making power, or from entering into any negotiations or contracts of any kind with any other power, either State or foreign, as every element of negotiation, as well as of treatymaking, is absolutely confined to the General Government.1 § 79. Responsibilities as well as benefits result from this rule. The proposition above stated carries with it responsibilities as well as benefits. The author does not intend in this volume to go into a lengthy discussion as to the responsibility of the United States governinent for acts committed in violation of treaty stipulations by States, or by any force which could, or should, be controlled by State authorities. The subject is not only intricate and complicated, but is also exceedingly delicate, and far-reaching in its application; furthermore as the Supreme Court has never authoritatively passed upon the question and definitely determined either the extent of the responsibility of the Central Government for acts of the constituent governments, or the power of the Federal Government to enforce compliance with such stipulations, it would be an academic, rather than a practical discussion, at the present time. 80. Author's views briefly expressed. To the author, however, it seems as though the question of responsibility on the part of the Federal Government for violations of treaties by the action or neglect of the States, is not only a very serious one, but one which sooner or later will give rise to controversies between this government and foreign powers which will eventually be the subject of international arbitration. So long as the States are prohibited from negotiating with foreign powers, those powers will naturally insist that the United States shall itself assume all obligations which may arise from treaty violations, as it is the only power that can deal directly or indirectly with the foreign powers whose interests are affected; while, however, it is a matter of complete indifference to any foreign power having a grievance against the United States, whether the National Government has or $ 78. 1"The only Government of this country, which other nations recognize or treat with, is the Government of the Union; and the only American flag known throughout has not the internal power of enforcing compliance with the treaty stipulation by the separate States, or of compelling those States to reimburse it for loss resulting from such violation, it is a matter of great importance to the United States, individually and collectively, that our foreign relations and the settlement of all disputes arising under treaties, no matter what may be the occasion thereof, should be entirely controlled by the National Government, in order that no single State may involve the entire country in international complications. § 81. Instances in which question has arisen.-The question of federal responsibility for State violations of treaties has arisen on several occasions. A definite determination of the point, however, has generally been avoided by diplomatic settlements. The following occurrences, therefore, are to be considered more as historical episodes, than as legal precedents. Four instances will be referred to: The McLeod case in New York in 1841, the Spanish riots of 1851 in New Orleans, the Mafia riots in Louisiana in 1893, the claim of the United States against the Republic of Colombia in the Montijo case in 1871. § 82. The case of the "Caroline"; Great Britain's position. In 1837 the steamboat Caroline owned by an American citizen was said to be engaged in transporting recruits and supplies to a rendezvous in Naval Island in Niagara River for coöperation with some Canadian insurgents. It was presumed by Canadian authorities that the boat would be the means of transferring an expedition to the Canadian shore; accordingly a force was dispatched which followed the boat to the moorings on the American shore, and there attacked the crew, killing some of them and letting the boat drift into the river, the current of which carried it over Niagara Falls resulting in its complete destruction. This attack was made the subject of diplomatic correspondence, the United States claiming that its territory had been violated, and the Government of Great Britain maintaining that it was justified on the ground of necessity and self-preservation. Later, in 1842, an explanation being made by the British government, the United States accepted it as satisfactory and allowed the matter to drop.1 § 83. McLeod's connection with the "Caroline"; his arrest by New York State. Some time after the destruction of the Caroline, Alexander McLeod, a subject of Great Britain, was arrested by the State of New York on the charge that he had been engaged in the Caroline transaction and had committed murder within the jurisdiction of the State of New York. He was indicted, tried and ultimately acquitted. Pending his trial, a writ of habeas corpus was applied for on the ground that he was engaged in a governmental act and was not therefore amenable to the local jurisdiction of the State Courts of New York or even those of the United States, as the matter was in course of adjustment by diplomatic departments of the two governments. The State court dismissed the writ and remanded McLeod for trial. Judge Cowen rendered an opinion, in which he asserted that the State of New York had jurisdiction, notwithstanding the matter was the subject of diplomatic discussion between the two countries. In that respect he said:1 "But it is said of the case at bar, here is more than a mere approval by the adverse government, that an explanation has been demanded by the secretary of state; and the British ambassador has insisted on McLeod's release, and counsel claim for the joint diplomacy of the United States and Eng§ 82. 