authority exists, or where it exists but its control is so ineffective that it cannot in fact represent the state recognition has usually been withheld or regular diplomatic relations have been broken.

power," says Westlake, "would willingly try to weave ties with a rope of sand.” 16

as the universal representatives of states can be considered as having independently a personality under the law of nations." (Rivier, Principes du droit des gens, 1: 51, Moore, Digest, 1: 17.) See also Phillimore, Int. Law, 3d ed., 1: 81; Sec. of State Fish, Feb. 21, 1877, Moore, Digest, 1: 250. 16 Recognition and the maintenance of diplomatic intercourse are discretionary with each state, but by examining the conditions under which recognition has been accorded or relations broken we can discover what perfection of organization modern states actually regard as prerequisite to entry into international intercourse.

In recognizing new states, the primary consideration has been the actual state of independence of a community of people occupying a definite territory, but as Westlake points out, "The recognizing powers must respectively be satisfied that the new state gives sufficient promise of stability in its government. No power would willingly try to weave ties with a rope of sand." (Int. Law, I: 50.) (For practice in recognizing new states see Moore, Digest, 1: 74-119.)

Thus the possession of a stable government is a prerequisite to recognition of a state. Does it follow that if the government of a recognized state dissolves or undergoes convulsions the state departs from the family of nations? Publicists say not-but in practice its membership is in abeyance until a new government is recognized. The nature of the recognition of a new government has been much discussed, some asserting that it has no place in international relations (Hall, op. cit., p. 20; Woolsey, Int. Law, p. 39; Twiss, Int. Law, 1: 21) or is a mere formality (Goebel, Recognition Policy of the U. S., Columbia University Studies in History, Economics and Public Law, 66: 67) but in practice the recognition or non-recognition of a government may have important results, as witness the American policy toward the governments of Huerta in Mexico (1914), Tinoca in Costa Rica (1916) and Lenin in Russia (1917). Practice shows that a radical change in a state's constitution is a matter of international consideration and that the new government must present prospects of reasonable stability and responsibility before the state can again enter into official international relations. The various criteria which have been followed at different times for judging of such stability and responsibility such as (1) defacto control, (2) legal continuity or legitimacy, or (3) consent of the members of the state need not detain us here. (For American practice in recognition of new governments see Moore, 1: 119-164.)

Finally even when a recognized state has a recognized government it may still be unable to maintain international relations if that government presents no definite authority able to meet international responsibilities. Because of this lack the United States under the Articles of Confederation had difficulty in exchanging diplomatic officers with other states. Thus

12. The President is the Representative Authority in the United States.

In the United States, the President, acting through the Department of State, is this representative authority.

"The president," said John Marshall while in Congress, "is the sole organ of the nation in its external relations, and its sole representative with foreign nations. Of consequence, the demand of a foreign nation can only be made of him." 17

"The Executive," reported the Senate Foreign Relations Committee in 1897, "is the sole mouthpiece of the nation in communication with foreign sovereignties." 18

The same has been reiterated by courts,19 by commentators,20 by Congress21 and by the President himself in official communicaHamilton said of the Confederation, "The treaties of the United States, under the present constitution, are liable to the infractions of thirteen different legislatures, and as many different courts of final jurisdiction, acting under the authority of those legislatures. . . . Is it possible that foreign nations can either respect or confide in such a government?" (Federalist, No. 22, Ford ed., p. 141.) See also remarks of James Wilson and Madison in the Federal Convention of 1787, Farrand, Records of the Federal Convention of 1787, 1: 426, 513. Even after the Constitution was in effect the apparent irresponsibility of the President for acts committed within the states violative of international rights of foreigners caused Italy to withdraw its minister. (Moore, Digest, 6: 837-841.) Practice seems to show that states must maintain a stable government with a single definite representative organ under penalty of international ostracism.

17 Benton, Abridgment of Debates of Congress, 2: 466.

18 54th Cong., 2d Sess., Sen. Doc., No. 56, p. 21.

19 "As the Executive head of the nation, the President is made the only legitimate organ of the General Government, to open and carry on correspondence or negotiations with foreign nations, in matters concerning the interests of the country or of its citizens." Nelson, J., in Durand v. Hollins, 4 Blatch, 451, 454.

