latter usually involve the liability of the state if they are not remedied by higher courts and result in an actual injury or denial of justice to aliens.1

1

As in the case of minor officials and even of individuals, the government must assume liability for such wrongful acts of its judges or courts as it negligently fails to prevent or punish, or against which judicial recourse is closed to the injured individual.2 The failure of administrative authorities to execute a judgment 3 may be appropriately considered as a denial of justice.

RESPONSIBILITY FOR POLITICAL SUBDIVISIONS OF THE STATE

§ 82. Responsibility of Central Government for its Constituent Parts. The question is often raised as to whether the central government is liable for the breach of a contract by one of its political subdivisions or for a tort committed by an officer of a constituent state under circumstances rendering that state responsible. In international relations the national government is alone responsible for the proper safeguarding of the rights of foreigners, and aliens have the right to look to the central government in the case of violation of treaty rights. and international obligations of the nation by its constituent parts.1

1 Cotesworth and Powell (Gt. Brit.) v. Colombia, Dec. 14, 1872, Moore's Arb. 2050 at p. 2084, parag. 9 (negligent absence of judge from his official post). Mr. Seward, Sec'y of State, to Mr. Webb, Dec. 7, 1867, 2 Wharton, 615 (fraudulent decision). In the case of Meade v. Spain, Spain acknowledged her liability for the palpable misconduct of her judicial tribunals. Moore's Arb. 3238.

? Jonan (U. S.) v. Mexico, July 4, 1868, Moore's Arb. 3251 (failure of Mexican government to prevent illegal assumption of jurisdiction by its courts, on remonstrance. It is presumed government had the necessary power). Cotesworth and Powell (Gt. Brit.) v. Colombia, Moore's Arb. 2050, 2085 (condonation of illegal act of judge by an amnesty or pardon, thereby also depriving claimant of all appellate recourse or redress); Bark Jones (U. S.) v. Great Britain, Feb. 8, 1853, Moore's Arb. 3051 (refusal to investigate an unjust judgment, but on the contrary sustaining it after remonstrance); Holtzendorff, Handbuch, II, 74; Fiore, Dr. int. codifié, §§ 339, 340; Calvo, I, § 348; Pradier-Fodéré, I, § 402; Bluntschli, § 340.

* Montano (Peru) v. U. S., Jan. 12, 1863, Moore's Arb. 1630, 1634; Fabiani (France) v. Venezuela, Feb. 24, 1891, ibid. 4878, at p. 4907; Polak v. Egypt, 3 Clunet (1876), 499.

• Oppenheim, 210; Phillimore, I, 194; Triepel, 359 et seq.; Anzilotti in 13 R. G. D. L. P. (1906), 301 and authorities there cited.

In the matter of contracts entered into with corporate subdivisions of a general government a distinction is recognized, and it has been held that in the absence of a definite benefit to the central government or other factor indicating national liability for the debt, the general government is not liable for contractual debts due from or by its cities, villages or their inhabitants.1 Especially is this true where the debt is contracted by the municipality or commonwealth in its corporate character as a fiscus for distinctly corporate purposes.2 Where, however, there has been some benefit to the general government, or some control over or interest in the contract by the general government, the latter has been held liable for breach of the contract by a constituent state or municipality.3

1 Thompson (U. S.) v. Mexico, July 4, 1868, Moore's Arb. 3484; Nolan (U. S.) v. Mexico, ibid. 34–84; La Guiara Light and Power Co. (U. S.) v. Venezuela, Feb. 17, 1903, Ralston, 181; Thomson-Houston Co. (U. S.) v. Venezuela, ibid. 169 (dictum). But see contra Ballistini (France) v. Venezuela, Feb. 19, 1902, ibid. 503, 506 (no reason given for award).

2 Thus, the United States has been held not responsible for the repudiation of state bonds nor a guarantor of their payment (Schweitzer v. U. S., 21 Ct. Cl. 303), nor for the bonds of a territory, although the governor was appointed by the President and Congress failed to disapprove the issue of the bonds or their repudiation. Florida Bond Cases, Gt. Brit. v. U. S., Feb. 8, 1853, Moore's Arb. 3594-3612. Similarly, the U. S. is not liable for the debts [or torts] of officers of a Territory organized under Congressional legislation. (Mr. Bayard to Mr. West, June 1, 1885, For. Rel. 1885, 452.) Mexico was held not liable for the repudiation by Texas of a contract (scrip) representing land in Texas, that state having later seceded from Mexico. Union Land Co. v. Mexico, March 3, 1849, Moore's Arb. 3448, 3451.

