"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 An authorization thus granted by the Supervisory Committee may be modified or superseded by mutual agreement of the parties, by order of an arbitrator or arbitrators selected by the parties, or by order of the Arbitral Tribunal if the controversy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.
"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
"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.
"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.
"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.
"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
"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.
"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.
"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 '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.
THE AFFIRMATIVE GUARANTY AND BALANCE OF POWER
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.
THE PRESIDENT'S PLAN AND THE CECIL PLAN
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 relations inter se of 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 as ipso facto at 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.
The mutual guaranty which was advocated by President Wilson appears as Article III of his original draft of a Covenant. It reads as follows:
"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 reason 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 peoples concerned, may be effected if agreeable to those peoples; and that territorial changes may in equity 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."
In the revised draft, which he laid before the Commission on the League of Nations at its first session Article III became Article 7. It is as follows:
"The High Contracting Parties undertake to respect and preserve as against external aggression the territorial integrity and existing political independence of all States members of the League."
The guaranty was finally incorporated in the Treaty of Peace as Article 10. It reads:
"The members of the League undertake to respect and preserve as against external aggression the territorial integrity and existing political independence of all Members of the League. In case of any such aggression or in case of any threat or danger of such aggression the Council shall advise upon the means by which this obligation shall be fulfilled."
In the revision of the original draft the modifying clause providing for future territorial readjustments was omitted. It does not appear in Article 7 of the draft which was presented to the Commission on the League of Nations and which formed the basis of its deliberations. In addition to this modification the words "unite in guaranteeing" in Article III became "undertake to respect and preserve" in Article 7. These changes are only important in that they indicate a disposition to revise the article to meet the wishes, and to remove to an extent the objections, of some of the foreign delegates who had prepared plans for a League or at least had definite ideas as to the purposes and functions of an international organization.
It was generally believed that the elimination of the modifying clause from the President's original form of guaranty was chiefly due to the opposition of the statesmen who represented the British Empire in contradistinction to those who represented the self-governing British Dominions. It was also believed that this opposition was caused by an unwillingness on their part to recognize or to apply as a right the principle of "self-determination" in arranging possible future changes of sovereignty over territories.
I do not know the arguments which were used to induce the President to abandon this phrase and to strike it from his article of guaranty. I personally doubt whether the objection to the words "self-determination" was urged upon him. Whatever reasons were advanced by his foreign colleagues, they were successful in freeing the Covenant from the phrase. It is to be regretted that the influence, which was sufficient to induce the President to eliminate from his proposed guaranty the clause containing a formal acceptance of the principle of "self-determination," was not exerted or else was not potent enough to obtain from him an open disavowal of the principle as a right standard for the determination of sovereign authority. Without such a disavowal the phrase remained as one of the general bases upon which a just peace should be negotiated. It remained a precept of the international creed which Mr. Wilson proclaimed while the war was still in progress, for he had declared, in an address delivered on February 11, 1918, before a joint session of the Senate and House of Representatives, that "self-determination is not a mere phrase. It is an imperative principle of action which statesmen will henceforth ignore at their peril."
"Self-determination" is as right in theory as the more famous phrase "the consent of the governed," which has for three centuries been repeatedly declared to be sound by political philosophers and has been generally accepted as just by civilized peoples, but which has been for three centuries commonly ignored by statesmen because the right could not be practically applied without imperiling national safety, always the paramount consideration in international and national affairs. The two phrases mean substantially the same thing and have to an extent been used interchangeably by those who advocate the principle as a standard of right. "Self-determination" was not a new thought. It was a restatement of the old one.
Under the present political organization of the world, based as it is on the idea of nationality, the new phrase is as unsusceptible of universal application as the old one was found to be. Fixity of national boundaries and of national allegiance, and political stability would disappear if this principle was uniformly applied. Impelled by new social conditions, by economic interests, by racial prejudices, and by the various forces which affect society, change and uncertainty would result from an attempt to follow the principle in every case to which it is possible to apply it.
Among my notes I find one of December 20, 1918—that is, one week after the American Commission landed in France—in which I recorded my thoughts concerning certain phrases or epigrams of the President, which he had declared to be bases of peace, and which I considered to contain the seeds of future trouble. In regard to the asserted right of "self-determination" I wrote:
"When the President talks of 'self-determination' what unit has he in mind? Does he mean a race, a territorial area, or a community? Without a definite unit which is practical, application of this principle is dangerous to peace and stability."
Ten days later (December 30) the frequent repetition of the phrase in the press and by members of certain groups and unofficial delegations, who were in Paris seeking to obtain hearings before the Conference, caused me to write the following:
"The more I think about the President's declaration as to the right of 'self-determination,' the more convinced I am of the danger of putting such ideas into the minds of certain races. It is bound to be the basis of impossible demands on the Peace Congress and create trouble in many lands.
