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ists, and is now understood, the rights of
neutrals on the sea are definitely recognized.
Has any single group of nations, or a league
created by them, acting as a corporate entity,
the right either morally or in a jural sense,
to violate or arbitrarily to abrogate the laws
protecting them ?

The attitude of Switzerland on this point

has been affirmed by the Swiss Confederation

in a separate plan for a League of Nations

completed in January, 1919. In the sixth

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PROBLEMS IN FOREIGN POLICY

article it is demanded that the "permanent
neutrality" of Switzerland, and also of other
States which desire to maintain neutrality,
shall continue to be recognized ; and it is de-
clared: "The territory of these States is
inviolable and shall always remain outside
military operations, in case of wars in which
States not forming a part of the League of
Nations participate, as well as when military
measures are taken by members of the
League itself, in order to secure respect for
law or the maintenance of peace." It is,
therefore, obvious that the Swiss Confedera-
tion cannot accept the proposed Constitu-
tion of the League, if Article XVI retains
the clause in which the members agree that
"they will take the necessary steps to afford
passage through their territory to the forces
of any members of the League which are co-
operating to protect the covenants of the
League." Furthermore, Switzerland de-
clares her intention to protect her territory
with force of arms.

The three Scandinavian Kingdoms Swe-
den, Denmark and Norway have also, in
130



CHARACTER OF LEAGUE OF NATIONS

January, 1919, prepared a separate project
of an "International Juridical Organiza-
tion," in which a protest is offered against an
"international parliament" which would con-
stitute an "authority superior to the States" ;
and it is declared that the small States, in
particular, would offer "energetic opposi-
tion," if an attempt were made in an associ-
ation of this kind following any system what-
ever implying a "graduated scale" in the
classification of States.

The so-called secondary States are evi-
dently resolved to oppose an attempt to deny
their right of neutrality or to create Inter-
national Law without their consent, as this
League of Nations may undertake to do.

If this group, or this artificial entity, has
the physical strength to do so, it can un-
doubtedly violate these rights and disregard
existing laws; but it would be possible to do
so only by force majeure by the exercise of
arbitrary power in defiance of law.

This is imperialism. It may be well-mean-
ing imperialism always pretends to be be-
nevolent but if the war in which we have
131



PROBLEMS IN FOREIGN POLICY

participated was a war to destroy imperial-
ism, and to establish the self-determination
of free nations under law, which should be
the expression of their consent, a plan which
merely establishes a composite imperialism,
the arbitrary power of a single group of na-
tions, would be not a victory for freedom,
but its defeat.

The contention that this Covenant creates
an imperium does not rest alone on its atti-
tude toward States outside the League. Un-
der Article XXII the Council undertakes to
govern, through its appointed agents, vast
areas and numerous populations. It may
govern well, or it may govern ill, but it as-
sumes the right to govern.

Whence does the Council derive its right
to issue mandates, "according to the stage
of the development of the people, the geo-
graphic situation of the territory, its eco-
nomic conditions, and other similar circum-
stances"? It is true, as it is alleged, that
the wishes of these communities, in the case
of the Turkish Empire, must be a principal
consideration in the selection of the manda-
132



CHARACTER OF LEAGUE OF NATIONS

tory Power; but in the case of those in Af-
rica or in the South Pacific, although certain
rights of the population are recognized, and
"equal opportunities for the trade and com-
merce of other members of the League," but
not of others, are secured, they fall com-
pletely under the sovereignty of the League.
Full sovereignty is surrendered to it, and it
becomes, as a corporation, a sovereign
Power. Or is it possible that this sovereignty
is some time in the future to be reclaimed
by the separate conquerors? For the pres-
ent, at least, this sovereignty is so complete
that, as the Covenant provides, "The de-
gree of authority, control, or administration
to be exercised by the mandatary shall, if not
previously agreed upon by the members of
the League, be explicitly defined in each case
by the Council." 3 Can it be held, in the
light of this, that the League, which is per-
petual, is not in law a new sovereign and im-
perial Power? Or must this transfer of
power be classed as a wholly lawless pro-
ceeding?

