The Panama Canal Conflict between Great Britain and the United States of America | Page 9

American Municipal Law.
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.
[2] See my treatise on International Law, 2nd edition (1912), Vol. I,
§§20-25.
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,