The views expressed in the notes quoted formed the basis for my subsequent course of action as an American Commissioner at Paris in relation to the League of Nations. Convinced from previous experience that to oppose every form of guaranty by the nations assembled at Paris would be futile in view of the President's apparent determination to compel the adoption of that principle, I endeavored to find a form of guaranty that would be less objectionable than the one which the President had in mind. The commitment of the United States to any guaranty seemed to me at least questionable, though to prevent it seemed impossible in the circumstances. It did not seem politic to try to persuade the President to abandon the idea altogether. I was certain that that could not be done. If he could be induced to modify his plan so as to avoid a direct undertaking to protect other nations from aggression, the result would be all that could be expected. I was guided, therefore, chiefly by expediency rather than by principle in presenting my views to the President and in openly approving the idea of a guaranty.
The only opportunity that I had to learn more of the President's plan for a League before arriving in Paris was an hour's interview with him on the U.S.S. George Washington some days after we sailed from New York. He showed me nothing in writing, but explained in a general way his views as to the form, purpose, and powers of a League. From this conversation I gathered that my fears as to the proposed organization were justified and that it was to be based on the principle of diplomatic adjustment rather than that of judicial settlement and that political expediency tinctured with morality was to be the standard of determination of an international controversy rather than strict legal justice.
In view of the President's apparent fixity of purpose it seemed unwise to criticize the plan until I could deliver to him a substitute in writing for the mutual guaranty which he evidently considered to be the chief feature of the plan. I did not attempt to debate the subject with him believing it better to submit my ideas in concrete form, as I had learned from experience that Mr. Wilson preferred to have matters for his decision presented in writing rather than by word of mouth.
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
"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
"28Rue 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
"December20, 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:
"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.
"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 shallipso factooperate 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.
"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.
"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.
"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
"December21, 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 "PeacefulSettlements of International Disputes," and read as follows:
"Clause1
"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:
"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.
"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.
"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 'OpenDoor,' 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.
While I was engaged in the preparation of these articles for discussion, which were based primarily on the equality of nations and avoided a mutual guaranty or other undertaking necessitating a departure from that principle, M. Clemenceau delivered an important address in the Chamber of Deputies at its session on December 30, 1918. In this address the French Premier declared himself in favor of maintaining the doctrine of "the balance of power" and of supporting it by a concert of the Great Powers. During his remarks he made the following significant assertion, "This system of alliances, which I do not renounce, will be my guiding thought at the Conference, if your confidence sends me to it, so that there will be no separation in peace of the four powers which have battled side by side."
M. Clemenceau's words caused a decided sensation among the delegates already in Paris and excited much comment in the press. The public interest was intensified by the fact that President Wilson had but a day or two before, in an address at Manchester, England, denounced the doctrine of "the balance of power" as belonging to the old international order which had been repudiated because it had produced the conditions that resulted in the Great War.
A week after the delivery of M. Clemenceau's address I discussed his declarations at some length with Colonel House, and he agreed with me that the doctrine was entirely contrary to the public opinion of the world and that every effort should be made to prevent its revival and to end the "system of alliances" which M. Clemenceau desired to continue.
During this conversation I pointed out that the form of affirmative guaranty, which the President then had in mind, would unavoidably impose the burden of enforcing it upon the Great Powers, and that they, having that responsibility, would demand the right to decide at what time and in what manner the guaranty should be enforced. This seemed to me to be only a different application of the principle expressed in the doctrine of "the balance of power" and to amount to a practical continuance of the alliances formed for prosecution of the war. I said that, in my judgment, if the President's guaranty was made the central idea of the League of Nations, it would play directly into the hands of M. Clemenceau because it could mean nothing other than the primacy of the great military and naval powers; that I could not understand how the President was able to harmonize his plan of a positive guaranty with his utterances at Manchester; and that, if he clung to his plan, he would have to accept the Clemenceau doctrine, which would to all intents transform the Conference into a second Congress of Vienna and result in a reversion to the old undesirable order, and its continuance in the League of Nations.
It was my hope that Colonel House, to whom I had shown the letter and memoranda which I had sent to the President, would be so impressed with the inconsistency of favoring the affirmative guaranty and of opposing the doctrine of "the balance of power," that he would exert his influence with the President to persuade him to find a substitute for the guaranty which Mr. Wilson then favored. It seemed politic to approach the President in this way in view of the fact that he had never acknowledged my letter or manifested any inclination to discuss the subject with me.