"What effect will it have on the Irish, the Indians, the Egyptians, and the nationalists among the Boers? Will it not breed discontent, disorder, and rebellion? Will not the Mohammedans of Syria and Palestine and possibly of Morocco and Tripoli rely on it? How can it be harmonized with Zionism, to which the President is practically committed?
"The phrase is simply loaded with dynamite. It will raise hopes which can never be realized. It will, I fear, cost thousands of lives. In the end it is bound to be discredited, to be called the dream of an idealist who failed to realize the danger until too late to check those who attempt to put the principle in force. What a calamity that the phrase was ever uttered! What misery it will cause!"
Since the foregoing notes were written the impracticability of the universal or even of the general application of the principle has been fully demonstrated. Mr. Wilson resurrected "the consent of the governed" regardless of the fact that history denied its value as a practical guide in modern political relations. He proclaimed it in the phrase "self-determination," declaring it to be an "imperative principle of action." He made it one of the bases of peace. And yet, in the negotiations at Paris and in the formulation of the foreign policy of the United States, he has by his acts denied the existence of the right other than as the expression of a moral precept, as something to be desired, but generally unattainable in the lives of nations. In the actual conduct of affairs, in the practical and concrete relations between individuals and governments, it doubtless exercises and should exercise a measure of influence, but it is not a controlling influence.
In the Treaty of Versailles with Germany the readjustment of the German boundaries, by which the sovereignty over millions of persons of German blood was transferred to the new states of Poland and Czecho-Slovakia, and the practical cession to the Empire of Japan of the port of Kiao-Chau and control over the economic life of the Province of Shantung are striking examples of the abandonment of the principle.
In the Treaty of Saint-Germain the Austrian Tyrol was ceded to the Kingdom of Italy against the known will of substantially the entire population of that region.
In both the Treaty of Versailles and the Treaty of Saint-Germain Austria was denied the right to form a political union with Germany, and when an article of the German Constitution of August, 1919, contemplating a "reunion" of "German Austria" with the German Empire was objected to by the Supreme Council, then in session at Paris, as in contradiction of the terms of the Treaty with Germany, a protocol was signed on September 22, 1919, by plenipotentiaries of Germany and the five Principal Allied and Associated Powers, declaring the article in the Constitution null and void. There could hardly be a more open repudiation of the alleged right of "self-determination" than this refusal to permit Austria to unite with Germany however unanimous the wish of the Austrian people for such union.
But Mr. Wilson even further discredited the phrase by adopting a policy toward Russia which ignored the principle. The peoples of Esthonia, Latvia, Lithuania, the Ukraine, Georgia, and Azerbaidjan have by blood, language, and racial traits elements of difference which give to each of them in more or less degree the character of a distinct nationality. These peoples all possess aspirations to become independent states, and yet, throughout the negotiations at Paris and since that time, the Government of the United States has repeatedly refused to recognize the right of the inhabitants of these territories to determine for themselves the sovereignty under which they shall live. It has, on the contrary, declared in favor of a "Great Russia" comprising the vast territory of the old Empire except the province which belonged to the dismembered Kingdom of Poland and the lands included within the present boundaries of the Republic of Finland.
I do not mention the policy of President Wilson as to an undivided Russia by way of criticism because I believe the policy was and has continued to be the right one. The reference to it is made for the sole purpose of pointing out another example of Mr. Wilson's frequent departure without explanation from his declared standard for the determination of political authority and allegiance. I think that it must be conceded that he has by his acts proved that "self-determination" is "a mere phrase" which ought to be discarded as misleading because it cannot be practically applied.
It may be pointed out as a matter of special interest to the student of American history that, if the right of "self-determination" were sound in principle and uniformly applicable in establishing political allegiance and territorial sovereignty, the endeavor of the Southern States to secede from the American Union in 1861 would have been wholly justifiable; and, conversely, the Northern States, in forcibly preventing secession and compelling the inhabitants of the States composing the Confederacy to remain under the authority of the Federal Government, would have perpetrated a great and indefensible wrong against the people of the South by depriving them of a right to which they were by nature entitled. This is the logic of the application of the principle of "self-determination" to the political rights at issue in the American Civil War.