20" Official communications involving international relations and general international negotiations are within the exclusive province of the Department of State, at the head of which stands the Secretary of State." (Wilson and Tucker, op. cit., p. 187.) "A foreign minister here is to correspond with the Secretary of State on matters which interest his nation, and ought not to be permitted to resort to the press. He has no authority to communicate his sentiments to the people by publications, either in manuscript or in print, and any attempt to do so is contempt of this Government. His intercourse is to be with the executive of the United States only, upon matters that concern his mission or trust." (Lee, Attorney General, 1 Op. 74, 1797, Moore, Digest, 4: 682.) See also supra, notes 17, 18.

21" In 1874, Congress declared that claims of aliens cannot properly be examined by a committee of Congress, there being a Department of this

tions to Congress 22 and to foreign nations.23 The President's position as the exclusive organ for communication with foreign nations is a well-established implication from the powers expressly delegated to him by the constitution to receive and to commission diplomatic officers. But this position is not founded merely on the conGovernment in which most questions of an international character may be considered-that which has charge of foreign affairs: that Congress cannot safely and by piecemeal surrender the advantage which may result from diplomatic arrangements; that this has been the general policy of the Government, and Congress has not generally entertained the claims of aliens and certainly should not unless on the request of the Secretary of State (See Report No. 498, Committee on War Claims, Ist Sess., 43d Cong., May 2, 1874)," Moore, Digest, 6: 608; Senate Report, supra, note 18. Apparently attempts to negotiate with foreign governments except under authority of the President is a criminal offense under the Logan Act, Jan. 30, 1799, Rev. Stat., sec. 5335, Criminal Code of 1909, Art. 5, Moore, Digest, 4: 449. See also infra, sec. 17.

22" The Constitution of the United States, following the established usage of nations, has indicated the President as the agent to represent the national sovereignty in its intercourse with foreign powers, and to receive all official communications from them, . . . making him, in the language of one of the most eminent writers on constitutional law, the constitutional organ of communication with foreign states.'" (President Grant, Message vetoing two joint resolutions in response to congratulations of foreign states on the occasion of the Centennial exposition, Richardson, op. cit., 7: 431.)

6

23" But,' said he (Citizen Genet), 'at least, Congress are bound to see that the treaties are observed.' I told him no; there were very few cases indeed arising out of treaties, which they could take notice of; that the President is to see that treaties are observed. 'If he decides against the treaty, to whom is a nation to appeal?' I told him the Constitution had made the President the last appeal. He made me a bow, and said, that indeed he would not make me his compliments on such a Constitution, expressed the utmost astonishment at it, and seemed never before to have had such an idea." (Sec. of State Jefferson, Moore, Digest, 4: 680.) "I do not refer to this for the purpose of calling the attention of the Imperial German Government at this time to the surprising irregularity of a communication from the Imperial German Embassy at Washington addressed to the people of the United States through the newspapers, but only, etc." (Secretary of State Bryan to Mr. Gerard, American Ambassador at Berlin, May 13, 1915, White Book, European War No. 1, p. 76.) See also infra,

sec. 13.

24" The President is the organ of diplomatic intercourse of the Government of the United States, first, because of his powers in connection with the reception and dispatch of diplomatic agents and with treaty making; secondly, because of the tradition of executive power adherent to his office."

stitution. It has apparently acquired a certain foundation in international law through recognition by foreign nations. Thus foreign nations have habitually presented their claims to the President through the Department of State.

66

"All foreign powers recognize it (the Department of State)," wrote Secretary of State Seward, and transmit their communications to it, through the dispatches of our ministers abroad, or their own diplomatic representatives residing near this Government. These communications are submitted to the President, and, when proper, are replied to under his direction by the Secretary of State. This mutual correspondence is recorded and preserved in the archives of this Department. This is, I believe, the same system which prevails in the governments of civilized states everywhere." 25 The only exception to this rule appears to be in matters of a private law nature litigated before the courts.26 In matters of international law foreign nations have sometimes been willing to permit trial of the issue in the courts first,27 but they have always reserved the right to carry the case before the President (through the Department of State) later, if they think the decision unjust.28 In important matters foreign governments have refused to follow a suggestion for settlement in the courts.29 They have been equally (Corwin, The President's Control of Foreign Relations, p. 33.) See also Wright, Columbia Law Rev., 20: 131.

