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 a 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. 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 mination," and that if the minister was desirous that such a step should be taken he would, upon a suggestion from the Department of State, proceed, in conjunction with the Secretary of the Treasury, to bring the cases as soon as possible to adjudication. The Chinese minister, while expressing his confidence in the courts, said: "The questions submitted by me were of a diplomatic character involving the construction of conventions entered into between two equal and sovereign governments, and I could not, by any action on my part, recognize the competency of a domestic tribunal of one of the parties to take such action as would irrevocably bind the other party to the convention. If I am not misinformed, the Supreme Court of the United States has already decided, in what is known as the Scott law case, that if the Congress of the United States legislates in direct violation of the treaty, the courts of the United States must respect and enforce the legislation; but I understand it recognized in the same decision that such legislation did not release the government of the United States from its international obligations under the treaty. And however much the courts may feel bound to follow the legislation of Congress, I apprehend you will not contend that adverse legislation or the judgment of a domestic tribunal can release a government from its solemn treaty obligations." Mr. Hay, Sec. of State, to Mr. Wu, Chinese min., Jan. 4, 1899, For. Rel. 1899, 194; Mr. Wu, Chinese min., to Mr. Hay, Sec. of State, Jan. 25, 1899, id. 195. Legislation such as that enacted by the State of Iowa [imposing discriminating taxes on foreign insurance companies] is beyond the control of the executive branch of the general government, and even did this legislation contravene any existing treaty the rem edy would lie in an appeal to the courts of law. "This Department had called the attention of the governors of the States in which the legislation in question is said to have been adopted, or to be pending, to the violation of certain treaty stipulations made by the United States with other countries, and in some instances assurances have been given that the reports of such intended legislation are unfounded." Mr. Hay, Sec. of State, to Mr. Tower, British chargé, April 27, 1899, (2) RULE AS TO POLITICAL QUESTIONS. § 761. While treaties are a part of the supreme law of the land, they are nevertheless to be viewed in two lights-that is to say, in the light of politics and in the light of juridical law. The decision of political H. Doc. 551-vol 5—16 questions is preeminently the function of the political branch of the government, of the Executive, or of Congress, as the case may be; and when a political question is so determined the courts follow that determination. Such was the decision of the Supreme Court in cases involving boundary and other questions, under the treaty of 1803 with France, of 1819 with Spain, and of 1848 with Mexico. Doe et al. v. Braden, 16 How. 635; Foster . Neilson, 2 Pet. 314; The Whether the King of Spain had power to annul a grant is a question which was foreclosed in every judicial tribunal of the United States by the action of the President and Senate treating with him as having that power. Nor will the court review the action of the Executive in this respect, it being impossible for the executive department of the government to conduct our foreign relations with any advantage to the country, and fulfil the duties which the Constitution has imposed upon it, if every court in the country was authorized to inquire and decide whether the person who ratified the treaty on behalf of a foreign nation had the power, by its constitution and laws, to make the engagements into which he entered. Doe v. Braden, 16 How. 635. By Article X. of the treaty with the Pottawatomie Indians, proclaimed August 7, 1868, 15 Stat. 531, 533, it was agreed that the claims of the tribe" for depredations committed by others upon their stock, timber or other property," might be presented to the Interior Department accompanied by evidence, and that "examination and report shall be made to Congress of the amount found to be equitably due, in order that such action may be taken as shall be just in the premises." Various claims were presented under this article to the Secretary of the Interior, and reported by him to Congress. By the acts of March 3, 1885, and March 3, 1891, the claims and all the papers relating thereto were referred to the Court of Claims. (23 Stat. 362, 372; 26 Stat. 989, 1011.) Nothing was done under the first-named act because it required strictly legal evidence. The act of March 3, 1891, directed the court to consider all the papers on file or of record: and it used the same words as the treaty, namely, "for the depredations committed by others." The papers showed depredations committed by Indians, as well as by white men, and the Court of Claims gave judgment for all. The United States appealed on the ground that claims for depredations by other Indians were improperly |