This hope was increased when the Colonel came to me on the evening of the same day that we had the conversation related above and told me that he was "entirely converted" to my plan for a negative guaranty and for the organization of a League.
At this second interview Colonel House gave me a typewritten copy of the President's plan and asked me to examine it and to suggest a way to amend it so that it would harmonize with my views. This was the first time that I had seen the President's complete plan for a League. My previous knowledge had been gained orally and was general and more or less vague in character except as to the guaranty of which I had an accurate idea through the President's "Bases of Peace" of 1917, and Point XIV of his address of January 8, 1918. At the time that the typewritten plan was handed to me another copy had already been given to the printer of the Commission. It was evident, therefore, that the President was satisfied with the document. It contained the theory and fundamental principles which he advocated for world organization.
I immediately began an examination and analysis of the President's plan for a League, having in mind Colonel House's suggestion that I consider a way to modify it so that it would harmonize with my views. The more I studied the document, the less I liked it. A cursory reading of the plan, which is printed in the Appendix (page 281), will disclose the looseness of the language and the doubtful interpretation of many of the provisions. It showed an inexpertness in drafting and a fault in expression which were chargeable to lack of appreciation of the need of exactness or else to haste in preparation. This fault in the paper, which was very apparent, could, however, be cured and was by no means a fatal defect. As a matter of fact, the faults of expression were to a certain extent removed by subsequent revisions, though some of the vagueness and ambiguity of the first draft persisted and appeared in the final text of the Covenant.
The more serious defects of the plan were in the principles on which it was based and in their application under the provisions of the articles proposed. The contemplated use of force in making good the guaranty of sovereign rights and the establishment of a primacy of the Great Powers were provided for in language which was sufficiently explicit to admit of no denial. In my opinion these provisions were entirely out of harmony with American ideals, policies, and traditions. Furthermore, the clauses in regard to arbitration and appeals from arbitral awards, to which reference has been made, the lack of any provision for the establishment of a permanent international judiciary, and the introduction of the mandatory system were strong reasons to reject the President's plan.
It should be borne in mind that, at the time that this document was placed in my hands, the plan of General Smuts for a League of Nations had, as I have said, been printed in the press and in pamphlet form and had been given wide publicity. In the Smuts plan, which gave first place to the system of mandates, appeared the declaration that the League of Nations was to acquire the mandated territories as "the heir of the Empires." This clever and attractive phrase caught the fancy of the President, as was evident from his frequent repetition and approval of it in discussing mandates under the League. Just as General Smuts had adopted the President's "self-determination," Mr. Wilson seized upon the Smuts idea with avidity and incorporated it in his plan. It unquestionably had a decided influence upon his conception of the right way to dispose of the colonial possessions of Germany and of the proper relation of the newly created European states to the League of Nations. As an example of the way in which President Wilson understood and applied General Smuts's phrase to the new states, I quote the following from the "Supplementary Agreements" forming part of the first printed draft of the President's Covenant, but which I believe were added to the typewritten draft after the President had examined the plan of the South African statesman:
"As successor to the Empires, the League of Nations is empowered, directly and without right of delegation, to watch over the relationsinter seof all new independent states arising or created out of the Empires, and shall assume and fulfill the duty of conciliating and composing differences between them with a view to the maintenance of settled order and the general peace."
There is a natural temptation to a student of international agreements to analyze critically the composition and language of this provision, but to do so would in no way advance the consideration of the subject under discussion and would probably be interpreted as a criticism of the President's skill in accurately expressing his thoughts, a criticism which it is not my purpose to make.
Mr. Wilson's draft also contained a system of mandates over territories in a form which was, to say the least, rudimentary if not inadequate. By the proposed system the League of Nations, as "the residuary trustee," was to take sovereignty over "the peoples and territories" of the defeated Empires and to issue a mandate to some power or powers to exercise such sovereignty. A "residuary trustee" was a novelty in international relations sufficient to arouse conjecture as to its meaning, but giving to the League the character of an independent state with the capacity of possessing sovereignty and the power to exercise sovereign rights through a designated agent was even more extraordinary. This departure from the long accepted idea of the essentials of statehood seemed to me an inexpedient and to a degree a dangerous adventure. The only plausible excuse for the proposal seemed to be a lack of knowledge as to the nature of sovereignty and as to the attributes inherent in the very conception of a state. The character of a mandate, a mandatory, and the authority issuing the mandate presented many legal perplexities which certainly required very careful study before the experiment was tried. Until the system was fully worked out and the problems of practical operation were solved, it seemed to me unwise to suggest it and still more unwise to adopt it. While the general idea of mandates issuing from the proposed international organization was presumably acceptable to the President from the first, his support was doubtless confirmed by the fact that it followed the groove which had been made in his mind by the Smuts phrase "the heir of the Empires."
