LEAGUE OF NATIONS SIR FREDERICK POLLOCK. Br, Sttjaca, UStm fork BOUGHT WITH THE INCOME OF THE JACOB H. SCHIFF ENDOWMENT FOR THE PROMOTION OF STUDIES IN HUMAN CIVILIZATION 1918 Cornell University Library JX 1975.P77 The League of Nations / 3 1924 007 488 426 Cornell University Library The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924007488426 THE LEAGUE OF NATIONS. BY THE SAME AUTHOR. PEINCIPLES OP CONTRACT: A TREATISE ON THE GENERAL PEINCIPLES CONCERNING THE VALIDITY OF AGREEMENTS IN THE LAW OF ENGLAND. EIGHTH EDITION. 1911. Price 32s. THE LAW OP TORTS: A TREATISE ON THE PRINCIPLES OP OBLIGATIONS ARISING FROM CIVIL WRONGS IN THE COMMON LAW. TENTH EDITION. 1916. Price 30s. A DIGEST OP THE LAW OP PARTNERSHIP, WITH FORMS. TENTH EDITION. 7915. Price 10s. THE EXPANSION OP THE COMMON LAW. 7904. Price ds. THE LEAGUE OF NATIONS. BY THE Rt. Hon. Sir FREDERICK POLLOCK, Bt., BAIuaSTISB-AT-I.A'W, D.C.I.., LL.D. Correspondent of the Institute of France; Associate Member of the Royal Academy ofSelgimn. Fiat iustitia ne pereat mundus. Leibnitz " "We fought to gain a lasting peace, and it is our supreme duty to take every measure to secure it. For that nothing is more essential than a strong and enduring League of Nations." — The King's message to the League of Nations Union, October \Zth, 1919. LONDON : STEVENS AND SONS, LIMITED, 119 & 120, CHANCEEY LANE, Sato fjtblfehers. ' ' 1920. ' ^' ROBERTO CECIL INTER VIEOS VERB PACIFICOS IKSIGNI. ( Tii ) PREFACE. The purpose of this book is to give a practical exposition of the Covenant of the League of Nations, with so much introduction as appears proper for enabling the reader to understand the conditions under which the League was formed and has to commence its work. If here and there I have been tempted to wander from the strait way, the digressions are not long enough to call for any special apology. No systematic attempt has yet been made to deal with the bibliography of the subject, which is indeed growing so fast that such an attempt would be premature. I have therefore not thought it useful to print a general list of authorities which would be imperfect at best. At the heads of chapters, however, especially the introductory ones, I have given references to authentic documents and to other publications which seemed fitted to assist the reader in verify- ing the facts or undertaking fuller research. These references make no pretence to complete- ness and imply no judgment of any kind on works not cited ; among those I have not seen or not used there may be many quite as good as those I have myself found profitable. I trust Vlll PREFACE. however that the selection, such as it is, may be helpful. For like reasons I do not profess to appraise the individual merit of the statesmen and authors whose labours prepared the way for the establish- ment of the League. A justly proportioned view is hardly possible in our time. Some general acquaintance with the notorious events of recent years is assumed ; I see no middle course between taking so much for granted and writing a history of the war. For my part 1 have no higher ambition than that, when the time is ripe for a definitive record, this volume may save the future historian some trouble. F. P. Lincoln's Inn, November 30th, 1919. Note. — In the courae of November, 1919, the Senate of the United States refused to ratify the Peace Treaty with Ger- many save with various reservations to the Covenant. Those reservations were drawn without due consideration, being for the most part amplified statements of what is expressed or clearly implied in the text of the Covenant itself. The result was a deadlock involving at best regrettable delay, but down to the end of November the issue seemed likely to be a compromise of some kind compatible with the adhesion of the United States to the League., It must be plainly understood, however, that there can be no true League unless the members are pledged in principle to mutual defence and support against external aggression. " Covenants without the sword are but words, and of no strength to secure a man at all." It wiU be a long time before we can afford to forget that saying of Thomas Hobbes. ( i^ ) CONTENTS. BOOK I.— Introductory. CHAPTEE I. THE OLDER EUROPEAN ORDER. PAGE War, peace and government 1 Arbitration in the Middle Ages 3 Early federal alMaaces 4 Plans of general confederation 5 Early international law: Balance of Power 8 The system of the Congress of Vienna 10 The Crimean war and after 11 Later European Congresses 13 Dissolution of the Concert in 1908 15 Summary of stages in the politioal system before 1914 ... 15 Note A. — Treaty between Henry II. of England and Philip II. of France 16 CHAPTER II. METHODS OF INTERNATIONAL ARBITRATION. Ancient practice revived in modern times 17 Standing treaties 18 Arbitration distingxdshed from mediation 19 Its judicial character 20 Imperfection of transitory jurisdiction 22 X CONTENTS. Chapter II. — continued. FAQE Neither awards nor judicial decisions infalliblte 24 Pretended necessity of war 25 Law and reason in international arbitration 28 Rules not wanting as alleged 30 Compromise in decisions 31 Free choice of arbitrators 32 The Alabama ca,se 33 Its effect in reviving arbitration 34 Composition of arbitral tribunals 34 Form of arbitration treaties 36 Treaties of unlimited reference to Peace Conmiissions... 39 Note B. — Conventions made by Great Britain with France and the U.S 40 Note C. — Peace Commission treaty between Great Britain and the U.S 43 CHAPTER III. THE HAGUE TRIBUNAL. The Peace Conference of 1899 48 of 1907 49 The Convention as to settlement of disputes 50 Special commissions and reports: the Dogger Bank case 51 The danger averted 53 Provisions for arbitration 53 Procedure 56 Summary procedure 58 Is the Tribunal a court of justice? 58 Project of a permanent judicial court 60 The German attitude 64 Renewal of the scheme in 1914 64 CONTENTS. XI CHAPTEK IV. THE LEAGUE IN SIGHT. PAQE Methods of settling disputes down to 1914 66 Expectations of improvement 67 Federalist theories 69 Foundation of the American League to enforce Peace... 70 Militarist and pacifist extreme views 72 British and Continental societies 73 Allied societies in conference 74 Agreement of the Western Allies in the principle 74 Lord Parker of Waddington's last speech 75 Question as to manner and. time of constituting the League 77 Gen. Smuts's pamphlet 77 American unofficial draft 79 Existing general conventions for common objects 80 The Postal Union 81 The Institute of Agriculture 82 Eventual oontrol of the League 83 Note D. — List of societies 83 BOOK II.— The League in Being. CHAPTER V. THE CONSTITUTION OF THE LEAGUE. Unexpected results of the war of 1914 87 Formation of the League of Nations 88 The Covenant and the official commentary (Art. 1) — . . 89 No super-State 90 Members of the League 91 Joinijig members 92 Withdrawal 94 Xll GONTKN'J'S. Chapter V. — continued. PAGE Assembly and Council (Art. 2) 95 Composition of Assembly 96 Selection of delegates free to every State 97 Meetings of Assembly ; voting power (Art. 3) 98 Kepresentation of British Empire 99 Meetings and powers 101 Composition of the Council (Art. 4) 101 Representation of new members and of specially interested Powers 104 Unanimity generally required : procedure (Art. 5) 105 Majority powers in exceptional cases 105 Agreement of members represented at meeting, why sufficient 107 Committee work 107 The Secretariat (Art. 6) 109 Why none for British Empire ? 109 Seat of the League : appointments open to women (Art. 7) \. 110 CHAPTER VI. RESTRAINT OF WAR. Armmnents : plans for reduction: revision: private manufacture: exchange of information (Art. 8) ... 112 No compulsory disarmament 112 Failure of the Hague Conferences to deal with the problem 113 Future work of the Council 114 Private manufacture of war material 115 Modes of regulation 116 Prohibited means of offence: poison 117 The Commentary on exchange of information 119 Compulsory service not dealt with 120 CONTENTS. Xlll Chapter VI. — continued. TAGE Admsory Cominission on military, naval and air questions (Art. 9) 122 No General Stafi created 123 Functions of the Cominission 124 French position and proposed amendments 125 Integrity and independence of 'members to he preserved ~ against external aggression (Art. 10) 127 Limits of guaranteed protection 128 Council must be unanimous in advice 128 No new Holy Alliance 129 Action in case of war or danger of war (Art. 11) 130 Importance of an instrument ready for action 132 CHAPTEE VII. JUDICIAL PROCESS AND SANCTIONS. Agreement to submit disputes for arbitral award or inquiry by Council (Art. 12) 134 Reference of disputes to arbitration and performance of award (Art. 13) 135 Soope of discretion to refer questions 136 What questions justiciable 137 Choice of tribunal 138 Execution of award 138 Permanent Court to be established (Art. 14) 139 Composition of the Ceurt 140 Competence 141 Submission of non- justiciable disputes to Council; power of Council to refer to Assembly (Art. 15)... 142 Possible use of committees 144 Publicity 145 Sanctions against war in breach of Covenant (Art. 16) 146 Commercial blockade of offending State : 147 X]V CONTENTS. Chapter VII. — continued. PAGE " Pacific " blockade obsolete 148 Council has no compulsory power 149 Security for prompt co-operation to be desired 149 A cosmopolitan army not practicable 152 Proceedings as to States not members (Art. 17) 154 The League as general guardian of peace 155 CHAPTER VIII. THE LEAGUE IN PEACE. Registration of future treaties (Art. 18) 161 Revision of treaties, etc. (Art. 19) 162 General revision of law of nations 162 Obligations inconsistent with Covenant abrogated (Art. 20) 163 Saving of recognised engagements and understandings (Art. 21) 164 The Monroe Doctrine 165 Mandates (Art. 22) 166 The Secretariat's duty 169 Co-operation in matters of labour, traffic, public health (Art. 23) 170 International Commissions transferred to direction of the League (Art. 24) 172 Red Cross work (Art. 25) 173 Amendments to the Covenant (Art. .26) 174 Annex (original members and invited States) 174 The spirit of the League 175 CONTENTS. XV APPENDIX. PAGE I. The draft agreement for a League of Nations of Feb. 1919 177 II. The Covenant 189 The Commentary 204 III. The German scheme for a League of Nations 219 IV. The International Civil Court 231 V. The two branches of the Monroe Doctrine 235 VI. The Fourteen Points, etc 237 THE LEAGUE OF NATIONS. Book I.— INTRODUCTORY. CHAPTER I. THE OLDER EUROPEAN ORDER. References. Du Bois, De recuperatione terre sancte: traite de politique g6n6rale par Pierre Du Bois, ed. Oh.-V. Langlois. Paris, 1891. Der Publizist Pierre Dubois' . . . von Dr. Ernst Zeck. Berlin, 1911. Pierre Du Bois, legiste. In Kenan's Etudes sur la, politique religieuse du rfegne de Philippe le Bel (repr. from Histoire litteraire de la France). Pajis, 1899. St. Pierre, L'Abbe de St. -Pierre, sa vie et ses CBUvres, par M. G-. de Molinari. Paris, 1857. E. Nys, Le droit international, ed. 1912, sect. 11, ch. 4: L'Arbitrage, vol. 2, p. 547: Le projet d'une eour internationale do justice, p.. 577: see also the chapter " Les auteurs," vol. 1, pp. 224—351. A. P. Pollard, The League of Nations in History (Europsan alliances and the " Concert," 1815 — 1848). In collection of essays on the League of Nations. Oxford University Press, 1919. Prof. Ramsay Muir, Nationalism and Internationalism. London, 1916. Section on " The Progress of Internationalism, 1815—1914," pp. 169—195. Sir E. Satow, Guide lo Diplomatic Practice. London, 1917. War in one form or another is as old as any recorded history of mankind. The need of security in its double aspect of internal order and external defenoe has been the chief Mifitive in the creation of States and Governments, p. 1 2 THE LEAGUE OF NATIONS. In both cases, however, the ultimate ohject is peace. The strength of an established Government is shown not by frequent suppression of revolt, but by revolt having so little chanoe of success as to be infrequent; and succ^s or failure in w&v is judged not so much by the immediate military advantage of the victor as by the relative per- manence of the results. Alexander's conquests were greater in extent than those of any Eoman commander, but he founded only a number of kingdoms unable to maintain peace among themselves; whereas the Empire which consolidated the conquests of the Roman republic assured peace to the civilised world for some centuries, a peace of which we are still reaping the fruits, in spite of that Empire's decline and fall. Ever since the restoration of order in Europe which was accomplished in a tolerable though rude fashion in the early Middle Ages, men's tlioughts have turned to the Eoman peace and the problem of reviving its blessings by the prevention or restraint of war between civilised States. Mediaeval speculation was still overshadowed by the dream of universal dominion . It was entangled from the thirteenth to the fifteenth century in an endlesB con- troversy between temporal and spiritual pretensions, and the Reformation, having brought about the definite re- pudiation of both imperial and papal authority by a great part of Christendloim, made it finally manifest that this way was impossible. JNIeanwhile peaceful settlement of disputes by reference' to agreed arbitrations, a method which in private matters was far older than the establishment of regular courts of THE OLDER EUROPEAN ORDER. 3 justice, was by no means unknown in public affairs. We have even, in the case of a difference between Henry II. of England and PhiEp II. of France, an exact precedent for the form of the twentieth-century arbitration on the Alaska boundary between Canada and the United States, namely the appointment by each party of three dele- gates (a). Reference to a single sovereign prince deeimed to be impartial was, however, more frequent. Often that prince was the Pope (&): if he had not been a temporal ruler he might possibly have becomte the universal judge of national disputes by general consent and usage, and might have been a very good one. But, as it was, the materials for settling any kind of uniform' practice did not exist, and there was no serious naovement towards a general system of arbitration until the latter part of the nineteenth century. From about 1500 at latest it was not only the fact, but an openly recognised fact, that Europe was divided into many kingdoms, principalities, and domlnonwealths, based no longer on real or fictitious kindred or on feudal alle- giance, but on territorial control and jurisdiction, and that these independent units of political life did not own any common superior authority. As in theory it had always been allowed that war among civilised nations ■\vas a scandal (for the paradoxical position that war is rather a good thing in itself cannot vouch any ancient author to (o) See Note A, p. 16. ' (6) Sometimes the parties took the precaution of declaring that the reference was to the man by name as an individual, not to the Supreme Pontiff. 1(2) 4 THE LEAGUE OF NA'IIONS. my knowledge), the question of finding some reasonal?le goveraanoe for the relations of independent Powers was now regarded as uj-gent by thinking men of divers nations. Sir Thomas More expressed the pious wish " that, whereas the most part of Christian princes he g.t mortal war, they were all at universal peaoe." That wijsh took shape in a line of speculation pursued from the sixteenth to the eighteenth centuries by several authors. Little visible fruit came of tb,eir labours at the time; nevertheless, they were the foirerunners of the new movement aroused by the war of 1914, fostered by the zeal of leading publicists in Europe and in America, and, at last embodied in the plan of the Paris Conference. Federal alliances in which tlie allied members committed matters of war and peace to some authority represeaj.ting them all were alread^v kno-\\Ti to history; some were in actual being. Ancient G-reeee furnished examples in the Achaean League and, in an earlier rudimentary form, the Amphictyonic Council; the Swiss cantons were already secure in their ooUective inde- pendence; the United Provinces of the N^etherlands w-ere asserting theirs. Union had been compelled, in most of these cases, by the fear of isome powerful aggressor against whom it was the only effectual means of resistance. At the same time it could be effectual only on condition of intestine strife between member* of the alliance being forbidden; and thus evils less indend than those of foroicrn conquest, but in themselves grave enough, were also pre- vented. Why should not the rulers of independent nations become parties to a compact of that kind for the avoidance of mutual strife at all times, and common defence if need THE OLDER EUROPEAN ORDER. 5 ■were; or even, the more ambitious lorojectors urged, for a grand and final crusade of civilised Christendom to expel infidel Piowers from Europe and the Medaterrajiean ? Several plans of this kind were published and attracted notice enough to earn a standing mention in text-booke (c) of international law somewhat later, when the subject had reached the stage of having a i^oognised literature of its own. Among these projects the best known by name is the Abbe de Saint-Pierre's; but our countryman, William Penn's, earlier Esm^, Tfyimr^ the Present amUi Future Peace of Europe is of at least equal Merit, and he appears to have been the first writer who attacked the probfem' with much practical senise of its conditions. The co!q- ception of a congress of sovereign States "recognising no earthly superior," with power to settle disputes by arbi- tration, was formed early in the fourteenth century, about 1306, by Pierre du Bois(id). It is hard to tell exactly how much importance Du Bois himself attached' to this ^oint, or whether he knew what a great taatter be was (c) E. Nys, Le droit international, ed. 1912, is ihe most useful I know for t.tiia purpose. Sete also a sunmiary list in Otlet, 'GonsUtution mondiale de la soeiettS des niationSj Qeaeva and Paris, 1917, p. 239. {d) So I write the maane, following Eenan, whose essay, '^ Pierre Du Bois, legiste," reprinted from the pistoil-e Utt&raire de la France in "Etudes sur la politique religieuse du regne de "Philippe le Bel," Paris, 1899, is by no means superseded. Thfere is now a critical edition of De recupe'ratione terr'e sondte, by Ch.-V. Laiigiois, Paris, 1891; th© old one is in Liber secretOHim fideliiim, crtiCis, uniform, and commonly found with and catalogue as the second -Volume of, Gesta heA per Francos, Haiiover, 1611. The latest monograph is by Dr. Ernst Zeck, Der Puhlizist Pierre BuUii, Berlin, 19ll. 6 THE LEAGUE OF NATIOKS. touching. For he only touohed it as one of a great number of singularly bold and modem reformB, all of which he represented as necessary preparation for a grand crusade to be led by the King of Eranoe for the recon- quest and settlement of the Holy Land. Abolition of the Pope's temporal sovereignty; wholesale confiscation and redistribution of ecclesiastical property, including the Templars' and HoispitaJlere' revenues, no contemptible bait iar Philip the Fair's avarice (e) ; appHciation of such re- sources, among other objects, to training of interpreters for the East, woimein as well as men, with medical and surgical instruction thrown in — five oeoituries and more before the days of our medical missions; a reformed summary and uniform procedure for both civil and ecclesiastical juris- diction, with short pleadings undea: the control of the court; such are some of this fourteenth -century clerk's innovations (/) . No wonder that he never rose to high office. It looks as if the great project of the crusade was to his mind a desirable object (it would have been almost heretical to deny that) to set before every Christian man, but having a quite independent and (a scholar might hope) less remote value as the vehicle of im'provements in the state of Christendom which, without some such powerful impulse, could hardly make way against vested interests. (e) But the French, king was already devising his own shorter way with the Temple: Du Bois' ink was hardly dry when he set about it in. such a fashion as made perhaps the blackest episode in mediseval history. Du Bois was employad on this and other occasions to write anti-Papal tracts, but not admitted to secrete of State. (/) References in Iianglois' introduction, at pp. xvii.