25 Mr. Seward, Secretary of State, to Mr. Dayton, Minister to France, June 27, 1862, Moore, Digest, 4: 781. See also Borchard, op. cit., p. 355. Congressional Committees may not hear such claims, supra, note 22. "The Department of State has explained that claims against the Government can be presented only in one of two ways: (1) Either by the claimant's availing himself directly of such judicial or administrative remedy as the domestic law might prescribe; or (2) in the absence of such remedy, if the claimant was an alien, by his government formally presenting the claim as an international demand to be adjusted through the diplomatic channel." " (Acting Secretary of State Davis to Baron de Fava, Italian Minister, July 9, 1884. Moore, 6: 608.)

26 Foreign states are entitled to bring suit in United States courts, state or federal (Mexico v. Arrangoiz, 11 How. Prac. 1, N. Y. 1855; King of Prussia. Kupper, 22 Mo. 550, 1856; King of Spain v. Oliver, 1 Peter's C. C. 217, 276, 1810; The Sapphire, 11 Wall. 164, 1870), and the United States Court of Claims has a limited jurisdiction of claims against the government. (Borchard, op. cit,, 164.) See also Westlake, op. cit., 1: 250.

27 Supra, note 6.

28 Supra, note 13.

29 See suggestions for judicial settlement of the California-Japanese School and Land Ownership questions. (Corwin, op. cit., p. 108; H. M. Dilla, Mich. L. R., 12: 583.) In a note of March 16, 1916, with reference to the Appam, a British vessel captured by Germany and brought to a

unresponsive to suggestions for a discussion of international claims with the state governments within the United States.30 They have United States port, the German government said: "The opinion of the Department of State that the American courts must decide about the claims of the British Shipping Company is incompatible with the treaty stipulations. It is, therefore, respectfully requested that the legal steps before an American court should be suspended." The American answer of April 7, 1916, “holding the view that Article 19 is not applicable to the case of the Appam, this Government does not consider it necessary to discuss the contention of the Imperial Government that under Article 19 American courts are without jurisdiction to interfere with the prize," appears satisfactory. It is, therefore, unfortunate that the note added the following inadmissible argument. "Moreover, inasmuch as the Appam has been libeled in the United States District Court by the alleged owners, this Government, under the American system of government, in which the judicial and executive branches are entirely separate and independent, could not vouch for a continuance of the status quo of the prize during the progress of the arbitration proposed by the Imperial Government. The United States Court, having taken jurisdiction of the vessel, that jurisdiction can only be dissolved by judicial proceedings leading to a decision of the court discharging the case-a procedure which the executive cannot summarily terminate.” However correct this may be from the standpoint of constitutional law it could not justify a failure to meet international responsibilities. (Supra, note 13. White Book, European War, No. 3, pp. 340, 343.)

The United States has been similarly reluctant to leave important matters of international law to foreign courts. In a note of June 24, 1915, with reference to indemnity for destruction of the United States vessel William P. Frye, by Germany, Secretary Lansing wrote, "The Government of the United States, therefore, suggests that the Imperial German Government reconsider the subject in the light of these considerations, and because of the objections against resorting to the Prize Court the government of the United States renews its former suggestion that an effort be made to settle this claim by direct diplomatic negotiations." (Op. cit., No. 2, p. 187; see also note of April 28, 1915, op. cit., No. 1, p. 88.)

30 See Louisiana Lynching Cases, U. S. For. Rel., 1891, pp. 665-667, 671-672, 674-686, 712–713, Ibid., 1901, p. 253; Moore, Digest, 6: 837. “We should not be obliged to refer those who complain of a breach of such an obligation to governors of states and county prosecutors to take up the procedure of vindicating the rights of aliens which have been violated on American soil." (Taft, Proc. Am. Soc. of Int. Law, 4: 44.) The United States has taken a similar attitude as to claims against foreign states. "This government cannot with propriety apply to the authorities of Yucatan for redress, that province constituting only a part of the Republic of Mexico, which is responsible in the last resort for all injuries which the judicial tribunals may have neglected or may have been incompetent to redress." (Mr. Calhoun, Secretary of State to Mr. Holmes, Nov. 20, 1844, Moore, Digest, 4: 682.)