SUBSTITUTE ARTICLES PROPOSED
The President, Mr. Henry White, and I arrived in Paris on Saturday,
December 14, 1918, where Colonel House and General Bliss awaited us. The
days following our arrival were given over to public functions in honor
of the President and to official exchanges of calls and interviews with
the delegates of other countries who were gathering for the Peace
Conference. On the 23d, when the pressure of formal and social
engagements had in a measure lessened, I decided to present to the
President my views as to the mutual guaranty which he intended to
propose, fearing that, if there were further delay, he would become
absolutely committed to the affirmative form. I, therefore, on that day
sent him the following letter, which was marked "Secret and Urgent":
"_Hotel de Crillon December 23, 1918_
"MY DEAR MR. PRESIDENT:
"The plan of guaranty proposed for the League of Nations, which has
been the subject of discussion, will find considerable objection from
other Governments because, even when the principle is agreed to,
there will be a wide divergence of views as to the terms of the
obligation. This difference of opinion will be seized upon by those,
who are openly or secretly opposed to the League, to create
controversy and discord.
"In addition to this there will be opposition in Congress to assuming
obligations to take affirmative action along either military or
economic lines. On constitutional grounds, on its effect on the
Monroe Doctrine, on jealousy as to Congressional powers, etc., there
will be severe criticism which will materially weaken our position
with other nations, and may, in view of senatorial hostility, defeat
a treaty as to the League of Nations or at least render it impotent.
"With these thoughts in mind and with an opposition known to exist
among certain European statesmen and already manifest in Washington,
I take the liberty of laying before you a tentative draft of articles
of guaranty which I do not believe can be successfully opposed either
at home or abroad."
I would interrupt the reader at this point to suggest that it might be
well to peruse the enclosures, which will be found in the succeeding
pages, in order to have a better understanding of the comments which
follow. To continue:
"I do not see how any nation can refuse to subscribe to them. I do
not see how any question of constitutionality can be raised, as they
are based essentially on powers which are confided to the Executive.
They in no way raise a question as to the Monroe Doctrine. At the
same time I believe that the result would be as efficacious as if
there was an undertaking to take positive action against an offending
nation, which is the present cause of controversy.
"I am so earnestly in favor of the guaranty, which is the heart of
the League of Nations, that I have endeavored to find a way to
accomplish this and to remove the objections raised which seem to me
to-day to jeopardize the whole plan.
"I shall be glad, if you desire it, to confer with you in regard to
the enclosed paper or to receive your opinion as to the suggestions
made. In any event it is my hope that you will give the paper
consideration.
"Faithfully yours
"ROBERT LANSING
"THE PRESIDENT
"28 _Rue de Monceau_"
It should be borne in mind in reading this letter that I had reached the
conclusion that modification rather than abandonment of the guaranty was
all that I could hope to accomplish, and that, as a matter of
expediency, it seemed wise to indicate a sympathetic attitude toward the
idea. For that reason I expressed myself as favorable to the guaranty
and termed it "the heart of the League of Nations," a phrase which the
President by his subsequent use of it considered to be a proper
characterization.
The memoranda contained in the paper enclosed in the letter were as
follows:
_The Constitutional Power to provide Coercion in a Treaty_
"_December_ 20, 1918
"In the institution of a League of Nations we must bear in mind the
limitations imposed by the Constitution of the United States upon the
Executive and Legislative Branches of the Government in defining
their respective powers.
"The Constitution confers upon Congress the right to declare war.
This right, I do not believe, can be delegated and it certainly
cannot be taken away by treaty. The question arises, therefore, as to
how far a provision in an agreement as to a League of Nations, which
imposes on the United States the obligation to employ its military or
naval forces in enforcing the terms of the agreement, would be
constitutional.
"It would seem that the utilization of forces, whether independently
or in conjunction with other nations, would in fact by being an act
of war create a state of war, which constitutionally can only be done
by a declaration of Congress. To contract by treaty to create a state
of war upon certain contingencies arising would be equally tainted
with unconstitutionality and would be null and inoperative.
