politic, making a Federal Union between the States; that the organic Federal force of the Federal Union is the Federal Government, to which, by the Constitution of the United States, the States, separately and in combination, have delegated powers, reserving the residuum of powers not so delegated to the United States, nor prohibited to the States, to the State governments, or to the people of the States, respectively." The other school tends to make a more perfect government in the national sense by asserting "that the Union is itself the unit of sovereignty, of which the States are subordinate parts, to which certain powers belong under the Constitution of the United States, while the main powers belong to the National Government." Under the first view the Union is a multiple of units; under the second, the Union is a unit of which the States are fractions.65

As the Constitution contains no provision expressly giving to the Federal Government the power to acquire new territories, and since, on the other hand, this power is not necessarily implied in that instrument for the legitimate exercise of any other powers conferred upon the Federal Government, as such, it is apparent that, under the narrow doctrine of constitutional construction, the acquisition of Porto Rico by the United States would not have the sanction of the Constitution. It would be ultra vires, and therefore, constitutionally illegal.

At the present time, however, it is rather doubtful whether any such narrow doctrine of constitutional construction would find supporters in this country, at least in respect to the power of the Federal Government to acquire territory generally for the United States. This power, as above suggested, is derived directly from the nature of the Union and the character of the government created by the Constitution itself.

It is a fact already established and accepted that the United States is a nation, that is to say, that the people of the United States in their sovereign capacity as a people, have constituted themselves into a body politic or distinct international entity with a legal claim, as an independent state in the family of nations, to possess, and possessing full power to levy war, conclude peace, make treaties and "do all other acts and things which independent states may of right do." The Federal Government is in this respect, the exclusive representative and embodiment 65 Tucker on the Constitution, Vol. I, Sec. 106, page 178.

of the entire sovereignty of the nation in its united character; 66 and although there is no provision of the Constitution which expressly confers authority upon the Federal Government to enlarge the national territory or domain of the United States either by purchase, conquest or treaty, it may well be said, that as an incidental power the constitutional power of the Federal Government to exercise the international right of the United States to acquire territory would seem so naturally to flow from the sovereignty confided to it, as not to admit of very serious question.67

It would be difficult to conceive why the exercise of this common attribute of sovereignty enjoyed by all nations, the power to acquire territory, should be denied to the Federal Government without an express prohibition in the Constitution itself. But if this power does not flow from the general sovereignty deposited in the Federal Government as the sole representative of the nation, it must be derived from the treaty-making power and the power to declare and carry on war, as the incidents of these powers are those of national sovereignty which belong to all independent governments,68 or as said by the great Chief Justice:

The Constitution confers absolutely on the government of the Union the powers of making war, and of making treaties; consequently, that government possesses the power of acquiring territory, either by conquest or by treaty."

PEDRO CAPÓ-RODRÍGUEZ.

66 In re Neagle, 135 U. S. 84; dissenting opinion of Justice Lamar.

67 Story on the Constitution, Vol. II, Sec. 1287, page 175.

68 Mormon Church case, 136 U. S. 42.

69 American Insurance Company, etc., v. Canter, 26 U. S. 511. See upon this general subject the remarks of Mr. Justice Brown in delivering the opinion of the court in the case of De Lima v. Bidwell, 182 U. S. 1, at pp. 194-196; see also the concurring opinion of Justices White, Shiras and McKenna in Downes v. Bidwell, 182 U. S. 244, at pp. 302-305.

(To be concluded in the next number.)

SHOULD THE MONROE POLICY BE MODIFIED OR ABAN

DONED?

I. WHAT IS THE MONROE POLICY?

There is probably no principle of American politics, which has exercised a more powerful influence or has impressed itself more forcibly upon the American imagination than the Monroe Policy. Throughout our diplomatic history it has set the standard by which our whole foreign policy has been tested. In its defense we have risked war with the most powerful of European nations. It has come to be regarded with a sort of religious veneration, and in the popular mind it ranks in importance with the Declaration of Independence.

1

2

But in these latter days irreverent scoffers have endeavored to prove that this principle that we have worshipped is unsound. There has been more discussion of the Monroe Policy in the last two years than ever before. Is the Monroe Policy an "obsolete shibboleth" as charged by Professor Bingham? Is our devotion to this cardinal principle of American diplomacy "mere slavery to rhetoric and sentiment"? Is this lamp which has guided our feet for almost a century nothing more than a will-of-the-wisp, an "ignis fatuus"? It is high time that we should settle this question, for if all these years we have based our foreign policy on a false principle, assuredly the day is at hand when we shall reap the results of our errors.

