stitutional division of power between state and national governments has offered an obstacle to the performance of this demand. In the case of army and naval officers11 and civil officers of the United States government, misconduct in office is made a crime against the United States, and offences by such officers are cognizable by federal courts. The same is true of persons guilty of violating the immunities of foreign diplomatic officers, or the obligations of neutrality, and a few other acts forbidden by international law, such as counterfeiting foreign securities. No statutes have, however, given the federal courts criminal jurisdiction of persons violating rights of aliens guaranteed by treaty or international law, and consequently unless the state government, which cannot feel the pressure of international responsibility, chooses to prosecute such offenders, 12 the duty will not be performed. The constitution undoubtedly permits such an extension of federal jurisdiction, and it would seem that the adequate enforcement of international obligations demands it.

In the place of punishment of offenders against international rights, states have sometimes demanded as a reparation that they be delivered up for punishment by its own tribunals. This was demanded by the Russian Czar upon the arrest of his ambassador in London in 1708,13 and by the King of France upon the assault of his secretary of legation at Philadelphia in 1784.1 The demand was refused in both of these cases and it seems that no such obligation of reparation exists under international law. A state may extradite fugitives from justice in its territory for offenses committed abroad,15 but the theory of territorial sovereignty upon which international law is so largely based places it under no obligation to surrender persons for acts committed

11On court martial punishment of the commander of the United States vessel Wachusett, in reparation for the seizure of the confederate cruiser Florida in Brazilian territorial waters, see Moore's Digest, 7;1090.

12The Continental Congress recommended that the states prosecute offenses against the Law of Nations, (Res. Nov. 23, 1781, Journ. Cong., 7;181, Ford ed., 21;1137) and offered to pay for the prosecution of such offenses, (Res. Aug. 2, 1779, Ibid., 5;232, Ford ed., 14;914).

13 See statement of this case in Triquet vs. Bath, 3 Burr, 1478, (K. B. 1764), Scott, 6., Holland, studies in international law, p. 187.

14 Res Publica vs. De Longchamps, 1 Dall. 111, (Pa. 1784).

15 In countries which adhere to the theory of jurisdiction by nationality even extradition for offenses committed abroad is refused in the case of their own subjects. See Italian refusal to extradite its subjects even when no exemption was specified in treaty. Moore's Digest, 4;290-297. In this case Italy punished the persons whose extradition was asked.

within its own jurisdiction. To do so would be to acknowledge an extra-territorial effect of the laws of the foreign country. In-. ternational law may require a state to punish offenders as a reparation for international wrongs, but it does not require it to submit them to the punishment of the injured state.

(e) On several occasions the release of officers or persons held under public authority has been the form of reparation demanded. Where the person is held by the executive or judicial authority of the national government, that authority can grant release, in the former case by executive action as in the Trent affair of 1861;16 in the latter by writ of habeas corpus which may be instituted by executive authority, or by a direct statutory prohibition of jurisdiction as in the case of foreign diplomatic officers.17

Where the person is held by authority of a state court, again an obstacle may be presented to the effective fulfilling of international duty, as was illustrated in the case of McLeod,18 an English soldier, held by authority of the state of New York for an alleged murder, and whose release was demanded by Great Britain. In this case the national government was unable to effect a release, and as a consequence a statute19 was soon after passed providing that persons held by state authority whose release was demanded on grounds of international law might be brought before the federal courts on habeas corpus, in which case the national authorities might upon satisfactory evidence bring about a release. The statutory provisions excluding cases against diplomatic agents from the jurisdiction of state courts altogether, remove this obstacle from the release of such persons by national authority.

It seems that the constitution offers no obstacle to the observance of all national duties of reparation. The principle of national supremacy in the fields constitutionally delegated to the national government, including foreign relations, permits of legislation by congress and the exercise of jurisdiction by federal courts, "necessary and proper" to fulfill all duties required by international law or treaty.20 However, additional legislation to

16On release of Mason and Slidell as a reparation for their illegal seizure from the British vessel Trent, see Moore's Digest, 7;768-770. 17 Act, Apr. 30, 1790, I Stat. 117, Rev. Stat. sec. 4063-4064.