In any event it seemed to me the course of wise statesmanship to postpone the advocacy of mandates, based on the assumption that the League of Nations could become the possessor of sovereignty, until the practical application of the theory could be thoroughly considered from the standpoint of international law as well as from the standpoint of policy. The experiment was too revolutionary to be tried without hesitation and without consideration of the effect on established principles and usage. At an appropriate place this subject will be more fully discussed.
As to the organization and functions of the League of Nations planned by Mr. Wilson there was little that appealed to one who was opposed to the employment of force in compelling the observance of international obligations and to the establishment of an international oligarchy of the Great Powers to direct and control world affairs. The basic principle of the plan was that the strong should, as a matter of right recognized by treaty, possess a dominant voice in international councils. Obviously the principle of the equality of nations was ignored or abandoned. In the face of the repeated declarations of the Government of the United States in favor of the equality of independent states as to their rights in times of peace, this appeared to be a reversal of policy which it would be difficult, if not impossible, to explain in a satisfactory way. Personally I could not subscribe to this principle which was so destructive of the American theory of the proper relations between nations.
It was manifest, when I read the President's plan, that there was no possible way to harmonize my ideas with it. They were fundamentally different. There was no common basis on which to build. To attempt to bring the two theories into accord would have been futile. I, therefore, told Colonel House that it was useless to try to bring into accord the two plans, since they were founded on contradictory principles and that the only course of procedure open to me was to present my views to the President in written form, hoping that he would give them consideration, although fearing that his mind was made up, since he had ordered his plan to be printed.
In the afternoon of the same day (January 7), on which I informed the Colonel of the impossibility of harmonizing and uniting the two plans, President Wilson held a conference with the American Commissioners during which he declared that he considered the affirmative guaranty absolutely necessary to the preservation of future peace and the only effective means of preventing war. Before this declaration could be discussed M. Clemenceau was announced and the conference came to an end. While the President did not refer in any way to the "self-denying covenant" which I had proposed as a substitute, it seemed to me that he intended it to be understood that the substitute was rejected, and that he had made the declaration with that end in view. This was the nearest approach to an answer to my letter of December 23 that I ever received. Indirect as it was the implication was obvious.
Although the settled purpose of the President to insist on his form of mutual guaranty was discouraging and his declaration seemed to be intended to close debate on the subject, I felt that no effort should be spared to persuade him to change his views or at least to leave open an avenue for further consideration. Impelled by this motive I gave to the President the articles which I had drafted and asked him if he would be good enough to read them and consider the principles on which they were based. The President with his usual courtesy of manner smilingly received them. Whether or not he ever read them I cannot state positively because he never mentioned them to me or, to my knowledge, to any one else. I believe, however, that he did read them and realized that they were wholly opposed to the theory which he had evolved, because from that time forward he seemed to assume that I was hostile to his plan for a League of Nations. I drew this conclusion from the fact that he neither asked my advice as to any provision of the Covenant nor discussed the subject with me personally. In many little ways he showed that he preferred to have me direct my activities as a Commissioner into other channels and to keep away from the subject of a League. The conviction that my counsel was unwelcome to Mr. Wilson was, of course, not formed at the time that he received the articles drafted by me. It only developed after some time had elapsed, during which incidents took place that aroused a suspicion which finally became a conviction. Possibly I was over-sensitive as to the President's treatment of my communications to him. Possibly he considered my advice of no value, and, therefore, unworthy of discussion. But, in view of his letter of February 11, 1920, it must be admitted that he recognized that I was reluctant in accepting certain of his views at Paris, a recognition which arose from my declared opposition to them. Except in the case of the Shantung settlement, there was none concerning which our judgments were so at variance as they were concerning the League of Nations. I cannot believe, therefore, that I was wrong in my conclusion as to his attitude.
