The President, thus early advised of my unqualified opposition to any plan which was similar in principle to the one advocated by the League to Enforce Peace, naturally concluded that I would look with disfavor on an international guaranty which by implication, if not by declaration, compelled the use of force to give it effect. Doubtless he felt that I would not be disposed to aid in perfecting a plan which had as its central idea a guaranty of that nature. Disliking opposition to a plan or policy which he had originated or made his own by adoption, he preferred to consult those who without debate accepted his judgment and were in sympathy with his ideas. Undoubtedly the President by refraining from asking my advice spared himself from listening to arguments against the guaranty and the use of force which struck at the very root of his plan, for I should, if I had been asked, have stated my views with entire frankness.

The other reason for not consulting me, as I now realize, but did not at the time, was that I belonged to the legal profession. It is a fact, which Mr. Wilson has taken no trouble to conceal, that he does not value the advice of lawyers except on strictly legal questions, and that he considers their objections and criticisms on other subjects to be too often based on mere technicalities and their judgments to be warped by an undue regard for precedent. This prejudice against the legal profession in general was exhibited on more than one occasion during our sojourn at Paris. Looking back over my years of intercourse with the President I can now see that he chafed under the restraints imposed by usage and even by enacted laws if they interfered with his acting in a way which seemed to him right or justified by conditions. I do not say that he was lawless. He was not that, but he conformed grudgingly and with manifest displeasure to legal limitations. It was a thankless task to question a proposed course of action on the ground of illegality, because he appeared to be irritated by such an obstacle to his will and to transfer his irritation against the law to the one who raised it as an objection. I think that he was especially resentful toward any one who volunteered criticism based on a legal provision, precept, or precedent, apparently a.s.suming that the critic opposed his purpose on the merits and in order to defeat it interposed needless legal objections. It is unnecessary to comment on the prejudice which such an att.i.tude of mind made evident.

After the President's exceptionally strong address at the Metropolitan Opera House in New York on September 27, 1918, I realized the great importance which he gave to the creation of a League of Nations and in view of this I devoted time and study to the subject, giving particular attention to the British and French suggestions, both of which emphasized judicial settlement. Knowing that the President had been in consultation with Colonel House on the various phases of the peace to be negotiated as well as on the terms of the armistice, I asked the latter what he knew about the former's scheme for a League of Nations.

The Colonel discreetly avoided disclosing the details of the plan, but from our conversation I gained an idea of the general principles of the proposed organization and the way in which the President intended to apply them.

After the Colonel and his party had sailed for France and in expectation of being consulted on the subject by President Wilson, I put my thoughts on the League of Nations into writing. In a note, which is dated October 27, 1918, appears the following:

"From the little I know of the President's plan I am sure that it is impracticable. There is in it too much altruistic cooperation. No account is taken of national selfishness and the mutual suspicions which control international relations. It may be n.o.ble thinking, but it is not true thinking.

"What I fear is that a lot of dreamers and theorists will be selected to work out an organization instead of men whose experience and common sense will tell them not to attempt anything which will not work. The scheme ought to be simple and practical. If the federation, or whatever it may be called, is given too much power or if its machinery is complex, my belief is that it will be unable to function or else will be defied. I can see lots of trouble ahead unless impractical enthusiasts and fanatics are suppressed. This is a time when sober thought, caution, and common sense should control."

On November 22, 1918, after I had been formally designated as a Peace Commissioner, I made another note for the purpose of crystallizing my own thought on the subject of a League of Nations. Although President Wilson had not then consulted me in any way regarding his plan of organization, I felt sure that he would, and I wished to be prepared to give him my opinion concerning the fundamentals of the plan which might be proposed on behalf of the United States. I saw, or thought that I saw, a disposition to adopt physical might as the basis of the organization, because the guaranty, which the President had announced in Point XIV and evidently purposed to advocate, seemed to require the use of force in the event that it became necessary to make it good.

From the note of November 22 I quote the following:

"The legal principle [of the equality of nations], whatever its basis in fact, must be preserved, otherwise force rather than law, the power to act rather than the right to act, becomes the fundamental principle of organization, just as it has been in all previous Congresses and Concerts of the European Powers.