"I do not think, therefore, that, even if it were advisable, any
treaty can provide for the independent or joint use of the military
or naval forces of the United States to compel compliance with a
treaty or to make good a guaranty made in a treaty.
"The other method of international coercion is non-intercourse,
especially commercial non-intercourse. Would a treaty provision to
employ this method be constitutional?
"As to this my mind is less clear. The Constitution in delegating
powers to Congress includes the regulation of commerce. Does
non-intercourse fall within the idea of regulation? Could an embargo
be imposed without an act of Congress? My impression is that it could
not be done without legislation and that a treaty provision agreeing
in a certain event to impose an embargo against another nation
would be void.
"Even if Congress was willing to delegate to the Executive for a
certain purpose its powers as to making war and regulating commerce,
I do not think that it could constitutionally do so. It is only in
the event of war that powers conferred by the Constitution on
Congress can be delegated and then only for war purposes. As a state
of war would not exist at the time action was required, I do not
believe that it could be done, and any provision contracting to take
measures of this nature would be contrary to the Constitution and as
a consequence void.
"But, assuming that Congress possessed the power of delegation, I am
convinced that it would not only refuse to do so, but would resent
such a suggestion because of the fact that both Houses have been and
are extremely jealous of their rights and authority.
"Viewed from the standpoints of legality and expediency it would seem
necessary to find some other method than coercion in enforcing an
international guaranty, or else to find some substitute for a
guaranty which would be valueless without affirmative action to
support it.
"I believe that such a substitute can be found."
The foregoing memorandum was intended as an introduction to the negative
guaranty or "self-denying covenant" which I desired to lay before the
President as a substitute for the one upon which he intended to build
the League of Nations. The memorandum was suggestive merely, but in view
of the necessity for a speedy decision there was no time to prepare an
exhaustive legal opinion. Furthermore, I felt that the President, whose
hours were at that time crowded with numerous personal conferences and
public functions, would find little opportunity to peruse a long and
closely reasoned argument on the subject.
The most important portion of the document was that entitled "_Suggested
Draft of Articles for Discussion_. December 20, 1918." It reads
as follows:
"The parties to this convention, for the purpose of maintaining
international peace and preventing future wars between one another,
hereby constitute themselves into a League of Nations and solemnly
undertake jointly and severally to fulfill the obligations imposed
upon them in the following articles:
"A
"Each power signatory or adherent hereto severally covenants and
guarantees that it will not violate the territorial integrity or
impair the political independence of any other power signatory or
adherent to this convention except when authorized so to do by a
decree of the arbitral tribunal hereinafter referred to or by a
three-fourths vote of the International Council of the League of
Nations created by this convention.
"B
"In the event that any power signatory or adherent hereto shall fail
to observe the covenant and guaranty set forth in the preceding
article, such breach of covenant and guaranty shall _ipso facto_
operate as an abrogation of this convention in so far as it applies
to the offending power and furthermore as an abrogation of all
treaties, conventions, and agreements heretofore or hereafter entered
into between the offending power and all other powers signatory and
adherent to this convention.
"C
"A breach of the covenant and guaranty declared in Article A shall
constitute an act unfriendly to all other powers signatory and
adherent hereto, and they shall forthwith sever all diplomatic,
consular, and official relations with the offending power, and shall,
through the International Council, hereinafter provided for, exchange
views as to the measures necessary to restore the power, whose
sovereignty has been invaded, to the rights and liberties which it
possessed prior to such invasion and to prevent further
violation thereof.
"D
"Any interference with a vessel on the high seas or with aircraft
proceeding over the high seas, which interference is not
affirmatively sanctioned by the law of nations shall be, for the
purposes of this convention, considered an impairment of political
independence."
In considering the foregoing series of articles constituting a guaranty
against one's own acts, instead of a guaranty against the acts of
another, it must be remembered that, at the time of their preparation, I
had not seen a draft of the President's proposed guaranty, though from
conversations with Colonel House and from my study of Point XIV of "The
Fourteen Points," I knew that it was affirmative rather than negative in
form and would require positive action to be effective in the event that
the menace of superior force was insufficient to prevent
aggressive acts.