-xviii. THE OLDER EUROPEAN ORDER. 7 In any case the alliance Du Bois contemplated was not a league of Christian princes on an equal footing, but a confederation under the King of France as supreme leader. There was even a suggestion of transferring the Empira from the House of Hapsburg to the House of Valoie. Henri IV. of France's or Sully's project revived the same design three centuries la,ter; it was about as hopeful as the opposite dream of the Protestant Powers allying them- selves with the Griand Turk against the Papacy and the Catholic princes, which indeed was mjore seriously con- sidered (g) . It is true that neither William Penn's plan nor, so far as I am aware, any other made any distinct provision for an executive authority to carry out the decrees of the Diet or general assembly of the Powers. Looked at in •the light of our modern experience this appears a very serious omission. But in the days of Marlborough's cam- paigns military preparations and movements were slow in proportion to the imperfect state of all transport and com- munications, and the persons ooncerned in them were for the most part too many for secrecy; so thait the need for prompt action in case of the terms of alliance being broken, or a member of it attacked from without, was much less obvious than it is now; not that all the framers or advo- cates of schemes for a league of peace have shown them- selves alive to it even at this day. Penn's foresight, at (g) Something like it underlay the civilities exchanged by the Sultan with Elizabeth and James I., of which the witness may be 6een in the Becord Office Museum, It found a strange advocate in Jakob Bohme. § THE LEAGUE OF NATIONS. any rate, extended to a rV>ugh supervision of armaments. " If it be seen requisite, the question may be asked, by order of the sovereign States, why such a one either raises or keeps up a formidable body of troops, and he obliged forthwith to reform "—^.e., in the French sense of dis- banding then current in English— "or reduce them; lest any one, by keeping up a great body of troops, should surprise a neighbour." All projects of this olass, however, remained in the air; at most they gained word's of praise from' politicians who had no intention of acting upon them. Practical im- provement (for, notwithstanding all exceptions and draw- backs, much improvement was effected) took place on other lines. The growth of the law of nations from the seven- teenth to the twentieth century presents several maa-ked stages. In the first ol these it was recagnised that there is a body of rules approved and received by the general usage of civilised nations as binding on their Governments in their dealings with one another, such rules not being confined to peaceful relations, but extending to the conduct of war. In point of fact the rules of war were earlier and in some ways better defined. Grotius holds, by common repute, the foremost place among the founders of the system; and, withooit prejudice to the merit of his pre- cursors and suocessorB, the commion judgment is right. To this stage belongB the so-called doctrine of the Balance of Power or Balance of Europe (h), which in truth is little more than the moral of Louis XIV. 's conquests and even- (h) These terms occur from the last quartet of the seventeenth onwards: Oxford English Dictionary, s.v. Balance, sb., 13 c. THE OLDER EUROPEAN ORDER. 9 tual defeat. Any ruler who aims at preponderance in Europe may expect, and will deserve, to meet with a •coalition of rivals and threatened les&er nations that will sooner or later be too strong for him. The lesson ciannot be called obsolete ; it had to be enforced not only once upon Louis XIV., but twice and thrioe, after intervals of about a century, upon Napoleon and the HohenzoUerns, and in either case to the end of a swifter and miore disastrous dbwnfall. In the result the doctrine, or rather praotioal maxim, of the Balance of Power was a Oostly cure for the soaring ambition of despots, but not an effectual preven- tive. Kinglake, the historian of the Crimean W,ar, tried to formulate a farther development in the shape of a "usage which, tends to protect the weak against the strong." When wrong is dbne by a stronger to a weaker State, and some Great Power has a common interest with the weaker party, " then Europe is accustomed! to expect " that Great Power to come to the rescue by diplomatic or armed intervention (i). . No such rule, however, appears to have ever been officially recognised, nor is any trace of it to be found in text-books. Again, all rules and maxims are capable of abuse; honest but timid rulers may have found in the Balance of Power a source of anxiety and expense rather than security, and it is certain that un- scrupulous ones oould, and sometimes did, make it a pre- ,text for their own aggressive designs. That is no reason .nevertheless, for speaking of it with contempt, as if it •belonged merely to the lumber of antiquated diplomatic (i) Invasion of the Crimea, Vol. I., Oh. 2. 10 THE LEAGUE OF NATIONS. fictions, though it has been rather the fashion to do so of late years.. The principle was understood in a quite rea- sonable sense in the eigihteenth century. Vauvenargues sums it up neatly:— "La politique fait entre les princes ce que les tribunaux de la justioe font entre les par- ticuliers: plusieurs faibles, ligues centre un puissant, lui imposent la necessite de moderer son ambition et ses violences " (fc). On the whole, then, the European system of the eigh^ teenth century, such as it was, made very little way towards the prevention of war, and more or less widespread wars were frequent. It was much, however, that custo- mary rules were acknowledged to exist and were fairly well observed. The wars of the French Revolution and the greatness- and fall of Napoleon cleared the way for a second phase of international relations. In 1814 and 1815 the pro- ceedings at the Congress of Vienna were guided by the five Great Powers, as they were now regularly called: Austria, France, Great Britain, Prussia, and Russia; and a moral duty to maintain peace in Europe on the founda- tion of the settlement then made was understood to rest on those Powers. ,No regular method was provided for secui-ing agreement or resolving differences; the attempt of the Continental monarchs to restore the old dynastia system regardless of national aspiirations was doomed to failure from the outset; and yet, in a world tired out with, war, the arrangement was stable enoug'h to give time for (fc) Reflexions et Maximes, No. 558. THE OLDER EUROPEAN ORDER. 11 recovery. There were local wars and warlike operations, revolutions, and civil strife of divers kinds, and in many- parts lof Europe, including a war between Russia and Turkey, not then counted as an European State; but forty years passed before there was an open and official rupture between Great Powers. As late as 1851 it was a common opinion that such a thing was hardly possible, and the revolutions of 1848 and 1849, in truth fatal symptoms of impending change, were deemed to have been passing dis- turbances. Louis Napoleon's ambition to found a dynasty and revive the glories of the first French Empire pre- cipitated the ruin of the decaying order. One historian at least perceived clearly enough, looking back after some years, that the Crimean War had shattered the framework of the European system (Z). Yet men's eyes were only half opened, both military art and diplomiacy having in the main still followed the old ways. From 1856 we may date a third period, marked in sub- stance by the rise and oonsolidation of national States, absorbing or sweeping aside artificial divisions, and yet often accompanied by disregard for the claims of minori- ties; in form by endeavours to settle matters of common interest by special conferences and to restrain war within moderate limits of space when it could not be wholly avoided. Those immediate objects were in some measure attained: the latter wars of the third quarter of the nineteenth century were local, short, and decisive. Louis Napoleon's war of 1859 with Austria, producing a oom- (?) Kinglake, op. ait., ad init. 12 THE LEAGUE OF NATIONS. pleter effect than he desired, broaght about the union of Italy under the House of Savoy. Those of 1864 between the old GnermajQ confederation and Denmark, and of 1866 between Austria and Prussia with their respective G-erman allies, brought about exactly what Bismarck intended, the virtual unity of Germany, excluding Austria, under Prus- sian supremacy; lastly the duel of France and Germany in 1870 created the German Empire and, destroying the Second Empire in France, made room for the third Re- public . The visible results in Europe as compared with those of eighteenth-century conflicts were, on the whole, more considerable and less costly; it would take us too far to consider the establishment of British supremacy in India and North America. So far there was an appear- ance of improvement; unfortunately, the balance of good and evil in those results was doubtful. Still guided by antiquated precedent, the statesmen of Europe did not perceive, or perceived too late, that they were working for an unrivalled and unscrupulous master (to) of time and opportunity, commanding the most formidable instrument of land warfare yet known, the army created and trained by the Prussian staff; and Bismarck, thus equipped in arts and arms, and with Louis Napoleon's tortuous and fumbling machinations playing into his hands, was work- ing for the King of Prussia. That which no one could help seeing after 1870 at latest was that the day of pro- fessional armies was over. Campaigns were no longer to be Gonducted under artificial rules by leaders who hardly (m) " A great man, but a great scoundrel," was Lord Acton's colloquial estimate of Bismarck. THE OLDKK EUKOPKAN ORDER. 13 regarded one another as enemies, but. rather as opposed advocates bound by a common tradition of professional ceuiitesy. Henceforth conflicts in arms were to be the conflicts of whole nations, and the scale and burden of rival armaments rose without ceasing. Before ajid in the course of the Crimean War attempts were made to settle the Has^rn Question by diplomatic conferences of the Powers chiefly interested; and after the Congress (n) of Paris in 1856 there was a marked tendency to resort to oonfereuoe of this kind as a means of quieting present or imminent disputes. Proposals to hold European conferences were not, however, always accepted; as to those which actually met, it might be rash to say positively that in any case war otherwise imminent was averted. A conference of plenipotentiaries may really settle a troublesome question, or may gain time for a more complete settlement by some transitory compromise, or may give the sanction of a formaj treaty or declaration to changes known to all parties to be inevitable. The prin- cipal diplomatic congress of European Powers in our time was that of Berlin in 1878, where the terms of peace concluded between Russia and Turkey were revised with substantial alterations. It may happen that a conference (to) " Prom tlie point of view of International Law there is no essential difEerenoe between Congresses and Gonferences " (Sir E. Satow, Gmde to Diplomatic Practice, ii., 1). Modem usage tends to reserve tlie higher title of Congress to meetings that aim at an extensive settlement. The term appears first in an identical phrase of the Treaties of Miinster and Osnabriick, 1648: op. eit., ii., 9. (See Chaps. 25, 26 passim for historical details and. references. ) 14 THK LEAGUE OF NATIONS. fails to agree ajid breaks up without any result having been attained. There are several examples of this before tbe nineteenth century; in our own days complete failure has been rare, but not unknown. It would be unprofitable to speak in detail of the various diplomatic meetings of this period that were held with more or less adequate resulfes, or, as sometimes happened, proposed but not held. An attempt to avert war between Russia and Turkey by this means, at the end of 1876, was unsuccessful; the Congress of Berlin, a year and a half later, did prevent the war from becoming general, and put off the evil day for thirty years. Still the settlement effected by the Treaty of Berlin was no better than a patching up. According to a careful judgment passed upon it in 1908, " it has not proved in any sense a' per- manent settlement of an eternal question; it has not secured the peace of the Balkan peninsula; it has not ensured the, just treatment of the Christian races which it left under Turkish rule" (o). Within twenty years hostilities between Greece and Turkey had bo be kept within bounds by the intervention of Great Powers; not all of them, for Gnermany and Austria soon stood aside, an omen of which few men saw the gravity at the time. Crete was pacified only by a series of acts not easily brought mthin any known cate- gory of international usage, but ultimately ratified by the consent or acquiescence of the Sultan. (1897 — 1898). The iinal blow, at the so-called Concert of Europe and the (o) William Miller, Cambridge Modern History, xii., 399. THE OLDER EUROPEAN ORDER. 15 rather casual methods by which it worked was struck in 1908 by the Austro-Hungarian annexation of Bosnia and Herzegovina, with the support of Germany "in shining armour," as William' II. boasted in a theatrical speech, and in flagrant contravention of the Treaty of Berlin. In form, but in form' only, this high-handed act was afterwards legalised by a protocol concluded with the Turkish Government, on which the consent of the other Powers followed! as of course (p) . Thus, in the two centuries and a half or thereabouts that have elapsed since the general recognition that there is a law of nations to be observed by civilised States in prin- ciple, in spite of all the drawbacks incident to imperfect definition and want of authentic jurisdiction, the political system of Europe has passed through the following stages. First, the competition and conflict of the eighteenth cen- tury, roughly moderated by the Balance of Power doctrine, and occasionally by more or less general and lasting agree- ments; next, the Vienna settlement guarded by the un- organised "concert" of the Great Powers so far as they could agree; then the period of national revival and of regulation, now considered a normal procedure, by special conferences; lastly, the redistribution of power in group alliances, accompanied by the increased vogue of arbitra- tion and the attempts of the Peace Conferences at The Hague to lay the foundations of a real international juris- diction. This la^t stage led immediately to the catastrophe (p) Satow, Guide to Diplomatic Practice, § 101. 16 THE LEAGUE OF NATIONS. of the great war of 1914 and its unexpected and still uncertain oonsequenoes. NOTE A. The words of the treaty are as follows: Si autem super hi:< quae exoepta sunt [points of territorial dispute] per nosmet ipsos [in modern language, by ordinary diplomatic means] convenire non poterimus ego PhiUppus tres elegi episoopos et barones et ego Henricus totidem qui inter nos dicent et nos eorum iudicio stabimus flrmiter et bona fide: Matth. Par., Ohron. Mai., ed. Luard, ii. 314. It is easy to suggest that the matter was an incidental boundary commission rather than an arbitration; but in any case the form is remarkable. METHODS OP INTERNATIONAL AilBITRATION. 17 CHAPTER II. METHODS OF INTERNATIONAL ARBITRATION. References. Lord Bussell of Killowen, Address to the American Bar Associa- tion, 1896, L. Q. E. xii., at pp. 329, 330 (summary account of arbitration treaties down to that date), also at p. 333 (distinction between mediation or good offices and arbitration). B. JJys, Le droit international, ed. 1912 (Brussels), vol. ii., pp. 534 — 77: Les solutions amiables des diff^rends entre les Etats. Sir Thomas Baxclay, articles " Peace," " Peace Conferences," in Enoyplopsedia Britannica, llth ed. list of standing arbitration treaties concluded down to 1910. Solicitors' Journal, Nov. 1, 8, 1919. The antiquity of arbi- tration (ancient Greek examples). ^PLefeeence to arbitrators was from ancient times a known and practised method of settling disputes between inde- pendent States. For whatever reason, it became much less common after the Middle Ages; perhaps because direct negotiation between the parties ooncerned was made more practicable by the institution of standing embassies and legations, and preferred by statesmen to fortnal argument. In the period on which we now enter we meet with a potable revival of the practice, poupled with serious en- deavours to give it a systematic form. First, resort to some kind of arbitral decision was stimu- lated by the example of Great Britain and the United: States in settling a really dangerous oontro\'ersy. Then, early in the twentieth century, France and Great 18 THE LEAGUE OF NATIONS. Britain concluded a treaty providing in general terms for the reference of future disputes to arbitration, with the exception of questions affeoting national honour or vital interests, and the pattern of this treaty was extensively copied. Meanwhile the Hague Conference of 1899 had made a common form of arbitration treaty possible, and greatly simplified the process of obtaining a decision, by creating a standing judicial machinery of which governments that were so minded might avail themselves at any time. Endeavours were also made from time to time to devise a form of international agreement that would cover all disputes without exception. Lately, after one or two failures (6), Great Britain and the United States came to such an agreement, in which the novel feature was the consideration by a standing joint commission of cases not found soluble by ordinary diplomatic means and not thought capable of judicial treatment. Several treaties of this model, fii'st settled in 1914, were soon aftarwaWis made between the United States and other nations. All this, however, fell very far short of the establish- ment or recognition of a true judicial court administering the law of nations with cosmopolitan authority. Suoh a court was the ideal of sanguine publicists, who hoped that the civilized Powers of the world in congress might create it and unanimously submit to its jurisdiction. But Ger- man policy, at all times after the formation of the G«rman (&) A treaty of this type was also concluded between Italy and the Argentine Eepublic in 1898, but not ratified: we need not recur to it. METHODS OF INTERNATIONAL ARBITRATION. 