bility, alleging that the improper acts, if any, were committed within the jurisdiction of Panama and were beyond the control of the federal government.

§ 97. Result of the Arbitration.—In April, 1875, the Colombian arbitrator filed an opinion holding that the federal government of Colombia had not incurred any liability to the American claimants. The United States arbitrator at the same time filed an opinion maintaining the opposite view. The matter was subsequently referred to an umpire who, in July, 1875, rendered an award in favor of the United States for $33,000, which was considerably less than the demand made by the owners of the steamer.

§ 98. Decision of the Umpire. There were many points in the decision of the umpire, who was Mr. Robert Bunch the British Minister at Bogota, which did not involve the question of responsibility of a federal government for the acts of one of the constituent States, but we refer to the opinion only in that respect. In discussing this question he says: "The reason advanced by the Colombian arbitrator is that the government of that Union cannot be held answerable for the failure of that of Panama to compensate the owners of the Montijo, because the former has no connection with it and private debts, especially with those which have in the case a vicious origin. To this the undersigned (the Umpire) replies, First: That in his opinion the government of the Union has a very clear and decided connection with the debts incurred by the States of the Union towards foreigners whose treaty rights have been invaded or attacked; and Secondly: That the debts so incurred by the separate States are in no way private, but on the contrary, are entirely public in their character."

The Umpire then proceeds to discuss the question; he reviewed the McLeod case at length and in referring to it said that undoubtedly the liability of federal powers for acts of the constituent States may produce to the nation at large the gravest complications: he also held that debts contracted by duly authorized officers of a given State are essentially public and can be the subject of an international arbitration of this nature.1

1 For note 1, see next page.

A full account of this controversy and the award of the umpire can be found in Chapter XXIX of the second volume of Moore's History of International Arbitration.

$ 98.

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166 NATIONAL RESPONSIBILITY FOR STATE ACTS.

There remains to be considered the concluding portion of the sixth reason advanced by the Colombian arbitrator, which is that the government of the Union cannot be held answerable for the failure of that of Panama to compensate the owners of the Montijo because the former has no connection (solidaridad) with private debts, especially with those which have, as in the present case, a vicious origin.

"To this the undersigned replies, first, that in his opinion the government of the Union has a very clear and decided connection with the debts incurred by the States of the Union toward foreigners whose treaty rights have been invaded or attacked; and, secondly, that the debts so incurred by the separate States are in no way private, but, on the contrary, entirely public in their character.

"As regards the first point, it cannot be denied that the treaties under which the residence of foreigners in Colombia is authorized, and their rights during such residence defined and assured, are made with the general government, and not with the separate States of which the Union is composed. The same practice obtains in the United States, in Switzerland, and in all countries in which the federal system is adopted. In the event, then, of the violation of a treaty stipulation, it is evident that a recourse must be had to the entity with which the international engagements were made. There is no one else to whom application can be directed. For treaty purposes the separate States are nonexistent; they have parted with a certain defined portion of their inherent sovereignty, and can only be dealt with through their accredited representative or delegate, the federal or general government.

"But if it be admitted that such is the theory and the practice of the federal system, it is equally clear that the duty of addressing the general government carries with it the right to claim from that government, and from it alone, the fulfillment of the international pact. If a manifest wrong be committed by a separate State, no diplomatic remonstrance can be addressed to it. It is true that in such a case the resident consular officer of a foreign power may call the attention of the transgressing State to the consequences of its action, and may endeavor by timely and friendly intervention on the spot to avoid the necessity of an ultimate application to the general government through the customary diplomatic channel; but should this overture fail, there remains no remedy but the interference of the federal power, which is bound to redress the wrong, and, if necessary, compensate the injured foreigner.

"If this rule which the undersigned believes to be beyond dispute, be correctly laid down, it follows that in every case of international wrong the general government of this republic has a very close connection with the proceedings of the separate States of the Union. As it,

§ 99. Moore's History of International Arbitration.The author wishes to take this opportunity of expressing the

and it alone, is responsible to foreign nations, it is bound to show in every case that it has done its best to obtain satisfaction from the aggressor.

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'But it will probably be said that by the constitution of Colombia the federal power is prohibited from interfering in the domestic disturbances of the States, and that it cannot in justice be made accountable for acts which it has not the power, under the fundamental charter of the republic to prevent or to punish. To this the undersigned will remark that in such a case a treaty is superior to the constitution, which latter must give way. The legislation of the republic must be adapted to the treaty, not the treaty to the laws. This constantly happens in engagements between separate and independent nations. For the purposes of carrying out the stipulations of a treaty, special laws are required. They are made ad hoc, even though they may extend to foreigners' privileges and immunities which the subjects or citizens of one or both of the treaty-making powers do not enjoy at home.

"That under such a rule apparent injustice may occasionally be committed is probably true. But it is more apparent then real. It may seem at first sight unfair to make the federal power, and through it the taxpayers of the country, responsible, morally and pecuniarily, for events over which they have no control, and which they probably disapprove or disavow, but the injustice disappears when this inconvenience is found to be inseparable from the federal system. If a nation deliberately adopts that form of administering its public affairs, it does so with the full knowledge of the consequences it entails. It calculates the advantages and the drawbacks, and cannot complain if the latter now and then make themselves felt.

