owner to the invasion of children who make it their playground."

Hamilton, L. J. (now Lord Sumner) in Latham v. R. Johnson & Nephew, Ltd.3 said that "case (i.e., Cooke's case) has been several times considered both in England, Scotland and Ireland. The Court of Appeal in Ireland in Coffee v. M'Evoy declined to regard it as a case on the duty of an owner or occupier of property towards a trespasser, and decided against the injured plaintiff there because he clearly was a trespasser. In Lowery v. Walker in the Court of Appeal, the reversal of which case in the House of Lords does not affect the present point, Buckley, L. J., treats the decision as being one upon which the liability 'may arise from the fact that the landowner knows that he is exposing the persons whom he allows to pass over his ground to danger of which he is aware and they are not,' and Kennedy, L. J., says of it: "That it is in my opinion a decision of plainly limited application *** depending upon the special circumstances *** that there was an allurement to children by reason of the condition in which the defendants kept their premises, and the existence thereon of this unprotected machine, and that they knew that such a machine would be likely to allure children.' In Jenkins v. Great Western Railway," in this court, all the members of the court stated that in their opinion Cooke's case was decided on the assumption that Cooke was licensed by the railway company not merely to come upon

(3) L. R. [1913] 1 K. B. at p. 417.

(4) [1912] 2 I. R. 290.

(5) [1910] 1 K. B. 173.

(6) [1912] 1 K. B. 525.

(7) The Master of the Rolls at p. 532, Fletcher Moulton L. J. at p. 534, and Farwell L. J. at p. 534.

the land, but to play with the turntable, and it is the case that the jury had found in terms that the child was allured 'through the hedge and up to the turntable.' Lord Kinnear says the same in Holland v. Lanarkshire Middle Ward District Committee, that in Cooke's case the railway company had 'tempted children to play.""

According to these cases where the element of allurement is wanting the law apparently is that a child can either personally or through the carelessness of its parents be held to have contributed by its own negligence to the injury sustained. As an instance of this, there is the decision of the First Division in the Court of Session in Stevenson v. Corporation of Glasgow.' That action was brought against the Glasgow Corporation in respect of an action which had also occurred at the Botanical Gardens, Glasgow. An infant child was drowned in the River Kelvin while playing in the garden. An action of damages was brought by the father of the child against the defenders on the ground that it was their duty to fence the river, as it was a danger to the public and especially to chil

dren.

The court dismissed the action as irrelevant. At the end of his opinion Lord Kinnear said: "There is nothing unlawful in making a public garden or in opening. a garden to the public in a place where there are streams or ponds, and if the place is made safe for persons of average intelligence I know of no rule of law which requires the proprietors to take further precautions. It is impossible to lay upon the defenders a duty to protect children from risks which arise only from their own childishness and helplessness. That is the office of parents or guardians."

The principle was applied recently by Lord Hunter in the case of Taylor v. The

(8) [1909] S. C. 1142. (9) [1908] S. C. 1034.

Corporation of Glasgow,10 which in unique circumstances raises a question of wide importance for all local authorities. The plaintiff in this action sought to recover damages from the corporation of the City of Glasgow for the death of his son John MacKay Taylor, who died on August 21, 1919. It appears that on August 20 of that year the pursuer's son, aged 7, proceeded with some other children to the Botanic Gardens, Glasgow. The defenders are the proprietors and custodians of these gardens, which are open to the public as a public park. On the date in question the children are said to have been playing on ground surrounding the bandstand. In the vicinity of this place there is an enclosed plot of ground in which specimen plants and shrubs of various kinds are grown. A wooden fence surrounds this plot of ground, access being obtained by a gate in the fence. According to the pursuer's case the defenders knew that this plot of ground was frequented by members of the public of all ages.

Among the plants growing in the plot. of ground was a shrub, atropa belladonna, bearing berries rather similar in appearance to small grapes and presenting a very alluring and tempting appearance to children. The pursuer says that his son and some of his companions were attracted by the beautiful and tempting appearance of the shrub, that they picked some of the berries and ate them, and shortly afterwards they became seriously ill, and that although he received medical attention the pursuer's son died the following morning.

The berries of the atropa belladonna shrub are poisonous, and the pursuer maintained that the death of his son was solely due to the fault of the defenders and of their servants in charge of the gardens for whom they were responsible. He alleged that the poisonous character and the inviting and deceptive appearance of the berries. were well known to them. "They knew or

(10) 2 S. L. T. 75.

ought to have known, if they had exercised reasonable supervision, that said shrub was growing in a conspicuous position in said gardens, in a part open to and much frequented by children, and that it was probable and indeed practically certain that children would be tempted and deceived by the appearance of said shrub, and would eat the berries, which have a sweet taste. The defenders knew or ought to have known that said berries were a deadly poison and that if one or two of them were eaten by a child it was certain to cause illness and likely to result in death. The defenders were in fault in having the said shrub growing in a part of said gardens open to children and frequented by them without taking any precautions, as they ought to have done but failed to do, to warn children against the danger or to prevent children from reaching said shrub and picking the berries." His Lordship pointed out that it is well known to all who frequent botanical gardens that the plants and shrubs are not intended to be tampered with, and in particular that berries or fruit growing on trees are not to be eaten. There was nothing in the pursuer's averments to suggest that the defenders in the management of their garden failed to take precautions which are usually taken in connection with similar gardens. The berries of many plants, some of them common plants that grow wild in different parts of the country, are dangerous if indiscriminately eaten by children. It was not clear from the record what precautions the pursuer suggests should be taken by the defenders to protect children from the consequences of their own ignor

WILL THE EIGHTEENTH AMENDMENT OVERWHELM THE FEDERAL COURTS?

