RELATION TO LEAGUE OF NATIONS [$ 97 straint. Such a result could not have occurred had not the application of that doctrine wrought justice for the Western Hemisphere and done no harm to States outside of it.1 j § 97. The Relation of the Monroe Doctrine to the League of Nations. In January, 1917, President Wilson announced as a proposal "that the nations should with one accord adopt the doctrine of President Monroe as the doctrine of the world: that no nation should seek to extend its polity over any other nation or people, but that every people should be left free to determine its own. polity, its own way of development, unhindered, unthreatened, unafraid, the little along with the great and powerful." 2 The terms of Article X of the Covenant of the League of Nations established the undertaking of the members of that body to respect and preserve as against external aggression, the territorial integrity and existing political independence of all members of the League. This undertaking would forbid those members which were not American States from committing against their fellow members in the Western Hemisphere acts of aggression such as the United States itself, in pursuance of the Monroe Doctrine, asserts the right to oppose. Respect for the Covenant would, therefore, appear to diminish the burden assumed by the 1 "Finally, and principally, it is a mistake to imagine that the Monroe Doctrine is other than a policy beneficial to the whole world a true gospel of peace." Eugene Wambaugh, Proceedings, Am. Soc. Int. Law (1914), VIII, 143, 154. 2 Address to the Senate, Jan. 22, 1917, on the essentials of permanent peace, American White Book, European War, IV, 381, 385-386; President Wilson's Foreign Policy, Messages, etc., edited by J. B. Scott, 1918, 245, 254. On Jan. 8, 1918, the President proposed as one of the fourteen points of what he declared to be the only possible program for peace, a general association of nations to be formed under specific covenants for the purpose of affording mutual guaranties of political independence and territorial integrity to small and great States alike. Address to the Congress, Official Bulletin, Jan. 8, 1918, Vol. II, No. 202, p. 3. According to the typewritten draft of the original plan of a covenant understood to have been proposed by President Wilson at the Peace Conference early in 1919, the contracting parties agreed to "unite in guaranteeing to each other political independence and territorial integrity." Cf. Treaty of Peace with Germany, Hearings before Senate Committee on Foreign Relations, 66 Cong., 1 Sess., II, 1165, 1166. See supposed comments of Messrs. D. H. Miller and G. Auchincloss, legal advisers, touching this proposal, id., 1183. The foregoing documents were offered as exhibits by Wm. C. Bullitt, formerly Chief of Division of Current Intelligence Summaries of the American Commission at the Peace Conference, at a hearing before the Senate Committee on Foreign Relations, Sept. 12, 1919. United States, by lessening the probability that there would be occasion for interference. The question may arise, however, whether by accepting the obligation to abstain from political interference with other members of the League, including those which are American States, the United States would give up the right to prevent voluntary transfers of American territory sought to be made by neighboring countries to non-American powers. Whether or not the declaration of the Covenant to the effect that nothing therein shall be deemed to affect the validity of international engagements, such as treaties of arbitration or regional understandings like the Monroe Doctrine, for securing the maintenance of peace, offers a sufficient answer, it is not to be doubted that the United States would not adhere to the League of Nations save on terms definitely recognizing the propriety of the invocation of the Monroe Doctrine, to the full extent to which it had been applied, embracing the use of it to thwart the transfers of territory to non-American States.1 It seems to be clear that through the provisions of Article X as well as of others, the Covenant recognizes the voice of American States in the affairs of non-American States, and reciprocally that of the latter in affairs of the Western Hemisphere. This appears to be true notwithstanding a possible design to leave to American States (and to the United States as their leader should it become a member of the League) the general conduct of American affairs, involving the prevention of war and the maintenance of conditions not provocative of it. Thus acceptance by American States of membership in the League would point to the weakening of the so-called Pan-American system.2 With the United States 1 In this connection see communication of Mr. Elihu Root, to Senator H. C. Lodge, June 19, 1919, Am. J., XIII, 596. 2 The idea of Pan-Americanism is obviously derived from the conception that there is such a thing as an American system; that this system is based upon distinctive interests which the American countries have in common; and that it is independent of and different from the European system. To the extent to which Europe should become implicated in American politics, or to which American countries should become implicated in European politics, this distinction would necessarily be broken down, and the foundations of the American system would be impaired; and to the extent to which the foundations of the American system were impaired, Pan-Americanism would lose its vitality and the Monroe Doctrine its accustomed and tangible meaning. I say this on the supposition that the Monroe Doctrine is, both geographically and politically, American, its object being to safeguard the Western Hemisphere against territorial and political control by non-American powers. Of this limited application I would adduce as proof not so much the fact that the Monroe Doctrine, although conceived in terms of colonial emancipation, has not prevented the United States and other American governments from forcibly RELATION TO LEAGUE OF NATIONS [$ 97 represented on the Council of the League, the chief burden. of whose work doubtless pertains to essentially non-American affairs, the argument advanced by Washington, employed by Monroe, and frequently relied upon by their successors, to the effect that American abstinence from implication in European affairs justified the demand for European abstinence from implication in American affairs, could no longer be invoked. The participation of American States in the League and in the labors. of the Council thereof, would seem to remove one basis of an essentially American alignment of those States in the formulation and advocacy of proposals designed to modify or give fresh application to principles of international law. extending their territorial limits at one another's expense, as to the fact that it has been regarded by the United States as justifying the latter's recent enforcement in Nicaragua, Haiti, Santo Domingo, and elsewhere, of precisely such measures of supervision and control as it is understood to forbid non-American powers to adopt in American