19 empire, was inflexibly oppolsed to the allowance of any, real international authority, professing to regard' it as an inadmissible derogation from the sovereign rights of an independent State; and therefore nothing could be done in that way. The reformers who were m'ost zealous in urging the proposals thus rejected were singularly blind to the significance of the rejection. Such is the historical outline which we shall now proceed to fill in so far as appears necessary for the understanding of the sequel. But first it may be well to make a few remarks on the nature of arbitral tribunals and the differ- ence between an arbitral award, ajid on the one hand thei action of a mediator, on the other the judgment of a per- manent court of justice; for erroneous assumptions and' exaggerated statements on this matter are not infrequent. The functions of an arbitrator are so different from those of a mediator that confusion ought not to be possible. A mediator's business is to discuss the whole matter in dispute with the parties and try bo bring them together; he is not bound to form any opinion of his own on its merits, and if he does form one neither party is bound to attend to it. He is to assist and advise, not to decide, and his actioa is in no way judicial. The aim is not a declara- tion of right, but the settlement of a claim or of conflicting claims, so that many reasons of expediency may quite piToperly have weight which it would be quite improper for an arbitrator acting judicially to consider. An arbi- trator, on the contrary, is appointed to hear and determine matters cm which the parties have specdfioally declared themselves to be at variance, and agreed to abide by hia 2(2) 20 THE LEAGUE OF NATIONS. decision. It may occur to him in the course of the pro- ceedings, as it may occur to a judge, to suggest a com- promise, but any such good oflSoes aje no part of his duty. His business is to decide, not to advise, and he is bound to proceed judicially and according to law — that is to say, the law by which the parties have agreed to be bound ; in ordinary civil aibdtrationfl this is presumed to be the law of the land if nothing to the contrary is expressed. As t» the likeness and difference between an arbitrator and a judge, we are not to think of them as bfelonging to widely different species. An arbitrator is a person chosen to act as judge on a particular occasion; the fact that his authority is created by the parties and confined to the occasion appears to constitute the specific character of the office (c). There is no foundation for any notion that he is less bound to observe the rules of judicial conduct than the official judges of a permanent court. He may not, for example, receive evidence that would not be admis- sible in a court of justice. It is doubtlese true that, if not learned' in the law, he will be apt to prtt questions of pure law in a subordinate rank ae, compared with his im- pression of the substantive merits. This, indeed, is usually what the parties desire. Moreover, quite appreciable variations of temperament and intellectual habit in this respect are to be found even among the most learned members of regular courts. It is also true that an arbi- trator's jurisdiction is derived wholly from the consent of (c) Of. Baty, International Law, 1909, p. 8: " ths acceptance of a persona grata to decide a particular dispute." METHODS OF INTERNATIONAL ARBITRATION. 21 the parties; they alone can define the question he has to decide, and .they can, if they please, agree on a statement pf the facts, or of specified points either of fact or of law, for the purpose of admitting the matters so agreed without discussion. But this difference is less material than it looks at first sight; for it must be remembered that, in the way of agreed statemients or admissions and otherwise, parties to on ordinary civil litigation can do almo'st "any- thing they choose by oon'sent in English practice at any rate. And generally there is no doubt that in our law arbi- tration is regaixied as a known and proper kind of judicial process. Whatever else an arbitrator may or may not be, it is certain (speaking of the law and practice with which I am acquainted) that he is not an untrammelled dispenser of natural justice. As a normal result of the parties having put their special oonfidehoe in him, his award is not subject to any ordinary process of appeal, but can be set aside only on special grounds broadly reducible to bad faith, manifest error, and failure to dispose of the matters , referred to arbitration; so that his findings of fact are less controllable than a jury's, and his rulings in law, express or tacit, are much lesp so than a judge's. Thus he has in fact a larger autonomy than a superior court. So have justices of the peace, and it is even said that judges pf the High Court sometim'es do things in cham'bers which are acquiesced in as convenient, but wpuid be hard to justify if the point of jurisdiction were formally afgued. None the less, all those ought. to hear and determine ac- cording to law. Finally, an award is for most practical , 22 THE LEAGUE OF NATIONS. purposes as effectual and enforceable as a judgment of the proper qourt. But, if an arbitrator is a kind of judge, his judgment- seat is not the seat of a permanent court, noc is hfe in the exercise of his oifice a member of such a court; and this is so even if he is a learned persion and accustomjed to regular judicial work. His jurisdiction is created for a special purpose and oomes to an end when that purpose is fulfilled. His award has no authority beyond the par- ticular occasion and the parties who have agreed to submit the dispute to him. This is the really vital difference between arbitration tribunals and a regular judicature, and we have to bear it in mind when we com;e to consider the League of Nations in its judicial aspect. We shall see that the Hague Convention did not establish a true court, but only provided a convenient mode of making up arbitral tribunals and regulating their procedure. Isolated awards of arbitrators or arbitral bodies, however conscientious and able, will not produce a ooherent doctrine or settle any standing doubt. For those higher ends there is need of uniformity in method and continuity in practice and tra- dition, and these can be secured only at the judgment -seat of a permanent court. Moreover, although an arbitral award ought — in the view of English-speaking law^ei-s at any rate — to be founded on legal reasons, one cannot in fact always be sure what an arbitrator's reasons really were, especially in a case where the rule of law itself has never been adequately defined (a class to which, unfor- tunately, a considerable proportion .of dieputes between sovereign States belong). Accordingly, we may note in METHODS OF INTKENATIONAL ARBITRATION. 23 private affairs that when thei-e occurs a serious disputable question of law between persons or bodies representing distinct and important interests, and the question or others allied to it seem likely to arise again, it is not thought enough to go to arbitration, but a test case is brought before a superior court for solemn argument and decision, and, it may be, carried up to the final appellate jurisdic- tion of the House of Lords, in order to obtain a decision binding for the future. But in the commonwealth of nations, in default of em established court having full judicial authority, no such course is possible at present. As between independent nations justice and judgment are stUl in the archaic stage of ^xhich we are reminded in the Iliad {d), where some kind of customary rule is recognized, but it can be administered only through the consent of parties to accept the decision of a man or body of men to whom they submit the cause of their own free ■will. In the Homeric age it seemis to have been expected' by public opinion that the family of a slain man should be willing to refer the amount of compensation to some respected' elder or to the assembly, and in the years next before the war of 1914 the custom of civilized nationswas thought by many publicists to have nearly if not quite reached a corresponding stage, with this advantage, that States which did elect to adopt judicial process could use all the learning and experience acquired during many centuries by courts and lawyers wprking in their respective locaJi (d) xvii., 497, the scene of a trial before elders deecribed among the ornaments of Achilles' shield. See Dr. Leaf's note on the passage. 24 THE LEAGUE OF NATIONS. jurisdiotions. The event showed that the Germans (not excluding learned ones) and the gods they worshipped were much behind the illiterate Achaians at the siege of Troy in wisdom and humanity, but strong enough to defy, with a show of success for some time, the resources of civilization available at the moment. It taiay not be useless to deal here ■with some of the, criticisms passed on arbitration as a general method of settlement, especially by certain continental jurists who belittle it in their zeal for a regular standing court, much as some years earlier certain champions of arbitration belittled all other methods. The merits have seldom been discussed in an impartial spirit. Advocates, of more zeal than discretion, have provoked opposition by claiming and expecting too much. They have represented arbitration and the Hague tribunal as a panacea; worse, they have committed themselves to ill-judged depreciation of other means to the same end', and in particular of official diplo- macy. They have forgotten that the true success of diplo- matic skill lies not in producing brilliant or convincing dispatches, but in checking incipient mischief at such an early stage that no dispatches have to be ^written. A few strictly confidential notes, to be disclosed only to a future generation, may be all the record of discussion and ex- planation which have dispersed a threatening war-cloud. Again, they ha.ve forgotten that, when men's temper is hot and calm judgment in abeyance, all means that serve to gain time are good, and none should be neglected. Moreover, they refused foi- a long time to be persuaded that not all disputes are equally fit subjects for judicial METHODS OF INTERNATIONAL ARBITRATION. 25 treatment; but, inasmuch as the importance of distin- guishing between justiciable and non- justiciable questions is now generally recognized, there is no need to give more than a passing mention to this error. Contrariwise there has been exaggerated detraction, partly founded on the extreme claims of pacifist authors. It is absurd to complain of statesmen or arbitrators for not being more nearly infallible than courts of justice, or of arbitral awards for not satisfying all parties, when it is notorious that the judgments of courts quite commonly 'Satisfy neither litigant. It is no less absurd to forget, what we all have to remember in our particular jurisdic- tions, that the purpose of judicial proceedings is to render, not incontrovertible decisions (for tha,t is impossible to human faculties), but decisions which at least are honest and make a .settlement good enough to be accepted as better than strife. There are also some critics, not without ability and in- iuence, who openly deny more than a secondary import- ance to all and every one of the existing or pfrojected in- struments of pacific settlement. Man, they say, is a com- ibative animal. Nations and communities have always had conflicting interests and always will; they have always fought for them and therefore always will. This line of •argument sends us back in imagination to the first sitting -of the first court — ^^vherever and whenever it may have been — that exercised compulsory jurisdiction. One sees a little group of elders who stand aside and shake their wise heads. This new-fangled coercion, they say, will never do. "Voluntary submission to an award and voluntary compen- 26 THE LEAGUE OF NATIONS. satioin according to the award are doubtless to be en- couraged with discretion; but beware of laying profane- experimental hands on the ultimate right of resort to the blood-feud. It is a venerable and sacred institution, handed down by our valiant ancestors, bound up with the very life of the clan and the familj'. When you begin to meddle with it you are in peril of shaking the foundations of society, before you have done. Social order rests on the- honour, independence, and vital interests of kindred, groups. Your compulsory jurisdiction is the first step on the road to anarchy. Besides, public opinion is already declaring itself in favour of submission and composition in proper cases. The head of a house who will not hear of compounding an ordinary feud, such as arises from a clean manslaying in fair fight, is coming to be looked on as a bad neighbour. Leave it there, and you will have all prac- ticable improvement without laying down hard and fast rules to make occasions for new strife. So, doubtless, those elders argued; but they did not prevail, and for some thousand yeails compulsory justice has been recognized among the necessary attributes of civilized government. One might even go farther back in the struggle of pre- historic reformers, and strain the mind's ear to catch the muttering of sage reproof against the first farmer who dared to harness a horse to his plough; or, before him, the. more daring one who tamied the first ox-team, discarding- his ancestral spade; not to mention the yet bolder inno- vators, far beyond the reach of conjecture, who sowed the first corn and made fire to light the first hearth. Were they stoned or deified — or both? Tubal Cain, following- METHODS OF INTERNATIONAL ARBITRATION. 27 on Prometheus, is a symbol of forgotten controversy. There must have been champions of the Stone Age who fought hard for the old ways, and it is not without reason that iron, having won the day, is still deemed a potent counter-charm against the more ancient magic. But let us return to the doubters of our present epoch. Those who affect to de6pa,ir of the peace of nations are, we believe, f<>r the m;ost part honest in their pessimism. Some are born pessimists in all affairs, their own as well as the nation's. Others become pessimists from having been unsuccessful reformers. Others again are consciously sincere, but unconsciously biassed by their private interests and associations. That kind of bias is a serious element in the problem. It may become less dangerous when the world finds, as it will very soon, that beating swoi-ds into ploughshares, not in a metaphorical but in a quite material sense, with no figure of speech beyond putting part for a greater whole, is anything but unprofitable. Admirals and generals, perhaps, cannot be expecited to find much comfort in the reflection that even if all wars could in- stantly cease by a miracle we should still have ample use for the virtues of naval and military discipline in many forms of peaceful adventure and enterprise, exploring ex- peditions, world organizations of industry and so forth; nevertheless it is obviously true. Sometimes it is alleged as a defect in international as compared with private arbitration that the arbitrators have no settled rule of law to guide them (e). The root of this (e) " Les arbitres ne sont en possession d'aucune loi a appli- quer " : Otlet, Constitution mondiale de la soci6te dos nations, 1917, p. 13. 28 THE LEAGUK OF NATIONS. objection appeai-s to be the timid and narrow dootrine of judicial interpretation wbi(ih has been common, though not without weighty protest, on the continent of Europe. It is assumed that in the absence of an express formula^ ciovering the ca^ in hand a judge, and therefore an arbi- trator likewise, is helpless. Our English* and American tradition is quite otherwise: for we hold that the first commandment of the law is to judge according to reason; not any and every man's uninformied reason, but reason instructed by the experience of many generations and em- bodied in positive rules and accepted principles, yet so that, if no binding authority can be produced, or authorities are conflicting, it is still the judge's duty to find the most reasonable solution he can. Any one who imagines that such a problem is unknown or uncommon within the sphere of municipal law must be very little acquainted' with the jurisprudence of his own or any other country. We may observe, as a matter of detail not wholly irrelevant, that national courts have before them from day to day cafe^ of increasing number and importance in which the most troublesome question is which of two or more legal systems brought into competition by the special facts is to furnish the court with the rule to be applied. Cases of " the first impression " on the one hand, where the field lies open to judicial reason; cases of "conflict of laws" on the other hand, where a definite choioe between competing rules has to be made; both kinds may be difficult, but neither of them presents unknown terrors to a properly trained English-speaking lawyer. Now let us ask whether an international tribunal is really at an enormous disadvantage in the matter of guid- METHODS OF INTERNATIONAL ARBITRATION. 29 ing principles. In the first place it is always open to the parties themselves to define beforehand the rules they will accept as binding. This was done in the Alabama case and might well be done again. If not, the arbitrators have to decide according to the general law of nations and such applicable obligations as may have been formulated in treaties or conventions to which the litigants were con- tracting parties.- And what is the general law of nations? cries the sceptical pessimist: omly a mass of assertions and opinions backed by no sanction and controlled by no au- thentic interpretation. — Here we must insist on keeping out the standing problem of sanctions, for it is in no way to the purpose. It is inconvenient not to know how a rule can be enforced, but that is quite a different kind of incon- venience from not knowing what the rule is. In fact the contrast in point of certainty between municipal and inter- national law has been much exaggerated. There is no system of law, codified or uncodified, in w"hich one may not find many unsettled qu^tions, if only because new questions must arise from time to time, but there are plenty of other causes. More than this, there is no system in which discussion of an unsettled question, however learned and elaborate, can be confidently expected to lead to a clear solution in every case. Decisions between parties often turn on special matters of fact or on questions of law oollateral to the main governing principles. In the Common Law we have judg- ments that seem, as we turn the pages of the report, on the very point of clearing away doubts, explaining ambiguous authorities, and overruling erroneous ones, and then wil- 30 THE LEAGUE OF NATIONS. fully stop ehort of a final conclusion. All of us who have seriously worked at the more general problems of our case law have pondered over such judgments with mixed ad- miration and regret. There is such a thing as being too astute to observe the rule, a sound rule in itself, of deciding no more than is required for disposing of the matter in hand. Subject to the correction of French colleagues, I believe as much may be said with truth of the body of doctrine which labours partly judicial and partly academic have built on the foundation of the Napoleonic codes. It is not in the nature of legal scienoe to be reducible to a series of demlonstrated and authentic propositions applic- able to all possible questions that may come into court. But this does not mean that reasonable certainty is not attainable as to the rules governing the majority of ques- tions that have in fact to be disposed of. Now if we look to the subject-matter of international arbitrations, as far as experience has gone, we shall find that a notable pro- portion of them, something near one-third, have been con- cerned with matters of territorial title in the form of boundary disputes and other questions of a like sort. It so happens that international law has no lack of rules for dealing with such claims, and that, being in the main founded on the classical Roman law of property, they are fairly well settled. As in municipal law, the difiioulties are apt to be not so much in the law as in the facts. Thus in the Guiana boundary difference between Great Britain, deriving title from Holland, and Venezuela, deriving title from Spain, there was no principle of law nor of genertal usage in dispute. Not legal but historical uncertainty METHODS OF INTERNATIONAL ARBITRATION, 31 Tuade the decision troublesome; the territory in question ■\\a8 for the most part unsettled, and the evidence of any, •continuous or effective possession under either Spanish or