40
THE GREEN BAG
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. Advantageous as it may be from every point of view, both to the alien and to our own government, that an American tribunal should determine whether a foreigner resid ing in the United States has been prevented from enjoying the exercise of a treaty' right, it cannot be said that the decision of such a question by such a tribunal can fully determine the rightfulness of the claim advanced. When the decision of the court denies the contention of the alien, his government is not bound by the judicial interpretation of the treaty. If, for exam ple, the federal courts should decide that the action of the school authorities of San Francisco was not in contravention of the treaty of 1894 with respect to Japanese subjects there residing, the Emperor of Japan would not be under any obligation to accept the decision as decisive of the rights of his subjects. This exact situation was forcibly commented on by Mr. Blaine in writing to Mr. Comly in Hawaii, June 30, 1881: "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 govern ment, then the decision of the court would be the authorized interpretation of the Hawaiian government, and however bind ing upon that government would be none the less a violation of the treaty. In the event, therefore, that a judicial construc tion of the treaty should annul the privileges stipulated and carried into practical ex ecution, this government would have no alternative and would be compelled to 1 For. Rel. 1890, p 221. See also note of Mr. Hay, Sec. of State, to Signor Carignani, Italian charg6, Aug. 24, 1901, For. Rel. 1901, 308.
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 con sider what course in reference to its own interests had become necessary upon the manifestation of such unfriendly feeling. " 1 It is not unreasonable for a state to feel itself free from any obligation to yield to the interpretation given to the provisions of a treaty by a local tribunal of the other contracting party. The right of a court to do justice between nations — to render, for example, a decision as to the meaning of a treaty, and which shall be legally binding on the signatories thereto, must be founded on their mutual consent. This fact is now generally appreciated by civilized states. It is one of the reasons why nations are will ing to agree that disputes concerning the interpretation of treaties, and which can not be adjusted through diplomatic chan nels, may be referred to international courts of arbitration, such as the permanent Tri bunal at The Hague. On the other hand, by reason of the learning and integrity of the Supreme Court of the United States, and, therefore, on account of the strong probability that its interpretation of the treaty of 1894 would be the true interpretation, and such as an international court of arbitration would render under similar circumstances, it is not unlikely that the Japanese Government would yield to the decision of that tribunal and admit the correctness of its views. In the present controversy, therefore, it is not to be anticipated that a decision by the highest court of the United States adverse to the contentions of Japan would be re garded by that government as arbitrary, or unreasonable, or as not decisive of the rights of the high contracting parties. The true interpretation of the treaty of 1894 is a complex task. In the first place the intention of the United States, as well 1 For. Rel. U. S. 1881, pages 624, 625, Moore's Dig. Int. Law, § 760.
