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, 1: 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.

18" 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.

writers 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, 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, 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

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

66

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,10 by commentators, 20 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 Hamilton 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 Depart

by Congress21 and by the President himself in official communications to Congress22 and to foreign nations.23 The President's position as the exclusive organ for communication with foreign nations

ment 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 Government 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, 1st 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.)

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