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by legislative bodies, are the most perfect
examples of this type. They possess an ideal
authority which no other form of law can

Under this system, a great body of posi-
tive law, freely and deliberately agreed



upon, and to a great extent with the added
quality of unanimity, has been written into
treaties and conventions solemnly and duly
ratified, according to the laws of each signa-
tory Power.

In the development of this procedure, the
United States has been a leader, because it
has introduced the participation of a repre-
sentative legislative body in the treaty-mak-
ing process. The law-making treaties of the
United States are of their very essence ex-
amples of positive law, not only because
treaties are declared by the Constitution to
be "the Supreme Law of the Land/' but be-
cause they require the specific approval of
the highest legislative branch of the Gov-

Originally, before the adoption of the Con-
stitution, under the Articles of Confeder-
ation, the making of treaties was the duty
of the Congress ; but, being feeble as an ex-
ecutive, Congress found itself confronted
with the more difficult task of making them
respected. In 1786, Washington, in a pri-
vate letter, wrote to Jay, the accusation that



the legislatures of the States were violating
the treaty of peace with Great Britain "was
greeted by them with laughter." The States
had not all developed the sense of national
responsibility; but national responsibility
was the imperative need, if the Union was to
endure, and that is what was created by the
provisions of the Constitution in the Conven-
tion of 1787.

In a letter written by Jay to the States, of
the Confederation, on April 13, 1787, and
approved by the Congress, it was declared:
4 'Contracts between nations, like contracts
between individuals, should be faithfully ex-
ecuted, even though the sword in the one
case and the law in the other did not com-
pel it. Honest nations, like honest men, re-
quire no restraint to do justice; and though
impunity and the necessity of affairs may
sometimes afford temptations to pare down
contracts to the measure of convenience, yet
it is never done but at the expense of that
esteem, and confidence, and credit which are
of infinitely more worth than all the momen-


tary advantages which such expedients can

In this spirit was the constitutional pro-
vision made, that the engagements of treaties
and the rules of action to which they pledged
the signatories, should, in the United States,
at least, themselves possess the quality of
being the supreme law of the land.

As Mr. Chief Justice Marshall afterward
stated, speaking for the Supreme Court of
the United States: "A treaty is to be re-
garded in Courts of Justice as equivalent
to an act of the legislature, whenever it
operates of itself, without the aid of any leg-
islative provision." And, indeed, the making
of treaties very narrowly escaped remaining,
under the Constitution, what it had been
under the Confederation, an act entrusted to
the legislative branch alone. It was only
toward the end of the sessions that the pre-
vious method was modified.

"It was evident," says Farrand, in his
"Framing of the Constitution," "that the
convention was growing tired. The commit-
tee had recommended that the power of ap-


pointment and the making of treaties be
taken from the Senate and vested in the
President, by and with the advice and con-
sent of the Senate. With surprising una-
nimity and surprisingly little debate," he
adds, "these important changes were agreed

By this division of the process of treaty-
making, the Executive was, in effect,
charged with the duty of recommending leg-
islation which he might find desirable and
practicable, but upon which a truly legis-
lative seal was to be placed only by and with
the advice and consent of a law-making body.

Regarding the motives for this decision,
Alexander Hamilton wrote, in "The Feder-
alist": "However proper and safe it may
be in governments where the executive mag-
istrate is an hereditary monarch, to commit
to him the entire power of making treaties,
it would be utterly unsafe and improper to
entrust that power to an elective magistrate
of four years' duration. . . . The history
of human conduct does not warrant that ex-
alted opinion of human virtue which would


make it wise in a nation to commit interests
of so delicate and momentous a kind, as those
which concern its intercourse with the rest
of the world, to the sole disposal of a magis-
trate created and circumstanced as would be
the President of the United States.

"To have entrusted the power of making
treaties to the Senate alone," he continues,
"would have been to relinquish the benefits
of the constitutional agency of the President
in the conduct of foreign negotiations. . . .
Though it would be imprudent to confide in
him solely so important a trust, yet it cannot
be doubted that his participation would
materially add to the safety of the society.
It must indeed be clear to a demonstration
that the joint possession of the power in
question, by the President and Senate, would
afford a greater prospect of security than
the separate possession of it by either of

The judgment of American statesmen and
the results of experience have confirmed the
view expressed by Hamilton. It has been
the custom of the Executive, in matters of



large import to avail itself of "the advice
and consent of the Senate," at all stages of
negotiation; and, in fact, the need of negoti-
ations on particular subjects has sometimes
been first brought to the attention of the
Executive by the legislative branch of the
government. Much of this exchange of views
is not, however, a matter of record; for it
has been in great part oral, and the nature of
the questions under discussion often render
these private conversations too delicate to
be given publicity when opinion on all sides
was still merely in a state of formation by the
competent participants.

