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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.
“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 attitude 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 Constitutional Power to provide Coercion in a Treaty
“December 20, 1918 “In the institution of a League of Nations we must bear in mind the limitations imposed by the Constitution of the United States upon the Executive and Legislative Branches of the Government in defining their respective powers.
“The Constitution 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 constitutional.
"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 constitutionally 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 unconstitutionality 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 nonintercourse, especially commercial non-intercourse. Would a treaty provision to employ this method be constitutional?
“As to this my mind is less clear. The Constitution 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 constitutionally do so. It is only in the event of war that powers conferred by the Constitution 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 Constitution and as a consequence void.
“But, assuming 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 substitute for a guaranty which would be valueless without affirmative action to support it.
“I believe that such a substitute can be found.”
The foregoing memorandum was intended as an introduction to the negative guaranty or “self-denying covenant” which I desired to lay before the President as a substitute for the one upon which he intended to build the League of Nations. The memorandum was suggestive merely, but in view of the necessity for a speedy decision there was no time to prepare an exhaustive legal opinion. Furthermore, I felt that the President, whose hours were at that time crowded with numerous personal conferences and public functions, would find little opportunity to peruse a long and closely reasoned argument on the subject.
The most important portion of the document was that entitled “Suggested Draft of Articles for Discussion. December 20, 1918.” It reads as follows:
“The parties to this convention, for the purpose of maintaining international peace and preventing future wars between one another, hereby constitute themselves into a League of Nations and solemnly undertake jointly and severally to fulfill the obligations imposed upon them in the following articles:
“A “Each power signatory or adherent hereto severally covenants and guarantees that it will not violate the territorial integrity or impair the political independence of any other power signatory or adherent to this convention except when authorized so to do by a decree of the arbitral tribunal hereinafter referred to or by a three-fourths vote of the International Council of the League of Nations created by this convention.
“B “In the event that any power signatory or adherent hereto shall fail to observe the covenant and guaranty set forth in the preceding article, such breach of covenant and guaranty shall ipso facto operate as an abrogation of this convention in so far as it applies to the offending power and furthermore as an abrogation of all treaties, conventions, and agreements heretofore or hereafter entered into between the offending power and all other powers signatory and adherent to this convention.
“C “A breach of the covenant and guaranty declared in Article A shall constitute an act unfriendly to all other powers signatory and adherent hereto, and they shall forthwith sever all diplomatic, consular, and official relations with the offending power, and shall, through the International Council, hereinafter provided for, exchange views as to the measures necessary to restore the power, whose sovereignty has been invaded, to the rights and liberties which it possessed prior to such invasion and to prevent further violation thereof.
"D ‘Any interference with a vessel on the high seas or with aircraft proceeding over the high seas, which interference is not affirmatively sanctioned by the law of nations shall be, for the purposes of this convention, considered an impairment of political independence.”
In considering the foregoing series of articles constituting a guaranty against one's own acts, instead of a guaranty against the acts of another, it must be remembered that, at the time of their preparation, I had not seen a draft of the President's proposed guaranty, though from conversations with Colonel House and from my study of Point XIV of “The Fourteen Points," I knew that it was affirmative rather than negative in form and would require positive action to be effective in the event that the menace of superior force was insufficient to prevent aggressive acts.
As far as I am able to judge from subsequently acquired knowledge, President Wilson at the time he received my letter of December 23 had a typewritten draft of the document which after certain amendments he later laid before