18 People vs. McLeod, 25 Wend. 483, (N. Y. 1841) in which an application for a writ of habeas corpus was refused by the state court. See Moore's Digest, 2;24-25.

19 Act, Aug. 29, 1842, Rev. Stat. 753, Moore's Digest, 2;30.

20 See Pomeroy, J. N., An introduction to the Constitutional law of

make some of this constitutional power effective seems to be nec

essary.

(2) The fulfillment of the duty of reparation may be secured by the provision of an adequate machinery for prosecuting claims for reparation. The final method for prosecuting any claim for reparation is the resort to force by way of intervention, reprisal or war. Observance of the "duty" of reparation, if it can be called a duty under such coercion, is a matter of policy and certainly requires no additional sanction from municipal law. We have to do solely with the duty of making repartion for acknowledged breaches of international law.

The prosecution of claims for reparation may be by, (a) judicial means provided by municipal law, (b) diplomacy, or (c) arbitration.

(a) By an act of 185521 a court of claims was established, at first as an advisory body, but later22 as a court with power to compel payment of money from general appropriations for that purpose. Aliens are permitted to prosecute suits in the court of claims if their government accords a like privilege to the United States citizens, and most European governments have been included in this class.23 The jurisdiction of the court extends over claims founded on acts of congress, executive regulations, contracts express or implied with the United States, damage cases not sounding in tort and all claims referred to it by either house

the United States, 9th ed., N. Y., 1886, p. 571 Supremacy, N. Y., 1913, passim.

21 Act, Feb. 24, 1855, 10 Stat. 612.

Corwin, E. S., National

22 Act, Mch. 3, 1863, 12 Stat. 765. Under this act the court was still simply advisory, as the Secretary of the Treasury had a discretionery power to revise its decision; consequently the supreme court refused the appellate jurisdiction given to it. (Gordon vs. U. S., 2 Wall, 561). This difficulty was remedied by the act of Mch. 17, 1866, see also Tucker act, Mch. 2, 1887, 24 Stat. 505, U. S. Rev. Stat. 1059, 1089, Judicial Code, 1911, 36 Stat. 1087, sec. 142,180.

23 Act, July 27, 1868, 15 Stat. 243; Rev. Stat. 1068. Judicial Code Privileges accorded subjects of Great Britain, (U. S. vs. O'Keefe, II Wall. 178; Carlisle vs. U. S. 16 Wall. 147) Belgium, (DeGive vs. U. S. 7 Ct. Cl. 517); France, (Rothschild vs. U. S. 6 Ct. Cl. 204; Dauphin vs. U. S. 6 Ct. Cl. 221); Italy, (Fichera vs. U. S. 9 Ct. Cl. 254); Prussia, (Brown vs. U. S. 5 Ct. Cl. 571); Spain, (Molina vs. U. S. 6 Ct. Cl. 571); Switzerland, (Lobsiger vs. U. S. 5 Ct. Cl. 687). See Roger Foster, A Treatise on Federal Practice, Civil and Criminal, 5th ed., 3 vols., Chicago, 1913, 3;2309.

of congress. It is expressly stated, however, that the jurisdiction does not extend to claims "growing out of or dependent upon treaty stipulations entered into with foreign nations or with Indian tribes."'25 As the court's jurisdiction is limited to the express terms of statute it does not extend to claims based on general international law. The court therefore could not aid in enforcing the national duty of reparation unless congress had first acted, except in so far as the obligation to pay contract debts may be considered a duty of international law.

