AMERICAN DIPLOMATIC CORRESPONDENCE REGARDING THE EMANCIPATION OF THE

LATIN AMERICAN COUNTRIES

A proposal for the publication of this correspondence was made to the Director by Dr. Alejandro Alvarez of Chile in a memorandum dated May 12, 1916. The memorandum, explaining the need for a publication of this kind and suggesting its contents, reads as follows:

One of the necessities most strongly felt by all students of the international law and diplomatic history of our continent is the knowledge of the documents relative to the glorious period of the emancipation of the Latin American nations. Among those documents, the foreign papers or papers of a diplomatic character in the files of the Department of State of the United States, as well as the correspondence of the statesmen who then had the honor of conducting the foreign relations of said country, occupy a preferent place. The importance of those precedents arises from the active and efficient part which the United States took in the movement of emancipation of the Latin American states and from the careful reports which, upon the political, economical and social situation of these states were sent to the Department at Washington by the agents which the former credited to the latter.

This of course is equivalent to say that in the files of the Department of State of the United States there is a considerable quantity of material for the diplomatic, political and economical history of Latin America.

While many of these documents had been published in "American State Papers, Foreign Relations" a great portion of them remain still unpublished and therefore are unknown to historians.

In our estimation the Carnegie Endowment would accomplish something of far reaching effects, of scientific results and Pan American approximation, if it should decide to pay the expenses which the printing of all such documents should demand, and if it should solicit the acquiescence of the Government of the United States of America for the purpose.

The documents hereinbefore referred to are all those between 1810, in which the emancipation movement of the old Spanish colonies was initiated, and 1830, the date of the dissolution of Great Colombia; and in which the very recent Pan Americanism began to die away in order to revive with greater momentum and energy during the latter part of last century.

In order that the work, in respect to which the patronage of the Carnegie Endowment is requested, will fully meet the high aims which will be pursued by it, it will be necessary to proceed previously to a proper and methodic selection, arrangement and classification of the documents which are to be published.

Several members of the Governing Board of the Pan American Union to whose consideration we have submitted the idea herein stated by us, not only have welcomed it with enthusiasm and with manifestations of approval, but they believe that in carrying it into effect, the Carnegie Endowment will once more win the gratitude of Latin America.

While the work in question must comprise several volumes, we do not

hesitate to assert that the benefits which it will render will greatly compensate the expenditure which its arrangement and printing may demand.

The Director was impressed with the merits of the proposal and recommended it to the favorable consideration of the Executive Committee of the Endowment, which also approved it and authorized the Director to make arrangements to carry it out. Fursuant to this authorization, the Director has arranged with William R. Manning, Professor of Spanish-American History in the University of Texas, to come to Washington at the end of the present academic year and spend a year in the collection of the correspondence and preparation of it for publication. Professor Manning, whose thorough familiarity with the correspondence of this period was acquired in the preparation of his work entitled "Early Diplomatic Relations between the United States and Mexico," believes that sufficient material will be found to make a series of volumes. He also believes that the work of collecting and preparing the correspondence for publication may be completed within a year after it is started. A sum to enable this work to be carried forward during the ensuing fiscal year has been included in the estimates of the Division and approved by the Executive Committee.

LATIN AMERICAN EXPOSITIONS OF THE MONROE DOCTRINE

In President Monroe's message to Congress of December 2, 1823, there are several passages in which the President stated the attitude of the then administration toward European activity in the Western Hemisphere. The views expressed in this important document have met with the approval of successive administrations and of the people of the United States, and are well known in history as the Monroe Doctrine. It is not maintained by the United States that the doctrine is international law, but that it is the policy of the Government and people of the United States. It has on various occasions been called to the attention of foreign nations, and it has been interpreted and applied by the United States to meet changing conditions and circumstances. Without attempting to define the nature, extent and exact meaning of the Monroe Doctrine, it is sufficient for present purposes to say that, promulgated by the United States, it is a matter of interest to every American Republic, and because of this fact it should be of interest to the people of the United States to know the sense in which the Latin American countries understand the doctrine, state its relations to them and express their views as to its advisability as a policy in so far as they are concerned. It is a fact that since its promulgation it has been the subject of discussion in the American Republics, and the views of these countries must be of interest and perhaps concern to the United States; yet well-informed persons in the United States would have great difficulty in laying their hands upon these

documents and statements, and even if found they could not be located in any one place. At the suggestion of the President of the Board, the Director therefore recommends that official and other authoritative statements on the Monroe Doctrine be gathered from Latin American sources, translated into English and issued in volume form. If the Board should approve this recommendation, the estimates for the coming year will enable the Division to carry it into effect.

THE COLLECTION OF AMERICAN STATEMENTS CONCERNING THE MONROE DOCTRINE

The Director recommends as a companion volume to the Latin American Expositions of the Monroe Doctrine a collection of official papers concerning the doctrine which have been issued from time to time by the Government of the United States, and a collection of the statements of accredited publicists of the United States interpreting, defining and applying the doctrine.

A large amount of official correspondence would need to be examined and carefully considered, so that important notes would not be omitted nor unimportant ones included. If this were done, it would be a service to the peoples of the continent, because it is not only the United States, but also every American country which is interested in the Monroe Doctrine, its interpretation and application. It happens, rarely to be sure, but now and then, that American publicists who have had large experience in foreign affairs have expressed their views in private as well as in public life, and their utterances, although not official, carry the weight of their experience and judgment. Statements of this kind, of which Mr. Root's address as president of the American Society of International Law, delivered on April 22, 1914, and entitled "The Real Monroe Doctrine," may be taken as an example, should be included. It is believed that a carefully prepared collection of the kind specified would be a source-book of North American opinion, just as Latin American expositions would be a source-book of the other American countries concerning the doctrine.