8 The original text says, "in a special Act or Charter."
133



PROBLEMS IN FOREIGN POLICY

We must, no doubt, admit that there are
"backward peoples," as they are called. Con-
fessedly, they present a difficult problem to
solve. It may be that this is, on the whole,
the best solution of it; but the questions of
duty and of responsibility arising out of it
are very serious, especially for a people bred
to consider and respect the love of freedom.
We have been forced to accept the "white
man's burden" in the Philippines and else-
where, but we have never rejoiced in the ne-
cessity, and we have never approached our
task in an imperial spirit, although we can-
not deny that the attempt to rule a subject
race involves the exercise of an imperiit/m.

It is, no doubt, better for us as a people
that we should never again undertake an
imperial partnership. We had a woeful ex-
perience in the Samoan Islands, and we were
glad to get out of it without involving our-
selves, as we came near doing, in a scene of
continuous bloodshed brought on by intrigue.
As President Cleveland said of our experi-
ment, in a message to Congress: "This in-
cident and the events leading up to it sig-
134



CHARACTER OF LEAGUE OF NATIONS

nally illustrate the impolicy of entangling
alliances with foreign Powers." If any one
wishes to know what the responsibilities of
a mandatary under the Executive Council
of the League might involve, let him read the
pathetic story of the disappointment of the
Samoans in their civil wars and their descent
from the promise of autonomy to the com-
plete deprivation of their rights, as related
by Willis Fletcher Johnson in his history
of "America's Foreign Relations." "The
United States," he writes, in closing the
chapter on this subject, "began by abandon-
ing two of its most important principles of
foreign policy that the United States
should refrain from intervention in the do-
mestic affairs of other nations, unless in the
necessitous emergency of its own self -protec-
tion, and that it should avoid entangling alli-
ances with other and particularly European
Powers. ... It was guilty of savage cruel-
ties which would have been regarded as mon-
strous in the least civilized of the Samoans
themselves. It was guilty of bad faith to
Samoans who trusted it. It failed to win
135



PROBLEMS IN FOREIGN POLICY

for its iniquitous policy the poor vindication
of efficiency and success, confessing at the
end that it was a wretched failure. And it
finally abandoned that policy not because it
was wrong, but because it was too costly and
troublesome to continue."

And now the Samoans have again been
made victims of international strife. Rely-
ing upon this infamous precedent of the
triple protectorate over Samoa, a distin-
guished advocate of the League, in order to
show that this treaty is within the constitu-
tional power of the United States, cites this
Samoan example, saying: "The three sig-
natory nations undertook a guardianship of
the islands similar to that which is contem-
plated in the proposed Covenant of the
League with reference to backward coun-
tries!"

But, it appears, we are not now to stop
with simple islanders. Among our suggest-
ed allotments in this program of joint im-
perialism, in which our participation is ex-
pected to justify the perpetuation of the
whole colonial system, are Constantinople,
136



CHARACTER OF LEAGUE OF NATIONS

the worst center of racial and diplomatic in-
trigue in Europe; Armenia, which contains
a vast Turkish and Russian population, face
to face with Russian Bolshevism, backed by
Turkish machinations to regain control, in
case it is actually ever taken from the Turk,
which has not yet been accomplished; and
Persia, which we once tried to help in the
person of an American financial administra-
tor, whose work was rendered futile by Rus-
sian and, alas ! British intervention. Large-
ly because of this, a correspondent of the
"Manchester Guardian" considers that Per-
sia should be placed by the League under
the United States as a mandatary. "Persia,"
he says, "can trust America as she can trust
no other Power."

But what does he say of the other Powers?
"It is obivous," he continues, "that great care
will be necessary if the whole of this mandate
system is not to become an abuse." "Out-
wardly," he goes on, "the world has accept-
ed the revolutionary conceptions which un-
derlie President Wilson's scheme" meaning
a League of Nations "but it has not yet
137



PROBLEMS IN FOREIGN POLICY

emancipated itself from the view that a na-
tion counts in the world by its direct politi-
cal influence. Nor have we destroyed the
spirit that seeks commercial advantages in
political expansion."

