prevented by its claim of right to deny to all other States the exercise of jurisdiction within its own limits.

The United States has, at times, been greatly embarrassed by, but has not been able to escape from, the application of this principle, by reason of its peculiar constitutional system. Under this system it is with the National Government alone that foreign States have relations and to it alone they look for the fulfillment of international obligations, and yet, in fact, that Government has not, in all cases, had the constitutional statutory power to protect or give adequate relief to resident aliens who have been injured by reason of the failure of state authorities to give them proper protection or, after injury, properly to punish those who have been guilty of the wrongs complained of.

or

Space will not permit even a brief account of the international controversies to which the United States has been a party, arising out of injuries received by aliens at the hands of mobs or in time of riots,20 or even to discuss the embarrassing situation which arose by reason of the inability of the National Government to secure the release from the custody of the State of New York of one McLeod who was being criminally prosecuted for an act the responsibility for which had been assumed by the Government of Great Britain.21 We may, however, quote the following from a communication of the British Foreign Office to the American Secretary of State, Daniel Webster: "Neither can Her Majesty's Gov"For instance, the New Orleans Spanish Riots of 1851, the Denver Chinese Riot of 1880, the Chinese Riot of 1885 at Rock Springs in the Territory of Wyoming, the Chinese Riot of the same year in Seattle, the lynching of Italians in 1891 at New Orleans. In these cases the United States was not willing to acknowledge in explicit language, its full international responsibility, but, in fact, in most instances at least, granted, ex gratia, pecuniary damages to the persons injured or to their families.

"As to this important case, see British and Foreign State Papers, vols. XXIX and XXX, and Moore, Digest of International Law, vol. II, p. 25, and authorities there cited.

ernment admit for a moment the validity of the doctrine... that the Federal Government of the United States has no power to interfere in the matter in question, and that the decision thereof must rest solely and entirely with the State of New York. With the particulars of the internal compact which may exist between the several States that compose the Union, foreign Powers have nothing to do; the relations of foreign Powers are with the aggregate Union, that Union is to them represented by the Federal Government, and of that Union the Federal Government is to them the only organ. Therefore, when a foreign State has redress to demand for a wrong done to it by any State of the Union, it is to the Federal Government, and not to the separate State that such Power must look for redress for that wrong. And such foreign Power cannot admit the plea that the separate State is an independent body over which the Federal Government has no control. It is obvious that such a doctrine, if admitted, would at once go to a dissolution of the Union so far as its relations with foreign Powers are concerned; and that Foreign Powers, in such case, instead of accrediting diplomatic agents to the Federal Government, would send such agents not to that Government, but to the Government of each separate State." 22

22

"The American Government did not, in this case, seek to controvert the doctrine thus stated, but tried to shift the issue to a somewhat different ground. In the Cutting Case, arising in 1886, the United States took towards Mexico quite the same position that England had taken in the McLeod Case. In a careful document entitled Report on Extraterritorial Crime and the Cutting Case, Dr. John Bassett Moore, then Third Assistant Secretary of State, said (p. 19): "It is not proposed to discuss the extent of the control of the Federal Executive of Mexico over the authorities of the States which compose that Republic. This is a question of municipal law, which, in accordance with the rule that the authorities of a nation are the proper interpreters of its municipal regulations, may be left to the Mexican Government. But it should not be forgotten that, while a domestic difficulty may be accepted as a plea for delay, it cannot be set up as a bar to the ultimate performance of international obligations, and cannot, therefore, be held to prevent

It is seen, then, that when one Government is notified by another Government that it assumes responsibility for an act, the notified Government, as a matter of policy as well as of proper international procedure, will not attempt to hold personally responsible in its courts the individual who has committed the act, but, instead, if any issue growing out of that act is to be made, will consider the matter one to be dealt with directly between the two Governments. In other words, it is deemed a matter of comity, or of due respect to the dignity of a Government, that the propriety of acts which it has ordered or assumed responsibility for, should not be questioned in municipal courts. In the McLeod case the United States was so unfortunately circumstanced by its peculiar constitutional system it did not have the legal means of compelling the courts of one of the States of the Union to obey this direction of discontinuance. But that, as a matter of international comity, the judicial proceedings against McLeod should have been discontinued, the foreign office of the United States fully recognized. The American Secretary of State, Mr. Webster, said: "The Government of the United States entertains no doubt that after this avowal of the transaction as a public transaction authorized and undertaken by the British authorities, individuals concerned in it ought not by the principles of public law and the general usage of civilized States to be holden personally responsible in the ordinary tribunals of law for their participation in it."