I do not believe that there are many Americans of the present generation who would support the proposition that the South was inherently right and the North was inherently wrong in that great conflict. There were, at the time when the sections were arrayed in arms against each other, and there may still be, differences of opinion as to the legal right of secession under the Constitution of the United States, but the inherent right of a people of a State to throw off at will their allegiance to the Federal Union and resume complete sovereignty over the territory of the State was never urged as a conclusive argument. It was the legal right and not the natural right which was emphasized as justifying those who took up arms in order to disrupt the Union. But if an American citizen denies that the principle of "self-determination" can be rightfully applied to the affairs of his own country, how can he consistently maintain that it is a right inseparable from a true conception of political liberty and therefore universally applicable, just in principle, and wise from the practical point of view?
Of course, those who subscribe to "self-determination" and advocate it as a great truth fundamental to every political society organized to protect and promote civil liberty, do not claim it for races, peoples, or communities whose state of barbarism or ignorance deprive them of the capacity to choose intelligently their political affiliations. As to peoples or communities, however, who do possess the intelligence to make a rational choice of political allegiance, no exception is made, so far as words go, to the undeviating application of the principle. It is the affirmation of an unqualified right. It is one of those declarations of principle which sounds true, which in the abstract may be true, and which appeals strongly to man's innate sense of moral right and to his conception of natural justice, but which, when the attempt is made to apply it in every case, becomes a source of political instability and domestic disorder and not infrequently a cause of rebellion.
In the settlement of territorial rights and of the sovereignty to be exercised over particular regions there are several factors which require consideration. International boundaries may be drawn along ethnic, economic, geographic, historic, or strategic lines. One or all of these elements may influence the decision, but whatever argument may be urged in favor of any one of these factors, the chief object in the determination of the sovereignty to be exercised within a certain territory is national safety. National safety is as dominant in the life of a nation as self-preservation is in the life of an individual. It is even more so, as nations do not respond to the impulse of self-sacrifice. With national safety as the primary object to be attained in territorial settlements, the factors of the problem assume generally, though not always, the following order of importance: the strategic, to which is closely allied the geographic and historic; the economic, affecting the commercial and industrial life of a nation; and lastly the ethnic, including in the terms such conditions as consanguinity, common language, and similar social and religious institutions.
The national safety and the economic welfare of the United States were at stake in the War of Secession, although the attempt to secede resulted from institutional rather than ethnic causes. The same was true when in the Papineau Rebellion of 1837 the French inhabitants of the Province of Lower Canada attempted for ethnic reasons to free themselves from British sovereignty. Had the right of "self-determination" in the latter case been recognized as "imperative" by Great Britain, the national life and economic growth of Canada would have been strangled because the lines of communication and the commercial routes to the Atlantic seaboard would have been across an alien state. The future of Canada, with its vast undeveloped resources, its very life as a British colony, depended upon denying the right of "self-determination." It was denied and the French inhabitants of Quebec were forced against their will to accept British sovereignty.
Experience has already demonstrated the unwisdom of having given currency to the phrase "self-determination." As the expression of an actual right, the application of which is universal and invariable, the phrase has been repudiated or at least violated by many of the terms of the treaties which brought to an end the World War. Since the time that the principle was proclaimed, it has been the excuse for turbulent political elements in various lands to resist established governmental authority; it has induced the use of force in an endeavor to wrest the sovereignty over a territory or over a community from those who have long possessed and justly exercised it. It has formed the basis for territorial claims by avaricious nations. And it has introduced into domestic as well as international affairs a new spirit of disorder. It is an evil thing to permit the principle of "self-determination" to continue to have the apparent sanction of the nations when it has been in fact thoroughly discredited and will always be cast aside whenever it comes in conflict with national safety, with historic political rights, or with national economic interests affecting the prosperity of a nation.
This discussion of the right of "self-determination," which was one of the bases of peace which President Wilson declared in the winter of 1918, and which was included in the modifying clause of his guaranty as originally drafted, is introduced for the purpose of showing the reluctance which I felt in accepting his guidance in the adoption of a principle so menacing to peace and so impossible of practical application. As a matter of fact I never discussed the subject with Mr. Wilson as I purposed doing, because a situation arose on January 10, 1919, which discouraged me from volunteering to him advice on matters which did not directly pertain to legal questions and to the international administration of legal justice.