countries." J. B. Moore, Principles of American Diplomacy, 1918, X-XI. Declared President Harding in his inaugural address, March 4, 1921: "The recorded progress of our Republic, materially and spiritually, in itself proves the wisdom of the inherited policy of non-involvement in Old World affairs. Confident of our ability to work out our own destiny, and jealously guarding our right to do so, we seek no part in directing the destinies of the Old World. We do not mean to be entangled. We will accept no responsibility except as our own conscience and judgment, in each instance, may de termine. "We are ready to associate ourselves with the nations of the world, great and small, for conference, for counsel; to seek the expressed views of world opinion; to recommend a way to approximate disarmament and relieve the crushing burdens of military and naval establishments. We elect to participate in suggesting plans for mediation, conciliation, and arbitration, and would gladly join in that expressed conscience of progress, which seeks to clarify and write the laws of international relationship, and establish a world court for the disposition of such justiciable questions as nations are agreed to submit thereto. In expressing aspirations, in seeking practical plans, in translating humanity's new concept of righteousness and justice and its hatred of war into recommended action we are ready most heartily to unite, but every commitment must be made in the exercise of our national sovereignty. Since freedom impelled, and independence inspired, and nationality exalted, a world supergovernment is contrary to everything we cherish and can have no sanction by our Republic. This is not selfishness, it is sanctity. It is not aloofness, it is security. It is not suspicion of others, it is the patriotic adherence to the things which made us what we are." Cong. Record, March 4, 1921, Vol. LX, No. 79, p. 4740. The existence of an exclusive right of property and control over territory necessarily implies the existence of a possessor whose capacity to possess is recognized by the family of nations. Every State of international law has such capacity, and is bound to utilize it. A country may, in the course of its internal development, reach a stage where it is deemed to be capable of possessing such a right, and of responding to the obligations incidental to it, long before it attains a position such as to justify its admission to full membership in the society of States.1 Thus certain countries, which by reason of their connection with and attachment to a civilization other than that which is known as European or Christian, have not been received for all purposes into the family of nations, nevertheless, hold titles to territory not unlike those held by States generally. The former are regarded as capable of possessing exclusive rights of property and control.2 1 According to Westlake, in order to enable a country to secure recognition of its capacity to possess a title to territorial sovereignty, there must be "a territory in which the pursuits of civilised life can be carried on, under a sovereign power sufficiently understanding those pursuits and sufficiently organised to be capable of giving them the necessary protection, and of administering justice in the questions arising out of them. Or at least whether there is a sovereign power which can do this in conjunction with consuls accredited to it and whose authority is normally supported by it, as happens in states like Turkey or China." Int. L., 2 ed., I, 91–92. 2 In spite of the "Boxer" troubles in China in 1900, Mr. Hay, Secretary of State, made singular effort to secure a solution which should preserve the territorial and administrative entity of that country. See his circular note of July 3, 1900, For. Rel. 1900, 299. Acts in Derogation of the Supremacy of the Territorial Sovereign, infra, § 202; The Conclusion of Special Relationships, supra, § 57. A right of property and control, or, as it is frequently termed, a right of territorial sovereignty, may be said to come into being when a State, or a country regarded as possessed of the requisite capacity, asserts dominion by appropriate action over territory not in fact under that of any other State or political entity acknowledged to be qualified to hold title. It becomes necessary to observe what acts have been regarded, and are now deemed, essential in order to create such a right. $99. Discovery. (2) The term discovery refers to the ascertaining of the existence of territory previously unknown to civilization. Such an act is not in itself assertive of dominion. At the time of the European explorations in the Western Hemisphere in the fifteenth and sixteenth centuries, the so-called discoverer seems to have been expected to do more than merely ascertain the existence of new lands. He was often given letters patent, authorizing him to assert dominion in behalf of his sovereign.3 Upon reaching previously unknown shores he landed and formally took possession. Sometimes he built a fort; some 1 Moore, Dig., I, 303. 2 In earlier centuries the so-called discoverer was oftentimes in reality merely the explorer who investigated the nature and extent of lands of which the existence was generally, although loosely known, but of which the contour and area and physical characteristics were unknown. He was truly the discoverer of mountains and plains and rivers and islands; and he ascertained, as no others had before him, the vastness of territories through which he roamed. In a strict sense the places which he explored were not infrequently new-found lands, because no representative of European civilization had previously seen them or had the slightest knowledge of what they were like. Mr. Upshur, Secy. of State, to Mr. Everett, Oct. 9, 1843, MS. Inst. Great Britain, XV, 148, 165, Moore, Dig., I, 259, 260. 3 Henry VII, by letters patent of March 5, 1496 (the date assigned to them by J. W. Jones of the British Museum), authorized John Cabot and his sons not only "to seeke out, discouer, and finde, whatsoeuer iles, countreyes, regions or prouinces, of the heathen and infidelles, whatsoeuer they bee, and in what part of the worlde soeuer they be, whiche before this time haue been vnknowen to all Christians", but also “to set up our banners and ensignes in euery village, towne, castel, yle, or maine lande, of them newely founde", and to "subdue, occupie, and possesse" the same, and "as our vassailes and lieutenantes, getting vnto vs the rule, title, and jurisdiction of the same." Richard Hakluyt, Divers Voyages Touching the Discovery of America, published by The Hakluyt Society, with notes and introduction by John Winter Jones, London, 1850, p. 21. See letters patent granted by Queen Elizabeth to Sir Humphrey Gilbert, June 11, 1578, Richard Hakluyt, The Principal Navigations Voyages Traffiques & Discoveries of the English Nation, 1904 ed., Glascow, p. 17. In the Journal of his first voyage, Columbus thus describes his landing on Oct. 12, 1492: "The Admiral took the royal standard, and the captains went with two banners of the green cross, which the Admiral took in all the |