Dutch jurisdiotion was anything but full or satisfactory. Thus, again, the case of the Bering Sea fisheries between -Great Britain and the United States was of the first im- "preeeion. The facts, and the claims of property and juris- diction arising from them, were wholly novel. One common source of difference, occurring both in ter- ritorial claims and. in other kinds of dispute, is in the oon- structioin of treatira. Here it cannot be said that guidance is wanting. Apart from the technical effect of particular terms in this or that system, the main principles of inter- pretation are common to all civilized law, and the resouroee of jurisprudence and of historical criticism are no less open to arbitrators than to any other serious inquirer. It may happen that the parties have appointed ignorant and in- competent persons; in that case it is the parties' own fault. Another charge made against international arbitrators is that their awards are too often in the nature of a com- promise. On this I shall only remark that jurymen are also ministers of justice and sworn to give a true verdict according to the evidence ; they are bound to attend only to legally admissible evidence, and to follow the Court's directions in point of law, and^there are defined ruleis of law about the measure of damages. But in fact nobody ■doubts that verdicts in many cases, and the assesstoenl of damages in more, are the result of compromise between a majority and a more or less obstinate minority. Our courts have wisely refused to inquire by what process 32 THE LEAGUE OF NATIONS. verdicts are arrived at, though there are limits bey;ond: which the jury's freedom of aberration may be restrained- Even the reasons given by the Judicial Committee of the Privy Council for its advice to the King, which have to be expressed in one collective opinion by force of a rule not originally framed with a view to any judicial func- tions, often represent not the whole mind of the frartmr but only so much of it as he could induce his colleagues on the Board or an effective majority of them to accept. Lastly, we have to bear in mind that an arbitral tri- bunal, as distinct from a permanent court, is just what the pai'ties choose to make it. Using or not using the panel of judges and the procedure provided by the Peace Con- ferences, they dan have a tribunal oompoised wholly of jurists, or includin|g diplomatists or persons who, being neither jurists nor diplomatists, are specially qualified by knowledge of the subject-matter. If they want a strictly legal court they can have it; if they want a board of specialists, surveyors it may be, or naval or military men, they can have it; if they please they maj- combine all or any of these elements. Probably the last thing that occurs to them is the satisfaction of those le8t.med persons who look on national interests and differences as material for the production of such neat academic formulas as learned persons may with the least trouble to themselves work into a neat and elegant system. The first notable example of arbitration being applied to a serious dispute between great nations in modern times was the Alahama case, as it is commonly called. A com- posite arbitral tribunal sitting at Greneva in 1871 and 1872 METHODS OF INTERNATIONAL ARBITRATION. 33 fixed the liability of Great Britain to the United States for damage done by v,e88els which had escaped from British ports during the American Civil War and been equipped elsewhere as Confederate cruisers (/) . This was by no means the first arbitral award between the two Eii,glish- speaking Powers, but none of the former ones had been of comparable importance. According-ly this became a leading example, and may be said to have given a decisive impulse to international arbitration in the last quarter of the nineteenth oentury, notwithstanding that the proceed- ings cannot be regarded as a satisfactory model, and have never been imitated in detail. The labours of the tribunsi.1 were lightened, and indeed made possible, by the parties having defined beforehand, in the Treaty of Washington, the rules to be applied; those rules laid down a neutral State's duty of diligence to prevent its territory being made a base of warlike operations, and the terms were wide enough to amount in effect to an admission of some liability on the British side. It would not be to our purpose here to recall the particular's. There was much disapproval pf the result in England, and there is no doubt tha,t the damages awarded were excessive, inasmuch as there ultimately remained in the treasury of the United States a balance for which no claimants were forthcoming. Nothing came of a suggestion that the rules embodied in the treaty should be accepted by other States as part of the conventional law of nations; but, apart from any ques- (/) The statement of the facts in Enc. Laws of England, s.v. Alabama case, is correct only as to the Florida, not as to the Alabama, whose evasion "was due to an unfortunate accident. P. 3 34 THE LEAGUE OF NATIONS. tion of wording, the principle that there is some duty of reasonable diligence does not appear to be now seriously disputed. Neither can it be doubted that this ease, like sundry other leading cases in a more strictly professional sphere with which English-speaking lawyers are familiar, has enjoyed a reputation and acquired a value as a pre- cedent altogether beyond the qu^tions actually decided and the reasons, expressed or not expressed, of the decision. After Great Britain and the United States had demon- strated the possibility of settling a grave question between sovereign States in this manner, notwithstanding that on both sides feeling ran high, that there were incidents in the very course of the prooeedings not calculated to appease it, and that the composition of the tribunal was in some ways not felicitous, arbitration was restored .to all and. more than all its mediaeval repute, and frequently applied' with improved methods and procedure. Various ways of constituting an arbitral tribunal are possible and have been used in recent times. It cannot be said that the practice showed any tendency tx) uni- formity, save that in every case where a oomposite court has been formed it has contained representatives of each party. Arbitrations having this feature in common have jDresented three distinct variations. The tribunal may be reinforced by members whom foreign, and presumably impartial, rulers nominate on the request of the parties; or by an external member agreed on by the parties' repre- sentatives; or it may not be reinforced at all. Exampl&s of the first method are the Alabama case, and, in a better shape, the Bering Sea arbitration of 1893. The second METHODS OF INTERNATIONAL ARBITRATION. 35 ■was used in the Guiana boundary arbitration, which settled a long-drawn dispute between Great Britain and Venezuela in 1899. In the matter of the Alaska boundary, disposed of in 1903, there were three members appointed by the United States and three by Great Britain and Canada. The risk of an equal division is an ob\dous oibjection to' this plau; in the particular case the American and Canadian members voted for their own sides, and if the British arbitrator, Lord Alverstone, had done the same there would have been a deadlock. His judicial opinion, however, was against the Canadian case, and there was unpleasant and undignified complaint in Canada, though learned Canadians were not wanting wliX) had the courage and candour to say that he was right. We do not think this procedure ils likely to be repeated. Under the Hague •Conventions the tribunal is normally made up of four members, two selected by each party, and a fifth nominated as umpire by the four; but in the moist important case ^ince 1907, that of the North Atlantic Coast Fisheries in 1909-10, the parties came to a direct agreement as to all the members {g). At the same time the ancient metliod of reference to the judgment of some one foreign ruler, or a high official of a foreign State, was by no means extinct. It was applied nmre than a dozen times in the second half of the nine- teenth century {h). Perhaps the miost striking example {g) Tlie Hague Court Reports, New York, 1916, p. 185. {h) Encycl. Brit., 11th ed., ii., 329, s.v. Arbitration, Inter- national. The case of Chile and. Argentina mentioned in the 4ext is omitted by some accident in this table. 3(2) 36 THE LEAGUE OF NATIONS. is the settlement of the boundary dispute between Chile and Argentina by the award of King Edward VII. in 1902; the choice of such an arbitrator might perhaps have been resented in the United States as coming under the somewhat elastic description of European interference with American affairs, but for the cordial relations produced by the attitude of Great Britain in the Spanish- American War. The more general type of arbitration treaties which has become common since Great Britain and France concluded the first of the kind in 1903 (i) provides for reference to the permanent Court of Arbitration established at the Hague under the Convention of 1899. It also requires a preliminary agreement (aompr/omis) (k) defining the matter in dispute and the term® of the reference. In the treaties to which the United States is a party it is further expressed that this " special agreement" will be made by the President of the United States " by and with the advice and consent of the Senate thereof": the Senate would allow standing arbitration treaties only on this condition, holding that the special agreement is itself in the nature of a treaty (l), and being exceedingly jealous as to the full preservation of its constitutional rights in foreign affairs. Great Britain in turn reserves the right to oonsult the governments of self-governing Dominions before oonolud- (i) See the text in Note B at the end of this chapter. (k) The Prench word for the English " compromise " is " trans- action "; this difference of idiom is a rather common stumbling- block of the less competent sort of translators. (/) In fact the special agreement in the North Atlantic Coast Fisheries case was an elaborate instrument of eleven articles. METHODS OF INTEENATIONAL AKBITEATION. 37 ing an agreement to refer a difference in any matter; specially affecting their interests. About one hundred general arbitration treaties, presumably in almost identical terms, were in force before the outbreak of war in 1914 (to). It was a pretty common opinion both before and after the Peace Conference of 1899 that the ideal of an arbitra- tion treaty covering all possible disputes without exception could not be attained, at any rate as between Great Powers (w), within any assignable time. Such an under- taking appeared to be imprudent; there might be situa- tions, it seemed, in which the rulers of a nation — remem- bering that after all they are not owners but trustees — oould not properly commit their cause to the- judgment of any tribunal, even one in the appointment of which they themselves had an equal share. But there were those, especially in America, who. sou^t a more excellent way. Without denying that in principle " justiciable " questions — namely, such as can be brou^t to a definite issue ajdd handled in a judicial manner — ^are materially different from those called " non- justiciable," or political as involv- ing matters of policy not reducible to any legal measure, they observed that the method of formal argument and decision is not necessarily the only one capable of leading (m) Ninety were oommunicated to the permanent office of tho Hague tribunal down to 1910: Nys, Le droit interijational, ed. 1912, ii., 566. (n) Such treaties were in fact made by Denmark with the Netherlands in 1904, Italy in 1905, and Portugal in 1907: 2]pa Oonf . intern, de la paix, Actes et documents, ii., 887. 38 THE LEAGUE OF NATIONS. to a settlement. Joint oommiesions appointed by two goverinnents to examine and report on matters in doubt^ such as details of boundaries in imperfectly surveyed terri- tory, or even to decide points of detail, were already well known . Indeed , their work had not been coniined to iminor queetione. For example, such a commission had framed the Treaty of Washington, which was the really decisive step in the quieting of the Alabmrm controversy. Could not this method be extended and made permanent so as to secure a calmer and more deliberate investigation than is possible in the ordinary diplomlatic exchange of com- munications? A mixed commission having no power to do anything but inquire and report vdll at least be lass subject to friotipn and the heat that comes of friction than Foreign Secretaries writing controversial dispatches to one another with an eye to their appearance in an official col- lection. Danger of controversial deadlock can be still further lessened by appointing the Commissioners as a standing body and not waiting till a dispute has actually arisen. Such, it is presumed', were the considerations that led to the framing of the British-American treaty signed at Washington in September and ratified in November 1914, purpiorting to be not an arbitration treaty but " with regard to the establishment of a peace commission." It would serve no useful purpose to give more than bare men- tion here to a somewhat earlier draft which was signed but not ratified. The treaty (o) does not abrogate the earlier (o) 1914, Cd. 7714, reprinted in Note at the end of this chapter. METHODS OF INTERNATIONAL ARBITRATION. '69 convention pi'oviding for referenoe to the Hague tribunal, but sets up a permanent international oommission to whioli disputes "of every nature whatsoever" between the con- tracting j)axties not settled under existing agreements " shall, when diplomatic methods of adjustments have failed, be referred for investigation and report "; pending which there shall be no hostilities (Art. 1). To make up the standing Commission, each government chooses one countryman of its own and one foreigner; a fifth, not being a citizen of either contracting party, is chosen by agreement (Art. 2). These appointments were in fact made in due course. Special provision is made for the representation of the Dominion governments in proper cases. The Commission may offer its services of its own motion. A year is allowed for inquiry and report. The High Contracting Parties expressly reserve their subsie- quent freedom of action. Treaties of the same miodel have since been concluded by the United States to the number, it is said, of abouit thirty. They are often referred to as the Bryan treaties, Mr. Bryan having been Secretary of State when the first of them was made. A desire to advance the cause K>f general peace is expressly mentioned in the original treaty as one of the reaisons for making it; and, considering that a general European war had actually begun when it was signed, the multitude of imitators is remarkable. We need hardly say that this form of agreement, even more than the earlier limited arbitr;ation treaties, assumes the existence and oontinu^noe on both sides of good |aith and a sincere desire to avoid war. A State whose rulers hold 40 THE LEAGUE OF NATIONS. that the obligation of treaties is overridden by so-called military necessity, or even by the prospect of military ad- vantage, will observe a treaty providing for reference of disputes to an arbitrator for awa:rd or to a joint com- mission for report, or for putting off the outbreak of hos- tilities in any way whatever, just as much and as little, as any other agreements— that is, so far and so far only as the rulers find their profit therein; a profit which they will call national as a matter of counse, but it may well enough be only dynastic or personal. Thus the destroyed empire of Austria-Hungary had really no common national interest at all . NOTE B. I. Agreement bktween the United Kingdom and France PROVIDING FOE THE SETTLEMENT BY ARBITRATION OP CERTAIN CLASSES OF QUESTIONS WHICH MAT ARISE BETWEEN THE TWO GOVERNMENTS. Signed at London, Oetober 14, 1903. The Government of His Le Gouvemement de Sa Britannic Majesty and the Majeste Britannique et le Gou- Government of the French vernement de la Eepublique Eepublic, signatories of the Fran5aise, signataires de la Con- Convention for the pacific settle- vention pour le reglement paci- ment of international disputes, fique des conflits internationaux coiicluded at the Hague on the conclue a La Haye le 29 Juillet 29th July, 1899 ; 1899 ; Taking into consideration that Gonsiderant que, par 1' Article 'by Article XIX of that Conven- XIX de eette Convention, les tion the High Contracting Hautes Parties Contractantes se Parties have reserved to them- sont reserve de conclure des selves the right of concluding accords en vue du recours a Agreements, with a view to I'arbitrage, dans tous les cas METHODS OP INTERNATIONAL ARBITRATION. 41 Tefemng to arbitration all questions wliicli they shall con- isider possible to submit to such treatment, Have authorized the Under- signed to conclude the following arrangement : — qu'elles jugeront possible de lui soumettre. Ont autorise las Soussignes a arrSter les dispositions sui- vantes : — Article I. Differences which may arise ■of a legal nature, or relating to the interpretation of Treaties •existing between the two Con- tracting Parties, and ■which it may not have been possible to settle by diplomacy, shall be referred to the Permanent Court ■of Arbitration established at the Hague by the Convention of the 29th July, 1899, provided, nevertheless, that they do not affect the vital interests, the independence, or the honour of the two Contracting States, and do not concern the interests of third Parties. Article I. Les diilerends d'ordre juri- dique ou relatifs a I'interpreta- tion des Tiaites existant entre les deux Parties Contractantes qui viendraient a se produire entre elles, et qui n'auraient pu etre regies par la voie diploma- tique, seront soumis a la Cour Permanente d' Arbitrage etablie par la Convention du 29 Juillet 1899 a La Haye, a la condition toutefois qu'ils ne mettent en cause ni les interets vitaux ni I'independance ou Thonneur des deux Etats Contraotants, et qu'ils ne touchent pas aux interets de tierces Puissances. Article II. In each individual case the High Contracting Parties, before ^appealing to the Permanent Court of Arbitration, shall con- ■clude a special Agreement defin- ing clearly the matter in dispute, the scope of the powers of the Arbitrators; and the periods to be fixed for the foi-mation of the Arbitral Tribunal and the several -stages of the procedure. Article II. Dans chaque cas particulier, lesHautes Parties Contractantes, avant de s'adresser a la Cour Permanente d' Arbitrage, signe- ront un compromis special, de- terminant nettement I'objet du litige, rstendue des pouvoirs des Arbitres et les delais a ob- server, en ci qiii concerne la cpnstitution du Tribunal Arbi- tral et la procedure. 42 THE LEAGUE OF NATIONS. Abticle III. Article III. The present Agreement is Le present Arrangement est- concluded for a period of five conclu pour une duree de cinq years, dating from the day of annees a partir du jour de la signature. signature. Done in duplicate at London, Fait a Londres, en double the 14th day of October, 1903. exemplaire, le 14 Octobre 1903. (l.s.) Lansdowke. (l.s.) Paul Cambon. II. Convention of 1908 between Great Bbitaik and the United States. His Majesty the Eing of the United Kingdom of Great Britain a^d Ireland and of the British Dominions bgyond the Seas, Emperor of India, and the President of the United States of America, desiring in pursuance of the principles set forth in. Articles 15 — 19 of the Convention for the pacific settlement of international disputes, signed at The Hague July 29, 1899, to. enter into negotiations for the conclusion of an Arbitration Con- vention, have named as their Plenipotentiaries, to wit: His Majesty the King of the United Kingdom of Great Britain and Ireland and of the British Dominions beyond the Seas.,. Emperor of India, The Eight Honourable James Bryoe, O.M., and. The President of the United States of America, Elihu Boot, Secretary of State of the United States, Who, after having communicated to one another their fuLL powers, found in good and due form, have agreed on the following articles: Abticle 1. [Identical with Art. 1 of the agreement of 1903 between th& United Kingdom and Prance, see above.] Article 2. In each individual case the High Contracting Parties, before appealing to the Permanent Court of Arbitration, shall conclude a special Agreement defining clearly the matter in dispute, the scope of the powers of the Arbitrators, and the periods to be fixed. METHODS OF INTEUNATIONAL AKBITEATION. 