THE CONFERENCE OF JANUARY 10, 1919
It is with extreme reluctance, as the reader will understand, that I make any reference to the conference which the President held with the American Commissioners at the Hotel Crillon on January 10, because of the personal nature of what occurred. It would be far more agreeable to omit an account of this unpleasant episode. But without referring to it I cannot satisfactorily explain the sudden decision I then reached to take no further part in the preparation or revision of the text of the Covenant of the League of Nations. Without explanation my subsequent conduct would be, and not without reason, open to the charge of neglect of duty and possibly of disloyalty. I do not feel called upon to rest under that suspicion, or to remain silent when a brief statement of what occurred at that conference will disclose the reason for the cessation of my efforts to effect changes in the plan of world organization which the President had prepared. In the circumstances there can be no impropriety in disclosing the truth as to the cause for a course of action when the course of action itself must be set forth to complete the record and to explain an ignorance of the subsequent negotiations regarding the League of Nations, an ignorance which has been the subject of public comment. Certainly no one who participated in the conference can object to the truth being known unless for personal reasons he prefers that a false impression should go forth. After careful consideration I can see no public reason for withholding the facts. At this meeting, to which I refer, the President took up the provisions of his original draft of a Covenant, which was at the time in typewritten form, and indicated the features which he considered fundamental to the proper organization of a League of Nations. I pointed out certain provisions which appeared to me objectionable in principle or at least of doubtful policy. Mr. Wilson, however, clearly indicated—at least so I interpreted his words and manner—that he was not disposed to receive these criticisms in good part and was unwilling to discuss them. He also said with great candor and emphasis that he did not intend to have lawyers drafting the treaty of peace. Although this declaration was called forth by the statement that the legal advisers of the American Commission had been, at my request, preparing an outline of a treaty, a "skeleton treaty" in fact, the President's sweeping disapproval of members of the legal profession participating in the treaty-making seemed to be, and I believe was, intended to be notice to me that my counsel was unwelcome. Being the only lawyer on the delegation I naturally took this remark to myself, and I know that other American Commissioners held the same view of its purpose. If my belief was unjustified, I can only regret that I did not persevere in my criticisms and suggestions, but I could not do so believing as I then did that a lawyer's advice on any question not wholly legal in nature was unacceptable to the President, a belief which, up to the present time, I have had no reason to change.
It should be understood that this account of the conference of January 10 is given by way of explanation of my conduct subsequent to it and not in any spirit of complaint or condemnation of Mr. Wilson's attitude. He had a right to his own opinion of the worth of a lawyer's advice and a right to act in accordance with that opinion. If there was any injustice done, it was in his asking a lawyer to become a Peace Commissioner, thereby giving the impression that he desired his counsel and advice as to the negotiations in general, when in fact he did not. But, disregarding the personal element, I consider that he was justified in his course, as the entire constitutional responsibility for the negotiation of a treaty was on his shoulders and he was, in the performance of his duty, entitled to seek advice from those only in whose judgment he had confidence.
In spite of this frank avowal of prejudice by the President there was no outward change in the personal and official relations between him and myself. The breach, however, regardless of appearances, was too wide and too deep to be healed. While subsequent events bridged it temporarily, it remained until my association with President Wilson came to an end in February, 1920. I never forgot his words and always felt that in his mind my opinions, even when he sought them, were tainted with legalism.
A RESOLUTION INSTEAD OF THE COVENANT
As it seemed advisable, in view of the incident of January 10, to have nothing to do with the drafting of the Covenant unless the entire theory was changed, the fact that there prevailed at that time a general belief that a preliminary treaty of peace would be negotiated in the near future invited an effort to delay the consideration of a complete and detailed charter of the League of Nations until the definitive treaty or a separate treaty dealing with the League alone was considered. As delay would furnish time to study and discuss the subject and prevent hasty acceptance of an undesirable or defective plan, it seemed to me that the advisable course to take was to limit reference to the organization in the preliminary treaty to general principles.
The method that I had in mind in carrying out this policy was to secure the adoption, by the Conference on the Preliminaries of Peace, of a resolution embodying a series of declarations as to the creation, the nature, and the purposes of a League of Nations, which declarations could be included in the preliminary treaty of peace accompanied by an article providing for the negotiation of a detailed plan based on these declarations at the time of the negotiation of the definitive treaty or else by an article providing for the summoning of a world congress, in which all nations, neutrals as well as belligerents, would be represented and have a voice in the drafting of a convention establishing a League of Nations in accordance with the general principles declared in the preliminary treaty. Personally I preferred a separate treaty, but doubted the possibility of obtaining the assent of the Conference to that plan because some of the delegates showed a feeling of resentment toward certain neutral nations on account of their attitude during the war, while the inclusion of the four powers which had formed the Central Alliance seemed almost out of the question.