As far as I am able to judge from subsequently acquired knowledge,
President Wilson at the time he received my letter of December 23 had a
typewritten draft of the document which after certain amendments he
later laid before the American Commissioners and which he had printed
with a few verbal changes under the title of "The Covenant." In order to
understand the two forms of guaranty which he had for consideration
after he received my letter, I quote the article relating to it, which
appears in the first printed draft of the Covenant.
III
"The Contracting Powers unite in guaranteeing to each other political
independence and territorial integrity; but it is understood between
them that such territorial readjustments, if any, as may in the
future become necessary by reasons of changes in present racial
conditions and aspirations or present social and political
relationships, pursuant to the principle of self-determination, and
also such territorial readjustments as may in the judgment of three
fourths of the Delegates be demanded by the welfare and manifest
interest of the people concerned, may be effected if agreeable to
those peoples; and that territorial changes may involve material
compensation. The Contracting Powers accept without reservation the
principle that the peace of the world is superior in importance to
every question of political jurisdiction or boundary."
It seems needless to comment upon the involved language and the
uncertainty of meaning of this article wherein it provided for
"territorial readjustments" of which there appeared to be two classes,
one dependent on "self-determination," the other on the judgment of the
Body of Delegates of the League. In view of the possible reasons which
might be advanced for changes in territory and allegiance, justification
for an appeal to the guarantors was by no means certain. If this article
had been before me when the letter of December 23 was written, I might
have gone much further in opposition to the President's plan for
stabilizing peace in the world on the ground that a guaranty so
conditioned would cause rather than prevent international discord.
Though without knowledge of the exact terms of the President's proposed
guaranty, I did not feel for the reason stated that I could delay longer
in submitting my views to the President. There was not time to work out
a complete and well-digested plan for a League, but I had prepared in
the rough several articles for discussion which related to the
organization, and which might be incorporated in the organic agreement
which I then assumed would be a separate document from the treaty
restoring peace. While unwilling to lay these articles before the
President until they were more carefully drafted, I enclosed in my
letter the following as indicative of the character of the organization
which it seemed to me would form a simple and practical agency common to
all nations:
"_Suggestions as to an International Council For Discussion_
"_December_ 21, 1918
"An International Council of the League of Nations is hereby
constituted, which shall be the channel for communication between the
members of the League, and the agent for common action.
"The International Council shall consist of the diplomatic
representative of each party signatory or adherent to this
convention at ----.
"Meetings of the International Council shall be held at ----, or in
the event that the subject to be considered involves the interests of
---- or its nationals, then at such other place outside the territory
of a power whose interests are involved as the Supervisory Committee
of the Council shall designate.
"The officer charged with the conduct of the foreign affairs of the
power where a meeting is held shall be the presiding officer thereof.
"At the first meeting of the International Council a Supervisory
Committee shall be chosen by a majority vote of the members present,
which shall consist of five members and shall remain in office for
two years or until their successors are elected.
"The Supervisory Committee shall name a Secretariat which shall have
charge of the archives of the Council and receive all communications
addressed to the Council or Committee and send all communications
issued by the Council or Committee.
"The Supervisory Committee may draft such rules of procedure as it
deems necessary for conducting business coming before the Council or
before the Committee.
"The Supervisory Committee may call a meeting of the Council at its
discretion and must call a meeting at the request of any member of
the Council provided the request contains a written statement of the
subject to be discussed.
"The archives of the Council shall be open at any time to any member
of the Council, who may make and retain copies thereof.
"All expenses of the Supervisory Committee and Secretariat shall be
borne equally by all powers signatory or adherent to this
convention."
As indicated by the caption, this document was intended merely "for
discussion" of the principal features of the organization. It should be
noted that the basic principle is the equality of nations. No special
privileges are granted to the major powers in the conduct of the
organization. The rights and obligations of one member of the League are
no more and no less than those of every other member. It is based on
international democracy and denies international aristocracy.