3 Participation of the minister of public works in a contract with a municipal council and an exemption from the payment of federal customs duties. Rudloff (U. S.) v. Venezuela, Feb. 17, 1903, Ralston, 182, 197. See also Daniel (France) v. Venezuela, Feb. 19, 1902, ibid. 507, 509 and Dominique (France) v. Venezuela, Feb. 19, 1902, Sen. Doc. 533, 59th Cong., 1st sess., 207 (various degrees of national interest in the contract). Beckman (Germany) v. Venezuela, Feb. 13, 1903, Ralston, 598, 599 (forced loans-quasi-contract-exacted by a constituent state, the proceeds of which were used for the defense of the entire nation). See also Baasch and Römer (Netherlands) v. Venezuela, Feb. 28, 1903, Ralston, 906 and Bolivar Ry. Co. (Gt. Brit.) v. Venezuela, Feb. 13, 1903, ibid. 391; Ballistini (France) v. Venezuela, Feb. 19, 1902, Ralston, 503, 506 (supplies furnished to a constituent state-no reason given for the award); Metzger (U. S.) v. Haiti, Oct. 18, 1899, For. Rel. 1901, 271 (central government had assumed diplomatic negotiations for settlement of claim against municipality; held an agreement binding on government). See also extracts quoted in Ralston's International arbitral law, §§ 457-467.

1

The international responsibility of the nation or central government for the acts of its political subdivisions or dependencies, such as suzerain and vassal states, protectorates, constituent states under a real or personal union, or federation or confederation of states 1 depends generally upon the extent to which the political subdivision or dependency has constitutionally been deprived of independent international personality. If the central authority undertakes by treaty or otherwise to represent its constituent parts in international affairs, it must discharge the resulting obligations, although constitutionally the fulfillment of many of these duties may in first instance be delegated to the political subdivisions of the nation.2 Constitutional arguments do not avail to excuse the non-performance of international duties, although the constitutional inability of the United States to compel the states to satisfy the treaty obligations of the nation has often furnished a controversial ground for contesting its legal liability." The torts committed against aliens by officers or authorities of a political subdivision of a nation, under circumstances which would render the subdivision responsible, generally bind the central government to indemnify the injured alien. The reason for this, as has

5

1 Westlake, I, ch. III; Tchernoff, 188-193. On constituent states see Donot, M., De la responsabilité de l'état fédéral à raison des actes des états particuliers, Paris, 1912, p. 100 et seq. On protectorates see Hall, Foreign powers and jurisdiction, § 96, and Jenkins, H., British rule and jurisdiction, etc., Oxford, 1902, p. 175.

* In a dictum by Plumley, Umpire, in Davy (Gt. Brit.) v. Venezuela, Feb. 13, 1903, Ralston, 411, a difference was deduced from the constitutional character of the bond existing between the constituent state and the central government, in the fact that in the case of some countries, e. g., Venezuela, where the states are carved out of the national domain and formed in accordance with the national wishes, the federal government is held to more direct responsibility for the acts of its constituent states than in the case of a country like the United States where the federal government merely has delegated powers, sovereignty being reserved in the separate states.

* Lord Clarendon to Mr. Erskine, April 21, 1870, 65 St. Pap. 669, Baty, 152 (case in Greece); Speech of Senator Edmunds, June 3, 1886, Cong. Record v. 17, part 5, p. 5186; Mr. Fish, Sec'y of State, to Mr. Partridge, March 5, 1875, Moore's Dig. VI, 816 (case in Brazil); De Brissot (U. S.) v. Venezuela, Dec. 5, 1885, Moore's Arb. 2949–2967; Trumbull (Chile) v. U. S., Aug. 7, 1892, ibid. 3569. See article by Despagnet, "Les difficultés venant de la constitution de certains pays," 2 R. G. D. I. P. (1895), 181 et seq.

Generally without success. See infra, § 91.

* Little, Commissioner in De Brissot and Rawdon case (U. S.) v. Venezuela, Dec. 5,

already been observed, is that the state is a unit in its international relations; and in view of the inability of a constituent political subdivision of the state to commit an international delinquency on its own responsibility alone, the parent government is bound to answer for it.1

§ 83. Succession of States and Apportionment of Debts.

The matters connected with the distribution of public obligations in the case of the division of a state into distinct states, or the cession of a portion of one state to another have engaged the attention of numerous writers without having led to any definite conclusion except that no universal rule of international law on the subject can be said to exist.2 1885, Moore's Arb. 2949, 2967; Davy (Gt. Brit.) v. Venezuela, Feb. 13, 1903, Ralston, 411; Torreny (U. S.) v. Venezuela, Feb. 17, 1903, Ralston, 162 (local police officer); Jones (U. S.) v. Mexico, March 3, 1849, Moore's Arb. 3019 (illegal detention of vessel by governor of a state); Montijo (U. S.) v. Colombia, Aug. 17, 1874, Moore's Arb. 1421, 1443; Dominique (France) v. Venezuela, Feb. 19, 1902, Sen. Doc. 533, 59th Cong., 1st sess., 206 (municipality). See also Knapp and Reynolds claims, Moore's Dig. VI, 800 (connivance of local authorities in brigandage).