43 for the formation of the Arbitral Tribunal and the several stages of the procedure. It is understood that such special agreements on the part of the United States will be made by the President of the United States, by and with the advice and consent of the Senate thereof; His Majesty's Government reserving the right before concluding a special agreement in any matter affecting the interests of a self-governing Dominion of the British Empire to obtain the conourrenoe therein of the Government of that Dominion. Such Agreements shall be binding only when confirmed by the two Governments by an Exchange of Notes. Article 3. The present Convention shall be ratified by His Britannio Majesty, and by the President of the United States of America by and with the advice and consent of the Senate thereof. The ratifications shaU be exchanged at Washington as soon as possible, and the Convention shall take effect on the date of the exchange of its ratifications. Aeticlb 4. The present Convention is concluded for a period of five years, dating from the day of the exchange of its ratifications. Done in duplicate at the Oity of Washington, this fourth day of April, in the year 1908. (Signed) James Bryce. (Signed) Elihu Eoot. NOTE 0. Treaty between the United Kingdom and the United States OP America with regard to the Establishment of a Peace Commission. Signed at Washington^ September 15, 1914. £IlaUfications exchanged at Washington, November 10, 1914. j His Majesty the King of the United Kingdom of Great Bi^itain and Ireland and of the British Dominions beyond the Seas, Emperor of India, and the President of the United States of America, being desirous to strengthen the bonds of amity that bind them together and also to advance the cause of general peace, 44 THE LKAGUE OF NATIONS. have resolved to enter into a Treaty for that purpose, and to that end have appointed as their Plenipotentiaries: — ' His Britannic Majesty: ,The Eight Honourable Sir Oecil Arthur Spring-Eice, G.O.V.O., K.O.M.G., &c.. His Ambassador Extra- ordinary and Plenipotentiary at Washington ; and The President of the Umited States: The Honourable William Jennings Bryan, Secretary of State of the United States; Who, after having communicated to each other their respective full powers, found to be in proper form, have agreed upon and concluded the following articles: — Abticle 1. The High Contracting Parties agree that all disputes between them, of every nature whatsoever, other than disputes the settle- ment of which is provided for and, in fact, achieved under existing agreements between the High Contracting Parties, shall, when diplomatic methods of adjustment have failed, be referred for investigation and report to a Permanent International Com- mission, to be constituted in the manner prescribed in the next succeeding article; and they agree not to declare war or begin hostilities during such investigation and before the report is submitted. Abticle 2. The International Commission shall be composed of five members, to be appointed as follows: — One member shall be chosen from each country by the Govern- ment thereof; one member shall be chosen by each Government from some third country; the fifth member shaU be chosen by common agreement between the two Governments, it being under- stood that he shall not be a citizen of either country. The expenses of the Commission shall be paid by the two Governments in equal proportions. The International Commission shall be appointed within six ifionths after the exchange of the ratifications of this Treaty, and vacancies shall be fiUed according to the manner of the original appointment. Article 3. . In case the High Contracting Parties shall have failed to adjust a dispute by diplomatic methods, they shall at once refer it to METHODS OF INTEKNATIONAL AKMTKATION. 45 the International Oommission for investigaition and report. . The International Oommission may, however, spontaneously, by unani- mous agreement, offer its services to that effect, and in such case it shall notify both Governments and request their co-operation in tke investigation. In the event of its appearing to His Majesty's Government that the British interests affected by the dispute to be investigated are not mainly those of the United Kingdom, but are mainly those of some one or more of the self-governing dominions, namely, the Dominion of Oanada, the Commonwealth of Australia, the Dominion of New Zealand, the Union of South Africa, and Newfoundland, His Majesty's Government shall be at liberty to substitute as the member chosen by them to serve on the Inter- national Oommission for such investigation and report another person selected from a list of persons to be named, one for ea^h. of the self-governing dominions, but only one shall act — ^namely, that one who represents the dominion immediately interested. The High Contracting Parties agree to furnish the Permanent International Oommission with all the means and facilities required for its investigation and report. The report of the International Oommission shall be completed within one year after the date on which it shall declare its investigation to have begun, unless the High Contracting Parties shall limit or extend the time by mutual agreement. The report shall be prepared in triplicate; one copy shall be presented to each Government and the third retained by the Oommission for its files. The High Contracting Parties reserve the right to act indepen- dently on the subject-matter of the dispute after the report of tlie Oommission shall have been committed. Article 4. This Treaty shall not affect in any way the provisions of the Treaty of the 11th January, 1909, relating to questions arising between the United States and the Dominion of Oanada. Article 5. The present Treaty shall be ratified by His Britannic Majesty and by the President of the United States of America, by and 46 THE LEAGUE OF NATIONS. with the advice and ooneent of the Senate thereof, and the ratifications shall be exchanged at Washington as soon as possible. It shall take effect immediately after the exchange of ratifications, and shall continue in force for a period of five years, and it shall thereafter remain in force until twelve months after one of the High Contracting Parties have given notice to the other of an intention to terminate it. In witness whereof the respective Plenipotentiaries have signed the present Treaty and have affixed thereunto their seals. Done in duplicate at Washington on the fifteenth dey of September, in the year of Our Lord nineteen hundred and fourteen. (l.s.) Cecil Spring-Eicb. (l.s.) William Jennings Bryan. THE HAGUE TKIBUNAL. 47 CHAPTER III. THE HAGUE TRIBUNAL. References. [The Acte and Conventions of the Peace Oonferenoee have been several times reprintei; the discussions are fully reported only in the official editions published by the Government of the Netherlands.] Officially published by the Government of the Netherlands: 'Conference Internationale de la paix. The Hague, 1899 (four parts separately petged). DeuxiSme conference intemationale de la paix, Actee lei; documents. The Hague, IQ'OT. 3 Vols, (in fact issued 1908-9). International documents, ed. E. A. Whittuck. London, 1908. (Includes Declaration of Paris, 1856; Geneva Convention, 1864, and supplements, &c.; as weU. as the Hague Conventions.) Les conventions et declarations de la Haye de 1899 et de 1907, &c., avec une introduction de James Brown Scott. New York >( Carnegie Endowment), 1918. Authentic French texts of 1899 and 1907 in parallel columns ; full statement in tabular form and otherwise of the several Powers' ratifications, reservations, &c. North Atlantic Coast Fisheries Arbitration at the Hague : argument on behalf of the United States by Elihu Boot, ed. Robert Bacon and James Brown Scott. Cambridge, Mass. (Harvard University Press), 1917. Pull account of the procedure at pp. XXV. sqq. The proceedings in this arbitration were printed at large by the British Foreign Office, 1909-1910, 4 vols, fo., and by the Government of the United States, 1912-1913, 12 vols. 8vo. The Hague Court Eeports, comprising the awards, and other documents in each case submitted to the permanent court of arbitration and to commissions of inquiry; edited with an intro- duction by James Brown Scott. New York, &c. (Oxford University Press), 1916. James Brown Scott, Une cour de justice Internationale. New York (Carnegie Endowment), 1918. A consolidated version in French of the itwo volumes by the same writer, entitled: Letter and Memorandum of January 12, 1914, to the Netherlands Minister of Foreign Affairs, in behalf of the establishment of on International Court of Justice (1916) ; The Status of the Inter- national Court of Justice, &c. (1916). Wehberg, Hans, The Problem of an International Court of 48 'i"HE LEAGUE OF NATIONS. Justice, translated by Charles G. Fen wick. Oxford, &c. (Carnegie Endowment), 1918. Schucking, Walther, The international union of the Hague Conferences, translated from the German [published in 1912] by Charles G. Fenwiok. 1918 (Carnegie Endowment, as above). Eoland Gray, International tribunals in the light of the history of law. Harvard Law Review, May, 1919 (xxxii., 825). We now have t» consider the judicial machinery provided by the Hague Conventions and accepted in the typical arbitration treaties of the last fifteen yea;rs or thereabouts. The original promoter of the Peace Conferences was Nicolas II., the late and to present seeming the last Emperor of Russia, whose predecessor Alexander I. had thrown out vague suggestions directed to the same end almost a century earlier. Of Alexander it may be said that only steadfast purpose was lacking to make him capable of being a great and beneficent ruler; nor is there any cause to douT>t that Nicolais, a much weaker man, acted under a sincerely generous impulse. When he issued his appeal to the civilized world through the representa- tives of their governments at Petrograd, he regarded some way of checking excessive armaments as the first aim of the Conference. But when, almost exactly twenty years ago (a), the government of the Netherlands had assembled the delegates of all the Great Powers and many of the lesser ones at the Hague in oomjpliance with the Tsar's request, it appeared that no practical limitation of arma- ments was likely to be devised in any form generally acceptable, or to be accepted at all by Germany in par- (o) May 18th, 1899. THE HAGUE TRIBUNAL. i9 ticular; and the total results would have been disappoint- ing had not the exertions of Lord Pauncefote and his oolleagues on the British delegation secured the estab- lishment of wha^t is now known as the Hague tribunial. When the Conference of 1899 broke up there was a general expectation that another meeting would be held within a few years, and periodical meetings would follow at short intervals. This was frustrated by the war between Russia and Japan in 1904. A proposal for the renewal of the Conference made in that year by the United States had no immediate result. Peace having been made in 1905 through the mediation of the same Power, Russia took up the matter again, and the second Conference was held in 1907; it is stated in the " Final Act" to have been first proposed by the President of the United States, and, on the request of the Emperor of Russia, convened' by, the Queen of the Netherlands. In several ways the pro- ceedings were better ordered than those of 1899, although the procedure was still cumbrous; but the chance of estab- lishing a regular period for the meetings had passed away. At the Conference of 1907 forty-four Powers were re- presented, practically all the civilized States. The conven- tions of 1899 were reaffirmed with additions and amend- ments, and a new supplementary scheme for a permanent court of justice, to which we shall return, was formulated as being desirable (6). As to the Emitation of warlike expenditure the Conference could only, declare that it (6) Annexe to Voeu No. 1. p. 4 50 THE LEAGITE OF NATIONS. ■would be an excellent thing if the governments would take up the matter seriously. We are not concerned here with the Conventions relating to the duties of belligerents and neutrals in time of war, nor with the causes that prevented them from being effec- tive to any considerable extent during the war of 1914. It is to be observed that the delegates had no authority to bind their governments ; therefore each convention is formally binding (c) only on those Powers which have ratified it; moreover, some ratifications were given subject to reservations. In considering the application of any convention to a particular case it is necessary to note care- fully which Powers have ratified with or without reserve, and which have abstained. Some of the conventions and declarations have, nevertheless, been acted upon by Powers which did not ratify them. Peaceable settlement of in- ternational disputes is dealt with by the Convention which stands first. The amendments of 1907 were ratified by a considerable majority in number of the States represented. Two great Powers, Great Britain and Italy, have never ratified them: but Great Britain accepted them in practice for the purpose of the North Atlantic Fisheries arbitration. The first title of the Convention merely affirmfe its general object. The second is intended to encourage re- course to good ofiioes and mediation; the proffer of either (c) The Oonventione as passed by the Oonference, after being prepared by committees or sub-oommittees, were annexed to the Pinal Act, but assent to the Pinal Act did not imply assent to the particular contents of any Convention. THE HAGUE TRIBUNAL. 51 at any stage of a dispute is in no case to be regarded as an aniriendly act. It does not seem useful to dwell on the details, as these articles have never been called into play ao far as we know. The third title recommends the formation of inter- national commissions of inquiry for repoirting on questions of fact in difference between governments which cannot agree on them by ordinary diplomatic means (Arts. 9 — 14 of 1899; the additional articles of 1907 relate only to procedure). Obviously such a recommendation enables the jKuties' to db nothing they could not do without it; more- ovOT it is expressly declared that the report of the dom- mission is not an award nor in any way conclusive. Altogether these clauses belong to the dass of merely optional and unsanctioned proposals which advocates oif militarism have always denounced as futile. But in fact they did good practical service on the occasion of the Dogger Bank mishap in 1904; indeed it is by no means clear that if they had not been available the good ofSoos of the Pnenchi government would have been suooessful in averting hostility between Great Britain and Russia. The EuBsian fleet on its outward voyage f rota the Baltic to the seat of war in the East, had opened fire on the Dagger Bank fishing fleet in the night of Oct. 21 to 22, undier the impi*©sa«Ha that it was in the presence of hofitile torpedb teats. Diptomiatic cioiTe8|KHideiioe ensued, and reference to a commission of inquiry under this Conventio;a was suggested simultaneoiUely, it appears, at the British (dl) (d) Pari. Pafers, 1906, Eussia No. 2, Nos. 17, 19, 22, 28. 4(2) 52 THE LEAGUE OF NATIONS. Foreign Office and at the Russian Court. One may con- jecture that in tbth quaxters the suggestion was inspired' by the French government, whose efforts to preserve friendly relations were notorious at the time if not officially recorded. The terms of reference to a mixed commission of naval officers were substantially settled in a very short time, and agreed on by a formfll declaration of Nov. 25 (e)^ after a little discussion raised by the Russian government on a special term whidi charged' the oommi^on to ascer- tain who was responsible for the acts complained of, and in what degree any persons found answerable were to blame. In the Russian view this went beyond the scope of the Con- vention, which appliBS only to controversies "provenant d'une divergence d'appreoiation sur des points de fait." It seems to have really been immaterial whether it did ao or not, for the parties were free to make their own terms, and critical historians are likewise free to say, as thtey prefer, that the inquiry was held under Arts. 9 to 14 of the Convention for the peaceable settlement of disputes between nations, but with an agreed extension of the com- missioners' authority,, or that it was an inquiry by a special commission framed on the model of those articles, though not exactly conforming to them. The result was to con- vince everyone except the Russian representative that the Japanese torpedo boats were an illusion — though a more natural one than mere landsmen would think — and the Russian government was liable for the damage; but the report was in such terms as to save the honour of the '_■ (e) 1904, Treaty Series, No. 13. THE HAGUE TRIBUNAL. 53 'Russian naval service, and was accepted by all concerned. So the way remained open to the beitter general under- standing between the British and Russian governments which came a few years later. The wiiser headls, to bia sure, were determined from the first not to play int^o the hands of those who had most to gain by iwar, or, failiogi war, by an estrangement between Britain and Russia serious enough to prevent the British weight from being thrown into the scale of the Franco-Russian alliance in any. coming European trouble. But the accident was novel, exasperating, and at first sight incapable of rational explanation. Public opinion in England was inflamed, and it was urgent bo put the matter in a way of settlement at once, lest some ou,tbreak of violent words, if mot more, should render conciliation impossible. The present writer has often wondered what the chance of keeping the peace would have been if we had then lived under the democratic control of foreign policy for which some weU-meaning pacifists ory, aloU|d'. He believes that if thie people at large had been called on to vote in the first forty-eight hours they would have voted for instant war; he is not sure even about the House of Oamnions if it had been sitting. Bujt this is not to the present purpose. Title iv. of the Convention deals with arbitration; the provisions for procedu^ were simplified in 1907. Arbi- tration treaties may deal with existing or future disputes; they may include all manner of causes, or be limited to a specified: class; they imply an undertaking to accept the award' in good faith; the Powers reserve the right of making new agreements to extend the scope of compulsory 54 THE LEAGUE OF NATIONS. arbitration as between the parties thereto (Arts. 15—19 of 1899, 37—40 of 1907). The Standing Court of Arbi- tration is presumed to have cognizance of cases referred to arbitration without other express provision of a tri- bunal. It sits and has its registry at the Hague; the Powells are bound to furnish official copies of arbitration treaties, awards, and the instruments by which awards are executed (Arts. 20-22 of 1899, 41-43 of 1907). We now come to the provisions for constituting the tribunal. Every Power which is a party to the Convention appoints not more than four competent persons who are willing to act as arbitrators if called upon; any two or more Powers may join, if they so agree, in the nomination of one or more members, or different Powers may independemtly choose the same person. The nomination is for six years and renewable; casual vacancies are filled in the same manner. Prom the list thus made up the arbitrat,ors have to be selected in every case referred to the standing Court. Subject to any special agreement, each party names two arbitrators, of whom only one may be a subject of its own, or (/) one of the members of the Court ap- pointed by itself. The arbitrators choose an umtpire; if they cannot agree the umpire is named by a third Power whom the parties have agreed upon for that purpose. 