Equality in the exercise of sovereign rights in times of peace, an
equality which is imposed by the very nature of sovereignty, seemed to
me fundamental to a world organization affecting in any way a nation's
independence of action or its exercise of supreme authority over its
external or domestic affairs. In my judgment any departure from that
principle would be a serious error fraught with danger to the general
peace of the world and to the recognized law of nations, since it could
mean nothing less than the primacy of the Great Powers and the
acknowledgment that because they possessed the physical might they had a
right to control the affairs of the world in times of peace as well as
in times of war. For the United States to admit that such primacy ought
to be formed would be bad enough, but to suggest it indirectly by
proposing an international organization based on that idea would be
far worse.
On January 22, 1917, the President in an address to the Senate had made
the following declaration:
"The equality of nations upon which peace must be founded if it is to
last must be an equality of rights; the guarantees exchanged must
neither recognize nor imply a difference between big nations or
small, between those that are powerful and those that are weak. Right
must be based upon the common strength, not the individual strength,
of the nations upon whose concert peace will depend. Equality of
territory or of resources there of course cannot be; nor any other
sort of equality not gained in the ordinary peaceful and legitimate
development of the peoples themselves. But no one asks or expects
anything more than an equality of rights."
In view of this sound declaration of principle it seemed hardly possible
that the President, after careful consideration of the consequences of
his plan of a guaranty requiring force to make it practical, would not
perceive the fundamental error of creating a primacy of the
Great Powers.
It was in order to prevent, if possible, the United States from becoming
sponsor for an undemocratic principle that I determined to lay my
partial plan of organization before the President at the earliest moment
that I believed it would receive consideration.
To my letter of December 23 with its enclosed memoranda I never received
a reply or even an acknowledgment. It is true that the day following its
delivery the President went to Chaumont to spend Christmas at the
headquarters of General Pershing and that almost immediately thereafter
he visited London and two or three days after his return to Paris he set
out for Rome. It is possible that Mr. Wilson in the midst of these
crowded days had no time to digest or even to read my letter and its
enclosed memoranda. It is possible that he was unable or unwilling to
form an opinion as to their merits without time for meditation. I do not
wish to be unjustly critical or to blame the President for a neglect
which was the result of circumstance rather than of intention.
At the time I assumed that his failure to mention my letter in any way
was because his visits to royalty exacted from him so much of his time
that there was no opportunity to give the matter consideration. While
some doubt was thrown on this assumption by the fact that the President
held an hour's conference with the American Commissioners on January 1,
just before departing for Italy, during which he discussed the favorable
attitude of Mr. Lloyd George toward his (the President's) ideas as to a
League of Nations, but never made any reference to my proposed
substitute for the guaranty, I was still disposed to believe that there
was a reasonable explanation for his silence and that upon his return
from Rome he would discuss it.
Having this expectation I continued the preparation of tentative
provisions to be included in the charter of a League of Nations in the
event one was negotiated, and which would in any event constitute a
guide for the preparation of declarations to be included in the Treaty
of Peace in case the negotiation as to a League was postponed until
after peace had been restored. As has been said, it was my hope that
there would be a separate convention organizing the League, but I was
not as sanguine of this as many who believed this course would
be followed.
It later developed that the President never had any other purpose than
to include the detailed plan of organization in the peace treaty,
whether the treaty was preliminary or definitive. When he departed for
Italy he had not declared this purpose to the Commissioners, but from
some source, which I failed to note at the time and cannot now
recollect, I gained the impression that he intended to pursue this
policy, for on December 29 I wrote in my book of notes:
"It is evident that the President is determined to incorporate in the
peace treaty an elaborate scheme for the League of Nations which will
excite all sorts of opposition at home and abroad and invite much
discussion.
"The articles relating to the League ought to be few and brief. They
will not be. They will be many and long. If we wait till they are
accepted, it will be four or five months before peace is signed, and
I fear to say how much longer it will take to have it ratified.
"It is perhaps foolish to prophesy, but I will take the chance. Two
months from now we will still be haggling over the League of Nations
and an exasperated world will be cursing us for not having made
peace. I hope that I am a false prophet, but I fear my prophecy will
come true. We are riding a hobby, and riding to a fall."
By the time the President returned from his triumphal journey to Rome I
had completed the articles upon which I had been working; at least they
were in form for discussion. At a conference at the Hôtel Crillon
between President Wilson and the American Commissioners on January 7, I
handed to him the draft articles saying that they were supplemental to
my letter of December 23. He took them without comment and without
making any reference to my unanswered letter.
