SUBSTITUTE ARTICLES PROPOSED

The President, Mr. Henry White, and I arrived in Paris on Saturday, December 14, 1918, where Colonel House and General Bliss awaited us. The days following our arrival were given over to public functions in honor of the President and to official exchanges of calls and interviews with the delegates of other countries who were gathering for the Peace Conference. On the 23d, when the pressure of formal and social engagements had in a measure lessened, I decided to present to the President my views as to the mutual guaranty which he intended to propose, fearing that, if there were further delay, he would become absolutely committed to the affirmative form. I, therefore, on that day sent him the following letter, which was marked “Secret and Urgent”:

“Hotel de Crillon December 23, 1918

“My Dear Mr. President:

“The plan of guaranty proposed for the League of Nations, which has been the subject of discussion, will find considerable objection from other Governments because, even when the principle is agreed to, there will be a wide divergence of views as to the terms of the obligation. This difference of opinion will be seized upon by those, who are openly or secretly opposed to the League, to create controversy and discord.

“In addition to this there will be opposition in Congress to assuming obligations to take affirmative action along either military or economic lines. On constitutional grounds, on its effect on the Monroe Doctrine, on jealousy as to Congressional powers, etc., there will be severe criticism which will materially weaken our position with other nations, and may, in view of senatorial hostility, defeat a treaty as to the League of Nations or at least render it impotent.

“With these thoughts in mind and with an opposition known to exist among certain European statesmen and already manifest in Washington, I take the liberty of laying before you a tentative draft of articles of guaranty which I do not believe can be successfully opposed either at home or abroad.”

I would interrupt the reader at this point to suggest that it might be well to peruse the enclosures, which will be found in the succeeding pages, in order to have a better understanding of the comments which follow. To continue:

“I do not see how any nation can refuse to subscribe to them. I do not see how any question of constitutionality can be raised, as they are based essentially on powers which are confided to the Executive. They in no way raise a question as to the Monroe Doctrine. At the same time I believe that the result would be as efficacious as if there was an undertaking to take positive action against an offending nation, which is the present cause of controversy.

“I am so earnestly in favor of the guaranty, which is the heart of the League of Nations, that I have endeavored to find a way to accomplish this and to remove the objections raised which seem to me to-day to jeopardize the whole plan.

“I shall be glad, if you desire it, to confer with you in regard to the enclosed paper or to receive your opinion as to the suggestions made. In any event it is my hope that you will give the paper consideration.

“Faithfully yours

“Robert Lansing

“The President

“28 Rue de Monceau”

It should be borne in mind in reading this letter that I had reached the conclusion that modification rather than abandonment of the guaranty was all that I could hope to accomplish, and that, as a matter of expediency, it seemed wise to indicate a sympathetic attitude toward the idea. For that reason I expressed myself as favorable to the guaranty and termed it “the heart of the League of Nations,” a phrase which the President by his subsequent use of it considered to be a proper characterization.

The memoranda contained in the paper enclosed in the letter were as follows:

The Constitutional Power to provide Coercion in a Treaty

“December 20, 1918

“In the institution of a League of Nations we must bear in mind the limitations imposed by the Constitution of the United States upon the Executive and Legislative Branches of the Government in defining their respective powers.

“The Constitution confers upon Congress the right to declare war. This right, I do not believe, can be delegated and it certainly cannot be taken away by treaty. The question arises, therefore, as to how far a provision in an agreement as to a League of Nations, which imposes on the United States the obligation to employ its military or naval forces in enforcing the terms of the agreement, would be constitutional.

“It would seem that the utilization of forces, whether independently or in conjunction with other nations, would in fact by being an act of war create a state of war, which constitutionally can only be done by a declaration of Congress. To contract by treaty to create a state of war upon certain contingencies arising would be equally tainted with unconstitutionality and would be null and inoperative.

“I do not think, therefore, that, even if it were advisable, any treaty can provide for the independent or joint use of the military or naval forces of the United States to compel compliance with a treaty or to make good a guaranty made in a treaty.