1 The most complete account of the Caroline and McLeod affairs will be found in Wharton's International Digest, § 21, vol. I., and § 350, vol. III. Citations were there given of all public documents, correspondence and decisions. § 83. 1 Judge Cowen's decision including the extract here quoted from his opinion has been severely criticised. Wharton's Digest in section 350 says: "As to McLeod's case, Mr. Webster, in his speech in the Senate on the treaty of Washington (April 6, 1846) said: 'McLeod's case went on in the court of New York, and I was utterly surprised at the decision of that Court on the habeas corpus. On the peril and risk of my professional reputation, I now say that the opinion of the court of New York in that case is not a respectable opinion, either on account of the result at which it arrives, or the reasoning on which it proceeds.' In a note it is added that the opinion had been reviewed by Judge Tallmadge, of New York City, and that of this review Chief Justice Spencer said that 'it refutes and overthrows the opinion most amply,' and that Chancellor Kent said, 'It is conclusive at every point. "'' land some such effect upon the power of this court as a certiorari from us would have upon a county court of general sessions. It was spoken of as incompatible with a judicial proceeding against McLeod in this state; as a suit actually pending between two nations, wherein the action of the general government comes in collision with, and supersedes our own. "To such an objection the answer is quite obvious. Diplomacy is not a judicial, but executive function; and the objection would come with the same force whether it were urged against proceeding in a court of this state, or the United States. Whether an actual exertion of the treatymaking power, by the President and Senate, or any power delegated to congress by the federal constitution, could work the consequences contended for, we are not called upon to inquire whether the executive of the nation, (supposing the case to belong to the national court,) or the executive of this state might not pardon the prisoner, or direct a nolle prosequi to be entered, are considerations with which we have nothing to do. "The executive power is a constitutional department in this, as in every well organized government, entirely distinct from the judicial. And that would be so, were the national government blotted out, and the state of New York left to take its place as an independent nation. "Not only are our constitutions entirely explicit in leaving the trial of crimes exclusively in the hands of the judiciary: but neither in the nature of things, nor in sound policy, can it be confided to the executive power. That can never act upon the individual offender; but only by requisition on the foreign government; and in the instance before us, it has no power even to enquire whether it be true that McLeod has personally violated the criminal laws of this state. It has charge of the question in its national aspect only. It must rely on accidental information, and may place the whole question on diplomatic considerations. These may be entirely wide either of the fact or the law as it stands between this state and the accused. The whole may turn on questions of national honor, national strength, the comparative value of national intercourse, or even a point of etiquette. "Upon the principle contended for, every accusation which has been drawn in question by the executive power of two nations, can be adjusted by negotiation or war only. The individual accused must go free, no matter to what extent his case may have been misapprehended by either power. No matter how criminal he may have been, if his country, though acting on false representations of the case, may have been led to approve of the transaction and negotiate concerning it, the demands of criminal justice are at an end.2" § 84. Great Britain's position expressed by Mr. Fox.— While the trial of McLeod was pending the British government made a demand upon the State Department for his release. To this Mr. Forsyth, who was then Secretary of State, replied that the matter was within the jurisdiction of the State of New York, and that the judicial action of that State, under all the circumstances, was proper. Mr. Fox, the then accredited minister of Great Britain to Washington, was not contented with this, and on March 12, 1841, before the trial of McLeod and after Mr. Webster had become Secretary of State, he delivered a further protest against the continuance of the trial in which he expressed the views of his government in regard to the national responsibility for all acts in violation of treaty or national rights committed by any of the State governments. In the course of his letter he said: "Her Majesty's government cannot believe that the government of the United States, can really intend to set an example so fraught with evil to the community of nations, and the direct tendency of which must be to bring back into the practice of modern war, atrocities which civilization and Christianity have long since banished. "Neither can her Majesty's government admit for a moment the validity of the doctrine advanced by Mr. Forsyth, 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 2 People vs. McLeod, N. Y. Su- | pp. 598, 599, CowEN, J. preme Ct. 1841, 25 Wendell, 483, |