alone in litigated cases are competent to expound the laws of the land, among which, and of a paramount nature, is the treaty in question." Mr. Jefferson, Sec. of State, to the French minister, March 20, 1793, 5 MS. Dom. Let. 73. The seventh article of the treaty of 1778 provided that ships of war and privateers of France might freely carry the ships and goods taken from their enemies into the ports of the United States without being obliged to pay any fees to the officers of the admiralty, or any other judges; that such prizes were not to be arrested or seized when they entered the ports of the United States; that the officers of the United States should not make any examination concerning the lawfulness of the prizes; that they might depart at any time, and carry their prizes to the places expressed in their commissions; but that, on the contrary, no shelter or refuge should be given, in the ports of the United States, to such ships as had been made prize of the subjects, people, or property of France; but if such should come in, being forced by stress of weather or the danger of the sea, all proper means should be vigorously used to induce them to go out and retire as soon as possible. Under the neutrality act of 1794 there was a series of arrests of French vessels in United States ports, the validity of which arrests was adjudicated by the admiralty courts. Of this intervention of the judiciary the French ministers in the United States complained, holding that French vessels in the United States were under such circumstances entitled to come and go as they pleased. But the reply was that in all cases of disputed rights, the judiciary must be appealed to; and that whether such a right as that claimed by France was given by the treaty was the question at issue, which, under a constitutional system like that of the United States, the courts must, for municipal purposes, pass upon. The letters of the French ministers, with the accompanying papers, and the replies by Mr. Randolph and Mr. Pickering, are given in 1 Am. State Papers, For. Rel. 559 et seq. "M. d'Argaïz seems to think that a treaty stipulation can not be subjected to the interpretation of the judicial authority, and proceeds to remark, that, if the courts of the Union possess the right of interpreting, considering, and deciding upon treaties contracted between nation and nation, and the executive power can not inquire whether their decrees are or are not conformable with justice, it would be as well to declare, that, in order to give to treaties the force of treaties, or, at least, to render them obligatory, they should be concluded with the judicial power, or, in better words, that treaties should be made, for them to be afterward interpreted as the courts might think proper.' But the undersigned supposes that nothing is more common, in countries where the judiciary is an independent branch of the government, than for questions arising under treaties. to be submitted to its decision. Indeed, in all regular governments, questions of private right, arising under treaty stipulations, are in their nature judicial questions. With us a treaty is part of the supreme law of the land; as such, it influences and controls the decisions of all tribunals; and many instances might be quoted of decisions made in the Supreme Court of the United States, arising under their several treaties with Spain herself, as well as under treaties between the United States and other nations. Similar instances of judicial decisions on points arising under treaties may be found in the history of France, England, and other nations; and, indeed, the undersigned would take the liberty to remind the Chevalier d'Argaïz that this very treaty of 1795 has been made the subject of judicial decision by a Spanish tribunal. "The undersigned would call to the recollection of the Chevalier d'Argaïz the case of Mr. D. Hareng, in which the Spanish colonial courts decided according to their sense of the intention of the treaty of 1795, and the intendant confirmed their decree, which was, that nothing in that treaty exempted Mr. Hareng from the payment of certain demands. From this decision this government was inclined to dissent, but never questioned the right and duty of a Spanish court to consider the intent and effect of a treaty." Mr. Webster, Sec. of State, to the Chev. d'Argaïz, Span. min., June 21, 1842, relating to the case of the Amistad, Webster's Works, VI. 399, 400. A native of Würtemberg, who had been naturalized as a citizen of the United States, died in Louisiana, bequeathing legacies to kindred residing in Würtemberg who were subjects of the King. The legacies were subjected to a tax of ten per cent, under a statute of Louisiana which imposed such a tax on successions devolving on persons not domiciled in that State and not citizens of any other State or of any Territory of the Union. The government of Würtemberg objected to the imposition of the tax on the strength of Art. III. of the treaty of April 10, 1844, which provided that the "citizens or subjects" of each contracting party should have the right to dispose of their personal property within the jurisdiction of the other by testament or otherwise, and that their heirs or legatees, "being citizens or subjects" of the other party, might take or dispose of such property, paying only the duties to which the "inhabitants" of the country where the property lay were liable in like cases. The Supreme Court of the United States having held that, as the decedent was a citizen of the United States, the case was not within the provisions of the treaty, the Department of State declared that the government of the United States had " no power to act upon any other construction of the existing treaty than that. adopted by the Supreme Court," and offered to negotiate a new convention in conformity with the construction put by the government of Würtemberg on the treaty then in force. Mr. Seward, Sec. of State, to Mr. Bancroft, min. to Prussia, Aug. 18, 1868. MS. Inst. Prussia, XV. 2, citing Frederickson v. Louisiana, 23 How. 445. "I am not aware whether or not a treaty, according to the Hawaiian constitution is, as with us, a supreme law of the land, upon the construction of which--the proper case occurring every citizen would have the right to the judgment of the courts. But, even if it be so, and if the judicial department is entirely independent of the executive authority of the Hawaiian government, then the decision of the court would be the authorized interpretation of the Hawaiian government, and however binding upon that government would be none the less a violation of the treaty. In the event, therefore, that a judicial construction of the treaty should annul the privileges stipulated, and carried into practical execution, this government would have no alternative and would be compelled to consider such action as the violation by the Hawaiian government of the