It is, however, a notable fact that the tra-
ditions of the Senate have always been tena-
cious regarding the responsibility which the
Constitution places upon it, and justly so;
for, if treaties are not merely executive en-
gagements, and in reality are both supreme
law binding upon the nation and destined to
affect and to modify, to its benefit or to its
injury, the whole fabric of International
Law, such engagements become the most
solemn transactions which it is the duty of


a government to perform. As it is the func-
tion of the Congress to judge of the causes
for which, and the occasions when, it may be
necessary to declare war, it is not unreason-
able that one branch of it, at least, should
interest itself in the conditions which may
determine the vital questions of future peace ;
and nothing is so closely connected with the
possibilities of war and peace as the engage-
ments into which nations mutually enter by
formal treaties. Involving, as they do,
pledges of action as well as pledges of ab-
stention, they may easily contain, under the
smoothest and most peaceful forms of ex-
pression, the most pestilent seeds of future

In the year 1899, and again in 1907, an
opportunity was afforded, at the two Hague
Conferences, to perform a large task in im-
proving International Law by law-making

The results were less than had been hoped
for, but they marked an advance upon any-
thing that had before been attempted. Not-
withstanding the efforts made by Germany



and her allies to prevent any general under-
standing based on the authority of law, an
important corpus juris of an international
character had been brought into existence,
which even the obstructive Powers had,
under the pressure of public opinion, found
it expedient to accept, and had solemnly
given their pledges to observe.

It was no outworn and obsolete rules of
conduct, but laws as authoritative as human
ingenuity can devise that have been openly,
shamelessly and brutally violated by nations
claiming to rank among the most highly cul-
tivated of modern peoples. By our consti-
tutional provision, these laws, embodied in
a series of treaties duly ratified and pro-
claimed, were not only laws to which we had
subscribed, they were an integral part of the
supreme law of the United States.

I bring no accusation of negligence; but
I do not hesitate to say, that an immediate
and earnest protest against the first violation
of these laws was not only justified, but a
duty which this nation owed to the dignity
of the law itself.



I submit, that there has been no question
before the delegates of the Powers victorious
in the Great War assembled in Paris to con-
clude a world peace that compares in im-
port and consequence to mankind with the
issue: What, in the future, is to be the
authority of International Law? To what
end are new geographic boundaries to be
drawn on the map of Europe and of the
world, oppressed nations to be endowed with
a right of self-determination which needs to
be guaranteed by others, territories restored
to their rightful national connection by a
treaty of peace, and partial reparation made
for reparable damages inflicted, if Inter-
national Law is to be left without permanent

This then is the fundamental issue of the
hour. The whole edifice of law is menaced,
not merely in its superstructure, but at its
foundations; for, in the modern conception
of it, it is not a system of regulations im-
posed from above, and always and every-
where enforced by the physical power of the
stronger against the will of the weaker; but



a system arrived at by the voluntary con-
sent, and maintained by the voluntary sup-
port of those who believe in the essential dig-
nity and authority of law.

What then is to be done to maintain that

Up to this point, I believe, I have said only
that upon which we can all substantially
agree. But when we come to methods of sus-
taining the law we leave the domain of law
in its proper sense and pass into the realm
of policy; which is, to a certain degree, a
field of theory.

Here I shall not presume to enter, either
to construct or to destroy the fabrics of the
mind. My firm conviction is that we shall
do well to avoid the magical charm of phrases
and catchwords, and to fix our attention
upon realities.

The authority of International Law rests
on national character. We cannot change
that by forming new partnerships, and par-
ticularly not by receiving into them a doubt-
ful member, in the hope of rendering the de-
faulter and the embezzler an honest man by


giving him an interest in a business for which
we are to furnish the most of the capital.

I profoundly distrust the professions and
the plausibilities of death-bed repentances,
even among nations; and also the improve-
ments of society which result from merely
emotional impulses. If we are to build
wisely, we shall build on the foundations of
tested knowledge and experience. We shall
put no trust in any "scrap of paper," no
matter with what pious phraseology it may
be inscribed, except in so far as we know that
there are both strength and character behind
it. We went into this war a free people. Let
us come out of it a free people. Men talk
glibly of world federation. What does it
mean? It means, if it signifies anything, that
this nation, with other nations, is to place
itself under some kind of a central authority,
with power to raise and expend taxes, to or-
ganize and command armies, to regulate the
trade and commerce of the world, and upon
occasion to declare war, powers which,
under our National Constitution the most
far-seeing document of government ever


written by the hand of man are placed
solely in the control of the responsible rep-
resentatives of the people of the United
States. Those powers will, I believe, never
be transferred to a new nation, of which the
United States would be only a parochial
part; nor will they ever be subject to being
overruled by the decisions of any associa-
tion whatever, without the free consent of
our own law-making bodies.