27

(b) Diplomatic representation is the most frequent method of presenting demands for reparation. These must be presented to the Department of State and must come from a foreign government through its diplomatic representative in the United States.20 The Department of State will not listen to a claim presented by a foreign private person and congress will not consider any alien claims not coming through the Department of State. The action of the Department of State upon claims is entirely discretionary, and its recommendation to congress although generally followed has no controlling effect. Congress having acted, it would seem that the payment of claims becomes a purely administrative act and the foreign claimant can have recourse to the court of claims on the authority of this statute, or to an action of mandamus to compel payment by the Secretary of the Treasury or the Secretary of State.

(c) The conclusion of arbitration treaties and the determination to submit any particular claim to arbitration are political questions and beyond the power of municipal law to control. The United States has concluded a large number of special as well as general arbitration treaties.28 The former usually specify the procedure to be observed and the subjects to be submitted to the jurisdiction of the arbitral court.29 The latter provides that all

24 Act, Feb. 24, 1855, 10 Stat. 612; Rev. Stat. 1059. Judicial Code, Act, Mch. 3, 1911, 36 Stat. 1087, sec. 145, District courts now exercise a concurrent jurisdiction in these matters, Ibid., sec. 24.

25 Act, Mch. 3, 1863, 12 Stat. 765, sec. 9, Judicial Code, 1911, 36 Stat.

1087, sec. 153.

26U. S. vs. Diekelman, 92 U. S. 520, Moore's Digest, 6;607-609.

27 Magoon's Reports 338; see also 43 Cong., Ist Sess., Report No. 496, committee on war claims, May 2, 1874; Moore's Digest, 6;608.

28 Supra, p. 26, note 18.

29 It has been held that decisions of an arbitral court beyond its competence as defined by treaty are void. See Comegys vs. Vasse, 1 Pet. 193; Trevall vs. Bache, 14 Pet. 95; Judson vs. Corcoran, 17 How. 612; Moore's Digest, 7;30-33.

questions of a class or all questions except those of a specified class shall be submitted to arbitration, yet although treaties are, by the constitution, the law of the land, cases do not come before arbitral tribunals automatically. The submission of any case is a political question, upon which the executive power of the government has discretion.

A claim having been submitted to arbitration and an award given, the matter is subject to enforcement by municipal law. It has been held that an arbitral decision is final and as binding on the courts as an act of congress.30 It would therefore seem that the payment of the award is purely administrative in character, and can be compelled by mandamus. This however is not true in cases in which the award has been for the United States, and its citizens claim payment. If it develops that fraud was practiced, the United States government can reopen the whole matter and refuse payment to its citizens.31 The arbitral decision is res judicata as between the governments, but not as between the government and its own subjects.

Although the submission of questions to arbitration even under general treaties is a political question and beyond the control of municipal law, the establishment of a mode of procedure by means of such treaties and of a permanent panel of judges as is provided by the Hague conventions undoubtedly affords an important sanction to the equitable fulfillment of duties of reparation. The establishment of a permanent court of arbitration with recognized jurisdiction, as was attempted and notably favored by the United States' delegation at the second Hague conference, would add an even more effective sanction of similar character. REPARATION BY INFERIOR GOVERNMENTAL DIVISIONS, PUBLIC OFFICERS, AND PRIVATE PERSONS

As has been stated, the national government of the United States is primarily responsible for all breaches of international law by itself or its citizens and reparation for such torts may always be expected from it. This does not, however, prevent the injured party seeking reparation from inferior governmental organs, officers, or individuals. We may therefore consider the mu30Comegys vs. Vasse, I Pet. 193, 212. La Ninfa, 75 Fed. Rep. 513,

(1896).

31 Frelinghuysen vs. Key, 110 U. S. 63; Boynton vs. Blaine, 139 U. S. 306; U. S. vs. LaAbra Silver Mining Co., 32 Ct. Cl. 462, (1897); LaAbra Silver Mining Co. vs. U. S., 175 U. S. 423, (1899). See Moore's Digest, 7;65-68.