"It appears to me that a positive guaranty of territorial integrity and political independence by the nations would have to rest upon an open recognition of dominant coercive power in the articles of agreement, the power being commercial and economic as well as physical. The wisdom of entering into such a guaranty is questionable and should be carefully considered before being adopted.

"In order to avoid the recognition of force as a basis and the question of dominant force with the unavoidable cla.s.sification of nations into 'big' and 'little,' 'strong' and 'weak,' the desired result of a guaranty might be attained by entering into a mutual undertaking _not_ to impair the territorial integrity or to violate the political sovereignty of any state. The breach of this undertaking would be a breach of the treaty and would sever the relations of the offending nation with all other signatories."

I have given these two extracts from my notes in order to show the views that I held, at the time the American Commission was about to depart from the United States, in regard to the character of the guaranty which the President intended to make the central feature of the League of Nations. In the carrying out of his scheme and in creating an organization to give effect to the guaranty I believed that I saw as an unavoidable consequence an exaltation of force and an overlordship of the strong nations. Under such conditions it would be impossible to preserve within the organization the equality of nations, a precept of international law which was the universally recognized basis of intercourse between nations in time of peace. This I considered most unwise and a return to the old order, from which every one hoped that the victory over the Central Empires had freed the world.

The views expressed in the notes quoted formed the basis for my subsequent course of action as an American Commissioner at Paris in relation to the League of Nations. Convinced from previous experience that to oppose every form of guaranty by the nations a.s.sembled at Paris would be futile in view of the President's apparent determination to compel the adoption of that principle, I endeavored to find a form of guaranty that would be less objectionable than the one which the President had in mind. The commitment of the United States to any guaranty seemed to me at least questionable, though to prevent it seemed impossible in the circ.u.mstances. It did not seem politic to try to persuade the President to abandon the idea altogether. I was certain that that could not be done. If he could be induced to modify his plan so as to avoid a direct undertaking to protect other nations from aggression, the result would be all that could be expected. I was guided, therefore, chiefly by expediency rather than by principle in presenting my views to the President and in openly approving the idea of a guaranty.

The only opportunity that I had to learn more of the President's plan for a League before arriving in Paris was an hour's interview with him on the U.S.S. George Washington some days after we sailed from New York.

He showed me nothing in writing, but explained in a general way his views as to the form, purpose, and powers of a League. From this conversation I gathered that my fears as to the proposed organization were justified and that it was to be based on the principle of diplomatic adjustment rather than that of judicial settlement and that political expediency tinctured with morality was to be the standard of determination of an international controversy rather than strict legal justice.

In view of the President's apparent fixity of purpose it seemed unwise to criticize the plan until I could deliver to him a subst.i.tute in writing for the mutual guaranty which he evidently considered to be the chief feature of the plan. I did not attempt to debate the subject with him believing it better to submit my ideas in concrete form, as I had learned from experience that Mr. Wilson preferred to have matters for his decision presented in writing rather than by word of mouth.

CHAPTER IV

SUBSt.i.tUTE ARTICLES PROPOSED

The President, Mr. Henry White, and I arrived in Paris on Sat.u.r.day, 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 a.s.suming obligations to take affirmative action along either military or economic lines. On const.i.tutional 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 const.i.tutionality 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 att.i.tude 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 Const.i.tutional Power to provide Coercion in a Treaty_

"_December_ 20, 1918

"In the inst.i.tution of a League of Nations we must bear in mind the limitations imposed by the Const.i.tution of the United States upon the Executive and Legislative Branches of the Government in defining their respective powers.

"The Const.i.tution 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 const.i.tutional.

"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 const.i.tutionally 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 unconst.i.tutionality 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 const.i.tutional?

"As to this my mind is less clear. The Const.i.tution 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 const.i.tutionally do so. It is only in the event of war that powers conferred by the Const.i.tution 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 Const.i.tution and as a consequence void.

"But, a.s.suming 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 subst.i.tute for a guaranty which would be valueless without affirmative action to support it.

"I believe that such a subst.i.tute can be found."