This candid Englishman frankly lacks
confidence in General Smuts' system of man-
dataries. "If the mandate system so works
in practice that the mandatory Power draws
some economic advantages from its position,
or if it fastens the hold of the mandatory
Power more firmly than ever on the depend-
ent people, then," he says, "we may live to
regret the day when our statesmen invented
a scheme which has become merely a device
for giving a decent look to the bad habits
of the past." Knowing that past, this writer
does not hesitate to speak of "intrigues to
bring about a change of mandate for selfish
reasons"; and he considers it "important also
to prevent a conspiracy among the manda-
tory Powers to screen each other from criti-
cism" !

Imperialism is imperialism, whether it be
joint or single; and it is not a business that
138



CHARACTER OF LEAGUE OF NATIONS

tends toward democracy or toward justice.
Even in its purity and at its best estate it is
a dangerous enterprise for a free people to
engage in, and it is more dangerous than
ever when innocence and good intention be-
come the parters of seasoned experience in
a game for power.



V

THE TREATY-MAKING POWER UNDER THE
CONSTITUTION OF THE UNITED STATES

WHEN the United Kingdom of Great
Britain and Ireland enters into agreements
with foreign nations, it is the King who
grants authority. He speaks as a sovereign.
The formula of the full powers of his pleni-
potentiary is: "George, by the Grace of
God, of the 'United Kingdom of Great
Britain and Ireland of the Dominions be-
yond the seas King, Defender of the Faith,
Emperor of India. To all and singular to
whom these presents come, Greeting."

Full powers to negotiate and conclude a
treaty proceed exclusively from the King as
a sovereign, who grants authority, as the for-
mula runs, "to sign for Us and in Our name,
everything so agreed upon and concluded,
. . . in as ample manner and form, and with



THE TREATY-MAKING POWER

equal force and efficiency, as We Ourselves
could do, if personally present."

There is no one in the United States who
can thus speak as a sovereign except the
whole people, and they have never thus
spoken. They have created a National Gov-
ernment, but they have definitely limited its
powers; and it possesses none that are not
delegated to it in the Constitution of the
United States.

There is, therefore, occasion to point
out that alliances and compacts affecting the
condition and destinies of the European na-
tions, whose laws and traditions entitle a
personal sovereign to act, are entered into
with more assurance and less reserve, are
more customary, and therefore less subject
to popular judgment, than is the case in the
United States of America; whose Govern-
ment is not a sovereign, but derives all its
powers from the people, who have delegated
to it only a partial representation of the
sovereign authority which, in this country,
the people alone possess.

At the time when our National Govern-
141



PROBLEMS IN FOREIGN POLICY

ment was established, this distinction was
well understood and jealously guarded. It
was believed by the founders of our Govern-
ment that they had forever ended the sub-
jection of themselves and their descendants
to absolute power. They had revolted
against a personal sovereign who was in-
spired by his absolutist aspirations to over-
throw the liberties that had been secured by
previous revolution in England, and also
against a Parliament in which they were not
represented and over which the King had,
contrary to the wishes of perhaps a majority
of Englishmen, obtained control; and they
had resolved that their freedom should never
again be thus compromised.

That was the spirit in which the Constitu-
tion of the United States was conceived and
adopted. During a hundred and thirty
years that charter of American liberty, which
has since in some degree been an inspiration
and a model to every free people, has contin-
ued to be the fundamental law upon which
legislation and judicial decisions in the
United States have been based, and without



THE TREATY-MAKING POWER

which our Federal Government in all its
branches would have no authority.

Since that auspicious solution of the prob-
lem of reconciling liberty and government,
afterward extended over a wide and diversi-
fied area and a highly composite population,
in which the offspring of previously hostile
races have together found peace and pros-
perity, many new influences have affected
the American people ; and some of them have
become hostile to the Constitution of the
United States, and, indeed, to any funda-
mental law whatever. Forgetful of the
blessings of liberty, some of these hostile
groups would prefer a regime of unlimited
social reconstruction of their own devising,
and are ready for the most radical experi-
ments, even for a return to absolutism un-
der omnipotent governmental control, pro-
vided they are permitted to exercise their
authority.

