domestic law. States have uniformly refused to accept con

66

of 1871 made it the duty of "the Emperor to represent the Empire among nations" and foreign nations have held the imperial government responsible for the execution of treaties made by the member states. Unquestionably," wrote Secretary of State Bryan to Ambassador Gerard on April 28, 1915, "the destruction of this vessel (William P. Frye) was a violation of the obligations imposed upon the Imperial German Government under existing treaty stipulations between the United States and Prussia, and the United States government, by virtue of its treaty rights, has presented to the Imperial German Government a claim for indemnity on account of the resulting damages suffered by American citizens." (U. S. White Book, European War No. 1, p. 88.) Germany had admitted its responsibility under the treaty in an earlier note. (Ibid.) Under the German Constitution of 1919 "The Commonwealth has exclusive jurisdiction over foreign relations" (Art. 6) and though "the states may conclude treaties with foreign countries in matters subject to their jurisdiction, such treaties require the assent of the commonwealth." (Art. 78.)

The responsibility of the British government for acts of the self-governing dominions has never been questioned and apparently remains even though these dominions are given independent representation in the League of Nations. "Disputes," said President Wilson before the Senate Foreign Relations Committee, can rise only through the Governments which have international representation. In other words, diplomatically speaking, there is only one 'British Empire.' The parts of it are but pieces of the whole. The dispute, therefore, in the case you have supposed (dispute between the United States and the United Kingdom) would be between the United States as a diplomatic unit and the British Empire as a diplomatic unit." David Hunter Miller, technical expert at the Peace Conference, testified to the same effect:

"Senator Hitchcock: 'So that any dispute that could arise between the United States and the Dominion of Canada involves the whole British Empire?'

"Mr. Miller: 'It seems so to me, Senator.'" (66th Cong., 1st Sess., Senate Doc. No. 106, pp. 540, 422.)

Moore, Digest, 6: 309-324, especially pp. 317, 321. This ineffectiveness of municipal law extends both to the right and the remedy. Thus municipal law cannot alter the international law principles of responsibility. (Supra, sec. 89.) In a few matters, as for instance, the protection of resident aliens, international law has to a limited extent adopted the municipal responsibility of a state as the measure of its international responsibility. In such cases the principles of municipal responsibility become indirectly subject to international discussion. This, however, does not vitiate the principle stated. (Borchard, op. cit., 116, 178, 179.) Nor can municipal law deprive foreign states of remedies such as diplomatic intervention or the use of force recognized by international law, though South American States have frequently asserted the contrary. (Ibid., p. 836.)

stitutional limitations,10 legislative acts11 or omissions,12 or judicial

10" The contention of Mr. Marcy in the case of M. Dillon, French consul at San Francisco, that the sixth amendment to the Constitution of the United States, which provides that an accused party shall have compulsory process for obtaining witnesses in his favor, should be considered as qualifying the general and absolute terms of the consular convention with France, 'was not acquiesced in by the French government, which required their flag, when raised to the mastheads of certain of their men-of-war at San Francisco, to be saluted as a reparation for the alleged indignity to their consul.'' Mr. Fish, Secretary of State, to Mr. Bassett, Oct. 18, 1872, Moore, Digest, 5: 81. See also Borchard, op. cit., p. 201, 226, 839, 845. Infra, sec. 31.

