It is likewise of interest to state the fact that the majority of the Senate as constituted thirteen years ago took a different view from the majority of the present Senate, a fact which becomes apparent from an incident in the Senate in December 1900, during the deliberations on the Hay-Pauncefote Treaty of February 5, 1900, the unratified precursor of the Hay-Pauncefote Treaty of November 18, 1901. Senator Bard moved an amendment, namely, that the United States reserves the right in the regulation and management of the Canal to discriminate in respect of the charges of the traffic in favour of vessels of her own citizens engaged in the American coasting trade, but this amendment was rejected by 43 to 27 votes. As Article II, No. 1, of the unratified Hay-Pauncefote Treaty of 1900 comprises a stipulation almost identical with that of Article III, No. 1, of the present Hay-Pauncefote Treaty, there can be no doubt that the Bard amendment endeavoured to secure such a privilege to American coasting trade vessels as the United States now by the Panama Canal Act grants to these vessels. But the Bard amendment was defeated because the majority of the Senate was, in 1900, convinced that it involved a violation of the principle of equality for vessels of all nations pronounced by Article II, No. 1, of the unratified Hay-Pauncefote Treaty of 1900.

VIII.

The conflict concerning the interpretation of the Hay-Pauncefote Treaty throws a flood of light on the practice of the United States respecting the relations between International Law and her Municipal Law.

Two schools may be said to be opposing one another in the science of International Law with regard to the relations between International and Municipal Law.

There are, firstly, a number of publicists who assert that International Law is above Municipal Law and that, therefore, the rules of the former are stronger than the rules of the latter. Accordingly, a Municipal Court would have to apply the rules of International Law whether they are expressly or implicitly recognised by the Municipal Law of the State concerned or not, and even in a case where there is a decided conflict between a rule of Municipal Law and a rule of International Law. "International Law overrules Municipal Law" must be said to be the maxim of this school of thought.

There are, secondly, other publicists who maintain that International Law and Municipal Law are two essentially different bodies of law which have nothing in common but that they are both branches—but separate branches!—of the tree of Law. The rules of International Law are never, therefore, per se part and parcel of the Municipal Law of a State, and a Municipal Court cannot apply the rules of International Law unless they have been adopted, either expressly or implicitly, by the Municipal Law of the State concerned. Should there be a conflict between a rule of International Law and a rule of Municipal Law, a Municipal Court can only apply the rule of Municipal Law, leaving it to the legislature of its State to do away with the conflict by altering the Municipal Law.

I believe that the teaching of the latter school of thought is correct[2] since International and Municipal Law differ as regards their sources, the relations they regulate, and the substance of their law. Rules of International Law can, therefore, only be applied by Municipal Courts in their administration of the law in case and in so far as such rules have been adopted into Municipal Law either by a special Act of the legislature, or by custom, or implicitly.

Now the practice of the Courts[3] of the United States neither agrees with the doctrine of the former nor with the doctrine of the latter school of publicists, but takes a middle line between them. Indeed it considers International Law to be part and parcel of the Municipal Law of the United States. It is, however, far from accepting the maxim that International Law overrules Municipal Law, it accepts rather two maxims, namely, first, that International Law overrules previous Municipal Law, and, secondly, that Municipal Law overrules previous International Law. In the administration of the law American Courts hold themselves bound to apply the Acts of their legislature even in the case in which the rules of these enactments are not in conformity with rules of previous International Law. It is true that, according to Article VI of the American Constitution, all international treaties of the United States shall be the supreme law of the land, but in case an Act of Congress contains rules not in agreement with stipulations of a previous international treaty, the American Courts consider themselves bound by the Act of Congress, and not by the stipulations of the previous treaty. It is obvious that, according to the practice of the Courts of the United States, International Law and Municipal Law are of equal force, so that on the one hand new rules of International Law supersede rules of previous Municipal Law, and, on the other hand, new rules of Municipal Law supersede rules of previous International Law. For this reason, the American Courts cannot be resorted to in order to have the question decided whether or no the enactments of Section 5 of the Panama Canal Act are in conformity with Article III, No. 1, of the Hay-Pauncefote Treaty.

It is a proof of the bona fides of President Taft that he desired that the American Courts might be enabled to decide this question. In a message to Congress, dated August 19, 1912, in which the President stated his conviction that the Panama Canal Act under consideration did not violate the Hay-Pauncefote Treaty, he inter alia suggested that Congress should pass the following resolution:—