The Director expresses the hope that in the interest of that larger America, not inaptly termed Pan America, this project will be approved by the Trustees, and that he will be authorized to make arrangements for the collection of the material required for the publication, as the estimates submitted to the approval of the Trustees will permit this to be done.

LEGISLATION PASSED IN CONTRAVENTION OF TREATIES

Without referring to any particular event which has happened within the last three years, it is a fact, for which we do not need to seek the cause or the reason, that more attention is being paid to the necessity of observing international treaties than has been the case during the lives of most people now living. We are waking up to the need of the truth tersely stated by the Romans that pacta servanda sunt, in English, that compacts must be kept, a statement uttered

more than once at the Second Hague Conference by a delegate of one of the great powers. During that conference much anxiety was expressed on the part of certain powers regarding the difficulty of negotiating treaties with the United States, because there is no guaranty that the treaties would be ratified by the Senate or that Congress would pass the legislation which might be necessary to carry them into effect, or that the treaties, if actually ratified and the legislation passed, would be observed by the Government of the United States.

But foreign countries can not object to the failure to ratify treaties which are negotiated ad referendum, because no nation is bound by any treaty negotiated with the United States, however solemn its terms may be, until the treaty is advised and consented to by the Senate, ratifications exchanged by the President, and the treaty itself has been proclaimed as the law of the land. Until that has been done, the foreign country is not bound, because the United States is not bound; and it seems elementary to say that two parties to a bilateral contract must be bound or neither is. Until the last formality has been complied with, according to the internal constitution of a contracting country, the treaty is a project; it is not a contract.

It is not, however, contended that there are not difficulties in the way of treaty-making and treaty-keeping in the United States which are the source of worry and of no little uneasiness both at home and abroad. Comparatively few treaties are self-executing. They need the appropriation of money, and a revenue bill requires not merely the consent of the Senate, which is part of the treaty-making power, but of the House of Representatives, which is not a part of this power, and instances are not unknown in which the House of Representatives has sought to make its views felt in the matter of treaty-making by putting difficulties in the way of appropriating money needed for the execution of the treaty, concerning the negotiation of which the House was not consulted. The controversy on this score is as old as the government, and the first president of the United States met the issue when raised by the House of Representatives in the matter of the Jay Treaty, and barely overcame it.

There is, however, another difficulty in the way of observing a treaty, because in the United States a treaty is at one and the same time a contract with a foreign nation and a law of the land. It may be admitted that an Act of Congress can not affect the legal obligation created by a treaty between the United States and a foreign power, but an Act of Congress is a law, and if it be of a later date than the treaty and inconsistent with its terms, the latest law prevails, and the treaty, so far as it is a national law, is superseded by a national law of later date. This was laid down authoritatively by Mr. Justice Curtis, sitting as a circuit justice, in the case of Taylor v. Morton, 2 Curtis' Reports, 454, decided in 1855, and has been repeatedly approved by the Supreme Court of the United States; so that it may be taken as undisputed law that an Act of

Congress, passed in accordance with the grant of legislative power, supersedes a treaty in whole or in part with which the Act in question is inconsistent.

It should be said, however, that this learned judge was careful to lay down that the Congress could only legislate for the United States, and its law could not extend beyond its borders, so that the international, as distinct from the municipal, obligation, remained untouched and unassailable by the Act of Congress. He further went on to say that the international obligation remaining, the foreign nation can take the steps necessary to secure its enforcement, even including a resort to arms, because one party to a treaty, though it may violate it, can not end it without the consent of the other contracting party, which, may elect, as in common law, to consider the violation as a breach of the treaty which frees it from the treaty obligation, or to waive the breach and stand upon the obligation unaffected by the violation.

We should not as a nation enter into a treaty which we may be unwilling to keep, nor should we seek to nullify the effect of a treaty by passing a statute inconsistent with its terms, because by so doing we simply question our good faith, without releasing ourselves from the international bond. There are, however, instances in which legislation inconsistent with treaties has been passed, and the Director recommends that this legislation be collected and published in volume form for the use and information of the interested public.

In view of the importance of the subject, the Director desires to make some observations on this subject, in order to show the rule of law on the question and to suggest an expedient by which the provisions of treaties bearing too harshly upon a country may be abrogated without questioning the good faith of the nation so doing.

First, as to the modification of a treaty by a party or parties to it. This question arose and was given much consideration in 1870, when it was the subject of a declaration on the part of the leading nations of Europe. By the Treaty of Paris of 1856, which ended the Crimean War, Russia was forbidden by the contracting Powers by a treaty to which Russia was an unwilling party, to keep a fleet in the Black Sea. Taking advantage of the Franco-Prussian War, Russia declared this provision of the treaty no longer binding upon her. Lord Granville laid down the correct doctrine in the matter of releasing a party from a treaty, in his reply to the Russian circular, saying: "It has always been held that the right belongs only to the governments who have been parties to the original instrument. The despatches of the Russian Government appeared to assume that any one of the Powers who have signed the engagement may allege that occurrences have taken place which in its opinion are at variance with the provisions of the treaty, and though that view is not shared or admitted by the co-signatory powers, such power may found upon that allegation, not a request to those governments for a consideration of the case, but an announcement to