On the two days succeeding the one when I handed the President my draft of articles I had long conferences with Lord Robert Cecil and Colonel House. Previous to these conferences, or at least previous to the second one, I examined Lord Robert's plan for a League. His plan was based on the proposition that the Supreme War Council, consisting of the Heads of States and the Secretaries and Ministers of Foreign Affairs of the Five Great Powers, should be perpetuated as a permanent international body which should meet once a year and discuss subjects of common interest. That is, he proposed the formation of a Quintuple Alliance which would constitute itself primate over all nations and the arbiter in world affairs, a scheme of organization very similar to the one proposed by General Smuts.
Lord Robert made no attempt to disguise the purpose of his plan. It was intended to place in the hands of the Five Powers the control of international relations and the direction in large measure of the foreign policies of all nations. It was based on the power to compel obedience, on the right of the powerful to rule. Its chief merit was its honest declaration of purpose, however wrong that purpose might appear to those who denied that the possession of superior might conferred special rights upon the possessor. It seemed to provide for a rebirth of the Congress of Vienna which should be clothed in the modern garb of democracy. It could only be interpreted as a rejection of the principle of the equality of nations. Its adoption would mean that the destiny of the world would be in the hands of a powerful international oligarchy possessed of dictatorial powers.
There was nothing idealistic in the plan of Lord Robert Cecil, although he was reputed to be an idealist favoring a new international order. An examination of his plan (Appendix) shows it to be a substantial revival of the old and discredited ideas of a century ago. There could be no doubt that a plan of this sort, materialistic and selfish as it was, would win the approval and cordial support of M. Clemenceau, since it fitted in with his public advocacy of the doctrine of "the balance of power." Presumably the Italian delegates would not be opposed to a scheme which gave Italy so influential a voice in international affairs, while the Japanese, not averse to this recognition of their national power and importance, would unquestionably favor an alliance of this nature. I think that it is fair to assume that all of the Five Great Powers would have readily accepted the Cecil plan—all except the United States.
This plan, however, did not meet with the approval of President Wilson, and his open opposition to it became an obstacle which prevented its consideration in the form in which it was proposed. It is a matter of speculation what reasons appealed to the President and caused him to oppose the plan, although the principle of primacy found application in a different and less radical form in his own plan of organization. Possibly he felt that the British statesman's proposal too frankly declared the coalition and oligarchy of the Five Powers, and that there should be at least the appearance of cooperation on the part of the lesser nations. Of course, in view of the perpetual majority of the Five Powers on the Executive Council, as provided in the President's plan, the primacy of the Five was weakened little if at all by the minority membership of the small nations. The rule of unanimity gave to each nation a veto power, but no one believed that one of the lesser states represented on the Council would dare to exercise it if the Great Powers were unanimous in support of a proposition. In theory unanimity was a just and satisfactory rule; in practice it would amount to nothing. The President may also have considered the council proposed by Lord Robert to be inexpedient in view of the political organization of the United States. The American Government had no actual premier except the President, and it seemed out of the question for him to attend an annual meeting of the proposed council. It would result in the President sending a personal representative who would unavoidably be in a subordinate position when sitting with the European premiers. I think this latter reason was a very valid one, but that the first one, which seemed to appeal especially to the President, had little real merit.
In addition to his objection to the Cecil plan of administration, another was doubtless of even greater weight to Mr. Wilson and that was the entire omission in the Cecil proposal of the mutual guaranty of political independence and territorial integrity. The method of preventing wars which was proposed by Lord Robert was for the nations to enter into a covenant to submit disputes to international investigation and to obtain a report before engaging in hostilities and also a covenant not to make war on a disputant nation which accepted a report which had been unanimously adopted. He further proposed that the members of the League should undertake to regard themselves asipso factoat war with a member violating these covenants and "to take, jointly and severally, appropriate military, economic, and other measures against the recalcitrant State," thus following closely the idea of the League to Enforce Peace.
Manifestly this last provision in the Cecil plan was open to the same constitutional objections as those which could be raised against the President's mutual guaranty. My impression is that Mr. Wilson's opposition to the provision was not based on the ground that it was in contravention of the Constitution of the United States, but rather on the ground that it did not go far enough in stabilizing the terms of peace which were to be negotiated. The President was seeking permanency by insuring, through the threat or pressure of international force, a condition of changelessness in boundaries and sovereign rights, subject, nevertheless, to territorial changes based either on the principle of "self-determination" or on a three-fourths vote of the Body of Delegates. He, nevertheless, discussed the subject with Lord Robert Cecil prior to laying his draft of a Covenant before the American Commissioners, as is evident by comparing it with the Cecil plan, for certain phrases are almost identical in language in the two documents.