3

There is no question that the use of the word "doctrine" to represent what is essentially a matter of policy, has been responsible for much confusion of thought. It has distracted attention from the real issues, viz., whether the United States should follow the policy of protecting

1 Bingham, The Monroe Doctrine, an Obsolete Shibboleth.

* Sydney Brooks, Fortn., 76:1021.

* Henderson, American Diplomatic Questions, p. 448.

'Hershey, Annals, 11:365; Pollock, cited in Harp. W., 46:1978; Mahan, R. of R's. 27:345.

66* * *

Latin American independence from Europe, and if so, what measures it should take in support of that policy. It is responsible for the popular obsession that the Monroe "Doctrine" is in truth international law. It has lulled the American people into a false sense of security. They do not think of the Monroe "Doctrine" as a policy to be defended, but as a principle, to which all nations owe allegiance, and which will enforce itself. For the purposes of this discussion, therefore, we shall drop this troublesome and confusing word, and speak of the "Monroe Policy." The Monroe Policy receives its clearest and most authoritative exposition in the words of President Monroe himself: (1) the American continents are henceforth not to be considered as subjects for future colonization by any European Power; (2) we could not view any interposition for the purpose of oppressing them, or controlling in any other manner their destiny, by any European Power, in any other light than as the manifestation of an unfriendly disposition toward the United States." 5 In other words, the Monroe Policy is that policy by which the United States, for reasons of its own, opposes any acts that might be interpreted as "oppressing" or "controlling the destiny of" any Latin republic.

In pursuance of this general policy, as occasion has arisen, we have declared certain well-defined classes of political acts to be within the category of acts that we regard as "oppressing" or "controlling the destiny of" Latin American states. The Monroe Policy has not been "extended;" it has not changed. It is the same policy, no more and no less, but the "applications" we have made of that policy have changed somewhat. For example, there is no longer a Holy Alliance, breathing threats against the Latin states in the name of the divine right of the Bourbon Spanish king; that particular form of "oppression" has gone forever. But the claims, financial and otherwise, of European Powers against weaker nations of this hemisphere present a problem no less pressing and no less dangerous. On the objective side, the Monroe Policy has undergone a complete transformation. On the subjective side, it is the same policy, maintained for the same reasons and based upon the same rights, now as in 1823.6

5 Message of Dec. 2, 1823, cited in Moore's Digest, sec. 936.

6

Root, The Real Monroe Doctrine, Proc. Am. Soc. Int. Law, 1914, p. 6.

According to Mr. John Bassett Moore the category of acts that we now regard as "oppressing" or "controlling the destiny of" American republics is as follows: (1) European intervention in America for the purpose or with the effect of forcibly changing the form of government or controlling the free will of the people; (2) permanent acquisition of new territory or dominion in America; (3) enlargement of present boundaries of European colonies in America or transfer of these colonies to any other European Power; (4) an interoceanic canal in Central America under European control.7

There is a great deal of loose thinking about the Monroe Policy, which usually passes unchallenged and which it is necessary to avoid. The Monroe Policy does not mean that the South American continent is in any way subject to us or to be controlled by us. Neither does it mean that European governments must not make war upon any American. state, nor that the diplomatic relations between European and American states are subject to our supervision and control. All kinds of wild theories about Latin America invoke the sanction of the Monroe Policy. The alleged violation of the neutrality of certain South American republics during the present war has resulted in formal complaint to the United States in the name of the Monroe Policy. It cannot be overemphasized that the Monroe Policy is simply the policy by which the United States opposes any acts that it considers as "oppressing" or "controlling the destiny of" the Latin American states, and that anything else should not be allowed to masquerade as a part of the Monroe Policy.8

In asserting the Monroe Policy, the United States has acted under the right of self-protection, a right which is legally recognized as necessary to sovereignty itself. The Hon. Elihu Root said: "The doctrine is not international law, but it rests upon the right of self-protection and that right is recognized by international law." 10 The Hon. John W. Foster said: "It may be said that the principle which underlies the Monroe Doctrine-the right of self-defense, the preservation of the peace and 'Moore's Digest, sec. 968.

See John W. Foster and Leo S. Rowe, Proc. Am. Soc. Int. Law, 1914, pp. 119, et seq.

• Vattel, Law of Nations, Book I, sec. 16, p. 61.

10 Proc. Am. Soc. Int. Law, 1914, p. 16.