Woodrow Wilson Papers
The Secretary of State to
President Wilson
13
Paris
, 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
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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 assuming
obligations to take affirmative action along either military or economic
lines. On constitutional grounds, on its effect upon the
Monroe Doctrine, on jealousy as to congressional
powers, &c., 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 do not see how any nation can refuse to subscribe to them. I do not see how
any question of constitutionality 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 today to jeopardize the whole
plan.
I shall be glad, if you desire it, to confer with you in regard to the
enclosed paper14 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,
[Enclosure 1]
The Constitutional Power To
Provide for Coercion in a Treaty
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 the 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
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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 independent 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 was 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 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 can 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 can constitutionally do so. It is only in the event of war
that powers conferred by the Constitution on Congress can be so
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.
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[Enclosure 2]
Suggested Draft of Articles for Discussion
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 the 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.
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[Enclosure 3]
Suggestions As to an International Council, for
Discussion
An International Council of the League of Nations is hereby constituted,
which shall be the channel for communication between the members of the
League, and the agent for common action.
The International Council shall consist of the diplomatic representative
of each party signatory or adherent to this convention at . . . . .
Meetings of the International Council shall be held at . . . . . , or in
the event that the subject to be considered involves the interests of .
. . . . or its nationals, then at such other place outside the territory
of a power whose interests are involved as the Supervisory Committee of
the Council shall designate.
The officer charged with the conduct of the foreign affairs of the power
where a meeting is held shall be the presiding officer thereof.
At the first meeting of the International Council a Supervisory Committee
shall be chosen by a majority vote of the members present, which shall
consist of five members and shall remain in office for two years or
until their successors are elected.
The Supervisory Committee shall name a Secretariat which shall have
charge of the archives of the Council and receive all communications
addressed to the Council or Committee and send all communications issued
by the Council or Committee.
The Supervisory Committee may draft such rules of procedure as it deems
necessary for conducting business coming before the Council or before
the Committee.
The Supervisory Committee may call a meeting of the Council at its
discretion and must call a meeting at the request of any member of the
Council provided the request contains a written statement of the subject
to be discussed.
The archives of the Council shall be open at any time to any member of
the Council, who may make and retain copies thereof.
All expenses of the Supervisory Committee and Secretariat shall be borne
equally by all powers signatory or adherent to this convention.