11 Borchard, op. cit., pp. 181, 838 et seq., Moore, Digest, 6: 309–324. There have been numerous cases in which the legislative abrogation of a treaty or the passage of laws in conflict with international law or treaty, though valid in municipal law, have proved no defense to international protests. See Moore, Digest, 5: 357, 365. For principles of municipal law governing the application of constitutions, statutes and ordinances in violation of international law, see Wright, Am. Jl. Int. Law, 11: 1, 566. China refused to accept the exclusion acts as an excuse for violations of her treaties (For references to her protests, see Moore, Digest, 4: 198, 202, 213, 235) and the U. S. Supreme Court recognized that these laws though valid in municipal law were no defense in international law. "It must be conceded that the act of 1888 is in contravention of express stipulations of the treaty of 1868 and of the supplementary treaty of 1880, but it is not on that account invalid or to be restricted in its enforcement (in municipal law). ... The question whether our government was justified in disregarding its engagements with another nation is not one for the determination of this court. ... This court is not a censor of the morals of the other departments of the government." (Chinese Exclusion Cases, 130 U. S. 589, 600.) President Hayes by vetoing an earlier act (1879) had recognized the impossibility of avoiding international responsibility by legislation. "Were such delay fraught with more inconveniences than have ever been suggested by the interests most earnest in promoting this legislation, I cannot but regard the summary disturbance of our existing treaties with China as greatly more inconvenient to much wider and more permanent interests of the country. I have no occasion to insist upon the more general considerations of interest and duty which sacredly guard the faith of the nation, in whatever form of obligation it may have been given." (Message, March 1, 1879, Richardson, Messages and Papers of the President's, 7: 519.) The matter was succinctly explained by Secretary of State Fish in 1876. “Of course, in speaking of the effect of subsequent legislation upon the provisions of a prior treaty, I refer only to the effect in the country where the legislation is enacted, and upon the officers and people of that country. The foreign nation, whose rights are invaded thereby, has no less cause of complaint and no less right to decline to recognize any internal legislation which presumes to limit or curtail rights accorded by treaty." Moore, Digest, 5: 365. Wharton, Digest, 1: 35.

decisions13 as mitigations of international responsibility. It fol

12 Borchard, op. cit., p. 214. The lack of legislation to give effect to international law was not thought by Great Britain to absolve the United States from responsibility for its failure to secure the release of Alexander McLeod from state jurisdiction in 1841. (Lord Ashburton, British Minister, to Secretary of State Webster, July 28, 1842, Moore, Digest, 2: 28.) Italy was not deterred from pressing her claims on account of the Louisiana lynchings during the nineties by the plea that the United States had not passed legislation necessary to give effect to treaties. (Moore, Digest, 6: 848, United States Foreign Relations, 1901, 283-299.) The United States

saw no merit in the British contention that lack of legislation excused its failure to prevent departure of the Alabama in 1862 and the Geneva Arbitration of 1871 upheld the American position saying, "The government of Her Britannic Majesty cannot justify itself for failure in due diligence on the plea of insufficiency of the legal means of action which it possessed." (Moore, Digest, 6: 1061; Malloy, Treaties of the United States, I: 719; Moore, International Arbitrations, 4: 4101-4109; Digest, 7: 878.) The American Continental Congress recognized this need of legislation in order to meet many international responsibilities and urged the passage of suitable laws by the states (Journ. Congress, 7: 181; Ford ed., 21: 1137). The Constitution authorizes such legislation (Art. 1, sec. 8, cl. 10) and Congress has enacted many statutes for this purpose. (Wright, Enforcement of Int. Law through Municipal Law, pp. 221-223; infra, secs. 112-122.) Presidents have repeatedly urged further legislation of this character, especially legislation giving federal courts jurisdiction adequate to protect the treaty rights of aliens. (Pres. Harrison, Message, Dec. 9, 1891; Pres. McKinley, Messages, Dec. 5, 1899, Dec. 3, 1900; Pres. Roosevelt, Message, Dec., 1906; Pres. Taft, The United States and Peace, N. Y., 1914, pp. 64-68.) The courts, attorneys general and text writers have insisted that the passage of such legislation is a constitutional duty of Congress. (Iredall, J., in Ware v. Hylton (1796), 1 Dall, 199; Cushing, Att. Gen. 6 Op. 291 (1854), Moore, 5: 370; Willoughby, Constitutional Law, 1: 487; Wheaton, Elements of International Law, sec. 266, Dana's note, pp. 339, 715.) We may agree with Mr. Root: "It is to be hoped that our government will never again attempt to shelter itself from responsibility for the enforcement of its treaty obligations to protect foreigners, by alleging its own failure to enact the laws necessary to the discharge of those obligations." (Proc. American Society of Int. Law, 4: 25.) See also excellent article by C. C. Hyde, Proc. Acad. of Pol. Sci., 7: 558.