We have, during the war, put to the test
the strength of our free institutions, and we
have found them adequate for war as well as
for peace. They have been adequate, be-
cause we have never for a moment lost the
conviction that we are a free people, and that
we were acting in perfect freedom. Had the
matter of our food been under the control of
a supernational body, had our young men
been ordered by an authority not American
to leave their business and report for con-
scription to cross the sea and fight at the dic-
tation and in the interest of a foreign people,
had the occasion called for action that was
in any degree doubtful to the American con-


science, this people would not have made the
sacrifices of life and treasure which they
have gladly made with unreluctant consecra-
tion of mind and body.

There is a limit to national, as there is to
personal responsibility. Nationally, that
limit is defined by the maintenance and vin-
dication of law. I fear the imperial sodal-
ity of Great Powers associated for any other
purpose. No condominium has ever been
free from jealousies and friction. Even so
trifling a partnership as the control of the
Samoan Islands was a thorn in the side of
three nations until it was dissolved. Every
such condominium has ended either in quar-
rel or partition, or in both; and the net re-
sult is always merely deferred annexation.
A partnership for equal economic opportu-
nities among unequal nations offers the pros-
pect of unexpected demands; which, if not
granted, will lead to the accusation of bad

How then can we find a modus Vivendi for
sovereign States? How, indeed, if not in a
united support of law, the recognition of



their equal freedom, and their mutual obli-
gations? Law does not require a renuncia-
tion of rights ; it affirms, guarantees and pro-
tects them. That is its very purpose and its
whole significance.

Let there be then a union for the main-
tenance of the law. Such a union now hap-
pily exists. It consists of the nations that
have had the force and the courage to enter
the war, in order to bring the law-breakers
to justice, and of no others. I say of no
others, because a nation is of value in pro-
viding a real sanction to the authority of law
only when it is ready to defend the law. A
neutral nation at best only renders a pas-
sive respect to the authority of the Law of
Nations. In the cause of equity it is not an
asset, it is only a liability.

I, of course, do not overlook the fact that
the prevention of war is of great interest to
neutrals, for they are necessarily involved
in its hardships by the restriction of their
trade. In a speech delivered by the late
Lord Parker, a short time before his death,
he predicted that, if in future it were made



clear that there could be no neutrality, the
danger of war would be minimized, because
its risks would be increased. Then all
nations would be more anxious to prevent it,
in so far as it is in their power to do so.
Mediation would be a necessary act of self-
preservation; and for this there is full justi-
fication. There is an old English form of
indictment, I am told, that bases arrest on
the violation of "the peace and dignity of the
King." There may well be a form of inter-
national indictment against those who would
disturb the peace and dignity of mankind.

For my own part, speaking now as a real-
ist, I look for the prevention of war chiefly
to the command of the sea. I do not rest my
faith on "the freedom of the sea" we have
seen what that may mean but on the law of
the sea; and that law should be simply the
principle set up in opposition to the un-
limited right of war, namely, the inviolability
of the innocent, for which the Entente Allies
have been fighting.

On the 20th of November, 1918, the cul-
prit fleet of Germany in the presence of


British, American, and French warships
coming forth from its lair, marshaled by the
British light cruiser Cardiff, swept across
the North Sea through the morning mist in
gloomy procession, to be shepherded into
captivity. "Ignominious and yet magnifi-
cent," as a writer describes them, the Seyd-
litz, the Moltke, the Derfflinger, the Hinden-
burg, and the Von der Tann, boastful battle
cruisers, the pride of the German Emperor,
that had long celebrated "The Day" when
commanding the empire of the sea they
could bring the world into subjection,
swept through the mist, followed by the nine
battleships, then the fifty destroyers and the
great flotilla of guilty submarines. "It's a
fine sight," a sailor exclaimed, "but I
wouldn't be on one of those ships for all the

Unconsciously, this lad felt in his heart
what every true sailor hopes will be the
future law of the sea. It was on the sea
that International Law had its birth in the
old sea codes, the "Table of Amalfi," the
"Consolato," the "Jugemens d'Oleron," and


the "Laws of Wisby," which made the sea,
because it is the highway of the world, a
place where above all others the rights of
man should be respected and maintained.
Brave to battle with wind, and wave, and
storm, the true sailor scorns a Power that
would add to the struggle with nature the
inhumanity of man. The sea is the realm
of humanity's defense. Closed by the will of
all civilized peoples to the greed of the pi-
rate, the united navies of the Entente must
make its law the inviolability of the inno-
cent. And this can be done.