“The other method of international coercion is non-intercourse,
especially commercial non-intercourse. Would a treaty provision to
employ this method be constitutional?

“As to this my mind is less clear. The Constitution in delegating powers to Congress includes the regulation of commerce. Does non-intercourse fall within the idea of regulation? Could an embargo be imposed without an act of Congress? My impression is that it could not be done without legislation and that a treaty provision agreeing in a certain event to impose an embargo against another nation would be void.

“Even if Congress was willing to delegate to the Executive for a certain purpose its powers as to making war and regulating commerce, I do not think that it could constitutionally do so. It is only in the event of war that powers conferred by the Constitution on Congress can be delegated and then only for war purposes. As a state of war would not exist at the time action was required, I do not believe that it could be done, and any provision contracting to take measures of this nature would be contrary to the Constitution and as a consequence void.

“But, assuming that Congress possessed the power of delegation, I am convinced that it would not only refuse to do so, but would resent such a suggestion because of the fact that both Houses have been and are extremely jealous of their rights and authority.

“Viewed from the standpoints of legality and expediency it would seem necessary to find some other method than coercion in enforcing an international guaranty, or else to find some substitute for a guaranty which would be valueless without affirmative action to support it.

“I believe that such a substitute can be found.”

The foregoing memorandum was intended as an introduction to the negative guaranty or “self-denying covenant” which I desired to lay before the President as a substitute for the one upon which he intended to build the League of Nations. The memorandum was suggestive merely, but in view of the necessity for a speedy decision there was no time to prepare an exhaustive legal opinion. Furthermore, I felt that the President, whose hours were at that time crowded with numerous personal conferences and public functions, would find little opportunity to peruse a long and closely reasoned argument on the subject.

The most important portion of the document was that entitled “Suggested Draft of Articles for Discussion. December 20, 1918.” It reads as follows:

“The parties to this convention, for the purpose of maintaining international peace and preventing future wars between one another, hereby constitute themselves into a League of Nations and solemnly undertake jointly and severally to fulfill the obligations imposed upon them in the following articles:

“A

“Each power signatory or adherent hereto severally covenants and guarantees that it will not violate the territorial integrity or impair the political independence of any other power signatory or adherent to this convention except when authorized so to do by a decree of the arbitral tribunal hereinafter referred to or by a three-fourths vote of the International Council of the League of Nations created by this convention.

“B

“In the event that any power signatory or adherent hereto shall fail to observe the covenant and guaranty set forth in the preceding article, such breach of covenant and guaranty shall ipso facto operate as an abrogation of this convention in so far as it applies to the offending power and furthermore as an abrogation of all treaties, conventions, and agreements heretofore or hereafter entered into between the offending power and all other powers signatory and adherent to this convention.

“C

“A breach of the covenant and guaranty declared in Article A shall constitute an act unfriendly to all other powers signatory and adherent hereto, and they shall forthwith sever all diplomatic, consular, and official relations with the offending power, and shall, through the International Council, hereinafter provided for, exchange views as to the measures necessary to restore the power, whose sovereignty has been invaded, to the rights and liberties which it possessed prior to such invasion and to prevent further violation thereof.

“D

“Any interference with a vessel on the high seas or with aircraft proceeding over the high seas, which interference is not affirmatively sanctioned by the law of nations shall be, for the purposes of this convention, considered an impairment of political independence.”

In considering the foregoing series of articles constituting a guaranty against one’s own acts, instead of a guaranty against the acts of another, it must be remembered that, at the time of their preparation, I had not seen a draft of the President’s proposed guaranty, though from conversations with Colonel House and from my study of Point XIV of “The Fourteen Points,” I knew that it was affirmative rather than negative in form and would require positive action to be effective in the event that the menace of superior force was insufficient to prevent aggressive acts.