13" This department has contested and denied the doctrine that a government may set up the judgment of one of its own courts as a bar to an international claim, when such judgment is shown to have been unjust or in violation of the principles of international law." (Report of Mr. Bayard, Sec. of State, to the President, Feb. 26, 1887. Sen. Ex. Doc. 109, 49th Cong., 2d Sess., Moore, Digest, 6: 667.) See also The Betsey, U. S. v. Great Britain, adjudicated by the mixed commission formed under Article 7 of the Jay treaty of 1794, Moore, Int. Arb., 3: 3208, especially Commissioner

lows that discussions of international responsibility can hardly be fruitful unless the organ for discussing is itself free of municipal restrictions. Thus, in a protest to Great Britain against alleged violations of neutral rights at sea, Secretary of State Lansing answered the British contention, that American citizens deeming themselves aggrieved could get relief in the prize courts, by calling attention to the restrictions placed upon these courts by orders in Council:

"The United States government feels," he wrote, "that it cannot reasonably be expected to advise its citizens to seek redress before tribunals which are, in its opinion, unauthorized by the unrestricted application of international law to grant reparation, nor to refrain from presenting their claims directly to the British government through diplomatic channels." 14

This requirement that states maintain a definite representative authority is, however, specifically evidenced by the authority of text Pinckney's opinion (Ibid., 3: 3182); Wheaton's argument in the Danish claims arbitration, Moore, Int. Arb., 5: 4555; Hale's Report of Commission formed under Article 12 of the Treaty of Washington, 6: 88, Moore, Int. Arb. 3: 3209; Wharton, Digest, 2: 672; Moore, Digest, 6: 695-697; Cotesworth and Powell Case, Great Britain v. Colombia, Moore, Int. Arb., 2: 2081; Justice Davis in Cushing, Administrator, v. U. S., 22 Ct. cl. 1, 1886; Ralston, International Arbitral Law and Procedure, pp. 29, 310; Borchard, op. cit., pp. 197, 342; Dana's Wheaton, sec. 391 et seq., note, p. 483; Bluntschli, Le Droit International Codifie, 4th ed., Paris, 1886, sec. 851; Oppenheim, Int. Law, 2d ed., London, 1912, 2: 557; Lawrence, Principles of Int. Law, 4th ed., p. 479; Earl Grey to Mr. Page, Ambassador to Great Britain, July 31, 1915, United States White Book, European War, No. 2, p. 182, par. 9. See also supra, note 30.

14 U. S. White Book, European War No. 3, p. 37. The force of Secretary Lansing's argument was evidently felt by the British prize courts, for a few months later the Judicial Committee of the Privy Council handed down the decision of the Zamora which held prize courts competent to apply international law irrespective of conflicting orders in council. "It is obvious, however, that the reason for this rule of diplomacy (that an aggrieved neutral should exhaust his remedies in belligerent prize courts before appealing to the diplomatic intervention of his own government) would entirely vanish if a Court of Prize, while nominally administering a law of international obligation, were in reality acting under the direction of the Executive of the belligerent Power." (L. R. 1916, 2 A. C. 77.) The difficulty arising from the fact that even the representative organ is necessarily restricted by the Constitution has been referred to (sec. 4), but this organ must be free of other municipal law restrictions.

writers15 and by practice. Thus where no such representative 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. "No power," says Westlake, "would willingly try to weave ties with a rope of sand.” 16

15" As a state is an abstraction from the fact that a multitude of individuals live in a country under a sovereign Government, every State must have a head as its highest organ, which represents it, within and without it's borders, in the totality of its relations. . . . The Law of Nations prescribes no rules as regards the kind of head a State may have. . . . Some kind or other of a head of the State is, however, necessary according to International Law, as without a head there is no State in existence, but anarchy." (Oppenheim, International Law, vol. I, sec. 341.) "Sovereigns 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, I: 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, 1: 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