are at present without that legal power which the position of the United States before the world as a sovereign, national State demands. This single deficiency consists in its inability either itself to furnish, or to compel the States to furnish, legal redress to resident aliens for injuries to life or property suffered by them at the hands of American citizens. The commission of such acts, though giving rise to valid complaint on the part of the nations whose subjects are injured, are, according to existing American law, offenses against the laws of the individual States within whose borders they occur. As such they are not punishable in the courts of the United States, and thus in a number of instances the National government has felt obliged to confess to foreign nations that it is without the legal authority to furnish that legal redress which they have demanded.1

It would seem, however, that this incompetency on the part of the Federal Government is statutory rather than constitutional. That is to say, there would seem to be no valid constitutional objection to an act of Congress giving to the federal courts cognizance of all offenses for which the United States may, according to the Law of Nations, be held responsible to foreign powers. In fact, the passage of such a law has been more than once suggested to Congress

1 As a matter of fact the United States has never admitted it to be a principle of international law that it may be held responsible to foreign powers in these cases. The equity of their demands it has, however, several times recognized by appropriating pecuniary indemnities to the families of those killed, as, for example, in the Spanish riots case in 1851 and in the Italian lynching case at New Orleans in 1891.

by the President. A decision of the Supreme Court which by analogy would probably sustain such legislation is that rendered in United States v. Arjona (120 U. S., 479). Arjona, the defendant, was indicted under an act of Congress of 1884 providing for the punishment of persons counterfeiting the securities of foreign governments. Upon the constitutionality of this act being questioned upon the ground that, though the United States had the implied right to declare criminal the counterfeiting of its own bonds and notes, it had not the power thus to protect those of other powers, the Supreme Court, in its opinion, said: "The National Government is . . . made responsible to foreign nations for all violations by the United States of their international obligations, and because of this Congress is expressly authorized 'to define and punish . . . offenses against the law of nations.' . . Consequently a law which is necessary and proper to afford this protection is one that Congress may enact because it is one needed to carry into execution a power conferred by the Constitution on the government of the United States exclusively. There is no authority in the United States to require the passage and enforcement of such a law by the States. Therefore, the United States must have the power to pass it and enforce it themselves, or be unable to perform a duty which they may owe to another Nation and which the law of nations has imposed on them as part of their international obligations. This, however, does not prevent a State from providing for the punishment of the same thing, for here, as in the case of counterfeiting the coin of the

United States, the act may be an offense against the authority of a State, as well as that of the United States.''1

1 Cf. on this whole subject the essay by J. I. Chamberlain, "The Position of the Federal Government of the United States in Regard to Crimes Committed against the Subjects of a Foreign Nation Within the States;" also Reports of American Bar Association for 1891, 1892, 1893; Congressional Record, 52d Congress, 1st Session, 1892; Annual Message of President, December, 1901.

CHAPTER VI

FEDERAL CONTROL OF STATE GOVERNMENTS

IN what has gone before, the sovereignty of the United States as opposed to and inconsistent with the continued sovereignty of its individual commonwealth members has been sufficiently declared. Whatever

doubt there may have been as to this before the Civil War, the result of that gigantic struggle left no room for subsequent disagreement, and the unequivocal assertions of the federal courts simply registered conclusions that no one thereafter could rationally question. Starting, then, from this fundamental fact that, looking at the matter from a purely legal standpoint, the individual individual Commonwealths constitute simply governmental or administrative districts of the United States, we shall now proceed to consider the degree of autonomy secured them by the federal Constitution. This subject we may conveniently divide into two parts. First, we may examine the degree of control that the Federal Government may constitutionally exercise over the form of governments that the several States may establish for themselves; and, secondly, the extent to which the General Government may supervise or control the exercise by the States of those powers that are reserved to them.

First, then, as to the control that may be constitutionally exercised by the United States over the forms of governments of its constituent units.

Speaking generally it may be said that, providing its government be republican in form, each State of the Union may establish such governmental organs as it sees fit, and apportion among them its executive, legislative, and judicial powers according to its own judgment as to what is expedient and proper.

The federal Constitution provides that "The United States shall guarantee to every State in this Union. a republican form of government, and shall protect each of them against invasion; and on application of the legislatures, or of the executive (when the legislature cannot be convened) against domestic violence." (Art. IV, sec. 4.)

In form, the first clause of this section would appear to be for the benefit of the States and to impose a duty upon the Federal Government, and such undoubtedly would be its effect should a foreign power attempt to impose a government of any sort whatever upon the people of one of the States against their will; or should a domestic revolution result in the establishment in power of a government not sanctioned by law or not freely agreed to by the electorate. In fact, however, as we have already seen, and as will presently be more particularly spoken of, this clause was so interpreted during reconstruction times as to give to the Federal Government an almost unlimited power of control for several years of the domestic affairs of those States that had been in rebellion against its authority.