« PreviousContinue »
management of said canal and the regulation of the conditions or charges of traffic through the same.
The bill as amended passed the Senate June 11, by a vote of 50 to 35. It was taken to the House at once, and there it was moved to further amend it by declaring that the United States had the right to exempt its vessels from tolls and that it had sovereignty over the canal zone. This was defeated by a vote of 174 to 108. The bill as amended by the Senate was then finally passed by a vote of 216 for and 71 against it. The bill was signed and approved by the President on Monday, June 15, 1914, and is now the law of the land. All vessels will henceforth pay tolls without any discrimination and on terms of entire equality.
In the rude and barbaric ages nations had little intercourse and treaties were not so general or necessary as in modern times. Civilization and commerce have brought nations into close relationship and daily association. It would be impossible to conduct international business, at this day, without definite and specific compacts, known as treaties.
Parties entering into treaties are not always coequal states. A superior nation may enter into treaty with a subject or dependant nation. As for instance: our treaties with the Indian tribes. These tribes are under the protection of the United States and are termed subordinate and dependent nations. See Wharton's International Law Vol. 2, p. 532.
Many weaker states come under the subjection of stronger powers, and a treaty in form is not entered into between them. The superior nation often grants to the inferior, concessions in the nature of a charter or constitution, which has all the binding force of a treaty. It is a treaty or contract in the form of a grant made by the superior and accepted by the inferior. Such a grant is probably more permanent and enduring than the ordinary treaty.
A treaty between independent states is a contract precisely as an agreement between individuals. A state is a corporation-a body corporate and politic, and can enter into any lawful contract with another corporate nation. These compacts may cover almost every property, business, social, commercial or govern
mental transaction; yet there is no judicial forum in which these obligations and duties may be enforced between co-equal contracting nations.
Violations of these treaties can be satisfied by diplomacy, by arbitration or by war. The courts of one nation have no jurisdiction beyond its own territory and sovereignty. There is no known judicial proceedure to enforce a specific performance of a treaty. The compelling reason for a nation's observance of its compacts will be found in honor or in fear of applied physical force.
In every nation there is official authority to bind by a lawful treaty; and all treaties should be executed under and by this legal authority; yet it will not be permitted, that a nation may renounce a treaty on a mere technicality growing out of its informal execution. Treaties are more in the form of gentlemen's agreements and based upon national honor; still they should be made with the customary solemnity and formality.
Under our constitution the treaty power is vested in the President, when his act is ratified by a two-thirds vote of the Senate; and when so made, a treaty becomes the "supreme law of the land." It is even more than this; it is binding on our nation outside of our territory; it is internationally binding.
If our courts should hold a treaty not binding and not "the supreme law of the land," this decision might be entirely ignored by the other contracting nation; the latter might construe the treaty for itself, and demand its performance. That is: a decision of our court on a question under a treaty, would be accepted by another nation only as an argument and would be convincing only so far as it might be founded on reason and logic. The case of Olsen vs. Smith 195 U. S. Rep. has been cited by the toll exemption advocates as if it put an end
to all further debate on the question of discrimination under the Hay-Pauncefote treaty. This case merely decided that under the treaty with England (1815) coastwise ships might not be required to pay pilotage under a state law when foreign ships would be required to pay such charges. The court held that there was no discrimination because the business was entirely different and the pilot law need not apply to our coastwise ships and to foreign ships on terms of entire equality.
This case is not conclusive for the following rea
1. The decision of our Supreme Court is not binding on England even when construing the treaty of 1815. It is a national court and not international. The American nation created this court and gave it,its power and authority. Before a court can conclude two nations by its judgment it must be created by both or they should jointly submit their controversy to it for decision. So long as there is no international court nations must adjust treaty disputes by the political departments of government.
2. The decision although binding between Olsen and Smith and rendered by a most able court it is not necessarily binding on others. If the "pilot's charges" were included in the "duties and charges" which were to be equal between domestic and foreign ships by the treaty, then if any ships were freed the treaty might be violated. If they were not and pilotage was only a charge for services rendered not as a "port charge," but as a charge in transit before arriving at port, then the decision might have justification; but it was not placed on this ground. Again, if pilotage was compulsory why not on all vessels? It might be that the sailing officers of coastwise ships were men expert in local navigation and really pilots in fact. But the
court's decision was not placed on this basis. The decision in no way can have any relation to the Panama
3. The court may have been influenced by some "classification" theory which is now running to such an extent that our nation may become a government of class citizenship instead of being what the founders really made it a government "acting on the individual" -a constitutional democracy, a republic. Through odious class distinctions our country is day by day being unconsciously led away from its former freedom towards bondage-class bondage.
4. Pilot charges are fees due to individuals for personal work and are not government charges in the sense of tolls for carrying vessels through the canal by the United States-through a canal founded on an enormous outlay and on intricate international compacts; there is no analogy!
5. Port charges whether pilotage or otherwise are clearly domestic rates for entering a national port; the canal is not a port facility but it is a highway between two oceans and not connected with any port in particular. Instead of being connected with a port, it is of and for the world. It is unique and governed by its own peculiar situation. So the case of Olsen v. Smith as an argument in the Panama case may be brushed aside as another irrelevant argument and inapplicable.
It may be well to call attention to the case of Guy Baltimore 100 U. S. Rep. 442 as an offset to Olsen v. Smith. The city of Baltimore passed an ordinance to require all vessels landing goods at the public city wharves to pay a certain wharfage rate provided that no wharfage should be paid on the produce of Maryland landed at such wharves. Here was a clear discrimina