VII SOVEREIGNTY, CONSTITUTIONALITY AND THE MONROE DOCTRINE1 SOVEREIGNTY EVERY civilized nation must, in the interests of its citizens, make treaties, and, like ordinary trades between individuals, these must be negotiated on the principle of "give and take." Whatever it agrees to do or to refrain from doing imposes a restriction which detracts from its complete sovereignty. But it does not thereby unduly surrender its independence, unless the restriction makes its ordinary governmental functions subject to control by another country, as was the case, for instance, with Cuba, when she accepted the terms of the Platt Amendment, and thereby subjected her national financial policy and her foreign relations to the supervisory control of the United States. A nation's independence is not unduly impaired by a treaty by which it receives advantages which compensate it for what it concedes. It is too late to argue in this country that international agreements to make or to refrain from making war, to guarantee protection to the territory of other nations and to limit armament, unduly impair a nation's sovereignty; for numerous instances of such agreements in existing treaties will be found in our diplomatic history. Nor can it be said that such agreements were not contemplated when our Constitution 1 Letters of Mr. Henry W. Taft, reprinted from "The Covenanter, An American Exposition of the Covenant of the League of Nations," being a series of letters written by William H. Taft, George W. Wickersham, A. Lawrence Lowell and Henry W. Taft, after the Covenant had been revised. (Doubleday, Page & Co., 1919.) was adopted, for the Supreme Court has held that under the treaty-making power, the President and the Senate may make any agreement they regard as appropriate, provided it does not result in "a change in the character of the government or in that of any of the states or a cession of any portion of the territory of the latter, without its consent." Article X of the covenant is criticized as involving an impairment of sovereignty. By that article there is created a defensive alliance of the nations of the League to prevent external aggression threatening the territorial integrity or the political independence of any member nation. The alliance is designed primarily to give protection to the seven new republics in Europe and the four autonomous nations in the Near East, created as a result of the war; and the obligation to join in such an alliance was thrown upon us because, by the Fourteen Points on which the armistice was expressly based, we made ourselves responsible not only for the erection of the new states but also for their protection against attacks from without, threatening their status as it was to be established by the treaty of peace. For this we are to receive the further advantage of the continuous coöperation of the League in preserving the peace of the world. Furthermore, the obligation imposed by Article X will probably be less burdensome than opponents of the League have assumed, for if it were sought to have the Council advise that the United States should intervene in what we regarded as an unsuitable case, we could veto the suggestion by our single vote. But it is altogether improbable that that would be necessary; for in any concrete case it would naturally happen that the burden of performing the guarantee would, in the first instance, fall on the nation nearest at hand or politically most concerned. The chance that we should often, if ever, be called upon to send troops or warships to Europe or Asia to repel local aggressions would be remote, since in practice they would have to be dealt with summarily by the nations more directly affected, precisely as, under the reservation of the Monroe Doctrine in Article XXI, we would be expected to deal with aggressions upon countries of the Western Hemisphere. In considering whether we are unduly hampered by Article X "the real question," in the words of Sir Frederick Pollock, an eminent authority on the subject, "is whether the security for the common peace to be gained by the establishment of a common power is worth its price." When we became implicated in the European situation, we committed ourselves to the proposition that the price paid by our becoming a party to the guarantee of Article X was not out of proportion to the security we expected to enjoy in the future. It was in the interest of the people of this country that the United States should become a decisive factor in the world's affairs. We cannot, with national honor, now escape a responsibility corresponding to our contribution to the winning of the war. That is imposed upon us by the dictates of international morality, and no nation can be said unduly to surrender its sovereignty by discharging such an obligation. The chief purpose of the League is to preserve international peace. It is sought to accomplish this through the reduction of armament (Article VIII), the suspension of war during the process of the settlement of disputes by arbitration or through mediation (Articles XII, XIII and XV), and an economic boycott for a violation of the covenant (Article XVI). In view of America's past efforts to avoid war by procuring the settlement of disputes by arbitration, even though they involve vital interests or national honor, it seems unnecessary to argue that such a comprehensive scheme for preserving the peace of the world as that worked out in the covenant does not involve an undue surrender of sovereignty. Furthermore, all of the obligations assumed for the beneficent purpose of the League have their counterpart in covenants contained in earlier treaties: In 1817, by the Rush-Bagot treaty, this country and Great Britain agreed to limit their naval armament upon the lakes forming the boundary between this country and Canada. By the Webster-Ashburton treaty, Great Britain and this country agreed in 1842 that they would maintain a naval force on the coast of Africa for the suppression of the slave trade. By the Clayton-Bulwer treaty of 1850, between Great Britain and the United States, the two countries guaranteed the neutrality of any ship canal that might be built between the Atlantic and Pacific, and agreed, among other things, that neither nation would ever "obtain or maintain for itself any exclusive control over the said ship canal," or "erect or maintain any fortifications commanding the same or in the vicinity thereof, or occupy, or fortify, or colonize, or assume, or exercise, any dominion over Nicaragua, Costa Rica, the Mosquito Coast or any part of Central America," or "take advantage of any intimacy or use any alliance, connection or influence that either may possess with any state or government through whose territory the said canal may pass, for the purpose of acquiring or holding, directly or indirectly, for the citizens or subjects of the one any rights or advantages in regard to commerce or navigation through the said canal which shall not be offered on the same terms to the citizens or subjects of the other." The treaty also provided that vessels of the two high contracting parties should be exempt in case of war between them, from blockade, detention or capture. In 1846, by Article 35 of a treaty with Colombia, the United States guaranteed "positively and efficaciously... the perfect neutrality" of the Isthmus of Panama. In 1901, the Panama Canal treaty was made with Great Britain, by which it was provided that the canal could never be blockaded, and that no act of hostility could be committeed within it. In 1903, this country by treaty guaranteed and agreed to maintain the independence of the republic of Panama. By a treaty with Honduras in 1864, the United States guaranteed the neutrality of the Honduras Railroad. In 1889, by treaty with Germany and Great Britain, the signatory powers recognized the neutrality of the Samoan Islands and provided that the three powers should have equal rights within the islands. By the so-called Bryan treaties "for the advancement of peace" made by the United States with Guatemala, Norway, Portugal, Great Britain, Costa Rica, Spain, Sweden, Denmark, France, Uruguay, Peru, Paraguay, Italy, Russia, China, Chile, Ecuador, Honduras, Brazil and Bolivia, we have, in practically identical language, agreed that disputes arising between this country and the other countries named shall be submitted for investigation and report to an international commission, and that while such investigation is proceeding we will not resort to war for the satisfaction of our rights. Even questions of national honor and vital interest are not excluded. The com |