As far as I am able to judge from subsequently acquired knowledge, President Wilson at the time he received my letter of December 23 had a typewritten draft of the document which after certain amendments he later laid before the American Commissioners and which he had printed with a few verbal changes under the title of “The Covenant.” In order to understand the two forms of guaranty which he had for consideration after he received my letter, I quote the article relating to it, which appears in the first printed draft of the Covenant.

III

“The Contracting Powers unite in guaranteeing to each other political independence and territorial integrity; but it is understood between them that such territorial readjustments, if any, as may in the future become necessary by reasons of changes in present racial conditions and aspirations or present social and political relationships, pursuant to the principle of self-determination, and also such territorial readjustments as may in the judgment of three fourths of the Delegates be demanded by the welfare and manifest interest of the people concerned, may be effected if agreeable to those peoples; and that territorial changes may involve material compensation. The Contracting Powers accept without reservation the principle that the peace of the world is superior in importance to every question of political jurisdiction or boundary.”

It seems needless to comment upon the involved language and the uncertainty of meaning of this article wherein it provided for “territorial readjustments” of which there appeared to be two classes, one dependent on “self-determination,” the other on the judgment of the Body of Delegates of the League. In view of the possible reasons which might be advanced for changes in territory and allegiance, justification for an appeal to the guarantors was by no means certain. If this article had been before me when the letter of December 23 was written, I might have gone much further in opposition to the President’s plan for stabilizing peace in the world on the ground that a guaranty so conditioned would cause rather than prevent international discord.

Though without knowledge of the exact terms of the President’s proposed guaranty, I did not feel for the reason stated that I could delay longer in submitting my views to the President. There was not time to work out a complete and well-digested plan for a League, but I had prepared in the rough several articles for discussion which related to the organization, and which might be incorporated in the organic agreement which I then assumed would be a separate document from the treaty restoring peace. While unwilling to lay these articles before the President until they were more carefully drafted, I enclosed in my letter the following as indicative of the character of the organization which it seemed to me would form a simple and practical agency common to all nations:

“Suggestions as to an International Council For Discussion

“December 21, 1918

“An International Council of the League of Nations is hereby
constituted, which shall be the channel for communication between the
members of the League, and the agent for common action.

“The International Council shall consist of the diplomatic
representative of each party signatory or adherent to this
convention at .

“Meetings of the International Council shall be held at , or in the event that the subject to be considered involves the interests of or its nationals, then at such other place outside the territory of a power whose interests are involved as the Supervisory Committee of the Council shall designate.

“The officer charged with the conduct of the foreign affairs of the
power where a meeting is held shall be the presiding officer thereof.

“At the first meeting of the International Council a Supervisory Committee shall be chosen by a majority vote of the members present, which shall consist of five members and shall remain in office for two years or until their successors are elected.

“The Supervisory Committee shall name a Secretariat which shall have charge of the archives of the Council and receive all communications addressed to the Council or Committee and send all communications issued by the Council or Committee.

“The Supervisory Committee may draft such rules of procedure as it
deems necessary for conducting business coming before the Council or
before the Committee.

“The Supervisory Committee may call a meeting of the Council at its discretion and must call a meeting at the request of any member of the Council provided the request contains a written statement of the subject to be discussed.

“The archives of the Council shall be open at any time to any member
of the Council, who may make and retain copies thereof.

“All expenses of the Supervisory Committee and Secretariat shall be
borne equally by all powers signatory or adherent to this
convention.”

As indicated by the caption, this document was intended merely “for discussion” of the principal features of the organization. It should be noted that the basic principle is the equality of nations. No special privileges are granted to the major powers in the conduct of the organization. The rights and obligations of one member of the League are no more and no less than those of every other member. It is based on international democracy and denies international aristocracy.