'Failing such last mentioned agreement, each party nomi- nates a Power, and the two proceed to choose an umpire {g) (/) This limitation was added in 1907. {g) If those two Powers cannot agree within two months, ea«h hae to offer the names of two members of the Oourt not bein^ THE HAGUE TRIBUNAL. 55 (Alts. 23, 24, 1899; Arts. 44, 45, 1907). The membew of the tribunal, while it is sitting, have the privileges of diplomatic officers; they have the use of the buildinjgs and staff of the Court at the Hague. It is open to Powere not parties to the Convention to avail themteelves of the Court (Arts. 24—26, 1899; Arts. 45^7, 1907). In case of a critical controversy between any of the contnactinigj Powers, it is declared to he the duty as well as the right of the rest to remind them that the Court is open (Art. 27, 1899; Ait. 48, 1907). It does not appear that thife article has ever been acted upon. It obviously contem- plates a case in which a majority of the Great Powiers would not be immediately involved in the quarrel, and oould be more or less impartial oounsellors. Even so, however, the duty nominally declared is a rather invidious duty which cannot be enforced in any way, and is not very likely to be performed. In 1914 the existence of the Court was brought to the notice of the Austrian and German governm,ents by the Serbian offer to refer to it the few points of the Austrian ultimatum that were not conceded, and the offer was wholly ignored. An administrative Board, consisting of the diplomatio representatives of the contracting Powens at the Hague, with the Foreign Minister of the Netherlands as chairman, is charged with the regulation of the permanent office there (Arts. 28, 29, 1899; Artte. 49, 50, 1907). There follows an elaborate chapter on prooeduxe, opera- Bubjecte or appointees of the parties, and the lunpire is ohoaea from these four by lot (Art. 45 of 1907). 66 THE LEAGUE OF NATIONS. tive only so far as the parties to any arbitration may have left the matter open. It is conceived that mo6t British or American lawyers wou,M suppiose the tribunal, onoe constituted for hearing a oause, to have inherent discretion in regulating its own proceedings — a disoretioin limited, of course, by the elementary rules of judicial fairness — and would expect very little to be laid doiwn beforehand in detail. Some things, no doubt, require definition as being beyond the general control of the tribunal itself, especially when the parties are sovereign States; such are the validity of a majority decision and the incidence of oofsts. In others a free judicial hand would seem best. But this apparently was not the view of the drajftsman, and the chapter before us reads almost as if it were addre^ed to people who had never heard of a court of justice. How- ever, those who study this Convention will learn, if they did not know it before, that an arbitration cannot proceed until the fcermis of reference are settled and accepted by both parties. In 1907 some rather ingenioius clauses (53, 54) were addfed, enabling the Court itself to settle the reference at the desire of the parties, or even an th'e request of one on certain conditions, namely (1) where the case falls within a general arbitration treaty providing for a special agreement of reference (" qui prevait pour chaque differend un oompromis "), and does not express or imply that the Court shall not be competent to settle it (but if the other party declares that it does not consider the main qu,estion within its treaty obligation the juris- diction is excluded); (2) where the dispute arises from a claim by one Power on another for contract debts due to THE HAGUE TRIBUNAL. 57 its sabjecte, and arbitration has been agreed bo (unless there is soooae different provision for settling the terms of reference). This plan, it will be seen, is fenced abioiut with such abundant caution that its practical utility seems to lie within very narrow bqunds. It might in special eircumstances assist a government desirous of a settlement, but in fear of domieatic criticism and anxious to take a^ little responsibility as possible for the details of procedure. The terms of reference being fixed, the Court constituted', and its seat (presumably The Hague) and the language of the proceedings determined (Arts. 32 — 36, 1899; 55 —61, 1907), the parties nominate agents to conduct their eases, and those agents may instruct advocates; a member of the standing panel of judges may act or appear only, for the Power which appointed him a member (Art. 37, 1899; 62 of 1907). The usuaj procedure is by exchange of printed cases, counter-cases, and arguments, followed by oral argument before the tribunal, in public only if the Court so orders with the consent of the parties. After the close of the oral argument the Court deliberates in private, and decides, if not unajiimous, by simple majority. The award must be accompanied by reasons (Arts. 39 — 52, 1899; 63—79, 1907). The Court may require the pro- duction of any material documents (Arts. 43, 44, 1899; 68 — 69, 1907). An award may be reviewed by the Court only under power expressly reserved to the parties in the agreement of reference to call for revision on the dis- covery of new material facts (Art. 55, 1899; 83, 1907). Each party bears its own costs and half the expenses of the Court (Art. 57, 1899; 85, 1907). 58 THE LEAGUE OF NATIONS. In 1907 provision was made for the dispoeal of cauacB aflmitting of eummary procedure by two arbitrators and an umpire without hearing oral argument (Arte. 86 — 90). It is possible to reaAi these clauses as intended to establish a presumption in favour of the summary method; the correctness or otherwise of such a reading does not appear material, for it is hardly conceivable that two Powers should go to arbitration without expressing their inten- tions as to the formation of the tribunal and its procedure in their agreement of reference. There does not appear to have been in fa^t any example of this summary process, but it would save both time and expense in cases not involving any dispute of principle. If it be said thiat the parties are masters of the procedure in any case where they choose to specify it beforehand, and can make it as summary as they will without the help of the Court, we have to answer to this, as to other like objections, that the provision of a standing form which can be adopted at pleasure is a well-tried instrument for saving time and trouble in many kinds of affairs, and is therefore not to be dismissed as superfluous. Before the war there was much academic discussion of the question whether the Hague tribunal is a real court of justice. As the conclusion depends on every writer's taste in definitions, I am humbly of opinion that this is not a very profitable argument. Any man may say, if he likes, that there can be no proper court without oom- pulaory jurisdiction and executive power; but in that case he may be driven to deny that the King's Court in England was a proper court much before .the thirteenth! THK HAGUK TRIBUNAL. 59' century, in which he cannot expect many English lawyers or historians to agree with him. If he extends his view to Iceland his troubles wiU thicken, for he will find there, about the time of the Norman Conquest, regularly held courts with an elaborate procedure, whose decisions are for the most part obeyed, and yet having no means what- ever of executing them, and no sanction other than public opinion {h). It must be admitted, certainly, that the Peac© Confe- rences did not establish a permanent court. What they did provide was the frampwork of a tribunal and a method of constituting it from time to time as and when required. Being so constituted, the tribunal dealing with each case is a judicial body and bound to act judicially. The machinery has been put in action several times, and in one case of great importance, that of the Newfoundlan'd fisheries; it has worked without any serious hitch, and carefully oonsideried awards have been made after fuU argument, aeceptied and acted upon. Defects may be found in any court of justice, and no one maintains that the Hague tribunal is a perfect court. To deny that it is a court of justice at all, or that it has dons sonie fairly effectual justice, appears to me to be a feat of rather high dialectical courage. One feature of the Hague tribunal is that the acting* judges on each oooasion are chosen directly or indirectly: by the parties. Ajs to this it may be relevant to observe that well within living memory there were four judges of (A) Op. the present writer's Notes B and C to Maine's Ancient Law. 60 THK LEAGUE OF NATIONS. first instance, the Master of the Bfldlfi and three Vioe- Chancellors, in the English Court of Chancery, and it was in the choice of the party commencing a suit by which of them the case should be heard. That choice was deter- mined by various reasons according to the nature of the case. Practitioners who sought an authoritative decision on a question of law set down their causes before that great lawyer Sir Greorge Jessel, Master of the Rolls. There were also those who desired, under the forms of litig-ation, to secure the aid and direction of the Court in administering estates and settling family affairs for the next generation. They knew where to find a Vice-Chan- cellor whose benevolent discretion, if confronted with a doubt of the Court's competence, would make a liberal application of the maxim' Boni iudicis est dmptics'e iuris- dictkmem to carry out the intention of the parties. It did not occur to any one to think that arrangements of this kind impaired the judicial character or authority of the Court of Chancery. We have seen that the arbitration Court established by the Hague Peace Conferences is called into active exist- ence only by the reference bo arbitration of a specific dis- pute between two Powers, and the selection of judges to form a tribunal for the occasion in the prescribed manner. In 1907 a considerable number of the delegates wished, in addition to this, to set up a constant judicial court, which should hold regular sittings, and whose judges should be told off for duty by its own rules and not by the choioe of the parties. This plan was cmibodied in a draft Convention annexed to the Pinal Act, and reoom- THE HAGUE TRIBUNAL. 61 mended for adoption; but in consequence of the claimi made on behalf of several minor Po'wers to an abisolutely equal standing in the appointment of judges, to which the delegates of the greater Powers naturally did not agree, the matter did not go farther (i). The draft was made acceptable as far as it went only by the total omission of this contentious topic. The opposing delegates, headed by the eloquent and persistent Brazilian, Ruy Barboaa (k), appear to have confused the principles of juridical and political equality. All nations have equal rights as between themselves, like citizens in one State. It does not follow that aU must have equal voices and votes in aU. matters of common interest. One would like to ask M. Ruy Barbosa whether it is, or he thinks it ought to be, the law of Brazil that at a company meeting every share- holder has one and only one vote without regard to thte number of shares he holds. But another and perhaps even deeper fallacy is involved in the claim' of one judge and no more for every State. The object is not repre- sentation of the contracting Powers as such either equally or in proportion to their importance ; it is to form the best and most impartial court that can be devised. A court! of justice is not a political senate, and the less it resembles one in substance or in form the better. The only reason for having the judges nominated by the governments of (») Cp. Pearoe Higgins, The Hague Peace Oonferenoas, pp. 509—517. (&) He professed to take Kis stand on "principea juridiques d'un ordre capital " (2nie Oonf . ii., 696) ; it is not really a legal question at oil. ■62 THE LEAGUE OF NATIONS- •the constituent States was that no other nominators were at hand (1) ; and the true reason for giving a greater share to the greater Powers appears to be that their rulers aro more likely to command or attract the services of the persons best qualified for membership of the proposed court. It seems a tenable view that the system of "one State, one judge" might be made tolerable by requiring the consent pf some expert standing committee to the nominations; otherwise under that system there would really be no security for the persons appointed' being in ■every case competent or even honeistly chosen for thedr supposed competence. But we shall have to return to this subject, which is still at large, in commenting on the fundamental articles of the League of Nations. In other respects the dra,ft Convention is a carefully framed instrument, and will no doubt be found useful when the League of Nations is ready to take up the busi- ness of establishing a court. Inasmuch as the text is easily aooessible, and it is most unlikely that it will ever take effect according to the letter, it will suffice for pur purpose to give only a Bujmmary: account of its contents. The ^tablishment of the proposed new court was expressly stated to be without pregu/dioe to the functions of the tribunal provided by the Conference of 1899 ("sans porter atteinte a la cour permanente (I) Why not the highest judicial authorities in each country? Because the judicial eatablishments of different nations are so differently constituted that no uniform system would be possible. There are even civilized European States that have, or quite lately had, no professional judges at all. Governments, on the other hand, can always obtain expert advice ofiScially or semi-officially. THE HAGUE TRIBUNAL. 63 ^'arbita^ge"). We have already explained that its Bumber and composition, and the mode of appointment, were left at large, but it was laid down (Art. 2) that the members must be of the highest charaoter, and either qualified for superior judicial office (" la haute magistra- ture") in their own countries, or jurists of well-known competence in international law. They were, moreover, to be selected so far as might be fro'm the members of the existing tribunal. They were to hold office for twelve yeaxs and be re^ligible (Art. 3). A fecial oommiasiioin (" delegation") of three judges, with the like number to repla.oe them' at need, was to be named every year by the court itself; this oommission wae to convene the court onoe a. year unless it appeared that there was no business for it (Art. 14). Apparently the ordinary acting court was to ooixsist of the delegation, with two other judges nominated by the parties in each case as assessors (Arts. 6, 20); but on this, point the draft is neither clear nor well arranged, and one cannot help suspecting that several clauses were etruek out at the last moment bo avoid disagreement. Indeed it is obvious that nothing could be said about sittings of the full court or divisions thereof so long as the number of its members remained unsettled. The new judicial office was to carry a salary of 6,000 Dutdi gulden (approximately 500L sterling), and a fee of 100 gulden a day (say eight guineas) for the judicial wort Actually done (Art. 9). It is needless to refer par- ticularly, to the provisions for the presidency of the Court, exelusio© of judges representing interested parties, regu- lation of procedure and otheiF matters of detail. 64 THE LEAGUE OF NATIONS. The scheme was of American origin, and brought for- ward by the United States delegates in oonjuncition with thioee of Great Britain and Germany. So long as there was no talk of compulsory jurisdiction there was nothing against it from the point of view of German policy; rather it may have seemed useful for Germany to appear on the progressive side for once. The Prussian General Staff, having its own doctrine of overriding military necessity in reserve, and making no secret of it (to), attached very little importance to anything that a Hague Conference might formulate at this lor any other time; and German academio opinion was in favour of the more solemn j udicial form as against the elastic and unpretentious method of special arbitration agreements . One or two learned writers even belittled arbitration much as indiscreet advocates of arbitration and panegyrists pf the Hague tribunal had belittled the resources of ordinary diplomacy. It is a curious fact that the only express dissent came from ,the Swiss government. Early in 1914 the United States resumied the subject in a very full memorandum, the work of Dr. James Brown Scott, addressed to the Foreign Minister of the Nether- lands government. It was there proposed that a per- manent court should be established by those Powers which had shown their approval of such an institution— prac- (to) Tte tractate "Kriegsbrauch im Landkriege," now notorious, was one of a long series of technical military publicaiions and almost escaped the attention of civilian publicists at the time. It is in vol. 6 of " Kriegsgesohichtlidie Einzelschriften." Op. Westlake, Collated Papers (1914), pp. 243—280. THK HAGUK TRIBUNAL, 65 tically all the Great Powers and the Netherlands — with jurisdiction as between those Powers only. This memorandum was intended to be communicated to the other Powers whose agreement was thought prob- able, as well as to the Dutch Foreign OfRoe. It does not appear what steps had been taken in this direction before the outbreak of war in Europe made any further action impossible. La the result, *the judicial institution created by the first Peace Conference continued to stand alono, improved by certain amendments. The treaties of wider sqope initiated by the United States, of which we have already spoken (p. 38, above), are wholly independent of the Hague court, and distinct fipm all ordinary types of arbitral proceedings and reference to arbitration. 66 THE LEAGUE OF NATIONS. CHAPTER IV. THE LEAGUE IN SIGHT. Ileferences. A. Lawrence Lowell, A League to enforce Peace. World Peace Foundation, Boston, Mass., 1915. Enforced Peaco: proceedings of the first annual national assemblage of the Leigue to enforce Peace, Washington, May 26th— 27th, 1916. New York, 1916. Theodore Marburg, League of Nations: a chapter in the history of the movement. New York, 1917. Report of a conference of the legal profession. London : League of Nations Society, 1917. Leonard S. Woolf (ed.). The framework of a lasting peace. London, 1917. Seven schemes are printed in full (list at p. 59). International Government : two reports prepared for the Fabian Re.search Department. London [1916]. Henry Noel Brailsford, A League of Nations. London, 1917. Draft Convention for League of Nations, by group of American jurists and publicists. Description and comment by Theodore Marburg. New York, 1918. I Mr. Marburg's part, with some verbal changes, is reprinted in the Journal of Comparative Legis- lation, April, 1918.] A scheme for the World League. Speech delivered by the late Lord Parker in the House of Lords on March 19th, 1918. (League of Nations Union pamphlet. Series 2, No. 16.) Gen. J. 0. Smuts, The League of Nations: a practical sugges- tion. London, 1918. Proceedings of the conference of delegates of allied societies for a League of Nations, London, March 11th — 13th, 1919. League of Nations Union. The Peace Conference and after. Introduction by Viscount Gray of Fallodon. Reprint from The Round Table, December, 1918. London: Macmillan & Co., 1919. The relations between civilized nations in the matter of doing justice to one another and settling disputes, as they appeared to stand after the second Peace Conferenoe arid before the war of 1914, may be summed up as follows. When wc say before the war, we exclude the " Bryan treaties " .for reference to a joint commission of " non- THE LEAGUE IN SIGHT. 