The first two articles of the "International Agreement," as I termed the
document, were identical in language with the memoranda dealing with a
mutual covenant and with an international council which I had enclosed
in my letter of December 23. It is needless, therefore, to repeat
them here.
Article III of the so-called "Agreement" was entitled "Peaceful
Settlements of International Disputes," and read as follows:
"_Clause_ 1
"In the event that there is a controversy between two or more members
of the League of Nations which fails of settlement through diplomatic
channels, one of the following means of settlement shall be employed:
"1. The parties to the controversy shall constitute a joint
commission to investigate and report jointly or severally to their
Governments the facts and make recommendations as to settlement.
After such report a further effort shall be made to reach a
diplomatic settlement of the controversy.
"2. The parties shall by agreement arrange for the submission of the
controversy to arbitration mutually agreed upon, or to the Arbitral
Tribunal hereinafter referred to.
"3. Any party may, unless the second means of settlement is mutually
adopted, submit the controversy to the Supervisory Committee of the
International Council; and the Committee shall forthwith (a) name and
direct a special commission to investigate and report upon the
subject; (b) name and direct a commission to mediate between the
parties to the controversy; or (c) direct the parties to submit the
controversy to the Arbitral Tribunal for judicial settlement, it
being understood that the direction to arbitrate may be made at any
time in the event that investigation and mediation fail to result in
a settlement of the controversy.
"_Clause 2_
"No party to a controversy shall assume any authority or perform any
acts based upon disputed rights without authorization of the
Supervisory Committee, such authorization being limited in all cases
to the pendency of the controversy and its final settlement and being
in no way prejudicial to the rights of the parties. An authorization
thus granted by the Supervisory Committee may be modified or
superseded by mutual agreement of the parties, by order of an
arbitrator or arbitrators selected by the parties, or by order of the
Arbitral Tribunal if the controversy is submitted to it.
"_Clause 3_
"The foregoing clause shall not apply to cases in which the
constituted authorities of a power are unable or fail to give
protection to the lives and property of nationals of another power.
In the event that it becomes necessary for a power to use its
military or naval forces to safeguard the lives or property of its
nationals within the territorial jurisdiction of another power, the
facts and reasons for such action shall be forthwith reported to the
Supervisory Committee, which shall determine the course of action to
be adopted in order to protect the rights of all parties, and shall
notify the same to the governments involved which shall comply with
such notification. In the event that a government fails to comply
therewith it shall be deemed to have violated the covenant and
guaranty hereinbefore set forth."
The other articles follow:
"ARTICLE IV
"_Revision of Arbitral Tribunal and Codification of International
Law_
"_Clause 1_
"The International Council, within one year after its organization,
shall notify to the powers signatory and adherent to this convention
and shall invite all other powers to send delegates to an
international conference at such place and time as the Council may
determine and not later than six months after issuance of such
notification and invitation.
"_Clause 2_
"The International Conference shall consider the revision of the
constitution and procedure of the Arbitral Tribunal and provisions
for the amicable settlement of international disputes established by
the I Treaty signed at The Hague in 1907, and shall formulate codes
embodying the principles of international law applicable in time of
peace and the rules of warfare on land and sea and in the air. The
revision and codification when completed shall be embodied in a
treaty or treaties.
"_Clause 3_
"The International Council shall prepare and submit with the
notification and invitation above provided a preliminary programme of
the International Conference, which shall be subject to modification
or amendment by the Conference.
"_Clause 4_
"Until the treaty of revision of the constitution and procedure of
the Arbitral Tribunal becomes operative, the provisions of the I
Treaty signed at The Hague in 1907 shall continue in force, and all
references herein to the 'Arbitral Tribunal' shall be understood to
be the Tribunal constituted under the I Treaty, but upon the treaty
of revision coming into force the references shall be construed as
applying to the Arbitral Tribunal therein constituted.