In addition to the advantage to be gained by postponing the determination of the details of the organization until the theory, the form, the purposes and the powers of the proposed League could be thoroughly considered, it would make possible the speedy restoration of a state of peace. There can be no doubt that peace at the earliest possible moment was the supreme need of the world. The political and social chaos in the Central Empires, due to the overthrow of their strong autocratic governments and the prevailing want, suffering, and despair, in which the war had left their peoples, offered a fertile field for the pernicious doctrines of Bolshevism to take root and thrive. A proletarian revolution seemed imminent. The Spartacists in Germany, the Radical Socialists in Austria, and the Communists in Hungary were the best organized and most vigorous of the political groups in those countries and were conducting an active and seemingly successful propaganda among the starving and hopeless masses, while the Russian duumvirs, Lenine and Trotsky, were with funds and emissaries aiding these movements against established authority and social order. Eastern Europe seemed to be a volcano on the very point of eruption. Unless something was speedily done to check the peril, it threatened to spread to other countries and even to engulf the very foundations of modern civilization.
A restoration of commercial relations and of normal industrial conditions through the medium of a treaty of peace appeared to offer the only practical means of resisting these movements and of saving Europe from the horrors of a proletarian despotism which had brought the Russian people to so low a state. This was the common judgment of those who at that time watched with increasing impatience the slow progress of the negotiations at Paris and with apprehension the political turmoil in the defeated and distracted empires of Central Europe.
An immediate restoration of peace was, as I then saw it, of vital importance to the world as it was the universal demand of all mankind. To delay it for the purpose of completing the organization of a League of Nations or for any other purpose than the formulation of terms essential to peace seemed to me to be taking a risk as to the future wholly unwarranted by the relative importance of the subjects. There is no question, in the light of subsequent events, that the peoples of the Central Empires possessed a greater power of resistance to the temptations of lawlessness and disorder than was presumed in the winter of 1918-19. And yet it was a critical time. Anything might have happened. It would have taken very little to turn the scale. What occurred later cannot excuse the delay in making peace. It was not wise statesmanship and foresight that saved the world from a great catastrophe but the fortunate circumstance that a people habituated to obedience were not led astray by the enemies of the existing order.
Of the importance of negotiating a peace without waiting to complete a detailed plan for a League of Nations I was firmly convinced in those early days at Paris, and I know that the President's judgment as to this was contrary to mine. He considered—at least his course can only be so interpreted—that the organization of a League in all its details was the principal task to be accomplished by the Conference, a task that he felt must be completed before other matters were settled. The conclusion is that the necessity of an immediate peace seemed to him subordinate to the necessity of erecting an international agency to preserve the peace when it was restored. In fact one may infer that the President was disposed to employ the general longing for peace as a means of exerting pressure on the delegates in Paris and on their Governments to accept his plan for a League. It is generally believed that objections to certain provisions of the Covenant were not advanced or, if advanced, were not urged because the discussion of objections would mean delay in negotiating the peace.
Mr. Wilson gave most of his time and thought prior to his departure for the United States in February, 1919, to the revision of the plan of organization which he had prepared and to the conversion of the more influential members of the Conference to its support. While other questions vital to a preliminary peace treaty were brought up in the Council of Ten, he showed a disposition to keep them open and to avoid their settlement until the Covenant had been reported to the Conference. In this I could not conscientiously follow him. I felt that the policy was wholly wrong since it delayed the peace.
Though recognizing the President's views as to the relative importance of organizing a League and of restoring peace without delay, and suspecting that he purposed to use the impatience and fear of the delegates to break down objections to his plan of organization, I still hoped that the critical state of affairs in Europe might induce him to adopt another course. With that hope I began the preparation of a resolution to be laid before the Conference, which, if adopted, would appear in the preliminary treaty in the form of declarations which would constitute the bases of a future negotiation regarding a League of Nations.
At a conference on January 20 between the President and the American Commissioners, all being present except Colonel House, I asked the President if he did not think that, in view of the shortness of time before he would be compelled to return to Washington on account of the approaching adjournment of Congress, it would be well to prepare a resolution of this sort and to have it adopted in order that it might clear the way for the determination of other matters which should be included in a preliminary treaty. From the point of view of policy I advanced the argument that a series of declarations would draw the fire of the opponents and critics of the League and would give opportunity for an expression of American public opinion which would make possible the final drafting of the charter of a League in a way to win the approval of the great mass of the American people and in all probability insure approval of the Covenant by the Senate of the United States.
In reviewing what took place at this conference I realize now, as I did not then, that it was impolitic for me to have presented an argument based on the assumption that changes in the President's plan might be necessary, as he might interpret my words to be another effort to revise the theory of his plan. At the time, however, I was so entirely convinced of the expediency of this course, from the President's own point of view as well as from the point of view of those who gave first place to restoring peace, that I believed he would see the advantage to be gained and would adopt the course suggested. I found that I was mistaken. Mr. Wilson without discussing the subject said that he did not think that a resolution of that sort was either necessary or advisable.
