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United States in the Peace Conference have
no legislative authority and derive their
powers solely from the Executive, none of
them having been confirmed by the Senate,
all the representatives of the European
Powers in the Conference are subject to re-
call by the legislative branch of their gov-
ernments if their actions in the course of the
negotiations are not approved. In order
that approval or disapproval may be intel-
ligently expressed and in a timely manner,


the legislatures insist that they be kept in-
formed of the course taken; and, as an ex-
ample of this surveillance, it may be noted
that the British Premier found it necessary
to return in person to London, in order to
explain to the House of Commons the atti-
tude he had taken on behalf of his govern-
ment in a matter of interest to them. And
the Italian Premier did the same.

No European Premier, the head of a re-
sponsible government, would for a moment
venture to ignore the advice of the legisla-
tive body upon which his official existence
is dependent, much less to attempt to force
its hand by embodying in a treaty anything
which he had occasion to believe would not
meet with its approval. If he should be so
rash as to do so, he would be immediately
withdrawn from the negotiations and an-
other would be substituted in his place.

It was certainly never intended by the
founders of the American Republic that the
vital questions of foreign policy and inter-
national engagements should be subject to
decision by a single person. If the precau-


i ^

tions taken to avoid that result are lightly

to be set aside and ignored, and especially
if the voice of the people should proclaim a
preference for that method of procedure,
the United States would at once take rank
as the least democratic nation in the world,
and there would be new evidence that a de-
mocracy unrestrained by law is the inevi-
table victim of autocracy.

Whatever the attitude of the majority of
the people may be in this matter and it
would be a serious reproach to them to sug-
gest that they would approve the suppres-
sion of freedom in their representatives
the real issue created by the purpose to force
acquiescence is not the ratification or non-
ratification of a particular treaty but the
attempt of the Executive to dominate the
legislative branch of the Government.

The strongest argument for a League of
Nations thus far advanced is that it would
offer an opportunity for conference and dis-
cussion, the idea being that by this means
good understanding would be promoted. The
effort to force the action of the Senate by;


combining the League of Nations with a
treaty of peace for the purpose of prevent-
ing the separate examination of the project
of a League on its merits, is a sad commen-
tary on the prospect of free conference and
discussion when the project is adopted.

The Senate has the constitutional right to
withhold its consent from a treaty of which
it does not approve. It may withhold it
completely or in part. Possessing the right
of amendment which is in effect a condi-
tional ratification it has a ready defense
against any attempt to force its decisions.
There can be no intertwining of engage-
ments which it cannot unravel. It can ratify
a treaty of peace and at the same time re-
ject a compact for a League of Nations.
It would then remain for those responsible
for the negotiation of a treaty designed to
frustrate the judgment of the Senate to ob-
tain the acceptance of the changes which the
amendments might require.

Two courses, in such a situation, would
be open. The President might refuse to act
any further, or he might consent to reopen


the negotiations for the purpose of securing
agreement on the changes. In the first case,
the responsibility for the delay of a formal
conclusion of peace would evidently rest
upon those who had concluded a treaty
which they knew beforehand would not be
acceptable to a body necessary to ratifica-

In the second case, the signatory Powers
could not consistently refuse to separate
what they had themselves intended not to
join together, until the President forced
them to do so; for they were prepared to
postpone the League of Nations and sign a
preliminary treaty of peace when the Presi-
dent returned to Paris from his visit to
America and changed their plans. The em-
barrassment of asking for a reversal of a
course upon which the President had himself
insisted would no doubt be for him very
great, but the alternative to resorting to it
would be a clear responsibility for the fail-
ure of the peace negotiations. Whatever
course might be followed as a consequence
of the Senate's insistence upon its constitu-


tional right, it is inconceivable that four, or
ten or any other number of delegates sit-
ting in council at Paris could frame any
document on any subject which the Senate
of the United States could be forced by the
Executive to adopt against the better judg-
ment of its members. If the people of the
United States, for any reason whatever, ar-
bitrarily insisted upon that, it would mark
the end of the Republic.

From the beginning it was made clear that
the Senate of the United States would not
ratify any treaty which created a super-
government ; that is, a government that ren-
dered the Government of the United States
in any way subordinate to it.

Immediately there began a series of exten-
uations regarding the purport of the Con-
stitution of the League. The representa-
tions of Senators regarding it were repudi-
ated as "bogies." Far from the Constitu-
tion creating a supernational government, it
was declared by its advocates, it was only an
agreement to listen to "recommendations,"
not necessarily to follow them. In the cases


where the Constitution seemed to call for
war, in order to impose peace, it remained
for the separate governments to declare war,
or not, as they might deem best. Thus, it
turned out that, if this interpretation was
correct, it was the League itself that was
the real bogie; a device not to enforce
peace by an international army but by sheer
intimidation, pretending to show a mailed
fist but in fact merely shaking a finger at a
possible aggressor.