"ARTICLE V
"_Publication of Treaties and Agreements_
"_Clause 1_
"Each power, signatory or adherent to this convention, severally
agrees with all other parties hereto that it will not exchange the
ratification of any treaty or convention hereinafter entered into by
it with any other power until thirty days after the full text of such
treaty or convention has been published in the public press of the
parties thereto and a copy has been filed with the Secretariat of the
League of Nations.
"_Clause 2_
"No international agreement, to which a power signatory or adherent
to this convention, is a party, shall become operative or be put in
force until published and filed as aforesaid.
"_Clause 3_
"All treaties, conventions and agreements, to which a power,
signatory or adherent to this convention, is a party, and which are
in force or to come into force and which have not been heretofore
published, shall within six months after the signature of this
convention be published and filed as aforesaid or abrogated or
denounced.
"ARTICLE VI
"_Equality of Commercial Privileges_
"The powers, signatory and adherent to this convention agree jointly
and severally not to discriminate against or in favor of any power in
the matter of commerce or trade or of industrial privileges; and they
further agree that all treaties, conventions and agreements now in
force or to come into force or hereinafter negotiated shall be
considered as subject to the 'most favored nation' doctrine, whether
they contain or do not contain a clause to that effect. It is
specifically declared that it is the purpose of this article not to
limit any power in imposing upon commerce and trade such restrictions
and burdens as it may deem proper but to make such impositions apply
equally and impartially to all other powers, their nationals
and ships.
"This article shall not apply, however, to any case, in which a power
has committed an unfriendly act against the members of the League of
Nations as defined in Article I and in which commercial and trade
relations are denied or restricted by agreements between the members
as a measure of restoration or protection of the rights of a power
injured by such unfriendly act."
These proposed articles, which were intended for discussion before
drafting the provisions constituting a League of Nations and which did
not purport to be a completed document, are given in full because there
seems no simpler method of showing the differences between the President
and me as to the form, functions, and authority of an international
organization. They should be compared with the draft of the "Covenant"
which the President had when these proposed articles were handed to him;
the text of the President's draft appears in the Appendix (page 281).
Comparison will disclose the irreconcilable differences between the
two projects.
Of these differences the most vital was in the character of the
international guaranty of territorial and political sovereignty. That
difference has already been discussed. The second in importance was the
practical repudiation by the President of the doctrine of the equality
of nations, which, as has been shown, was an unavoidable consequence of
an affirmative guaranty which he had declared to be absolutely essential
to an effective world union. The repudiation, though by indirection, was
none the less evident in the recognition in the President's plan of the
primacy of the Great Powers through giving to them a permanent majority
on the "Executive Council" which body substantially controlled the
activities of the League. A third marked difference was in Mr. Wilson's
exaltation of the executive power of the League and the subordination of
the administration of legal justice to that power, and in my advocacy of
an independent international judiciary, whose decisions would be final
and whose place in the organization of the nations would be superior,
since I considered a judicial tribunal the most practical agency for
removing causes of war.
The difference as to international courts and the importance of applied
legal justice requires further consideration in order to understand the
divergence of views which existed as to the fundamental idea of
organization of the League.
President Wilson in his Covenant, as at first submitted to the American
Commissioners, made no provision for the establishment of a World Court
of Justice, and no reference of any sort was made to The Hague Tribunal
of Arbitration. It is not, in my opinion, a misstatement to say that the
President intentionally omitted judicial means of composing
international disputes preferring to leave settlements of that sort to
arrangement between the parties or else to the Body of Delegates or the
Executive Council, both of which bodies being essentially diplomatic or
political in their composition would lack the judicial point of view,
since their members would presumably be influenced by their respective
national interests and by political considerations rather than by a
desire and purpose to do impartial justice by applying legal principles.
