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Peace Conference was limited in terms to offences against "the laws and customs of war," and, second, because the laws of humanity do not constitute a definite code with fixed penalties which can be applied through judicial process. The American Commissioners thus stated the second ground for their objection:
As pointed out by the American representatives on more than one occasion, war was and is, by its very nature, inhuman, but acts consistent with the laws and customs of war, although these acts are inhuman, are nevertheless not the object of punishment by a court of justice. A judicial tribunal only deals with existing law and only administers existing law, leaving to another forum infractions of the moral law and actions contrary to the laws and principles of humanity. A further objection lies in the fact that the laws and principles of humanity are not certain, varying with time, place, and circumstance, and according, it may be, to the conscience of the individual judge. There is no fixed and universal standard of humanity.
The report of the Commission on Responsibilities, with the reservations annexed, was laid before the Conference and received the immediate consideration of the Council of Four, or, as it is often called, the Supreme Council of the Allied and Associated Governments. The decision reached by the Council is contained in Articles 227 to 230 of the Peace Treaty.
Article 227 arraigns the former German Emperor for "a supreme offence against international morality and the sanctity of treaties" and provides that a special tribunal to try him shall be constituted, composed of five judges appointed respectively by the United States, Great Britain, France, Italy and Japan. It also declares that the tribunal in its decision "will be guided by the highest motives of international policy" and shall "fix the punishment which it considers should be imposed."
Manifestly the tribunal thus created is not a court of legal justice, but rather an instrument of political power which is to consider the case from the viewpoint of high policy and to fix the penalty accordingly. And this is clearly stated in the reply of the Council to the observations of the German peace delegates on this subject. The pertinent portion of the reply reads as follows:
They (that is, the Council) wish to make it clear that the public arraignment under Article 227 framed against the German ex-Em
peror has not a judicial character as regards its substance but only in its form. The ex-Emperor is arraigned as a matter of high international policy as the minimum of what is demanded for a supreme offence against international morality, the sanctity of treaties and the essential rules of justice.
This course of procedure was in accordance with the suggestion made in the American memorandum that there might be a political sanction but no judicial sanction for the offences of having caused the war and violated the neutrality of Belgium and Luxemburg.
Articles 228, 229, and 230 provided that persons accused of violating the laws and customs of war should be delivered up by Germany to be tried before national military tribunals of the Allied and Associated Powers, or, where the violation affected the nationals of more than one power, then before international military tribunals composed of members of the military tribunals of the powers interested.
The recommendation of the Commission as to a general mixed commission to try such cases was rejected and the proposal of the American Commissioners in the memorandum laid before the Commission during its early sessions and repeated in its reservations was adopted by the Conference.
Furthermore no jurisdiction was conferred upon any tribunal over offences against "the laws of humanity," which had been, as I have indicated, vigorously opposed by the American representatives.
It was by no means an easy task to deal with the question of expressing properly mankind's condemnation of the individual, whose inordinate vanity and greed were chiefly responsible for the dreadful misery and waste which the world has endured and from the effects of which it will suffer for many years to come. It was difficult to subordinate the natural feeling of indignation and the instinct to do vengeance to a cold, dispassionate consideration of the character of the Kaiser's acts and their relation to law and justice. Yet one of the reasons that our country entered the war was to bring lawlessness to an end. We believed that an undeviating respect for law is essential to the prosperity and happiness of society and that the
rigid maintenance of law, however distasteful it may be, is an imperative duty. It was with a determination to follow these precepts, to treat impersonally and judicially the submission of the Conference, and to avoid being influenced by our own desires or by the pressure of public sentiment that we performed our duties as the American members of the Commission on Responsibilities and filed our reservations to the report of the Commission,
I have taken a good deal of your time and, I fear, have tried your patience unduly in reviewing this question of the trial and punishment of the Kaiser, and yet the deep interest which it has excited and the various opinions expressed by jurists and laymen which have been published seemed to me to entitle it to more than a passing notice.
There is also another class of legal questions which are raised by some of the provisions of the Treaty of Peace as well as by some of the propositions advanced at the Peace Conference. They are questions which have to do with constitutional powers and constitutional limitations. I shall not even attempt to suggest the subjects falling within this class. Those to which I have referred in detail pertain essentially to the principles and generally accepted rules of the law of nations and to the administration of international justice. To go beyond those subjects would be to enter the wide field of constitutional law. Into that field I shall not venture.
In conclusion let me emphasize by repetition what I said at the beginning of my remarks, because it seems to me that the world is approaching the most critical decision that it has had to make since history began. Let me repeat: Nationalism must be maintained at all hazards. It must not be supplanted by Mundanism. It is equally imperative that within the nation Individualism should not be subordinated to Classism. Individualism has been the great impulse to progress and liberty. It is the very lifeblood of modern civilization. Individual rights, not class rights, should engage our concern and invite governmental protection wherever threatened. If we, Americans, abandon Individualism we have bartered away our birthright, we have cast aside that for which our forefathers were willing to die. The same is true of Individualism among nations. It must be main
tained if the peoples of the earth are to possess patriotism, love of liberty, and that generous devotion to national ideals which have made nations great and prosperous.
Peace and contentment are found in a nation where a free people live under just laws justly administered. So peace among nations will prevail when their conduct toward one another is governed by just laws and when they submit their controversies to an impartial judiciary which will decide them according to the immutable principles of justice.
To the achievement of this great good for the present and the future we should devote our thought and endeavor. To that end we should give our earnest support to Internationalism, a true Internationalism which is founded on a deep and abiding faith in Nationalism as the essential element of the present order. To-day by common purpose and by united effort much may be accomplished. If we wait for a more propitious time, that time may never come.
THE TREATY PROVIDING FOR AMERICAN ASSISTANCE TO FRANCE IN CASE OF UNPROVOKED AGGRESSION
BY GERMANY AGAINST THE LATTER
SECOND only to the proposed Covenant of the League of Nations in its claims upon the interest and attention of the American people and the Senate of the United States, and of far more importance and interest to them than the terms of the proposed treaty with Germany, outside of the section of that treaty which contains the Covenant of the League of Nations, is the proposed treaty with France. This document was submitted to the Senate by President Wilson on July 29th, with a view to securing the consent of the Senate to its ratification.
In addition to the analysis which needs to be made first of all of the terms of the treaty themselves, the proposed agreement suggests several reflections along different lines of thought, especially in regard to its relation to the proposed League of Nations and its relation to American constitutional law and diplomatic policy.
A reading of the text suggests that the pact was drawn with great care. The American plenipotentiaries were, evidently, extremely cautious, and insisted upon reducing the obligations assumed by the United States, by virtue of this treaty, to the very lowest points consistent with the accomplishment of the objects in view. In the third paragraph of the preamble it is a fear, more or less mutual, on the part of the contracting Powers, that the protective measures taken with respect to the left bank of the Rhine are incapable of assuring immediately to France and America adequate security and protection, which is given as the basis of the agreement. It is noteworthy that in the proposed British agreement it is said that "there is a danger" that the eventuality feared by the American and French negotiators may come to pass. In the final paragraph of Article I a double conjuncture of circumstances is required to bring the agreement into