While this definite rejection of the proposal seemed to close the door to further effort in that direction, I decided to make another attempt before abandoning the plan. The next afternoon (January 21) at a meeting of the Council of Ten, the discussion developed in a way that gave me an excuse to present the proposal informally to the Council. The advantages to be gained by adopting the suggested action apparently appealed to the members, and their general approval of it impressed the President, for he asked me in an undertone if I had prepared the resolution. I replied that I had been working upon it, but had ceased when he said to me the day before that he did not think it necessary or advisable, adding that I would complete the draft if he wished me to do so. He said that he would be obliged to me if I would prepare one.
Encouraged by the support received in the Council and by the seeming willingness of the President to give the proposal consideration, I proceeded at once to draft a resolution.
The task was not an easy one because it would have been useless to insert in the document any declaration which seemed to be contradictory of the President's theory of an affirmative guaranty or which was not sufficiently broad to be interpreted in other terms in the event that American public opinion was decidedly opposed to his theory, as I felt that it would be. It was also desirable, from my point of view, that the resolution should contain a declaration in favor of the equality of nations or one which would prevent the establishment of an oligarchy of the Great Powers, and another declaration which would give proper place to the administration of legal justice in international disputes.
The handicaps and difficulties under which I labored are manifest, and the resolution as drafted indicates them in that it does not express as clearly and unequivocally as it would otherwise do the principles which formed the bases of the articles which I handed to the President on January 7 and which have already been quoted in extenso.
The text of the resolution, which was completed on the 22d, reads as follows:
"Resolved that the Conference makes the following declaration:
"That the preservation of international peace is the standing policy of civilization and to that end a league of nations should be organized to prevent international wars;
"That it is a fundamental principle of peace that all nations are equally entitled to the undisturbed possession of their respective territories, to the full exercise of their respective sovereignties, and to the use of the high seas as the common property of all peoples; and
"That it is the duty of all nations to engage by mutual covenants—
"(1) To safeguard from invasion the sovereign rights of one another;
"(2) To submit to arbitration all justiciable disputes which fail of settlement by diplomatic arrangement;
"(3) To submit to investigation by the league of nations all non-justiciable disputes which fail of settlement by diplomatic arrangement; and
"(4) To abide by the award of an arbitral tribunal and to respect a report of the league of nations after investigation;
"That the nations should agree upon—
"(1) A plan for general reduction of armaments on land and sea;
"(2) A plan for the restriction of enforced military service and the governmental regulation and control of the manufacture and sale of munitions of war;
"(3) Full publicity of all treaties and international agreements;
"(4) The equal application to all other nations of commercial and trade regulations and restrictions imposed by any nation; and
"(5) The proper regulation and control of new states pending complete independence and sovereignty."
This draft of a resolution was discussed with the other American Commissioners, and after some changes of a more or less minor character which it seemed advisable to make because of the appointment of a Commission on the League of Nations at a plenary session of the Conference on January 25, of which Commission President Wilson and Colonel House were the American members, I sent the draft to the President on the 31st, four days before the Commission held its first meeting in Colonel House's office at the Hotel Crillon.
As the Sixty-Fifth Congress would come to an end on March 4, and as the interpretation which had been placed on certain provisions of the Federal Constitution required the presence of the Chief Executive in Washington during the last days of a session in order that he might pass upon legislation enacted in the days immediately preceding adjournment, Mr. Wilson had determined that he could not remain in Paris after February 14. At the time that I sent him the proposed resolution there remained, therefore, but two weeks for the Commission on the League of Nations to organize, to deliberate, and to submit its report to the Conference, provided its report was made prior to the President's departure for the United States. It did not seem to me conceivable that the work of the Commission could be properly completed in so short a time if the President's Covenant became the basis of its deliberations. This opinion was shared by many others who appreciated the difficulties and intricacies of the subject and who felt that a hasty and undigested report would be unwise and endanger the whole plan of a world organization.
In view of this situation, which seemed to be a strong argument for delay in drafting the plan of international organization, I wrote a letter to the President, at the time I sent him the proposed resolution, saying that in my opinion no plan could be prepared with sufficient care to warrant its submission to the Conference on the Preliminaries of Peace before he left Paris and that unless a plan was reported he would be in the position of returning empty-handed to the United States. I urged him in the circumstances to secure the adoption of a resolution by the delegates similar in nature, if not in language, to the draft which was enclosed, thereby avoiding a state of affairs which would be very disheartening to the advocates of a League of Nations and cause general discontent among all peoples who impatiently expected evidence that the restoration of peace was not far distant.