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"That this liability of the federal power for the acts of the States may produce to the nation at large the gravest complications is matter of history. Probably the most serious case of this inconvenience on record is that of a British subject named McLeod, whose arrest and trial by the State of New York nearly involved Great Britain and the United States in a war. During the Canadian rebellion, an American steamer called the Caroline, which had been engaged in carrying arms to the rebels, was boarded in the night by a party of loyalists, set on fire, and driven over the Falls of Niagara. In this affray an American citizen lost his life. In January, 1841, Alexander McLeod, a British subject, was arrested while engaged in some business in New York State, and imprisoned on a charge of murder because as was alleged, he was concerned in the attack on the vessel. The British Government demanded his release on the ground that he was acting under orders, and that the responsibility rested with Great Britain and not with the individual. The Secretary of State of the United States replied that his government was powerless in the matter, as it could not interfere with the tribunals of the State of New York. Great Britain then caused it to be distinctly understood that the condemnation and execution of

great obligation that all students of international law are under to the Honorable John Bassett Moore for his great

Mr. McLeod would be immediately followed by a declaration of war. Lord Palmerston, then secretary for foreign affairs, told Mr. Stevenson, United States minister in London, that such would be the case. Great efforts were made by the friends of peace, and as much pressure as could properly be applied to the State of New York was brought to bear, and McLeod was acquitted. But two great and powerful nations were on the verge of a disastrous war because the federal power was held liable for the acts of a separate State.

"As regards the second point made by the Colombian arbitrator that the debts incurred to foreigners by the separate States of the Union are private in their character, the undersigned can only express his dissent from the doctrine. If an engagement, pecuniary or other, made by the constitutional head of a State, acting, as in the present case, 'in virtue of powers conferred by law,' is to be considered in the same light as an ordinary mercantile debt and only to be recoverable in the same manner, the possibility of a State contracting with either native or foreigners would soon be reduced to very narrow limits. The chances of repayment would depend on the stability of the contracting government, and this of itself would introduce an element of considerable uncertainty into such transactions.

"The undersigned holds that all debts contracted by duly authorized officers of a given State are essentially public in their character, and that their nonpayment can be made the subject of remonstrance by a foreign nation should the engagements be contracted with its subjects or citizens. It is quite true that Great Britain, the greatest lender of money in existence does not feel herself bound to interfere on behalf of her subjects in every case where they may have lent money to foreign countries, as she holds, as a general rule, that they may be left to find their own remedy for their imprudence; but she explicitly declares that this absentation on her part is a mere matter of discretion, and that she has the undoubted right to interfere whenever she may see fit to do so.

"As regards the vicious origin,' of the present debt, the undersigned does not view it in that light; he cannot, therefore, agree with any deductions from that assumption.

"For these reasons the undersigned holds, as a general principle, that the government of the Union is responsible in certain cases for the wrongs inflicted on foreigners by the separate States, and that debts contracted by the constituted authorities of those States are not private in their character. He is compelled, therefore, to dissent from the sixth reason of the Colombian arbitrator.

"The undersigned has now reviewed to the best of his ability the able and elaborate arguments of the honorable, the arbitrator of Colombia on this question. He wishes he could have brought to the task the same brilliant qualities which Senor Tanco has so liberally displayed, and it would have been agreeable to him to have concurred in the views

and valuable work on International Arbitration and the position of the United States in regard thereto.

To write a history of the fifty-two arbitrations to which the United States has been a party, with references to all the other arbitrations which have settled international disputes between other countries, amounting in all to over one hundred and fifteen separate cases, is an undertaking which any man may well shrink from, no matter how well qualified he may be for the task; the complete and admirable manner, however, in which Mr. Moore has performed and accomplished his work will always remain a monument not only to his great ability, but also to his untiring perseverance.

No one interested in subjects involving arbitrations, treaty rights, rights of citizenship or other matters connected with the foreign relations of the United States should fail either to read the history or to examine the digest volume, as the scope of the work is so wide that almost every conceivable subject involved in international relations which has been the subject of adjudication by international arbitration can be found at its proper place in Mr. Moore's history.1

§ 100. Importance of the "Montijo" decision on the position of the United States.-The claim of the owners of the Montijo was presented through, and prosecuted by, the State Department of the United States, and the arbitrator appointed by the United States was a government official, being the minister resident to the Colombian government. This decision may at some future time be used as a precedent

of a gentleman whom he so highly esteems.'" Moore, International Arbitrations' History, vol. 2, pages 1439-1442. § 99.

1 Moore John Bassett; International Arbitrations-History.

History and Digest of the International Arbitrations to which the United States has been a Party, together with Appendices containing the Treaties relating to such Arbitrations and Historical and Legal Notes on other International Arbitrations, Ancient and Modern, and on the Domestic Commissions of the United States for the Adjustment

of International Claims, By John Bassett Moore, Hamilton Fish Professor of International Law and Diplomacy, Columbia University, New York; Associate of the Institute of International Law; some time Assistant Secretary of State of the United States; author of a work on Extradition and Interstate Rendition, of American Notes on the Conflict of Laws, etc. In six volumes, Washington Government Printing Office, 1898.