Mutual Respect of States for Each Others' Sovereignty. A mutual respect by States of each other's sovereignty has led to the doctrine that the determinations of the courts of one State, when acting with regard to persons

a demand upon a Government for the fulfilment of those obligations. To hold otherwise would be to assert the supremacy of municipal regulations, and permit each nation to prescribe the measure of its international duty."

or property over whom they have obtained jurisdiction, will not be judicially questioned by the courts of other States.23 If those other States feel themselves aggrieved by the acts of another State, whether executive or judicial, their only recourse is to diplomatic protest, and, if this fails, to force.

In Dobree et als. v. Napier et al.,24 the British court held that, notwithstanding the provisions of a British Act of Parliament with regard to foreign enlistments, an action would not lie against a British citizen who, in the service of a foreign State, at peace with Great Britain, had captured upon the high seas a British vessel for breaking a blockade, and which was thereupon condemned by a prize court of the capturing State. The court said: "The sentence of a foreign court of competent jurisdiction, condemning a neutral vessel taken in war, as prize, is binding and conclusive on all the world; and no English court of law can call in question the propriety, or the grounds, of such condemnation."

This case is authority for the doctrine that acts upon the high seas done or authorized by a foreign sovereignty, and held legitimate by its courts cannot furnish ground for suits in the British courts.

In Regina v. Lesley,25 decided in 1860, the Court for Crown Cases Reserved, upon the authority of Dobree v. Napier, held that a trespass committed on a British ship, under contract with a foreign State, while in the territorial waters of that State, and authorized by that State, could not furnish ground for an action in British courts against the trespasser; but that, upon the high seas, acts done in a British ship were to be regarded as governed by British law, and the authority of no foreign

23 For a fuller discussion of this topic see post, chap. XVIII.

24

2 Bingham's New Cases 781.

25 29 L. J. M. C. 97.

State could extend to them so as to make them nonjusticiable.

In this case it is clear that the doctrine was asserted that a State could not throw the mantle of its authorization over acts committed outside its own territorial jurisdiction. It would appear, however, that the doctrine. does not apply to acts which involve more than private interests and rise to the dignity of matters of high policy, that is, where they concern questions which are normally determined by direct international dealings of States with one another, as, for example, was the fact in the McLeod Case.26

It is of course clear that one State has no legal authority directly to control proceedings in the courts of another State, and that, therefore, in case it desires them discontinued or otherwise controlled, it must ask the Foreign Office of the other State to cause the necessary direction to be transmitted to its judicial tribunals. It might be proper for the Government of one State to ask leave of the court of another State to intervene in a suit in order to file its statement that it assumed responsibility for an act upon which the instant proceedings were predicated, but, ordinarily, this statement would be filed by

Moore, in his Act of State in English Law, p. 125, says: "Lesley's Case probably means no more than this: that the mere authority of the foreign sovereign, irrespective of the subject matter and the other facts of the case, does not constitute a justification, or put the matter out of court. There is, in fact, a distinction to be drawn between acts done or purporting to be done in the ordinary course of the country's law which is limited by the sovereignty of that country; and, on the other hand, acts to which we apply the term 'State' or 'high policy' or 'sovereign' which are recognizable as referable to the relations of States inter se, and as to which it is immaterial what is the attitude of the law of either of the countries concerned. Of the first class, the facts in Lesley's Case are an illustration. Illustrations of the second class may be found in such an avowed invasion of territory as the Jameson Raid. If in that case the British authorities had avowed and adopted the acts of Dr. Jameson and his associates, then, though a national act of invasion in the circumstances might have been treacherous and disgraceful to a civilized Power, the actual actors would not upon principle have been punishable in any court of the injured State. The classical case upon this subject is McLeod's Case."