It would be presumptuous on my part to speculate on the President's feelings when he received and read my letter and the proposed resolution. It was never answered or acknowledged, and he did not act upon the suggestion or discuss acting upon it, to my knowledge, with any of his colleagues. On the contrary, he summoned the Commission on the League of Nations to meet on February 3, eleven days before the date fixed for his departure for the United States, and laid before that body his revised draft of a Covenant which formed the groundwork for the Commission's report presented to the Conference on February 14.
The question naturally arises—Why did the President ask me to complete and send to him the resolution embodying a series of declarations if he did not intend to make it a subject of consideration and discussion? It is a pertinent question, but the true answer remains with Mr. Wilson himself. Possibly he concluded that the only way to obtain his plan for a League was to insist upon its practical acceptance before peace was negotiated, and that, unless he took advantage of the universal demand for peace by making the acceptance of the Covenant a condition precedent, he would be unable to obtain its adoption. While I believe this is a correct supposition, it is not responsive to the question as to the reason why he wished me to deliver to him a draft resolution. In fact it suggests another question—What, from the President's point of view, was to be gained by having the resolution in his hands?
I think the answer is not difficult to find when one remembers that Mr. Wilson had disapproved a resolution of that sort and that the Council of Ten had seemed disposed to approve it. There was no surer way to prevent me from bringing the subject again before the Council than by having the proposed resolution before him for action. Having submitted it to him I was bound, on account of our official relationship, to await his decision before taking any further steps. In a word, his request for a draft practically closed my mouth and tied my hands. If he sought to check my activities with the members of the Council in favor of the proposed course of action, he could have taken no more effectual way than the one which he did take. It was undoubtedly an effective means of "pigeonholing" a resolution, the further discussion of which might interfere with his plan to force through a report upon the Covenant before the middle of February.
This opinion as to the motive which impelled the President to pursue the course that he did in regard to a resolution was not the one held by me at the time. It was formed only after subsequent events threw new light on the subject. The delay perplexed me at the time, but the reason for it was not evident. I continued to hope, even after the Commission on the League of Nations had assembled and had begun its deliberations, that the policy of a resolution would be adopted. But, as the days went by and the President made no mention of the proposal, I realized that he did not intend to discuss it, and the conviction was forced upon me that he had never intended to have it discussed. It was a disappointing result and one which impressed me with the belief that Mr. Wilson was prejudiced against any suggestion that I might make, if it in any way differed with his own ideas even though it found favor with others.
THE GUARANTY IN THE REVISED COVENANT
During the three weeks preceding the meeting of the Commission on the League the work of revising the President's original draft of the Covenant had been in progress, the President and Colonel House holding frequent interviews with the more influential delegates, particularly the British and French statesmen who had been charged with the duty of studying the subject. While I cannot speak from personal knowledge, I learned that the suggested changes in terms and language were put into form by members of the Colonel's office staff. In addition to modifications which were made to meet the wishes of the foreign statesmen, especially the British, Mr. Gordon Auchincloss, the son-in-law and secretary of Colonel House, and Mr. David Hunter Miller, Auchincloss's law partner and one of the accredited legal advisers of the American Commission, prepared an elaborate memorandum on the President's draft of a Covenant which contained comments and also suggested changes in the text. On account of the intimate relations existing between Messrs. Miller and Auchincloss and Colonel House it seems reasonable to assume that their comments and suggestions were approved by, if they did not to an extent originate with, the Colonel. The memorandum was first made public by Mr. William C. Bullitt during his hearing before the Senate Committee on Foreign Relations in September, 1919 (Senate Doc. 106, 66th Congress, 1st Session, pages 1177 et seq.).
The most important amendment to the Covenant suggested by these advisers was, in my judgment, the one relating to Article III of the draft, which became Article 10 in the Treaty. After a long criticism of the President's proposed guaranty, in which it is declared that "such an agreement would destroy the Monroe Doctrine," and that "any guaranty of independence and integrity means war by the guarantor if a breach of the independence or integrity of the guaranteed State is attempted and persisted in," the memorandum proposed that the following be substituted:
"Each Contracting Power severally covenants and guarantees that it will not violate the territorial integrity or impair the political independence of any other Contracting Power."
This proposed substitute should be compared with the language of the "self-denying covenant" that I sent to the President on December 23, 1918, the pertinent portion of which is repeated here for the purpose of such comparison:
"Each power signatory or adherent hereto severally covenants and guarantees that it will not violate the territorial integrity or impair the political sovereignty of any other power signatory or adherent to this convention, ..."
