120 WRIGHT— POSITION OF FOREIGN RELATIONS 



decisions^^ as mitigations of international responsibility. It fol- 

 was not deterred from pressing her claims on account of the Louisiana 

 lynchings during the nineties by the plea that the United States had not 

 passed legislation necessary to give effect to treaties. (Moore, Digest, 6: 

 848, United States Foreign Relations, 1901, 283-299.) The United States 

 saw no merit in the British contention that lack of legislation excused it's 

 failure to prevent departure of the Alabama in 1862 and the Geneva Arbitra- 

 tion of 1871 upheld the American position saying, " The government of Her 

 Britannic Majesty cannot justify itself for failure in due diligence on the 

 plea of insufficiency of the legal means of action which it possessed." 

 (Moore, Digest, 6: 1061 ; Malloy, Treaties of the United States, i: 719; 

 Moore, International Arbitrations, 4: 4101-4109; Digest, 7: 878.) The 

 American Continental Congress recognized this need of legislation in order to 

 meet many international responsibilities and urged the passage of suitable laws 

 by the states (Journ. Congress, 7: 181; Ford ed., 21: 1137). The Constitu- 

 tion authorizes such legislation (Art. i, sec. 8, cl. 10) and Congress has 

 enacted many statutes for this purpose. (Wright, Enforcement of Int. Law 

 through Municipal Law, pp. 221-223; infra, sees. 112-122.) Presidents have 

 repeatedly urged further legislation of this character, especially legislation 

 giving federal courts jurisdiction adequate to protect the treaty rights of 

 •aliens. (Pres. Harrison, Message, Dec. 9, 1891 ; Pres. McKinley, Messages, 

 Dec. S, 1899, Dec. 3, 1900; Pres. Roosevelt', Message, Dec, 1906; Pres. 

 'Taft, The United States and Peace, N. Y., 1914, pp. 64-68.) The courts, 

 lattorneys general and text writers have insisted that the passage of such 

 legislation is a constitutional duty of Congress. (Iredall, J., in Ware 

 V. Hylton (1796), i Dall, 199; Gushing, Att. Gen. 6 Op. 291 (1854), Moore, 

 5 : 370 ; Willoughby, Constitutional Law, i : 487 ; Wheaton, Elements of In- 

 ternational Law, sec. 266, Dana's note, pp. 339, 715.) We may agree with 

 Mr. Root : " It is to be hoped that our government wilt never again attempt 

 to shelter itself from responsibility for the enforcement of Its treaty obli- 

 gations to protect foreigners, by alleging its own failure to enact the laws 

 necessary to the discharge of those obligations." (Proc. American Society 

 of Int. Lazu, 4: 25.) See also excellent article by C. C. Hyde, Proc. Acad, 

 of Pol. Sci, 7 ■■ 558. 



13 " This department has contested and denied the doctrine that a gov- 

 ernment may set up the judgment of one of its own courts as a bar to an 

 international claim, when such judgment is shown to have been unjust or 

 in violation of the principles of international law." (Report of Mr. Bayard, 

 Sec. of State, to the President, Feb. 26, 1887. Sen. Ex. Doc. 109, 49th Cong., 

 2d Sess., Moore, Digest, 6: 667.) See also The Betsey, U. S. v. Great 

 Britain, adjudicated by the mixed commission formed under Article 7 of 

 the Jay treaty of 1794. Moore, Int. Arb., 3 : 3208, especially Commissioner 

 Pinckney's opinion (Ibid., 3 : 3182) ; Wheaton's argument in the Danish 

 claims arbitration, Moore, Int. Arb., 5 : 4555 ; Hale's Report of Commission 

 formed under Article 12 of the Treaty of Washington, 6: 88, Moore, Int. 

 Arb. 3: 3209; Wharton, Digest, 2: 672; Moore, Digest, 6: 695-697; Cotes- 

 worth and Powell Case, Great Britain v. Colombia, Moore, Int. Arb., 2: 

 2081; Justice Davis in Gushing, Administrator, z'. U. S., 22 Ct. cl. i, 1886; 



