"_Clause 2_

"No party to a controversy shall a.s.sume 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 An authorization thus granted by the Supervisory Committee may be modified or superseded by mutual agreement of the parties, by order of an arbitrator or arbitrators selected by the parties, or by order of the Arbitral Tribunal if the controversy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 const.i.tuted 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 const.i.tution 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 const.i.tution 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 const.i.tuted 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 const.i.tuted.

"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 const.i.tuting a League of Nations and which did not purport to be a completed doc.u.ment, 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 cla.s.ses 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 Const.i.tution of the United States and the const.i.tutions 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 a.s.sociation 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 const.i.tute 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 a.n.a.lyzed, 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 a.s.semble 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 ent.i.tled 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 inst.i.tutions 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 inst.i.tutions. 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 princ.i.p.al 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 s.m.u.ts 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.