It was a difficult task to mediate between
these extreme interpretations, that of a
super-government and that of an unaffect-
ed sovereignty. Some middle ground was
even more necessary to the theory of the
League to Enforce Peace than it was to the
President's conception of a leagr^ which
should aim to "insure" peace; a result which,
he thought, might be accomplished "vithout
force if the intimidation imposed were sui-
ficiently impressive.

It was upon the President of the League
to Enforce Peace, Ex-President William
Howard Taft, therefore, that the task chief -


ly fell, by the use of his great prestige and
his dialectical skill, to reconcile the Consti-
tution of the League to the Constitution of
the United States. Coming from him, al-
most any assurance seemed to many citizens
a sufficient guarantee that the conflict be-
tween the two "constitutions" was purely
imaginary, which makes it of importance to
know what the former President's position
was regarding the obligations of the League.

Answering the argument of Senator
Knox, the Ex-President, in his speech be-
fore the Economic Club of New York, par-
ried the accusation regarding super-govern-
ment in the following adroit manner:

"When Senator Knox's attack upon the
covenant is analyzed, it will be seen to rest
on an assumption that the Executive Coun-
cil is given executive powers which are un-
warranted by the text of the covenant.
' arJtie whole function of the Executive Coun-
cil is to be the medium through which the
League members are to exchange views, the
advisory board to consider all matters aris-
ing in the field of the League's possible


action and to advise the members as to what
they ought by joint action to do.'

"The Council makes few, if any, orders
binding on the members of the League.
Where the Executive Council acts as a medi-
ating and inquiring body to settle differ-
ences not arbitrated, its unanimous recom-
mendations of a settlement must satisfy the
nation seeking relief, if the defendant
nation complies with the recommendation.
All other obligations of the United States
under the League are to be found in the
covenants of the League, and not in any
action of the Executive Council. When
this is understood clearly the whole structure
of Senator Knox's indictment falls."

The argument here is that the Executive
Council is a purely "advisory" body, with-
out any power to command. The obliga-
tions of the United States therefore, are not
to be found in the action of the Council, but
solely in "the covenants of the League."
These covenants, being freely made, it is
held, are in no sense infractions of sover-
eignty. On the contrary, they are affirma-


tions of it. They are voluntary agreements.

The answer to Senator Knox then reduces
itself to this: that there is in the Constitu-
tion of the League as originally presented no
element of a super-government. That the
League, as such, can enforce nothing; and
that the "recommendations" of the Execu-
tive Council are in no sense binding.

To verify this interpretation, the Ex-
President quotes Lord Robert Cecil as lay-
ing down the principle "that all action must
be unanimously agreed to in accordance with
the general rule that governs international
relations;" adding, that "this interpretation
by one of the most distinguished draftsmen
of the League shows that all its language,
reasonably construed, delegates no power to
these bodies to act for the League and its
members without their unanimous concur-
rence unless the words used make such dele-
gation clear." It is interesting, however, to
observe that Ex-President Taft has pro-
posed four amendments to the original draft
of the Constitution of the League, the third
one "definitely stating the rule of unanimity


and making it perfectly plain that any action
taken by the Executive Council of the
League must be unanimous, thereby neces-
sitating the concurrence of the American
Government's member of the Executive
Council before its action could be binding
upon the United States." 2 This amend-
ment has been accepted, and to that extent
the League becomes an Entente.

It is not possible, however, thus easily to
destroy the argument of Senator Knox. The
fact that Mr. Taf t finds it desirable to make
sure of the unanimity of the Executive
Council before it can even be allowed to
"recommend," shows that there is lodged
within it some potency against which it is
necessary to guard. It cannot be over-
looked that Article I, creating the Ex-
ecutive Council, makes it the "instrumen-
tality" through which "action shall be
effected." That is why it was called and
still is an "Executive" Council, although the
word "Council" is now unqualified. It has
important functions to perform. When the

2 For the amendments, see, at the end of this volume, a
list of the amendments proposed



allotment of armament has once been made,
the scale of forces cannot be exceeded
"without the concurrence of the Council"
(Article VIII), and under the rule of una-
nimity one single member could prevent a
State from increasing its means of defense.
The Council is to "advise" upon the means
by which the obligation to protect territorial
integrity and political independence, under
Article X, shall be fulfilled. If this advice
involves a declaration of war, the govern-
ments advised to make a declaration may in-
deed refuse ; but they would in that case be
regarded as delinquent. Under Article
XVI such a member may be expelled from
the League; and a member may not volun-
tarily withdraw on two years' notice unless
"all its obligations under this Covenant have
been fulfilled at the time of withdrawal"
(Article I). A worse situation would arise
if the opposition of a member of the Council
should nullify any action whatever, and thus
completely paralyze the League. When the
Council, acting as a judge, makes a recom-
mendation, under Article XII, compliance