If the Entente Allies, who have fought to-
gether in this war to vindicate the rights of
nations, are not to be trusted, and there is
in them no soul of honor, then the outlook
for mankind is, indeed, a hopeless one. But
if they can be trusted in so great a matter,
the formula for the defense of right is very

I take a leaf from the diplomatic corre-
spondence of the British Secretary of State
for Foreign Affairs, then Sir Edward, now
Viscount Grey.



Writing to M. Paul Cambon, French
Ambassador in London, on November 22nd,
1912, he said: "You have pointed out that,
if either Government had grave reason to
expect an unprovoked attack by a third
Power, or something that threatened the
general peace, it might become essential to
know whether it could in that event depend
upon the armed assistance of the other. I
agree that, if either Government had grave
reason to expect an unprovoked attack by a
third Power, or something that threatened
the general peace, it should immediately dis-
cuss with the other whether both Govern-
ments should act together to prevent aggres-
sion and to preserve peace, and, if so, what
measures they would be prepared to take in


This understanding was a menace to no
honorable nation. It was, in fact, one in
which all honorable governments might join.
It suppressed no one's freedom; it looked
toward peace, and not toward war; and it
has saved Europe!

A more inclusive formula might possess


the same qualities and serve the same pur-
pose. It might read: "We, the signatories,
agree that, if peace should be anywhere
threatened, we will together inquire into the
cause of aggression; and if we find that the
Law of Nations has been anywhere violated,
we will by mediation together use our best
endeavors to avoid strife. If war is begun,
we will together consider what measures we
should take in common. And we mutually
agree to submit any difference we may have
with one another or with other nations to a
like mediation. To this end we continue our
close association of intimate counsel, and will
receive into our understanding other gov-
ernments when circumstances may render it
proper to do so."

. To many minds this may seem too atten-
uated, too much dependent upon good will
and a common purpose. To that I have only
to say this. Without good will and without
a community of purpose there is no agree-
ment and there is no sure keeping of en-
gagements among men. Underlying all hu-
man endeavor and cooperation, the strong-


est motive is a love of freedom. Unless they
are forced to yield to some type of imperial-
ism personal, national, or multiform
which they will never cease to resent, men
who believe that there is no true government
that is not founded upon the consent of the
governed, will not consider themselves
bound, even by the authority of the law, if
they discover that by its mandates they are
no longer free.




IF language is to have any exact meaning,
it cannot be pretended that a League of
Nations can be identified with the entire
Society of States. Sovereign States, under
the Law of Nations as it exists, are equal
before the law, regardless of their military
power, physical magnitude, or economic im-
portance. They are to be treated under In-
ternational Law as legal persons, possess-
ing rights inherent in their sovereignty,
which all civilized nations are bound to re-

The work in which the Conference at
Paris has been engaged is not, properly
speaking, the formation of a universal So-
ciety of States, such as that contemplated
y International Law, but the creation of a


predominant group within this more gen-
eral association. 1

In the minds of those who are the most
active in commending this League, there is
apparently no very precise conception of its
real nature. They have spoken alternately
of a "Treaty," of a "Covenant," and of a
"Constitution," without making any distinc-
tion between them, or seeming to realize that
this is a matter of the least importance. To
them it is an agreement to end war ; and they
appeal for support on this ground, with lit-
tle regard to the obligations involved or the
ultimate consequences which may follow
from accepting them.

When it is pointed out that participation
in this League, in the form proposed, might
prove disadvantageous to the United States,
some of its advocates reply, "After all, it is
only a treaty, and a treaty can be abrogated
at any time."

This assumption is based on the statement
in the Constitution of the United States,

*The original and the final forms of the "Covenant" are
printed in full at the end of this volume.



that "All treaties made, or which shall be
made, under the authority of the United
States, shall be the supreme law of the land."
Being a law, it is contended, a treaty may be
nullified by any subsequent law which con-
tradicts its provisions or prevents the execu-
tion of them; and such a law it is always
within the power of Congress to enact.

If this were the nature of treaties made
by the United States of America with other
nations, it would be difficult to find any oth-
ers that would care to enter into treaty rela-
tions with the United States. By asserting
it, we should put ourselves on a lower level
of ignominy and dishonor than that which
Germany has occupied, and which we have
denounced with bitter scorn; for we should
be, in effect, declaring that we regard a sol-
emn compact as "a scrap of paper," not be-
cause of changed circumstances or national
necessities, but because it was intended that
it might be nullified even before it was

A treaty, even the least important, is
something more than a law; it is a contract.


However the legal effect of such a document
might be changed, as a contract it is not af-
fected by a change in the law; and it cannot
be denounced, except by its own specified
termination or the consent of the other con-
tractants, without incurring the hostility of
those who insist upon the fulfilment of its
obligations. The only remedy for this de-
fault is war, and the non-performance of the
obligations of the contract is a legitimate

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Online LibraryDavid Jayne HillPresent problems in foreign policy → online text (page 5 of 17)