Equality in the exercise of sovereign rights in times of peace, an equality which is imposed by the very nature of sovereignty, seemed to me fundamental to a world organization affecting in any way a nation’s independence of action or its exercise of supreme authority over its external or domestic affairs. In my judgment any departure from that principle would be a serious error fraught with danger to the general peace of the world and to the recognized law of nations, since it could mean nothing less than the primacy of the Great Powers and the acknowledgment that because they possessed the physical might they had a right to control the affairs of the world in times of peace as well as in times of war. For the United States to admit that such primacy ought to be formed would be bad enough, but to suggest it indirectly by proposing an international organization based on that idea would be far worse.

On January 22, 1917, the President in an address to the Senate had made the following declaration:

“The equality of nations upon which peace must be founded if it is to last must be an equality of rights; the guarantees exchanged must neither recognize nor imply a difference between big nations or small, between those that are powerful and those that are weak. Right must be based upon the common strength, not the individual strength, of the nations upon whose concert peace will depend. Equality of territory or of resources there of course cannot be; nor any other sort of equality not gained in the ordinary peaceful and legitimate development of the peoples themselves. But no one asks or expects anything more than an equality of rights.”

In view of this sound declaration of principle it seemed hardly possible that the President, after careful consideration of the consequences of his plan of a guaranty requiring force to make it practical, would not perceive the fundamental error of creating a primacy of the Great Powers.

It was in order to prevent, if possible, the United States from becoming sponsor for an undemocratic principle that I determined to lay my partial plan of organization before the President at the earliest moment that I believed it would receive consideration.

To my letter of December 23 with its enclosed memoranda I never received a reply or even an acknowledgment. It is true that the day following its delivery the President went to Chaumont to spend Christmas at the headquarters of General Pershing and that almost immediately thereafter he visited London and two or three days after his return to Paris he set out for Rome. It is possible that Mr. Wilson in the midst of these crowded days had no time to digest or even to read my letter and its enclosed memoranda. It is possible that he was unable or unwilling to form an opinion as to their merits without time for meditation. I do not wish to be unjustly critical or to blame the President for a neglect which was the result of circumstance rather than of intention.

At the time I assumed that his failure to mention my letter in any way was because his visits to royalty exacted from him so much of his time that there was no opportunity to give the matter consideration. While some doubt was thrown on this assumption by the fact that the President held an hour’s conference with the American Commissioners on January 1, just before departing for Italy, during which he discussed the favorable attitude of Mr. Lloyd George toward his (the President’s) ideas as to a League of Nations, but never made any reference to my proposed substitute for the guaranty, I was still disposed to believe that there was a reasonable explanation for his silence and that upon his return from Rome he would discuss it.

Having this expectation I continued the preparation of tentative provisions to be included in the charter of a League of Nations in the event one was negotiated, and which would in any event constitute a guide for the preparation of declarations to be included in the Treaty of Peace in case the negotiation as to a League was postponed until after peace had been restored. As has been said, it was my hope that there would be a separate convention organizing the League, but I was not as sanguine of this as many who believed this course would be followed.

It later developed that the President never had any other purpose than to include the detailed plan of organization in the peace treaty, whether the treaty was preliminary or definitive. When he departed for Italy he had not declared this purpose to the Commissioners, but from some source, which I failed to note at the time and cannot now recollect, I gained the impression that he intended to pursue this policy, for on December 29 I wrote in my book of notes:

“It is evident that the President is determined to incorporate in the peace treaty an elaborate scheme for the League of Nations which will excite all sorts of opposition at home and abroad and invite much discussion.

“The articles relating to the League ought to be few and brief. They will not be. They will be many and long. If we wait till they are accepted, it will be four or five months before peace is signed, and I fear to say how much longer it will take to have it ratified.

“It is perhaps foolish to prophesy, but I will take the chance. Two months from now we will still be haggling over the League of Nations and an exasperated world will be cursing us for not having made peace. I hope that I am a false prophet, but I fear my prophecy will come true. We are riding a hobby, and riding to a fall.”

By the time the President returned from his triumphal journey to Rome I had completed the articles upon which I had been working; at least they were in form for discussion. At a conference at the Hotel Crillon between President Wilson and the American Commissioners on January 7, I handed to him the draft articles saying that they were supplemental to my letter of December 23. He took them without comment and without making any reference to my unanswered letter.