67 justiciable" disputes without any exception; these, as we have seen, were concluded only from the latter part of 1914 ■onwards. There was no jurisdiction to hear and determine disputes between sovereign States except by consent given eithea- in a standing Convention. of the parties, or in a special agreement to refer the case to arbitral decision. But there was a method of appointing an arbitral tribunal by selec- tion from a standing list of competent persons, and there was the official ^establishment of a court with a local habi- tation and records at The Ha^e. Most Powers were bound by a number of conventions of similar type to refer to the tribunal so provided all such disputes as did not affect their indiependence, honour, or vital interests. A network of these arbitration agreements was enfolding the ■community of nations, and it looked almost as if the sub- stance of a practically universal treaty for the settlement at any rate of "justiciable" disputes would be attained without the formalities of a general congi-ess. It seemed that on the whole sovereign States were willing to do as well as to expect justice. That was the opinion of so prac- tical a man of affairs as Mr. Elihu Boot in the yea* fol- lowing the second Peace Conference. " For the great mass of mankind laws established by civil society arie enforced directly by the power of public opinion, having, as the sanction for its judgments, the denial of nearly everything for which men strive in life-. ■ " The rules of international law are enforced by the same kind of sanction, less certain and peremptory, but continually increasing in effectiveness pf control 5(2) 68 THE LEAGUE OF NATIONS. " The real sanction which enforces those rules is the in- jury which inevitahly follows nonconformity to public opinion" {a). Some years later Mr. Root was forced to allow that, in common with many other well-informed persons, he had been disappointed. " If the law pf nations is to be bind- ing," he said near the end of the year 1915, " if the decisions of tribunals charged with the application of that law to international controversies are to be respected, there must be a change in theory, and violations of the laiw of such a character as to threaten the peace and order of the community of nations must be dfeemed to be a violation of the right of every civilized nation to have the law main- tained and a legal injury to every nation." The need for establishing new and effectual sanctions by common accord could not be better stated. The present writer had said, also about 1908, that for the prevention of wars of ambition " only one remedy would be quite effectual, namely that a coalition of Powers of superior collective strength should be prepared to enforce the principles which now stand unanimously acknowledged by the second Peace Conference of the Hague " (&)'. Meanwhile certain publicists, especially Prof. Schiick- ing (c), had gone so far as to maintain that the Hague tribunal, and the permanent machinery for constituting it, (a) Presidential address to the American Society of Inter- national Law, 1908, in " Addresses on International Subjects," Cambridge, Mass., 1916. (&) Cambridge Modern History, xii., 719. (c) See at liead of Chapter HI., above. THE LEAGUE IN SIGHT. f)9 together with the body of Conventions framed by the Peace Conferences, amounted to the formation of a quasi-federal union embracing the signatory States. This can be re- garded, in my humble opinion, only as the speculative thesis of an adventurous minority. So far as I know it has not been adopted by any English-speaking ^vriter. In any case there is no continuity between the concert, agreement, or whatever it should be called, expressed in the proceedings of the Hague Conferences, and the new system of the League of Nations, and therefore no prac- tical question arises. Nor does it seem useful to consider whether in strict theory it is possible to recognize any federal or appnoximately federal character in agreements which wholly pmit to provide any real common authority for either judicial, legislative, or executive purposes. Here it must be remembered that the Hague tribunal derives its authority only from the agreement of the parties in each case. The formis put at their disposal by, the Conventions are indeed common formp, but they are binding only sp far as adopted for the occasion, and they can be and on SiOme octeasions have been modified (d). {d) Prom tile point of view of form or rather formlessness, the substantive rules of the community of nations, as they existed before the war of 1914, were singularly like those of a certain professional club of learned persons in London as reported and collected by a very dUigent secretary. He wrote of them as follows: "It is practically impossible to give the rules in full. Eules are to be found in written form scattered about tie records of the club; but of these several have been modified by usa^ and some have fallen into disuse. Other rules are founded on tradition and have never been formally put into^ writing." The resemblance is the more curious because that club, having been 70 THE LEAGUE OF NATIONS. Even before 1914 the purely voluntary scheme of the 'Hague tribunal was not generally accepted as final, and many plans for a more effectual agreement among oivilizod Powers were put forward by various writers down to tiie time**when the Peace Conference of Paris took the matter seriously in hand. Spme of these plans, aiming at a complete federal Qonstitution with a super-national govern- ment, were altogether extravagant; one or two of their authors offered a complete new code of international law ready made. Others of more moderate ambition were overweighted by an excess of premature detail; neverthe- less the ventilation of the subject \vas useful and many of the suggestions profitable. The definite beginning of a practical movement towards a league of nations was the foundation of the American League to enforce Peace, which took place at a meeting held at Philadelphia on June 17, 1915. If any men are to be specially named as the prime movers, they are Mr. William H.Taft,' for- merly President of the United States, who had already indicated the main points in an address delivered in May, 1915, bo the American society for judicial settlement of . international disputes, founded in 1910, and Mr. Theodore Marburg, formerly United States Minister in Belgium,, whom Mr. Taft has himself singled out (e). With ex- cellent good sense and discretion, Mr. Taft and his com- founded in 1815, is exactly coeval with the Congress of Vienna. Comparison of small things with great is not necessarily frivolous; at times it may even be profitable. (e) In his foreword to Mr. Marburg's "League of Nations,"" New' York, 1917. THE LEAGUE IN SIGHT. 71 paiiioiis laid down the principles of their league in four articles only, without anticipating matters of detail. Those articles run as follows: — It is desirable for the United States to join in a league of nations binding the signatories to the following: — - 1. All justiciable questions arising between the signatory Powers, not settled by negotiation, shall, subject to the limitations of treaties, be submitted to a judicial tribunal for hearing and judgment, both upon the merits and upon any issue as to its jurisdic- tion of the question. 2. All other questions arising between the signa- tories and not settled by negotiation shall be sub- mitted to a Council of Conciliation for hearing, ■consideration, and reoonimendation. 3. The signatory Powers shall jointly use forth- with both their economic and military forces against any one of their number that goes to war, or commits acts of hostilitjr, against another of the signatoiries before any question arising shall be submitted as 13rovided in the foregoing. [The following interpretation of this article was autho- rized by the Executive Committee :-^Tho signatory Powers shall jointly employ diplomatic and economic pressure against any of their number that threatens war against a • fellow signatory without having first submitted its 'die- ' pute for international inquiry, conciliation, arbitraition, 6v judicial hearing, and awaited a conclusion, or without having in good faith offered so to submit it. They shall 72 THE LEAGUE OF NATIONS. follow this forthwith by the joint use of their military, forces against that nation if it actually goes to war, or commits acts of hostility against another of the signatories before any question arising shall be dealt with as pro- vided in the foregoing.] 4. Conferences between the signatory Powers shall be held from time to time to formulate and codify rules of international law, which, unless some signa- tory shall signify its dissent within a stated period, shall thereafter govern in the decisions of the judicial tribunal mentioned in Article 1. Thus, thanks to the efforts of publicists on both sides of the Atlantic, working in small groups whose com- petence and perseverance made up for their lack of numbers, the League of Nations was fairly before the public in the second year of the great war not as an academic fancy, but as a serious political ideal. Accord- ingly militarist politicians and journalists (for it cannot be concealed that militarism is to be found among the Western Allies) no longer treated it as negligible, but began to denounce it as a mischievous delusion and no better than a branch of pacifist propaganda. Now it is quite true that some pacifists both in belligerent and in neutral countries dreamt of a league after their own fashion which would disclaim coercive power and trust to organizing moral opinion. Incredible as it may seem that in 1916, 1917, and 1918 these people still believed that war could be done away with by shouting " no more war " and framing pious resolutions, it is a fact we have witnessed. Holland was the chief centre of their more THp LEAGUE I^f SIGHT. 73 innocent activities, and in a lesser degree the Scandinavian ■countries; in Switzerland others were established which, including as they did such methods as wilful falsification of recent diplomatic history, were less innocent. Some allowance liiast be made for the invincible incapacity of sane judgment which may lead to an honestly held though enormously foolish opinion that all war is equally •criminal, all governments equally fraudulent, and all dis- putes between nations equally frivolous. But I have never been able to nnderstand the special perversity whereby British followers of this persuasion almost always argue (not scrupling, as above hinted, to tamper with the evi- dence) that, although every one concerned in making war must be desperately wicked, their own countrymen are rather worse than others. As we are not undertaking a patliological stutdy of civic dementia, no more shall be said of these follies. We shall see that the actual founders of the League of Nations fully recognize the need of visible power to enforce its principles, though we may, regret that they did not see their way to make their pro- vision for such an emergency more explicit. Following the American lead, associations with like •aims were formed in France (Association frangaise pour une societe des nations), England (League of Nations ■Society and League of Free Nations Association) (/), and Italy. As regards the two English societies, the former inclined to doctrines of cosmopolitan pacifism as formu- (/) To be disfciriguished from a society of like name at New York having a much, mors elaborate and mainly eoonomio j)latform.. . JJqJJ 74 THE LEAGUE OF NATIONS. lated before the war, while the latter was founded on the conviction that the victory of the Western Allies must be frankly accepted as the necessary condition of any real security for peace; in November, 1918, the two bodies were amalgamated by the name of the L.'ague of Nations Union, and it would be useless for any purpose of the present work to dwell on their original differences. Since the beginning of 1919 the American, British, French and other societies have been working in concert, and in March of that J- car a conference of delegates of allied societies wa« held in London. It included, besides strong xlmerican, British, and French delegations, representatives from ' Greece, China, the South Slavonic Kingdom, and Rumania {g). During the last two years of the war there was a steady convergence of responsible opinion agreeing in general terms on the necessity of providing some definite sanction for the observance of international la^^•, and security against aggressive wars, by common agreement among civilized nations. The moral weight of opinion having proved insufficient for want of immediate coercive power, it remained to devise means whereby any wilful breaker of the peace would be confronted with the united strength of an ovei-whelming majority. Early in 1917 (Jan. 10) the Western allied Powers ex- pressed to the President of the United States " their A\hole- hearted agreement with the proj)Osal to create a League, of Nations which shall assure peace and justice throughout. (jr) See Note D at end of this chapter for a list dowa to 1919.. THE LEAGUE IN SIGHT. 7'> the world," and recognized the benefit to be expected " from the institution of international arrangements de- signed to prevent violent conflicts between nations, and 60 framed as to provide the sanctions necessary to their enforcement, lest an illusory security should serve merely to facilitate fresh acts of aggression." On March 19, 1918, the late Lord Parker, speaking in the House of Lords on a motion made by Lord Parmoor, stated carefully arid at some length what he thought the essential points of a practical agreement. Evidently his object was to smooth the way for action by postponing or evading the more troublesome questions of detail. In particular he suggested that the constituent nations might bind themselves to take steps: for the peaceable settlement of disputes before resorting to arms, without being bound Eus to the metlibd of settlement. It would be open to them to use the Hague tribunal or proceed in any other manner agreed upon either by standing treaties or on the special occasion. The Covenant as now accepted goes distifietly beyond Lord Parker's proposal, but his speech did excellent service in preparing and enlightening public opinion, and above all in making it plain that the matter was to' be taken seriously. Most unfortunately Lord Parker was disabled from con- tinuing his work by illness which proved fatal. He died on the 6th of July; to the grievous loss of his country, his profession, and his friends. On June '26, 1918, Lord Curzon said on behalf bf the government in the course of the resumed debate: — "We want to do someithing to pre- vent wars, or, if that is too' Utopian an aspiration, to limit 7fi THK. LEAGUE OP NATIONS. their scope and to diminish their horrors in future. For this purpose a general conourrenoe of nations is necessary, and if it is to be effective it ought ultimately to include all the important States of the world. . . . We mu'st try to get some alliance, or confederation, or conference to which these States shall belong, and no State in which shall be at liberty to go to war without reference or [? to] arbitration, or to a conference of the League, in the first place. Then if a State breaks the contract it will become, ipso facto, at war with the other States in the League, and they will support each other, without any need for an in- ternational police, in punishing or in repairing the breach of contract. Some of them may do it by economic pres- sure. This may apply perhaps to the smaller States. The larger and more powerful States may do it by the direct use of naval and military force. In this way we noay not indeed abolish war, but we can render it a good deal more difficult in the future. These are the only safe and practicable lines at present, and the lines upon which the government are disposed to proceed." It will be observed that the automatic nature of the sanction, a point of the utmost importance in the present writer's judgment, is here made conspicuous. One of Lord Parker's points was that a league of nations might very well get to work without waiting to solve the problems arising* from the determination to create a new court of international justice. What is essential to the covenant of peace is that the contracting Powers should undertake not to go to^war without obtaining or endeavour- ing in good faith to obtain some kind of peaceable settle- THE LEAGUE IN SKiHT. 77 ment or award, not that the resort should in every ease be to the same tribunal, nor even that it should be in judicial form. The immediate purpose will be served aiike whether they go before a. tribunal formed under the Hague Con- ventions, or set up a court or board of arbitrators by special agreement, or refer the whole matter to the titular head of some friendly State, who will of coui?se fortify himself with expert advice of the best. This is quite oonsistent with holding that it is desirable to establish a permanent court whose continuity will enable it to estab- lish a judicial tradition and to speak with authority ex- tending beyond the settlement of particular disputes. In the latter part of 1918, when the last desperate offen- sive of the German armies had definitely failed, it was clear that the speculative stage of the great problem "was already past. The only question was whether the con- stitution of the League of Nations should be considered by the delegates of the Allies as part of the terms of peace, or postponed till after the conclusion of the treaty. Euro- pean opinion was divided; the government of the United States was strongly in favour of keeping the League of Nations in the front and making adherence to its principles one of the conditions of the peace; and this view prevailed when the armistice of November made a prompt decision urgent. In December Gen. Smuts wrote a pamphlet which, as it was the latest, was the most effective contri- bution made by individual enterprise. He had, to be sure, the advantage of knowing a great deal more about the joint actions and discussions already undertaken by the Allies than any previous writer on the subject. What- 78 THK LEAGUE OF NATIONS. «ver was the precise amount of that advantage, his antici- pation came remarkably near to the result attained a f sw months later by a oommittee in whose work he is under- stood to have had a leading part. Gen. Smuts's " practical suggestion " differed from most other proposals both in what it omitted or minimized and what it insisted upon. Negatively, it left the establishment of a judicial tribunal in a rather vague background. Positively, it omphasizedi the continuous duty of the League to exercise control over international property (not a new thing in itself, for it has been done for many years by mixed commissions), and to supervise the administration of common under- takings, including the government, of populations released from the dominion of enemy Powers, but not ripe for aubOAomy. The only definite organs of the League of Nations con- templated by Gen. Smuts's pamphlet were a general con- ference or congress, assembled on the footing of equality between all constituent States, and an executive council in. which permanent representation would give the Great Powers a small majority. Courts of arbitration and con- <;iIiation were indeed mentioned, but no details were given; called attention to this point of automatic execution ais being of special importance; an offender should not have the chance of gaining time for intrigue, or seizing a vital ' strategic position while the Powers are deliberating. Meanwhile a Convention of a more elaborate type had been drafted by a group of American publicists (not an official committee of the League to enfoi'ce Peace) earlier in 1918; it is the latest specimen of this type and perhaps the best. An account of it was contributed by Mr. Theo- dore Marburg to the Journal of Comparative Legislation. Its leading character is much more precise defihitibn of executive and judicial functions. Before proceeding to consider the constitution and func- tions of the League of Nations as laid down in- oiitlinei 80 THE LEAGUE OF NATIONS. by the Peace Conference of 1919, it may be useful to call attention to the number and variety of international con- ventions already in force for the regulation of communi- cations and transport, administration of treaty provisions,, collection of statistics and intelligence in matters of com- merce and industry, and similar oosmiopolitan purposes. There has been much alarm about the interference with the sovereignty of independent States which it is alleged that the League of Nations will entail. Few if any of the objectors have noticed that the parties to the League have already limited their freedom of action in many directions by these existing conventions. They can indeed release themjselves by withdrawal, but only with notice and in due form; and in the more important cases the con- sequences of withdrawing from the joint business would be so inconvenient that reversion to the former state of isolation cannot be regarded as a practical contingency. Mr. L. S. Woolf has pointed out in his very useful reports made ior the Fabian Society (p. 103) that by one class of these conventions provision is made " for the creation of some permanent deliberative or legislative international body, and also for an administrative body working under the direction of the former"; such is the model of the telegraphic unions and the postal and the metric union. " The Institute of Agriculture has a very elaborate con- stitution, with two deliberative bodies, the General Assem- bly and the Permanent Committee, and a permanent bureau." The following statement is taken from the Round Table, March, 1919 (p. 235):—" There existed before the war the THE LEAGUE IN SIGHT. 