express terms and conditions of the treaty, and, with whatever regret, would be forced to consider what course in reference to its own interests had become necessary upon the manifestation of such unfriendly feeling." Mr. Blaine, Sec. of State, to Mr. Comly, United States min., June 30, 1881, On the strength of Article III. of the treaty between the United States and Italy of 1871, which exempts citizens or subjects of the one country from compulsory military service in the other, as well as "from any contribution whatever, in kind or in money, to be levied in compensation for personal services," complaint was made that certain Italian laborers had been called on to pay a road tax in the State of Iowa. The Department of State replied that the question was one primarily for the consideration of the judicial tribunals; that, under the Constitution of the United States, treaties were a part of the supreme law and were enforceable by the courts, and that this principle was especially applicable where complaint was made that a State law was in conflict with the treaty; that the authorities of Iowa had taken the view that such a conflict did not exist, and had administered the law accordingly; that in such a case provision had been made by law for a review of the matter by the Federal tribunals, and that it was competent for any Italian subject who felt aggrieved by the tax in question "to apply to the courts of the United States, in which, and not in the executive, our Constitution and laws have lodged the requisite authority for entertaining his suit for relief against the action of which he complains." Mr. Bayard, Sec. of State, to Baron Fava, Italian min., Dec. 13, 1888, May 23, 1890, the Chinese legation invoked the protection of the United States for Chinese subjects residing in San Francisco against an ordinance of the city requiring them to remove from their present homes and places of business to a certain prescribed district in a remote suburb of the city and declaring it unlawful and punishable by imprisonment for any Chinese person to reside or carry on business in any other part of the city. The legation was advised that a large number of Chinese had been arrested for failure to comply with the ordinances, and it invoked article 3 of the treaty of 1880, which required the government of the United States to exert all its power to devise measures for the protection of the Chinese and to secure to them the same rights and privileges as might be enjoyed by citizens of the most-favored nation. Mr. Blaine, in acknowledging, as Secretary of State, the receipt of this note on May 27, 1890, advised the legation that he had referred a copy of its note to the Attorney-General for consideration. At the same time he said: "Meanwhile, I may ask your attention to the sixth article of the Constitution of the United States, which places treaties on the same juridical basis as laws and makes them the supreme law of the land, anything in the constitution or laws of any State to the contrary notwithstanding. By the second section of the third article the judicial power of the United States is made to extend to all cases arising under the treaties. Under these provisions, and the statutes of the United States passed to give them effect, it is believed that the Chinese who are said to have been arrested under the order in question may, in an application to the courts for release from imprisonment or detention, speedily obtain a decision as to their rights and the legality of the order. If the Department be correct in this belief, there does not appear to be any occasion to invoke the stipulation of the third article of the immigration treaty of 1880, by which the government of the United States undertakes to exert all its power to devise measures' for the protection of the Chinese and to secure them in their rights, since such measures are already in existence and clearly available." The Chinese legation replied June 7, 1890, arguing that the government of the United States should adopt special measures, and expressed hope that the Attorney-General would find some prompt and effective way whereby the government of the United States would exert all its power to devise measures for the protection of the Chinese and to secure to them the same rights as other foreign residents enjoyed without molestation. Mr. Blaine answered June 14, 1890. He stated that it was not his intention to deny that article 3 of the treaty of 1880 bound the United States to devise such measures as might be found necessary to secure to Chinese subjects the rights and privileges therein referred to. Such was, indeed, the simple language of the article; but their views seemed to differ both as to the scope, the occasion, and the character of the duty imposed on the United States. The contention of the minister appeared to be that the United States was bound, whenever the rights of the Chinese were assailed, to protect them through the executive department of the government, and that executive action was mainly, if not alone, contemplated. Mr. Blaine said that he could find nothing to sustain this view. The treaty merely obliged the United States, where existing measures were found to be ineffective, to exert its powers to devise others to supply the defect, and even if an existing remedy were found to be inefficient it would not follow that the government was bound to devise a remedy of a totally different character, such as a transference of subject-matter from the judicial to the executive department, even if there were power to do so. The duty imposed by the treaty would be fully discharged in devising a measure to render the existing remedy effective. Mr. Blaine further stated that he had heard from the Attorney-General, who expressed the opinion that the ordinance violated both the 14th amendment to the Constitution of the United States and the treaty stipulations between the United States and China, and that for these reasons it was void; but also advised that the proper mode of determining the question was by application to the courts of the United States. In more than one case, said Mr. Blaine, those courts had maintained the supremacy of the treaties with China against conflicting provisions, not only of the statutes, but also of the constitution of California. He cited as examples In re Ah Fong, 3 Sawyer's Reports, page 144, and Parrott's Chinese case, 6 Sawyer's Reports, page 349. For. Rel. 1890, 219, 221-223, 223–226. a In a note to the Chinese minister of January 4, 1899, Mr. Hay, referring to the diplomatic discussion which had taken place as to an opinion of the Attorney-General of the United States to the effect that only the classes of persons expressly named in the first clause of article 3 of the treaty of 1894 were entitled to admission into the United States, observed that the Attorney-General would be pleased to have the question "submitted to the courts for deter |