It is true that in Article V of the first draft of the Covenant
(Appendix) there is an agreement to submit to arbitration
certain classes of controversies and a method of selecting arbitrators
is provided--a method, by the way, which the actual experience of a
century has shown to be the least satisfactory in administering legal
justice, since it almost inevitably leads to a compromise which impairs
the just rights of one of the parties. But, to my mind, a provision, far
more objectionable than the antiquated and unsatisfactory method of
arbitration provided, was that which made an arbitral award reviewable
on appeal to the Body of Delegates of the League, which could set aside
the award even if the arbitrators had rendered a unanimous decision and
compel a rehearing before other arbitrators. International arbitration
as a method of applying the principles of justice to disputes between
nations would, in the first instance at least, have become a farce if
this provision had been adopted. As an award based on compromise is
seldom, if ever, satisfactory to both parties, the right of appeal would
in substantially every case have been invoked and the award would have
been reviewed by the Body of Delegates, who would practically render a
final decision since the new arbitrators would presumably adopt it. The
effect of this provision as to appeals was, therefore, to supplant
judicial settlements by political compromises and diplomatic
adjustments, in which the national interests of the judges, many of whom
would be untrained in juridical procedure, would be decided, if not
deciding, factors. Manifestly the expediency of the moment would be far
more potent in the decisions reached than the principles and precepts of
international law.
I shall not express here my opinion as to the reasons which I believe
impelled the President to insert in the Covenant these extraordinary
provisions which deprived arbitral courts of that independence of the
executive authority which has been in modern times considered essential
to the impartial administration of justice. But, when one considers how
jealously and effectively the Constitution of the United States and the
constitutions of the various States of the Union guard the judiciary
from executive and legislative interference, the proposal in the
President's plan for a League of Nations to abandon that great principle
in the settlement of international disputes of a justiciable nature
causes speculation as to Mr. Wilson's real opinion of the American
political system which emphasizes the separation and independence of the
three coordinate branches of government.
That a provision found its way into the draft of the Covenant, which the
President, on February 3, 1919, laid before the Commission on the League
of Nations, declaring for the creation by the League of a permanent
court of international justice, was not due, I feel sure, to any
spontaneous thought on the part of President Wilson.
My own views as to the relative value of the settlement of an
international controversy, which is by its nature justiciable, by a body
of diplomats and of the settlement by a body of trained jurists were
fully set forth in an address which I delivered before the American Bar
Association at its annual meeting at Boston on September 5,1919.
An extract from that address will show the radical difference between
the President's views and mine.
"While abstract justice cannot [under present conditions] be depended
upon as a firm basis on which to constitute an international concord
for the preservation of peace and good relations between nations,
legal justice offers a common ground where the nations can meet to
settle their controversies. No nation can refuse in the face of the
opinion of the world to declare its unwillingness to recognize the
legal rights of other nations or to submit to the judgment of an
impartial tribunal a dispute involving the determination of such
rights. The moment, however, that we go beyond the clearly defined
field of legal justice we enter the field of diplomacy where national
interests and ambitions are to-day the controlling factors of
national action. Concession and compromise are the chief agents of
diplomatic settlement instead of the impartial application of legal
justice which is essential to a judicial settlement. Furthermore, the
two modes of settlement differ in that a judicial settlement rests
upon the precept that all nations, whether great or small, are equal,
but in the sphere of diplomacy the inequality of nations is not only
recognized, but unquestionably influences the adjustment of
international differences. Any change in the relative power of
nations, a change which is continually taking place, makes more or
less temporary diplomatic settlements, but in no way affects a
judicial settlement.
"However, then, international society may be organized for the future
and whatever machinery may be set up to minimize the possibilities of
war, I believe that the agency which may be counted upon to function
with certainty is that which develops and applies legal justice."
Every other agency, regardless of its form, will be found, when
analyzed, to be diplomatic in character and subject to those impulses
and purposes which generally affect diplomatic negotiations. With a full
appreciation of the advantage to be gained for the world at large
through the common consideration of a vexatious international question
by a body representing all nations, we ought not to lose sight of the
fact that such consideration and the action resulting from it are
essentially diplomatic in nature. It is, in brief, the transference of a
dispute in a particular case from the capitals of the disputants to the
place where the delegates of the nations assemble to deliberate together
on matters which affect their common interests. It does not--and this we
should understand--remove the question from the processes of diplomacy
or prevent the influences which enter into diplomacy from affecting its
consideration. Nor does it to an appreciable extent change the actual
inequality which exists among nations in the matter of power and
influence.