with the award by one party binds the other
to accept it; and, under Article XV, if any
party shall refuse so to comply, "the Coun-
cil shall propose the measures necessary to
give effect to the recommendation." Under
Article XVI, the Council is to recommend
"what effective military or naval force the
members of the League shall severally con-
tribute to the armed forces to be used to
protect the covenants of the League." Under
Article XVII the Council may coerce
States not members of the League, and
under Article XXII it exercises sovereign
rights through its mandates to members of
the League. It is true that all these powers
are expressed in terms of invitation rather
than terms of command, but unless the
Council is regarded as acting with authority
it is difficult to see that there is any provi-
sion for the effective enforcement of peace
or of any covenants whatever.

There remain, however, the "obligations

of the Covenant"; and it is upon these that

the Ex-President lays the whole burden.

The treaty-making power, he holds, that



is, the President and Senate, is empow-
ered by the Constitution of the United
States to make treaties, which "enables them
to bind the United States to a contract with
another nation on any subject usually the
subject matter of treaties between nations,
subject to the limitation that the treaty may
not change the form of the government of the
United States. ... It therefore follows that
whenever the treaty-making power binds the
United States to do anything it must be
done by the branch of that government
vested by the Constitution with that func-
tion." This is to say that when the treaty-
making power engages to make war, to raise
armies and maintain navies, or not to raise
armies and maintain navies, or to do any-
thing which the Constitution empowers
Congress to do, Congress must do it, and has
no choice, except to take notice that the ob-
ligation has fallen due and action must be

Thus Mr. Taft very ingeniously takes
away from the Council of the League all the
attributes of a super-government only to


include them in the "obligations of the Cove-
nant" created by the President and Senate
of the United States.

That the Constitution of the League thus
creates a super-government, that is, a form
of authority under which the Congress of
the United States is compelled to act when
the casus fcederis calls for its action, must
be candidly admitted. Senator Knox finds
this compulsion in the Council, the "instru-
mentality through which the League's
action is effected." Mr. Taft finds it in
"the obligations of the Covenant." In either
case, the result is the same. The League
binds Congress to declare war, raise and ex-
pend money, and do many other acts, not
when Congress in its own judgment con-
siders them timely and necessary, but when
the "obligations of the Covenant" require it.

These obligations, the Ex-President not
only admits but asserts, are commands to
Congress to act in the way they prescribe.
Who then creates these obligations? The
President of the United States thinks they
can be created by himself alone through his


influence at Paris, and that the Senate can
then be forced to accept them whether the
senators wish to do so or not. The Ex-
President of the United States does not go so
far as this. He considers it necessary for the
whole treaty-making power to create these
obligations, but he believes that the Presi-
dent and Senate together can create them;
and that, having done so, the Congress of
the United States must act when the obli-
gations fall due, and will have no freedom
beyond the recognition of the fact that the
time has arrived for the fulfilment of the ob-
ligations thus created. The Council will
"advise" the Congress of this and "recom-
mend" its action. The only escape from
action would be either an attempt on the
part of Congress to prove that the Council
was misinterpreting the treaty or the failure
of our Government to respect it.

In such circumstances is it reprehensible
that the Senate of the United States should
wish to consider with great care the nature
of the obligations to be undertaken, and
should refuse to be forced into acquies-


cence by an executive demand that all "ex-
pediency" is to be disregarded?

Objections to the original proposal ac-
cepted at Paris were raised by members of
all political parties in the United States. It
is futile, therefore, to regard criticism of the
Constitution of the League as a partisan op-
position. Its most ardent advocate, for
reasons which are obvious, has been Ex-
President Taft. Although committed a
priori to the formation of a "League," there
were, nevertheless, modifications which he
as well as others considered it desirable to
make respecting the engagements of the
United States. The first relates to the Mon-
roe Doctrine, consisting of an amendment
making reservations to safeguard it ; the sec-
ond to secure any country in the League the
right to control matters solely within its do-
mestic jurisdiction, such as the question of
immigration; and one to provide for a with-
drawal from the League of Nations, and
possibly for a definite term of the existence
of the League itself. It is noteworthy that
all these changes are in the direction of re-


stricting the power and limiting the dura-
tion of the League.

Other eminent American statesmen also
have suggested improvements in the Con-
stitution of the League as originally pro-
posed. 3 All of them unite in demanding the
retention of the Monroe Doctrine. Upon
this point Mr. Charles Evans Hughes and
Mr. Elihu Root have been particularly ex-
plicit in counselling that it be made clear
that no obligation assumed by the United
States shall imply the renunciation of its
time-honored policy with regard to strictly
American questions.

