SECTION 105-The position reversed; The Castine case; War of 1812; 106-Status of Cuba. 107 Status of Cuba involved in the Neely case; extradition. SECTION 108-Uncertainty as to status of Cuba from internal standpoint. 109-National unity as to all foreign powers; a principle enunciated by the Congress of the Confederation and continued until the present time. § 72. Subject, so far, viewed from internal standpoints. The nationality and sovereignty of the United States has, up to this point been discussed from the standpoints of inhabitants of the United States, and of the States or territories thereof. Under such conditions, the extent thereof must be determined according to municipal and constitutional law, as the same is administered in this country; the sovereignty and reserved powers of the various States, as well as the constitutional limitations upon the Federal Government, must also be taken into consideration. $73. Subject now to be viewed from external standpoints. When, however, the nationality and sovereignty of the United States is considered from external standpoints, all of those internal shades of difference are entirely eliminated; no matter how extensive the powers of the States may be as to internal matters they have but little, if any, bearing on foreign complications as viewed from external standpoints. 74. Same distinctions exist as to all federated powers. -We shall see in the succeeding chapter on the treaty-making power as exercised by the central governments of other confederations, that this distinction always exists as to the internal and external relations of federated governments, although the extent of the power lodged in the central governments, or reserved in the constituent states, may be a matter requiring judicial determination as to internal affairs. The general rule is that when a confederation deals with foreign powers it necessarily does so as a single national unit. This rule is practically universal, as in almost all federations the central government has absorbed all treaty-making power; § 74. 1 See §§ 111 et seq., chapter IV., post. in fact all the functions of sovereignty, so far as they affect the relations of the confederation or the constituent states with foreign powers, must be exercised by the central government, in order to avoid the complications which would result from their exercise by the individual states, each necessarily establishing different and therefore conflicting relations.2 § 75. Recent Insular cases decisions only involve these questions from internal standpoints.-As has been already stated, the recent decisions of the Supreme Court1 involve all the internal shades of difference between the States of this union, organized territories, such as Arizona and New Mexico, unorganized territories such as Alaska was until recently, and those territories which have been recently acquired, as well as that of the Island of Cuba which, while it has not been acquired by the United States is now occupied by its military forces, and is therefore under its jurisdiction.2 While the Supreme Court has to some extent avoided deciding all the points which were raised on the arguments, the various degrees of sovereignty possessed by the Central Government, and exercised over the different territories above enumerated, have been discussed as well as the difference in the status of the various territories composing the United States and which are under its jurisdiction. Those decisions, however, do not affect the external relations of the United States with foreign powers, because as to them there is practically very little, if any, difference as to any territory which comes under the jurisdiction of the United States.3 76. Rule from external standpoints, based on international law. This condition necessarily results from the 2 That this position has been taken by the United States as other confederations is demonstrated by the claim in the Montijo case. See references at length to the proceedings in §§ 96-100 of this chapter and footnotes thereto. $ 75. § 61, ante, and references to pending cases. See also § 101, post. 2 See reference to Neely case involving the status of Cuba and statutes affecting Cuba in §§ 106107, post, and notes thereunder. 3 See extract cited in § 78, note 1 post, Fong Yue Ting vs. United 'See the cases collated under States, U. S. Sup. Ct. 1893, 149 U. S. 698, GRAY, J. admitted rule of international law that all the known territory on the face of the earth must be under the jurisdiction of some government, which not only acknowledges that it has jurisdiction thereover, but which is also recognized by the other powers as having, and exercising, such jurisdiction; this rule extends not only to the main territory, but to all territory which is in any way directly or remotely under the jurisdiction of any recognized sovereignty. § 77. Undivided sovereignty of governments exercising jurisdiction recognized by other powers.-It is a well settled principle of international law that where jurisdiction is exercised de jure or de facto by any sovereign power, the right of such power to negotiate, and enforce, treaties affecting such territory is recognized by, and binding upon, all other powers treating with it, or having any relations with such territory. The Supreme Court has decided that wherever the political side of the United States Government recognizes the existence of a government and negotiates with it, the courts must uphold and enforce the treaty so made, whether it be with a foreign power or an Indian tribe; and that it is not within the province of the court to go behind the execution of the treaty and to determine whether it is or is not made by the proper authorities.1 § 78. Central government of federations the only one recognized by foreign powers.-This recognition of the United States as a national unit by all other powers is further strengthened by the fact that the States themselves are prohibited by the Constitution from exercising any treaty $ 77. the courts can no more go behind it for the purpose of annulling its effect and operation, than they can behind an act of Congress. (1 Cranch, 103; 6 Pet. 735; 10 How. 442; 2 Pet. 307, 309, 314; 3 Story Const. Law, p. 695.)" Fellows vs. Blacksmith, U. S. Sup. Ct. 1856, 19 Howard, 366, p. 372, NELSON, J. See also Jones vs. United States, "An objection was taken, on the argument, to the validity of the treaty, on the ground that the Tonawanda band of the Seneca Indians were not represented by the chiefs and head men of the band in the negotiations and execution of it. But the answer to this is, that the treaty, after being executed and ratified by the proper author- U. S. Sup. Ct. 1890, 137 U. S. 202, ities of the Government, becomes GRAY, J. the supreme law of the land, and/ 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.1 879. 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 government 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 |