"On the other hand, justice applied through the agency of an
impartial tribunal clothed with an international jurisdiction
eliminates the diplomatic methods of compromise and concession and
recognizes that before the law all nations are equal and equally
entitled to the exercise of their rights as sovereign and independent
states. In a word, international democracy exists in the sphere of
legal justice and, up to the present time, in no other relation
between nations.
"Let us, then, with as little delay as possible establish an
international tribunal or tribunals of justice with The Hague Court
as a foundation; let us provide an easier, a cheaper, and better
procedure than now exists; and let us draft a simple and concise body
of legal principles to be applied to the questions to be adjudicated.
When that has been accomplished--and it ought not to be a difficult
task if the delegates of the Governments charged with it are chosen
for their experience and learning in the field of jurisprudence--we
shall, in my judgment, have done more to prevent international wars
through removing their causes than can be done by any other means
that has been devised or suggested."
The views, which I thus publicly expressed at Boston in September, 1919,
while the President was upon his tour of the country in favor of the
Covenant of the League of Nations, were the same as those that I held at
Paris in December, 1918, before I had seen the President's first draft
of a Covenant, as the following will indicate.
On December 17, 1918, three days after arriving in Paris, I had, as has
been stated, a long conference with Colonel House on the Peace
Conference and the subjects to come before it. I urged him in the course
of our conversation "to persuade the President to make the nucleus of
his proposed League of Nations an international court pointing out that
it was the simplest and best way of organizing the world for peace, and
that, if in addition the general principles of international law were
codified and the right of inquiry confided to the court, everything
practical would have been done to prevent wars in the future" (quoted
from a memorandum of the conversation made at the time). I also urged
upon the Colonel that The Hague Tribunal be made the basis of the
judicial organization, but that it be expanded and improved to meet the
new conditions. I shall have something further to say on this subject.
Reverting now to the draft of articles which I had in form on January 5,
1919, it must be borne in mind that I then had no reason to think that
the President would omit from his plan an independent judicial agency
for the administration of legal justice, although I did realize that he
gave first place to the mutual guaranty and intended to build a League
on that as a nucleus. It did not seem probable that an American, a
student of the political institutions of the United States and familiar
with their operation, would fail to incorporate in any scheme for world
organization a judicial system which would be free from the control and
even from the influence of the political and diplomatic branch of the
organization. The benefit, if not the necessity, of such a division of
authority seemed so patent that the omission of a provision to that
effect in the original draft of the Covenant condemned it to one who
believed in the principles of government which found expression in
American institutions. Fortunately the defect was in a measure cured
before the Commission on the League of Nations formally met to discuss
the subject, though not before the Covenant had been laid before the
American Commissioners.
The articles of a proposed convention for the creation of an
international organization were not intended, as I have said, to form a
complete convention. They were suggestive only of the principal features
of a plan which could, if the President desired, arouse discussion as to
the right theory and the fundamental principles of the international
organization which there seemed little doubt would be declared by the
Paris Conference.
Among the suggested articles there was none covering the subject of
disarmament, because the problem was highly technical requiring the
consideration of military and naval experts. Nor was there any reference
to the mandatory system because there had not been, to my knowledge, any
mention of it at that time in connection with the President's plan,
though General Smuts had given it prominence in his proposed scheme.
During the preparation of these suggestive articles I made a brief
memorandum on the features, which seemed to me salient, of any
international agreement to prevent wars in the future, and which in my
opinion ought to be in mind when drafting such an agreement. The first
three paragraphs of the memorandum follow:
"There are three doctrines which should be incorporated in the Treaty
of Peace if wars are to be avoided and equal justice is to prevail in
international affairs.
"These three doctrines may be popularly termed 'Hands Off,' the 'Open
Door,' and 'Publicity.'
"The first pertains to national possessions and national rights; the
second to international commerce and economic conditions; and the
third, to international agreements."
An examination of the articles which I prepared shows that these
doctrines are developed in them, although at the time I was uncertain
whether they ought to appear in the convention creating the League or in
the Preliminary Treaty of Peace, which I believed, in common with the
prevailing belief, would be negotiated. My impression was that they
should appear in the Peace Treaty and possibly be repeated in the League
Treaty, if the two were kept distinct.