Mr. Wu to Mr. Hay .

No. 120.]

Sir: I have the honor to acknowledge the receipt of your note of the 4th instant, in which, replying to my note of November 7 last, you inform me that while the Attorney-General sees no valid reason for modifying the opinions which were the subjects of my note, he suggests that, should I be desirous that such a step should be taken, he would proceed, in conjunction with the Secretary of the Treasury, to bring forward cases for judicial determination of the questions involved in his cited opinions, and you thereupon request an expression of my views on the proposed action of the Attorney-General.

I thank you and your colleague, the Attorney-General, for the friendly disposition manifested in this communication, but I regret to have to say that I do not think the proposition is one concerning which it would be proper for me to express an opinion. My Government could not be a party to such a suit, nor could it appear, by counsel, before a domestic tribunal of the United States for the purpose indicated. While I have the highest estimate of the ability and impartiality of the Supreme Court of the United States, and for that reason would have confidence it would place the same construction upon the treaty which is maintained by my Government, at the same time the questions submitted by me to you in my note of November 7 last 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.

It would be very gratifying to my Government to know that cases which had been brought forward by the administrative officers having charge of the enforcement of the stipulations of the treaty regulating the admission of Chinese subjects into this country had been decided in accordance with the intent of the high contracting parties in framing the treaty; and I can not believe that any legislation of Congress since the treaty of 1894 has been contrary to that intent and to the language of the treaty. Hence I feel sure if such cases were carried [Page 196] up to the highest tribunal of this country that august body would coincide with the views set forth in my cited note; but, for the reasons stated, I trust you will not regard me as wanting in courtesy if I excuse myself from expressing an opinion on the course to be pursued by the executive and administrative officers of the United States with a view to testing the legality of their action.

While writing the above, I had the pleasure of receiving your note of the 23d instant, giving me the Attorney-General’s answer to my inquiry as to the process by which cases of exclusion from the United States of Chinese subjects of the exempt classes could be brought before the United States Supreme Court for decision. As I have already given above an expression of my views on the subject, it is hardly necessary for me to say anything further in regard to the course indicated by the Attorney-General in submitting the questions raised to that august tribunal.

Accept, etc.,

Wu Ting-fang.