The first two articles of the “International Agreement,” as I termed the document, were identical in language with the memoranda dealing with a mutual covenant and with an international council which I had enclosed in my letter of December 23. It is needless, therefore, to repeat them here.

Article III of the so-called “Agreement” was entitled “Peaceful Settlements of International Disputes,” and read as follows:

“Clause 1

“In the event that there is a controversy between two or more members
of the League of Nations which fails of settlement through diplomatic
channels, one of the following means of settlement shall be employed:

“1. The parties to the controversy shall constitute a joint commission to investigate and report jointly or severally to their Governments the facts and make recommendations as to settlement. After such report a further effort shall be made to reach a diplomatic settlement of the controversy.

“2. The parties shall by agreement arrange for the submission of the
controversy to arbitration mutually agreed upon, or to the Arbitral
Tribunal hereinafter referred to.

“3. Any party may, unless the second means of settlement is mutually adopted, submit the controversy to the Supervisory Committee of the International Council; and the Committee shall forthwith (a) name and direct a special commission to investigate and report upon the subject; (b) name and direct a commission to mediate between the parties to the controversy; or (c) direct the parties to submit the controversy to the Arbitral Tribunal for judicial settlement, it being understood that the direction to arbitrate may be made at any time in the event that investigation and mediation fail to result in a settlement of the controversy.

“Clause 2

“No party to a controversy shall assume any authority or perform any acts based upon disputed rights without authorization of the Supervisory Committee, such authorization being limited in all cases to the pendency of the controversy and its final settlement and being in no way prejudicial to the rights of the parties. An authorization thus granted by the Supervisory Committee may be modified or superseded by mutual agreement of the parties, by order of an arbitrator or arbitrators selected by the parties, or by order of the Arbitral Tribunal if the controversy is submitted to it.

“Clause 3

“The foregoing clause shall not apply to cases in which the constituted authorities of a power are unable or fail to give protection to the lives and property of nationals of another power. In the event that it becomes necessary for a power to use its military or naval forces to safeguard the lives or property of its nationals within the territorial jurisdiction of another power, the facts and reasons for such action shall be forthwith reported to the Supervisory Committee, which shall determine the course of action to be adopted in order to protect the rights of all parties, and shall notify the same to the governments involved which shall comply with such notification. In the event that a government fails to comply therewith it shall be deemed to have violated the covenant and guaranty hereinbefore set forth.”

The other articles follow:

“ARTICLE IV

“Revision of Arbitral Tribunal and Codification of International
Law

“Clause 1

“The International Council, within one year after its organization, shall notify to the powers signatory and adherent to this convention and shall invite all other powers to send delegates to an international conference at such place and time as the Council may determine and not later than six months after issuance of such notification and invitation.

“Clause 2

“The International Conference shall consider the revision of the constitution and procedure of the Arbitral Tribunal and provisions for the amicable settlement of international disputes established by the I Treaty signed at The Hague in 1907, and shall formulate codes embodying the principles of international law applicable in time of peace and the rules of warfare on land and sea and in the air. The revision and codification when completed shall be embodied in a treaty or treaties.

“Clause 3

“The International Council shall prepare and submit with the notification and invitation above provided a preliminary programme of the International Conference, which shall be subject to modification or amendment by the Conference.

“Clause 4

“Until the treaty of revision of the constitution and procedure of the Arbitral Tribunal becomes operative, the provisions of the I Treaty signed at The Hague in 1907 shall continue in force, and all references herein to the ‘Arbitral Tribunal’ shall be understood to be the Tribunal constituted under the I Treaty, but upon the treaty of revision coming into force the references shall be construed as applying to the Arbitral Tribunal therein constituted.