1 It is on this theory that the United States has on several occasions felt itself constrained to award indemnities to aliens injured under circumstances rendering the states responsible for the injury. Foreign governments are not compelled to look to the constituent states for the vindication of the treaty rights of their nationals, and the inability of the federal government to compel the states to observe these rights or make reparation for their violation lays the foundation for the liability of the United States. Presidents Harrison, McKinley, Roosevelt and Taft and the authors of numerous bills introduced in Congress to give the federal courts jurisdiction over offenses against aliens, considered the police and judiciary of the state in such cases as federal agents. See infra, p. 226 (mob violence) and footnote 1. In this respect, the constitutional inability operates in the same way as a negligent failure to bring local officers to justice. De Brissot and Davy cases, footnote 1, supra. If local officers depend for their authority on the central government, they may be considered government agents. Baasch and Römer (Netherlands) v. Venezuela, Feb. 28, 1903, Ralston, 906.

2 The details of this exceedingly interesting subject, which may become of renewed importance at the conclusion of the present European War, can hardly be discussed here. It is a very complicated subject, and precedents depend so largely upon the special facts and circumstances of each case, that conclusions of principle are not easily deducible. The ablest discussions of the subject, involving the transmission and divisibility of obligations arising out of public debts, general and local, and out of contracts and concessions will be found in Westlake, I, 58 et seq.; Keith, Arthur B. The theory of state succession, London, 1907, ch. VIII; Huber, Max, Die Staatensuccession, Leipzig, 1898, § 125 et seq.; Schönborn, W., Staatensuccessionen, in Handbuch des Völkerrechts, II, 2, Stuttgart, 1913, pp. 55-60, 80-84, 96-109, 113,

3

As a general rule, however, it may be said that the state, through all changing forms of government,1 is responsible for the debts of its titular government and even of general de facto governments. Public debts are not extinguished by the division of a state into distinct states, whether by war or by mutual consent.2 According to the weight of authority among international law writers, however, there appears to be no legal obligation on the part of a seceding province or on the part of a country taking over a certain portion of territory from another country to assume some share of the national debt when the identity of the parent state is maintained. They recognize, however, a moral obligation to assume a proportionate share of the general debt of the parent government which has been incurred for the benefit of the entire country. Many of the continental writers supported by the evidence of numerous treaties, erect the moral obligation into a legal one, whereas the Anglo-American publicists-possibly influenced by the fact that their countries have been annexing and conquering countries and in turn supported by various treaties, such as the treaties following the Franco-Prussian War of 1871 and the Spanish-American War of 1898, and the treaties of cession of Louisiana, Florida, New Mexico and California, assert vigorously the merely moral character of the obligation. Moreover, no uniform rule for the apportionment of the debt has ever been agreed upon,5 a further evidence of the non-legal

117-118; Appleton, H., Des effets des annexions de territoires sur les dettes, etc., Paris, 1894 (part 2 of a doctoral dissertation); and Cavaglieri, Arrigo, La dottrina della successione de stato a stato, etc., Pisa, 1910, ch. II, § 11, p. 89 et seq.; see also Moore's Dig. I, § 96 et seq.

Westlake, I, 58; Oppenheim, I, 122; Halleck, I, 96. See also Zouche, Brierly's trans., § 66, in which Aristotle's contrary view is cited. The rule of the text, which was favored by Grotius, II, 9, § 3, is now uniformly adopted. Moore's Dig. I, 249 et seq.; Bolivar Ry. Co. (Gt. Brit.) v. Venezuela, Feb. 17, 1903, Ralston, 394; Neapolitan Indemnity, convention of October 14, 1832, Moore's Arb. 4579. For de facto governments see infra, p.

The U. S., as a military occupant, however, was not liable for the debts of Cuba. Griggs, Atty. Gen., 22 Op. Atty. Gen. 384.

2 Hall, 91, 92. Case of the ship Tarquin (U. S.) v. Brazilian Indemnity, Jan. 24, 1849, Moore's Arb. 4617.

1 Hall, 92; Oppenheim, 129, and authorities cited; Magoon's Reports, 189, 190. 'Oppenheim, 130, 131; Hall, 92; Keith, op. cit., 60 et seq., and authorities cited. *See different principles set forth by Huber, op. cit., § 134.