A vice inherent in the 18th Amendment, arising from its legislative phraseology, is that it burdens the Federal courts as guardians of the Constitution: for, unless the Constitution is to become as easily susceptible to amendment as a Congressional enactment, it will, whenever current public opinion fails to lead to "appropriate" legislation even as regards the Amendment's more radical reaches, throw the burden on the courts themselves enforcing it. Their alternative, of allowing the Constitution to come into disrepute through neglect, is unthinkable. Regardless of Congressional action the Eighteenth Amendment will continue to read that the manufacture, sale, or transportation of intoxicating liquor for beverage purposes "is hereby prohibited." And, according to Article 6, paragraph 2, of the Constitution, it will be the "supreme law of the land."

Heretofore even the Thirteenth and Fifteenth Amendments had contented themselves with declaratory phraseology. They were declaratory of a right that could be protected in the absence of appropriate Congressional legislation, by merely holding void any contravening acts. But rather, this is a case where violations are sure to occur while at the same time they cannot be called void. The Eighteenth Amendment is a police law, and must find its enforcement through punishment. So the courts must punish, with or without particular Congressional sanction. The cases brought to their attention will be numerous. Current public opinion may be inert, if not hostile.

Why all this when (1) Congress could always, as far as current public opinion. justified, have regulated liquor by taxation as it has heretofore done with opium and even State Bank notes. And (2) the amendment itself could have contented

itself with following the path blazed by the Constitution's framers, of granting to Congress power over liquor, and leaving the exercise of the power to depend on current public opinion.

That the courts can (and so must) enforce the Eighteenth Amendment regardless of particular Congressional sanction follows from (1) the courts, given jurisdiction, have inherent powers of a court. (2) Jurisdiction is given by (a) the amendment's creation of the offense, and (b) the grant of jurisdiction in Section 24 of the United States Judicial Code, over "offenses."

The courts, then, must define "intoxicating" liquor and should apply that definition to whatever liquor is sold, manufactured or transported. This follows, because the amendment prohibits sale or manufacture or transportation of the identical object-namely intoxicating liquors. Manufacture, sale and transportation are on the same level.

Now, in the absence of enforcement legislation, can the United States courts enforce the article? In ascertaining whether the court can take cognizance of violations of the Eighteenth Amendment, without Congressional sanction, what are the reasons that have heretofore led the courts to assert that in the United States courts there are no common-law crimes, but only statutory ones? The courts, then, starting with a bias against infringing State sovereignty, have held first that the United States Government is a government of powers, and secondly, that the lower United States. courts, deriving their existence exclusively from Congress, have only such jurisdiction as Congress authorizes. As to the first-the matter of powers-Congress must avail itself of a power before there is a law. As to the second-the matter of jurisdiction-there must not only be a law creating the crime, but also one giving a specified court the right to deal with the crime. These

Amendment is part of the Constitution) with the absence of cause for any prejudice against infringing State's rights, we find regarding the Eighteenth Amendment. In the first place, the prohibiting part of the amendment, section 1, is itself a self-executing law, and not an unexecuted power. In the second place, jurisdiction of the offenses is given the United States District Courts by Sec. 24 of the Judicial Code. And in the third place (beside the power to prohibit being itself executed by the constitutional prohibition), in Sec. 2 of the amendment, power to enforce the prohibition is granted concurrently to the National and State Governments.

The stress laid in United States v. Hudson1 on the United States being a government of limited powers enumerated, so that it took an act of Congress to exercise the power, is not applicable as regards the Eighteenth Amendment; for that amendment is essentially legislative in character. Its language is "is hereby prohibited." True there is in addition power vested in the Congress and in the several States to enforce this prohibition by additional legislation. But in the absence of such additional legislation, the article still prohibits the manufacture, etc., of intoxicating liquors for beverage purposes, and if a part of the Constitution is, of course, the law.3

It is not merely declaratory, but is the execution of a power. The amendment could not, or would not, of course, fix penalties, but by providing for “appropriate" legislation, left them to the control of Congress if it should choose to legislate. Meantime the courts are free to use their discretion. The fact that in United States v. Reese1 the Court summarily dismissed the first section of the

theory because (1) no objection to such course seems to have been in the mind of the Court, and (2) the Court refers to the section as merely declaratory of a right, and (3) the rule of construction that the expression of one is the exclu sion of the other, which may well gov ern when Congress is covering a subject, ought not to prevail in the case of the Eighteenth Amendment, where the prohibition is broadly announced and where it would be extremely unwise to fix permanent and unchangeable penalties.

It is true that the United States District Court has only such jurisdiction as Congress bestowed upon it. It is said in United States v. Hall:6

(District and Circuit courts) "possess no jurisdiction over crimes and offenses committed against the authority of the U. S. except what is given them by the power that created them nor can they be invested with any such jurisdiction beyond what the power ceded to the U. S. by the Constitution authorizes Congress to confer, from which it follows that before an offense can become cognizable in the Circuit court, the Congress must define or recognize it as such and affix a punishment to it, and confer jurisdiction upon some court to try the offender. U. S. v. Hudson, 7 Cr. 32; U. S. v. Coolidge, 1 Wheat. 415; 1 Am. Cr. L. 163."

Mr. Justice Clifford, in United States. v. Hall, also drops the significant remark that it has never been decided whether the court could take jurisdiction of treason (defined in the Constitution) without Congressional enactment. He says that "treason is defined by the Constitution, but it has never been decided that the offender could be tried and punished for the offense until some court is vested with the power by act of Congress."

Mr. Justice Miller, in United States v. Holliday,' says that at the time the Ju

no such thing as an offense against the

(5) See M'Cullogh v. Md., 4 Wh. 316, 415.