“ARTICLE V

“Publication of Treaties and Agreements

“Clause 1

“Each power, signatory or adherent to this convention, severally agrees with all other parties hereto that it will not exchange the ratification of any treaty or convention hereinafter entered into by it with any other power until thirty days after the full text of such treaty or convention has been published in the public press of the parties thereto and a copy has been filed with the Secretariat of the League of Nations.

“Clause 2

“No international agreement, to which a power signatory or adherent
to this convention, is a party, shall become operative or be put in
force until published and filed as aforesaid.

“Clause 3

“All treaties, conventions and agreements, to which a power, signatory or adherent to this convention, is a party, and which are in force or to come into force and which have not been heretofore published, shall within six months after the signature of this convention be published and filed as aforesaid or abrogated or denounced.

“ARTICLE VI

“Equality of Commercial Privileges

“The powers, signatory and adherent to this convention agree jointly and severally not to discriminate against or in favor of any power in the matter of commerce or trade or of industrial privileges; and they further agree that all treaties, conventions and agreements now in force or to come into force or hereinafter negotiated shall be considered as subject to the ‘most favored nation’ doctrine, whether they contain or do not contain a clause to that effect. It is specifically declared that it is the purpose of this article not to limit any power in imposing upon commerce and trade such restrictions and burdens as it may deem proper but to make such impositions apply equally and impartially to all other powers, their nationals and ships.

“This article shall not apply, however, to any case, in which a power has committed an unfriendly act against the members of the League of Nations as defined in Article I and in which commercial and trade relations are denied or restricted by agreements between the members as a measure of restoration or protection of the rights of a power injured by such unfriendly act.”

These proposed articles, which were intended for discussion before drafting the provisions constituting a League of Nations and which did not purport to be a completed document, are given in full because there seems no simpler method of showing the differences between the President and me as to the form, functions, and authority of an international organization. They should be compared with the draft of the “Covenant” which the President had when these proposed articles were handed to him; the text of the President’s draft appears in the Appendix (page 281). Comparison will disclose the irreconcilable differences between the two projects.

Of these differences the most vital was in the character of the international guaranty of territorial and political sovereignty. That difference has already been discussed. The second in importance was the practical repudiation by the President of the doctrine of the equality of nations, which, as has been shown, was an unavoidable consequence of an affirmative guaranty which he had declared to be absolutely essential to an effective world union. The repudiation, though by indirection, was none the less evident in the recognition in the President’s plan of the primacy of the Great Powers through giving to them a permanent majority on the “Executive Council” which body substantially controlled the activities of the League. A third marked difference was in Mr. Wilson’s exaltation of the executive power of the League and the subordination of the administration of legal justice to that power, and in my advocacy of an independent international judiciary, whose decisions would be final and whose place in the organization of the nations would be superior, since I considered a judicial tribunal the most practical agency for removing causes of war.

The difference as to international courts and the importance of applied legal justice requires further consideration in order to understand the divergence of views which existed as to the fundamental idea of organization of the League.

President Wilson in his Covenant, as at first submitted to the American Commissioners, made no provision for the establishment of a World Court of Justice, and no reference of any sort was made to The Hague Tribunal of Arbitration. It is not, in my opinion, a misstatement to say that the President intentionally omitted judicial means of composing international disputes preferring to leave settlements of that sort to arrangement between the parties or else to the Body of Delegates or the Executive Council, both of which bodies being essentially diplomatic or political in their composition would lack the judicial point of view, since their members would presumably be influenced by their respective national interests and by political considerations rather than by a desire and purpose to do impartial justice by applying legal principles.