The practical adoption of the language of my proposed substitute in the memorandum furnishes conclusive proof that Colonel House was "entirely converted" to my form of a guaranty as he had frankly assured me that he was on the evening of January 6. I am convinced also that Mr. Henry White and General Bliss held the same views on the subject. It is obvious that President Wilson was the only one of the American representatives at Paris who favored the affirmative guaranty, but, as he possessed the constitutional authority to determine independently the policy of the United States, his form of a guaranty was written into the revised draft of a Covenant submitted to the Commission on the League of Nations and with comparatively little change was finally adopted in the Treaty of Peace with Germany.
The memorandum prepared by Messrs. Miller and Auchincloss was apparently in the President's hands before the revised draft was completed, for certain changes in the original draft were in accord with the suggestions made in their memorandum. His failure to modify the guaranty may be considered another rejection of the "self-denying covenant" and a final decision to insist on the affirmative form of guaranty in spite of the unanimous opposition of his American colleagues.
In view of what later occurred a very definite conclusion may be reached concerning the President's rejection of the proposed substitute for his guaranty. Article 10 was from the first the storm center of opposition to the report of the Commission on the League of Nations and the chief cause for refusal of consent to the ratification of the Treaty of Versailles by the Senate of the United States. The vulnerable nature of the provision, which had been so plainly pointed out to the President before the Covenant was submitted to the Commission, invited attack. If he had listened to the advice of his colleagues, in fact if he had listened to any American who expressed an opinion on the subject, the Treaty would probably have obtained the speedy approval of the Senate. There would have been opposition from those inimical to the United States entering any international organization, but it would have been insufficient to prevent ratification of the Treaty.
As it was, the President's unalterable determination to have his form of guaranty in the Covenant, in which he was successful, and his firm refusal to modify it in any substantial way resulted in strengthening the opponents to the League to such an extent that they were able to prevent the Treaty from obtaining the necessary consent of two thirds of the Senators.
The sincerity of Mr. Wilson's belief in the absolute necessity of the guaranty, which he proposed, to the preservation of international peace cannot be doubted. While his advisers were practically unanimous in the opinion that policy, as well as principle, demanded a change in the guaranty, he clung tenaciously to the affirmative form. The result was that which was feared and predicted by his colleagues. The President, and the President alone, must bear the responsibility for the result.
On the day that the Commission on the League of Nations held its first meeting and before I had reason to suspect that Mr. Wilson intended to ignore the letter which I had sent him with the suggested resolution enclosed, I determined to appeal to him in behalf of international arbitration. I decided to do this on the assumption that, even if the plan for a resolution was approved, the Commission would continue its sessions in preparation for the subsequent negotiation of an agreement of some sort providing for world organization. The provision as to arbitration in the President's original draft of a Covenant was so wrong from my point of view and showed such a lack of knowledge of the practical side of the subject that I was impelled to make an effort to induce him to change the provision. Except for the fact that the matter was wholly legal in character and invited an opinion based on technical knowledge, I would have remained silent in accordance with my feeling that it would be inadvisable for me to have anything to do with drafting the Covenant. I felt, however, that the constitution and procedure of international courts were subjects which did not affect the general theory of organization and concerning which my views might influence the President and be of aid to him in the formulation of the judicial feature of any plan adopted.
With this object in view I wrote to him the following letter:
"_Hotel Crillon, Paris
"February_ 3, 1919
"My Dear Mr. President:
"I am deeply interested, as you know, in the constitution and procedure of international courts of arbitration, and having participated in five proceedings of this sort I feel that I can speak with a measure of authority.
"In the first place let me say that a tribunal, on which representatives of the litigants sit as judges, has not proved satisfactory even though the majority of the tribunal are nationals of other countries. However well prepared from experience on the bench to render strict justice, the litigants' arbitrators act in fact as advocates. As a consequence the neutral arbitrators are decidedly hampered in giving full and free expression to their views, and there is not that frank exchange of opinion which should characterize the conference of judges. It has generally resulted in a compromise, in which the nation in the wrong gains a measure of benefit and the nation in the right is deprived of a part of the remedy to which it is entitled. In fact an arbitration award is more of a political and diplomatic arrangement than it is a judicial determination. I believe that this undesirable result can be in large measure avoided by eliminating arbitrators of the litigant nations. It is only in the case of monetary claims that these observations do not apply.
"Another difficulty has been the method of procedure before international tribunals. This does not apply to monetary claims, but to disputes arising out of boundaries, interpretation of treaties, national rights, etc. The present method of an exchange of cases and of counter-cases is more diplomatic than judicial, since it does not put the parties in the relation of complainant and defendant. This relation can in every case be established, if not by mutual agreement, then by some agency of the League of Nations charged with that duty. Until this reform of procedure takes place there will be no definition of issues, and arbitration will continue to be the long and elaborate proceeding it has been in the past.