A movement even more subversive of the
original American conception of government
than that which tends toward the establish-
ment of a Socialistic State, but kindred to



PROBLEMS IN FOREIGN POLICY

it, is the disposition to repudiate the idea of
the nation altogether, and by a wide sweep
of inclusion abandon our separate existence
as a people, thus merging us with the whole
of humanity in some form of vague inter-
nationalism.

In practice it is seen that to apply this idea
universally is at present impossible. The di-
versities and the conflicts of races and of
stages of development would mean not only
the abolition of nations, which are substan-
tial historical achievements in the progress
of civilization, but the destruction of civiliza-
tion itself; as we have seen it illustrated in
the disintegration of the Russian Empire,
which has reached a stage of complete social
anarchy, general impoverishment, and a
reign of terror.

It is, on the other hand, sometimes repre-
sented that closer federation is the remedy
for international strife, and that the union
of the American colonies under the present
Constitution indicates the path that should
be followed to avoid conflicts and preserve
144



THE TREATY-MAKING POWER

the peace of the world. The League of Na-
tions, it is urged, would be such a union.

It would be misleading to regard that
great act of federation as bearing any anal-
ogy to the plan now under consideration.
The founding of the Republic of the United
States was the establishment of a "more per-
fect Union" between States contiguous, ho-
mogeneous and, in fact, already confeder-
ated, possessing a close community of inter-
ests and identity of language and political
traditions, all sprung from a common mother
and long subject to the same sovereign rule.
It would be quite a different matter to merge
in one corporate existence nations far re-
moved in space, composed of distinct races,
diversified in their political institutions, with
varied responsibilities, and some of them
with unsettled claims upon one another.

We have, however, developed in this hem-
isphere a group of distinct nations, primar-
ily modeled upon the constitutional system
first adopted by the United States. These
republics have passed through grave crises
and occasional reversion to despotic rule;
145



PROBLEMS IN FOREIGN POLICY

but they have, after bitter experiences,
emerged as a system of independent sover-
eign States, with serious race problems, but
with a reasonable vindication of the national
and constitutional ideals by which they have
been inspired. Taking the American Re-
publics as a whole, they not only constitute
a "going concern," but they look forward to
a peaceful and prosperous future.

This achievement has been owing to their
separation from the hostilities, the intrigues,
and the ambitions of the Old World. It has
been made possible by the insistence of the
United States that they should be left to
themselves, and permitted to work out their
own development in their own way.

It is true that we have, in the past four
years, passed through a deep experience,
from which we emerge with new obligations
that must be honorably discharged; but it
does not follow that our whole theory of
national development was wrong. It may
be that we shall find an advantage in new
understandings and in new associations, the
value and character of which the Great War
146



THE TREATY-MAKING POWER

has revealed; but we should not forget that
it is our example, and not our interventions,
that has been of most benefit to the world.
What we have done in the war was done be-
cause we were true to ourselves, to our own
fellow-citizens whose rights had been cruelly
violated, to our own dignity as a nation, and
to our own sense of honor. Had we not been
a nation, free, unpledged, and strong in our
manhood, we should not have been able to
perform the part we have performed.

We are now invited to join with other na-
tions with which we have recently been en-
gaged in a common cause, to set up a world-
wide, international directorate in which we
are called upon to play a new and untried
role, going forth to regulate the life of dis-
tant peoples in a spirit of benevolent joint
imperialism. We are urged to transfer our
life and activity permanently into another
hemisphere, and in compensation to welcome
the preponderant influence of others in our
own. The only argument for this is that, in
spite of the evident contradiction, we may
call the new adventure by the old name. In-
147



PROBLEMS IN FOREIGN POLICY

stead of permitting the so-called "new" na-
tions and the tribal groups not yet formed
into nations to develop as other nations have
done, it is now proposed, through central
control hy a small group of Great Powers
and a retinue of small ones, to exercise an
imperium over the whole earth, nominally in
the interest of peace, but practically by re-
garding every local strife as a reason for a
general war.

Can the Government of the United States,
constituted as it is, participate in such an
imperium? Is there in any part of the Ameri-
can Government, or in the whole of it com-
bined, legal authority to enter into a compact
of that kind? Has the sovereign of this na-
tion, the People, in whose name the Govern-
ment has been created, ever authorized it, or
ever intended it?