It is true that in Article V of the first draft of the Covenant (Appendix) there is an agreement to submit to arbitration certain classes of controversies and a method of selecting arbitrators is provided a method, by the way, which the actual experience of a century has shown to be the least satisfactory in administering legal justice, since it almost inevitably leads to a compromise which impairs the just rights of one of the parties. But, to my mind, a provision, far more objectionable than the antiquated and unsatisfactory method of arbitration provided, was that which made an arbitral award reviewable on appeal to the Body of Delegates of the League, which could set aside the award even if the arbitrators had rendered a unanimous decision and compel a rehearing before other arbitrators. International arbitration as a method of applying the principles of justice to disputes between nations would, in the first instance at least, have become a farce if this provision had been adopted. As an award based on compromise is seldom, if ever, satisfactory to both parties, the right of appeal would in substantially every case have been invoked and the award would have been reviewed by the Body of Delegates, who would practically render a final decision since the new arbitrators would presumably adopt it. The effect of this provision as to appeals was, therefore, to supplant judicial settlements by political compromises and diplomatic adjustments, in which the national interests of the judges, many of whom would be untrained in juridical procedure, would be decided, if not deciding, factors. Manifestly the expediency of the moment would be far more potent in the decisions reached than the principles and precepts of international law.

I shall not express here my opinion as to the reasons which I believe impelled the President to insert in the Covenant these extraordinary provisions which deprived arbitral courts of that independence of the executive authority which has been in modern times considered essential to the impartial administration of justice. But, when one considers how jealously and effectively the Constitution of the United States and the constitutions of the various States of the Union guard the judiciary from executive and legislative interference, the proposal in the President’s plan for a League of Nations to abandon that great principle in the settlement of international disputes of a justiciable nature causes speculation as to Mr. Wilson’s real opinion of the American political system which emphasizes the separation and independence of the three coordinate branches of government.

That a provision found its way into the draft of the Covenant, which the President, on February 3, 1919, laid before the Commission on the League of Nations, declaring for the creation by the League of a permanent court of international justice, was not due, I feel sure, to any spontaneous thought on the part of President Wilson.

My own views as to the relative value of the settlement of an international controversy, which is by its nature justiciable, by a body of diplomats and of the settlement by a body of trained jurists were fully set forth in an address which I delivered before the American Bar Association at its annual meeting at Boston on September 5,1919.

An extract from that address will show the radical difference between the President’s views and mine.

“While abstract justice cannot [under present conditions] be depended upon as a firm basis on which to constitute an international concord for the preservation of peace and good relations between nations, legal justice offers a common ground where the nations can meet to settle their controversies. No nation can refuse in the face of the opinion of the world to declare its unwillingness to recognize the legal rights of other nations or to submit to the judgment of an impartial tribunal a dispute involving the determination of such rights. The moment, however, that we go beyond the clearly defined field of legal justice we enter the field of diplomacy where national interests and ambitions are to-day the controlling factors of national action. Concession and compromise are the chief agents of diplomatic settlement instead of the impartial application of legal justice which is essential to a judicial settlement. Furthermore, the two modes of settlement differ in that a judicial settlement rests upon the precept that all nations, whether great or small, are equal, but in the sphere of diplomacy the inequality of nations is not only recognized, but unquestionably influences the adjustment of international differences. Any change in the relative power of nations, a change which is continually taking place, makes more or less temporary diplomatic settlements, but in no way affects a judicial settlement.

“However, then, international society may be organized for the future and whatever machinery may be set up to minimize the possibilities of war, I believe that the agency which may be counted upon to function with certainty is that which develops and applies legal justice.”

Every other agency, regardless of its form, will be found, when analyzed, to be diplomatic in character and subject to those impulses and purposes which generally affect diplomatic negotiations. With a full appreciation of the advantage to be gained for the world at large through the common consideration of a vexatious international question by a body representing all nations, we ought not to lose sight of the fact that such consideration and the action resulting from it are essentially diplomatic in nature. It is, in brief, the transference of a dispute in a particular case from the capitals of the disputants to the place where the delegates of the nations assemble to deliberate together on matters which affect their common interests. It does not and this we should understand remove the question from the processes of diplomacy or prevent the influences which enter into diplomacy from affecting its consideration. Nor does it to an appreciable extent change the actual inequality which exists among nations in the matter of power and influence.

