46

THE GREEN BAG

the United States to Japan for the acts of a state. It is a fundamental principle of the law of nations that an ultimate responsi bility can be found, and must be found, in whatever land society exists, for all wrongs committed against a foreign nation or its subjects. The lodgment of that responsi bility is necessarily said to exist in the government which controls the place in question, and which has charge of its foreign relations. The control of the foreign relations of a state is essential to its very existence, and one of the conditions upon which its recogni tion as a member of the family of nations depends. Civilized states are unwilling to deal with communities, however perfect their local government may be, which do not clearly possess the right to enter into diplomatic relations. When the United States had the right and capacity to become a state, and, therefore, claimed recognition as such by the powers of Europe, its entrance into the family of nations was on the implied assumption that it was, from an interna tional point of view, a political entity, hav ing the power to deal with foreign affairs, and possessing control at home. If it be true then that the United States government alone can deal with foreign states, and enter into treaties with them, its responsibility for treaty infractions throughout its territory is on the theory that it is in supreme control of whatever relates to the outside world. In the con templation of foreign governments the offi cial of any state of our Republic, in so far as his acts relate to foreign affairs, is the official of the nation, because he is suppos edly subject to its control whenever he deals with any international matter. In his message of December 9, 1891, President Harrison said: "It would, I believe, be entirely competent for Congress to make offenses against the treaty rights of foreigners domiciled in the 1 Westlake's Int. Law, Part i, Peace, p. 22.

United States cognizable in the Federal courts. This has not. however, been done, and the Federal officers and courts have no power in such cases to intervene either for the protection of a foreign citizen or for the punishment of his slayers. It seems to me to follow in this state of the law, that the officers of the State charged with police and judicial powers in such cases must, in the consideration of international questions growing out of such incidents, be regarded in such sense as Federal agents as to make this Government answerable for their acts in cases where it would be answerable if the United States had used its constitutional power to define and punish crimes against treaty rights. " 1 In a word, then, the right of a state to control its foreign relations is based on the power to control them, and the power to con trol implies a duty to take whatever steps may be necessary to actually control. Hence, a state cannot escape liability to a foreign government, arising, for example, from the act of a municipal authority, on the ground that the state has not exercised its power by legislation or other wise to check or prevent the alleged wrong. In his recent annual message, President Roosevelt recognizes clearly the power lodged in the federal government to control whatever may relate to our treaty obligations, and the duty resulting from such a possession. Because of the existence of this admitted duty, he urges Congressional action to establish the provisions necessary to that end. He says: "One of the great embarrassments attend ing the performance of our international obligations is the fact that the statutes of the United States are entirely inadequate. They fail to give to the national government sufficiently ample power, through United States courts and by the use of the army and navy, to protect aliens in the rights secured to them under solemn treaties which are the law of the land. I therefore earnestly recommend that the criminal and civil statutes of the United States be so amended and added to as to enable the President, 1 For. Rel. U. S., 1891, vi.