The question has been answered both af-
firmatively and negatively by men who en-
joy the reputation of being competent in
questions of constitutional law.

Let us then consider a few propositions
148



THE TREATY-MAKING POWER

which, wholly apart from this issue, are not
open to debate.

The Government of the United States is
a government of delegated powers estab-
lished by a sovereign people. The Constitu-
tion of the United States is the sole charter
of that Government. Some of its powers are
definitely expressed, others are implied, still
others are reserved to the States or to the
people. The authority of the Government
of the United States is limited (1) by
the terms of the power granted; (2) by the
purposes for which it is delegated; and (3)
by the distribution of power among its re-
spective agents.

If the Government of the United States
decides to adopt the Constitution of a
League of Nations, it will do so by becom-
ing a signatory to the so-called "Covenant,"
which it is intended shall be a part of a treaty
of peace. The right of the Government to
enter into this engagement is derived, if
it exists, entirely from the treaty-making
power delegated to it in the Constitution of
the United States. That power is conferred
149



PROBLEMS IN FOREIGN POLICY

in the following terms and with the follow-
ing effect:

"The President shall have power, by and
with the advice and consent of the Senate,
to make treaties, provided two-thirds of the
Senators present concur." (Article II, Sec-
tion 2, Clause 2.)

"This Constitution, and the laws of the
United States which shall be made in pursu-
ance thereof; and all treaties made, or which
shall be made, under the authority of the
United States, shall be the supreme law of
the land." (Article VI, Clause 1.)

The full meaning of these provisions will
be better understood when we contrast them
with those which prevail in the law and usage
of Great Britain, from which the framers of
the Constitution intended to depart.

In Great Britain, as has been already
stated, treaties are made by the King and in
the King's name. In reality, at the present
time, they are made by the King's Ministers
and not personally by the King, and the
Ministers are responsible to the Parliament.
In the beginning it was not so. The change
150



THE TREATY-MAKING POWER

has been brought about by a revolt from ab-
solutism in Great Britain as it was in Amer-
ica. In the British system, however, the con-
clusion of treaties is solely entrusted to the
Ministers, and not to any portion of the Par-
liament as such ; but a change is imminent.

In October, 1918, Sir R. Cooper, in the
House of Commons, asked the Prime Minis-
ter if he intends to take steps to secure that
"any agreement for peace shall in general
principles be in accordance with the wishes
of the majority of the members of this
House." Mr. Bonar Law answered: "The
Government (meaning the Ministers) must,
I think, be the interpreter of the views of
the House and the nation in this matter."
Sir R. Cooper then inquired, "Is it the fact
that the country will be committed to a se-
cret peace compact?" to which Mr. Bonar
Law replied that he did not see any way in
which the country could be represented ex-
cept by a referendum unless by the Ministers,
thus virtually excluding Parliament from a
voice ; and this is the historic British attitude
on the subject. The reason for it, no doubt,
151



PROBLEMS IN FOREIGN POLICY

is that Great Britain has often entered into
secret treaties, and has considered it neces-
sary to preserve this right, which compul-
sory reference to Parliament would destroy.

In opposition to this established practice,
however, the British Premier, Mr. Lloyd
George, on February 11, 1919, stated in the
House of Commons that, after it was signed
at the Peace Conference, the treaty would
be placed before the House for ratification,
and he added: "If the House of Commons
chooses to repudiate the treaty, the House
of Commons is all powerful."

Two days later, on February 13, Mr. Bo-
nar Law expressed a different opinion. In
reply to Mr. Lambert's question whether or
not the British Delegation to the Peace Con-
ference had plenary powers to bind the coun-
try, Mr. Law answered: "So far as the
British Government is concerned, it will not
be ratified until it has been laid upon the
table and Parliament has an opportunity of
expressing an opinion"; but in answer to a
further question, whether or not the treaty
of peace would be submitted to Parliament



THE TREATY-MAKING POWER

before it was presented to the enemy coun-


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Online LibraryDavid Jayne HillPresent problems in foreign policy → online text (page 7 of 17)