“On the other hand, justice applied through the agency of an impartial tribunal clothed with an international jurisdiction eliminates the diplomatic methods of compromise and concession and recognizes that before the law all nations are equal and equally entitled to the exercise of their rights as sovereign and independent states. In a word, international democracy exists in the sphere of legal justice and, up to the present time, in no other relation between nations.

“Let us, then, with as little delay as possible establish an international tribunal or tribunals of justice with The Hague Court as a foundation; let us provide an easier, a cheaper, and better procedure than now exists; and let us draft a simple and concise body of legal principles to be applied to the questions to be adjudicated. When that has been accomplished and it ought not to be a difficult task if the delegates of the Governments charged with it are chosen for their experience and learning in the field of jurisprudence we shall, in my judgment, have done more to prevent international wars through removing their causes than can be done by any other means that has been devised or suggested.”

The views, which I thus publicly expressed at Boston in September, 1919, while the President was upon his tour of the country in favor of the Covenant of the League of Nations, were the same as those that I held at Paris in December, 1918, before I had seen the President’s first draft of a Covenant, as the following will indicate.

On December 17, 1918, three days after arriving in Paris, I had, as has been stated, a long conference with Colonel House on the Peace Conference and the subjects to come before it. I urged him in the course of our conversation “to persuade the President to make the nucleus of his proposed League of Nations an international court pointing out that it was the simplest and best way of organizing the world for peace, and that, if in addition the general principles of international law were codified and the right of inquiry confided to the court, everything practical would have been done to prevent wars in the future” (quoted from a memorandum of the conversation made at the time). I also urged upon the Colonel that The Hague Tribunal be made the basis of the judicial organization, but that it be expanded and improved to meet the new conditions. I shall have something further to say on this subject.

Reverting now to the draft of articles which I had in form on January 5, 1919, it must be borne in mind that I then had no reason to think that the President would omit from his plan an independent judicial agency for the administration of legal justice, although I did realize that he gave first place to the mutual guaranty and intended to build a League on that as a nucleus. It did not seem probable that an American, a student of the political institutions of the United States and familiar with their operation, would fail to incorporate in any scheme for world organization a judicial system which would be free from the control and even from the influence of the political and diplomatic branch of the organization. The benefit, if not the necessity, of such a division of authority seemed so patent that the omission of a provision to that effect in the original draft of the Covenant condemned it to one who believed in the principles of government which found expression in American institutions. Fortunately the defect was in a measure cured before the Commission on the League of Nations formally met to discuss the subject, though not before the Covenant had been laid before the American Commissioners.

The articles of a proposed convention for the creation of an international organization were not intended, as I have said, to form a complete convention. They were suggestive only of the principal features of a plan which could, if the President desired, arouse discussion as to the right theory and the fundamental principles of the international organization which there seemed little doubt would be declared by the Paris Conference.

Among the suggested articles there was none covering the subject of disarmament, because the problem was highly technical requiring the consideration of military and naval experts. Nor was there any reference to the mandatory system because there had not been, to my knowledge, any mention of it at that time in connection with the President’s plan, though General Smuts had given it prominence in his proposed scheme.

During the preparation of these suggestive articles I made a brief memorandum on the features, which seemed to me salient, of any international agreement to prevent wars in the future, and which in my opinion ought to be in mind when drafting such an agreement. The first three paragraphs of the memorandum follow:

“There are three doctrines which should be incorporated in the Treaty
of Peace if wars are to be avoided and equal justice is to prevail in
international affairs.

“These three doctrines may be popularly termed ‘Hands Off,’ the ’Open
Door,’ and ‘Publicity.’

“The first pertains to national possessions and national rights; the
second to international commerce and economic conditions; and the
third, to international agreements.”

An examination of the articles which I prepared shows that these doctrines are developed in them, although at the time I was uncertain whether they ought to appear in the convention creating the League or in the Preliminary Treaty of Peace, which I believed, in common with the prevailing belief, would be negotiated. My impression was that they should appear in the Peace Treaty and possibly be repeated in the League Treaty, if the two were kept distinct.