This earnest expression of solicitude has
produced an effect at Paris, but the result
has occasioned bewilderment. It has never
been considered that the Monroe Doctrine
is to be classed with international engage-
ments, treaties of arbitration, or regional
understandings for securing the maintenance
of peace ; and the amazement was therefore
great when the public was informed that

8 See at the end of this volume the amendments referred



Article X, which pledges the members of
the League "to respect and preserve as
against external aggression" one another's
"territorial integrity and existing political
independence," was to be amended by the
addition of the words:

"Nothing in this covenant shall be deemed
to affect the validity of international en-
gagements, such as treaties of arbitration or
regional understandings like the Monroe
Doctrine, for securing the maintenance of
peace," which now appear as Article XXI
in the revised covenant.

It is proudly announced that at last, in
the midst of much opposition and by great
efforts, the President succeeded in securing
the recognition of the Monroe Doctrine as a
part of International Law ! It seems rather
disingenuous, after heralding the League as
itself an extension of the Monroe Doctrine
to all the world, as the President has done,
that he should make a struggle for its inclu-
sion in this treaty, and in such a form ! That
the President should ever have accepted the
language of this amendment, which it is al-


most inconceivable that any American could
have written, as a characterization of a
policy of the United States, which is neither
a law, nor an international engagement, nor
a regional understanding, but simply and
solely a political policy, is certainly surpris-

It is doubtful if the presence of these
strange words in the Covenant of the League
can ever transform a purely national policy
into International Law, which would only
denature it. It requires no sanction by a
lawmaking body, and if it did the Confer-
ence at Paris could not give it. It is a life
principle of the American Republic, and
means two things: first, that no foreign
Power shall ever acquire a foothold on this
continent that would menace the security of
this nation ; and, second, that this nation will
never imperil its own existence by interven-
tion in non- American affairs.

Never before the Great War had it been

necessary for the United States to fight in

Europe for its own rights, but the ambitions

and methods of the Imperial German Gov-



ernment created that necessity. We have
in this war fought for Belgium, for France,
for Great Britain, and other nations because
they were fighting for us, and we shall do so
again if our common enemy renews the at-
tack ; but we have never yet been committed
to a pledge to fight for everybody every-
where. The Monroe Doctrine has remained
until now an uncompromised national policy,
and it should be permanently maintained in
its twofold meaning as a prohibition of for-
eign intrusion on the American continent
and as a limitation of responsibility in other
parts of the world.

The amendment as it stands in the revised
Covenant does not express this intention.
Article XXI has more appropriate appli-
cation to the secret treaty of London, which
the President repudiates, than it has to the
Monroe Doctrine; for the secret treaty of
London was a "regional understanding,"
while the Monroe Doctrine is not. The
form of reservation attached to the Hague
Conventions was explicit and accurate, 4 and

4 See the text of this reservation at the end of this volume.


might well, with slight modification, be at-
tached to the present treaty, which would be
in the spirit of Mr. Root's third and Mr.
Hughes' third and fourth proposed amend-

Mr. Root further suggests, in his sixth
amendment, the calling of a general confer-
ence of the members after five or ten years
to revise the Covenant, after which any mem-
ber, on a year's notice, may withdraw from
the League; and Mr. Hughes would make
provision that any member may withdraw
"at its pleasure on specified notice," instead
of after two years' notice of its intention to
do so, as provided in the revised draft of
Article I. He also proposed that no mem-
ber shall be constituted a mandatary with-
out its consent, which has been accepted, and
that no European or Asiatic Power shall be
constituted a mandatary of any American

Even as thus modified, the League would
be far from the realization of the highest in-
ternational ideals. It has been pointed out
that the Covenant neither recognizes as bind-


ing the rules of International Law nor
makes provision for the improvement of
them. As a limited corporation in the gen-
eral Society of States, it cannot claim uni-
versality or justly exercise lawmaking
powers that all sovereign States would be
bound to respect. It would be merely a
single political organism in a community of
jurally equal States. Other leagues might
be formed which, even if they did not equal
it in power, could claim an equal justifica-
tion for their existence. They also would
aim to be self -protective. In brief, even
though the League were preponderant, it
would not constitute the Society of States.

To prevent the continuance of what would
thus remain at most a mere preponderance
of power, Mr. Root has proposed in his sec-
ond amendment a method of making the
League the means of a transition to a real
Society of Nations. His proposal, which
was endorsed by the Executive Committee
of the American Society of International
Law and cabled to Paris, is as follows:

"The Executive Council shall call a gen-


eral conference of the Powers to meet not

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Online LibraryDavid Jayne HillPresent problems in foreign policy → online text (page 13 of 17)