81 Universal Postal Union, with its permanent bureau; the International and Radio-Telegraphic Bureau; the Inter- national Railway Bureau; the Danube and Suez Canal Commissions; the International Oifioe of Public Health at Paris, and the four International Sanitaiy Councils at Constantinople, Alexandria,, Teheran and Tangier; various monetary and metric unions between States; the Union for the Publication of Customis Tariffs, with its permanent bureau; the permanent Sugar Commission; the International Institute of Agriculture; the International Union for the Protection of Industrial Property; the In- ternational Bureau at Zanzibar for the repression of the Slave Traffic, and certain other bodies like the Inter- national Statistical Institute." The best known and in some ways the m^ost typical of these coemopolitan bodies is the Postal Union, dating from 1875. Its fundamental instruments are the Convention and a scheme of rules (Reglement); it is governed by a congress meeting nominally every five years, with power to amend both the Convention and the rules by a majority, subject to ratification; a conference of delegates of admin- istrations (which in practice has met only once, being found unnecessary); and a permanent office at Berne. Interim amendments can be made by the national admin- istrators, for which in some matters unanimity is required, in others a two-thirds majority, and in details of interpre- tation and the like a bare majority suffices: all this being done by correspondence through the central office. In practice ratification is not refused, even by governments which actively opposed the change, to amendments passed p. 6 82 THE LEAGUE OF NATIONS. by the required majority. Colonies and dependencies have separate representation and votes. Apart from merely verbal distinctions, it cannot be denied that every sovereign State belonging to t"he Postal Union has willingly re- nounced its sovereign right of independent action as to foreign postal rates (^), and all that is implied in the regulation of international postal traffic. I am not aware that any protest has come even from the most ardent national patriots in any one of these States; and it cer- tainly would need great courage to maintain that the civilized world has not gained advantages amply worth the price for this and similar institutions. In this case no friction has occurred in forty years' working, and little difficulty seems to be found in making suitable exceptions and variations for peculiar local circumstances (i). We need not dwell on the regulation of telegraphy and, on the Continent of Europe, of railway transport; the rather that the regulation of air traffic by international agreement is now seen, even by the most casual observer, to be a matter not of convenience but of the first necessity. In contrast to the administrative unions we have a dif- ferent type in the Institute of Agriculture established at Rome, which for the present at any rate is chiefly con- cerned with research and information conducted under the guidance of standing or special committees. It includes fifty-five States; the work of the permanent committee (A) They can be modified only within the maximum prescribed by the Union. Postage between Great Britain and the United States was lowered from 2ftZ. to Id. before the war, and raised to Hd. during the war. It oould not be increased to 3d. without the statutable general consent. (i) Woolf, International Government, 120 — 129. THE LKAQUE IN SIGHT. 83 "was not interrupted by the war of 1914 (fc). An inter- national maritime committee founded by private enter- prise in 1898 has already done much for the unifortnityi of sea law (I). Ultimately all international bureaux and commissions, the consent of the contracting parties being first obtained as to those already formed under general treaties, are in- tended to come under the direction of the League (Cove- nant, Art. 25). Joint action by delegates of several nations in this or that field of peaceful business does not, certainly, throw much light on the causes of war nor on the most likely means of preventing war in the future. But these various activities do show that when the im- portance of some common object is once admitted the practical difficulties of co-operation are far less than they "would appear at first sight, and that even schemes of dis- tributing work and control which look pretty complicated -on paper do not in fact giVe any serious trouble. The transfer of general direction to the League of Nations will supply the facilities for co-ordination and mutual informa- tion which alone were wanting to combine these under- takings into a great international system. NOTE D(m). WORLD LEAGUE OP NATIONS MOVEMENT: LIST OF ANALOGOUS SOCIETIES. Australia. — ^International Peace Society (Adelaide Branch.), Wittunga Blackwood. {h) Op. dt., 158—164. (I) lb., 171— ISO. (m) From the League of Nations Journal, August, 1919, p. 315. The league's periodical is now enlarged as " The Covenant." 6(2) 84 THE LEAGUE OF NATIONS. Austria. — ^Verbaad Liga Mr einen Volkerbund, Vienna I, Burg- ring 9. GMna. — The Lea^e of Nations Section, Association for the Study of International Affairs, Peking, China. The Chinese League of Nations Union, Peking, China. France. — Ligue pour une 8oci6t6 des Nations, 5, Oit6 Cardinal Ijemoiae, Paris. Association FranQaise pour une Soci6t6 des Nations, 254,. Boulevard St. Germain, Paris. Oermany. — ^Deutsche Liga fur Volkerbund, Berlin, Unter den Linden 76. Cheat Britain. — ^League of Nations Union, 22, Buckingham Gate, London, S.W.I. Liternational Arbitration League, 39, Victoria Street, London, S.W.I. League to Abolish War, 29, Grosvenor Park, London, S.E.5. Greece. — ^Ligue Hell6nique pour la Sooi6t6 des Nations, 11, Eue Nikie, Athens. Holland. — The Nederlandsche Anti-Oorlog Kaad, Prinsesgraoht 19, The Hague. Ireland.- — The L:ish " League of Nations " Society, 65, Middle Abbey Street, Dublin. Italy. — ^Liga Universelle Societe delle Libre' Nazioni \^sic'\, Conso Vittorio Emanuele 8, Milan, Italy. Ja/pan. — ^The International Japan Association, 10, Onote Sarugaku-cho, Kando, Tokio. 'Norway. — ^Den Norske Forening for Nationernes Liga, Xristiona. Poland. — 8oci6t6 Polonaise des Amis de la Ligue des Nations, Warsaw, Poland. S. Africa. — Peace and Arbitration Society, P.O. Box 575, Cape Town. Peace and Arbitration Society, P.O. Box 2317, Johannesburg. Spain. — ^Union Democratica Espauola, Prado 11, Madrid, Spain. Sweden. — The Swedish League of Nations Society, Stockholm,. Sweden. Switzerland. — The Swiss League of Nations Society, Lerchenweg, S3, Berne. United States. —^he League to Enforce Peace, Bush Buildings, 130, West 42nd Street, New York City, U.S.A. THE LEAGUE IN SIGHT. 85 The League of Nations Union, 70, Pifth Avenue, New York, U.S.A. The World Peace Foundation, 40, Mount Varnon Street, Boston, Mass. The American Liberty League, Eandolph, Wis., U.S.A. The Carnegie Endowment for International Peace, 2, Jackson Place, Washington, D.O., U.S.A. The American Rights League, 2, West 45th Street, New York City. The Church Peace Union, 70, Pifth Avenue, New York Qi'ty, U.S.A. World Alliance for Promoting International Friendship through the .Churches, 105, Bast 22nd Street, New York City, U.S.A. World Oourt League, Incorporated Educational Buildings, Fifth Avenue, 13th Street. New York City. 86 THE LEAGUE OF NATIONS. Book II.— THE LEAGUE IN BEING. CHAPTER V. THE CONSTITUTION OF THE LEAGUE. References. Draft Agreement for a League of Nations, presented to the plenary inter-allied Conference of February 14, 1919. Parlia- mentary Papers, 1919, Cmd. 2. The Covenant of the League of Nations, with a Coinmentary thereon. Parliamentary Papers, 1919, Cmd. 151. Text, pp. 3 — 11 ; Commentary, pp. 12 — 19. [Both the draft and the final text, with the commentary, are set out in full in the Appendix below.] Treaty of Peace between the allied and associated Powers and Germany signed at Versailles, June 28, 1919. Parliamentary Papers, 1919, Cmd. 153. The League of Nations (La Soci6t6 des Nations, Der Volker- bimd), a weekly review. Ferd. Wyss, Berne. Documents, speeches, etc. in the original texts. The Covenanter: Letters on the Covenant of the League of Nations, by William Howard Taft, George W. Wickersham, A. Lawrence Lowell, Henry W. Taft. Boston, Mass. World Peace Foundation, 1919. The League of Nations: the principle and the practice. Edited by Stephen Pierce Duggan. Boston, Mass. 1919. [Includes chapters by Prof. J. B. Stoore and President Lowell.] At the beginning of the war of 1914 men commonly thought it would be like other modern wars, only on a larger scale. It would be short; all European wars had been so since the downfall of Napoleon, and the confidence of military experts was not shaken by the length of the American Civil War, which the Prussian General Staff THE CONSTITUTION OF THE LEAGUE. 87 regarded as an amateurish and uninstructive affair. (Lord Kitcl,iener's forecast of three years did not carry general conviction when it was made, least of all to the cocksure experts of the press.) It would be conducted in due form; the Germans would be severe and punctilious, gi\'ing them- selves the benefit of the doubt in doubtful cases, ajid showing no mercy to irregular combatants, but in the main observing the rules of civilized warfare which they had themselves taken an active part in defining. It would end in the regular fashion with a congress in which all the belligerent and some important neutral Powers would, be effectively represented, and the result would be a treaty of general settlement with a good deal of compromise on minor points. Defeat of Germany and her allies would probably break up the Austro-Hungarian Empire, and might well be the ruin of the H,ohenzollern dynasty too, but these consequenoes would not be immediate. Active alliance with the free nations of western Europe would be a potent influence for constitutional reform in Ruvssia ; the Tsar's promises nearly ten years old oould no loager be evaded; but njothing short of a great military disaster was likely bo bring about a revolution. In the event every one of these expectations was signally falsified. After the failure of the last desperate German attack in 1918 the whole fabric of the Central European mon- archies collapsed, and neither a Habsburg nor a Hohen- zoUern ruler was left for the victorious Allies to make peace with. The ambitions of the new States that were emerg- ing from the ruins had to be moderated and, so far a^ possible, reconciled. Reparation on a groat scale had to 88 THK LEAGUE OF NATIONS. be undertaken, and this involved far-reaching eoonomic plans and constructive work such as could be executed only by the closest co-operation ; insomuch that, if no one had thought of a League of Nations before, it would none the less have been needful, about the end of 1918, to invent something of the kind. The only doubt in matter of principle was as to the time at which and the order in which things were to be done. .Simultaneous proceeding with the treaty of peace and with the League ^vas favoured by one school of opinion, and deprecated as unpractical by another. The objections of the latter would have been unanswerable if there had been no way between elaborating a constitution for the League of Nations in all its details and postponing the whole matter to a season of greater leisure. But the answer was that it was quite possible bo lay down the general plan of an international covenant with sufficient certainty and in a moderate compass, or rather, as one may now say in this age of steel and concrete, set up the framework of tha building. Gen. Smuts indeed gave actual proof that it could be done. Moreover, the policy of leisured elabora- tion involved no small risk that after the immediate pres- sure of the peace settlement was rem,oved the standinig argument "Why can't you let it alone?", an argument very dear to old-fashioned diplomacy, would re-assert itself and prevail. The decision was in favour of immediate action; we cannot expieot to know in our time the course of the debates by which it was reached, or whether the consent of all parties was alike willinig. So it was thatl in February, 1919, the delegates of fourteen States pre- THE CONSTITUTION OF THE LEAGUE. 89 sented the draft of an agreement for a league of nations to the plenary oonf erenoe of the Allies in Paris. This draft was submitted to further revision, in the course of which neutral governments were also consulted. " In its revised form it was unanimously accepted by the representatives of the Allied and Associated Powere in Plenary Confer- ence at Paris on April 28, 1919 " (a). It is an integral section, not being an annex but standing first, in the treaty of peace made with Germany, which is the model of the Test. We shall now proceed by way of commentary on the ■Covenant as thus settled, using the first Draft, which is reprinted in full in the Appendix, so far as may ai^pear proper to throw light on the choice and significance of the final text. As the commentary published along with the text by our Foreign Ofiice may be taken to represent the views of the Allied Powers, we shall resort to it freely, referring to it as " the Commentary " without addition. Quotations made without specific reference are taken from this document. It is to be noted that the English text of the Covenant is authentic. Preamble. In order to promote international co-operation and to •achieve international peace and security by the acceptance •of obligations not to resort to war, by the prescription of open, just and honourable relations between nations, by the £rm establishment of the undertakings of international law •as the actual rule of conduct among Governments, and by the maintenance of justice and a scrupulous respect for all treaty obligations in the dealings of organised peoples with (a) Commentary officially published, 1919, Qmd. 151, p. 12. 90 THE LEAGUE OF NATIONS. one another, the High Contracting Parties agree to this Covenant of the League of Nations. It is officially declared that the Covenant " is not the constitution of a super-State, but, as its title explains, a solemn agreement between sovereign States, which consent to limit their complete freedom of action on certain points for the greater good of themselves and the world at large. If the nations of the future are in the main selfish, grasp-^ ing and warlike, no instrument or machinerj will restrain them. It is only possible to establish an Qrganisation which may make peaceful co-operation easy and hence customary," — and, we venture to add, breach of the peaos difficult and dangerous — •" and to trust in the influence of custom to mould opinion." One of the aims declared in the preamble is " the firm establishment of the under- takings of international law as the actual rule of conduct among govemmenls." This involves the affirmation, as against the insular doctrine lately rather prevalent in England, that there really is such a thing as international law, and, as against the Prussian Junkers' doctrine that the interest of the State overrides all legal and moral obligation, that its rules when ascertained are binding as of right (&). It is just possible to read the word " under- takings " as limiting the law which is to be established and maintained to the contents of express conventions; but we can httrdly believe that this was the framers' meaning. (&) There is — need we say it? — a very wide ethical differenoe between denying that the law of nations can properly be called law and denying that any kind of law oan be more than a matter of voluntary .usage for tthe infallible State. THE CONSTITUTION OF THE LEAGUE. 91 " Covenant." This -vTOrd has a special solemnity in English; as M. de Lapradelle observed, speaking at Lau- sanne early in July, 1919, " il y a dans le terme de ' cove- nant ' ce que I'histpire de Grrande-Bretiagne y a implique de sacre, de religieux." " Facte " has teen chosen for the official French version as being the nearest equivalent. Article I. The original Members of the League of Nations shaU be those of tlie Signatories which are named ia the Annex to this Covenant and also such of those other States named in , the Annex as shall accede without reservation to this Cove- nant. Such accession shall be efEected by a Declaration deposited with the Secretariat within two months of the coming into force of the Covenant. Notice thereof shall be sent to all other Members of the League. Any fully self-governing State, Dominion, or Colony not named in the Annex may become a Member of the League if its admission is agreed to by two-thirds of the Assembly, provided that it shall give effective guarantees of its sincere intention to observe its international obhgations, and shall accept such regulations as may be prescribed by the League in r^ard to its military aad naval forces and armaments. Any Member of the League may, after two years' notice of its intention so to do, withdraw from the League, provided that all its international obligatious and all its obligations under this Covenant shall have been fulfilled at the time of its withdrawal. The original signatories, as appears by the annex (p. 174, below), include all the States that were at war with' Germany and her allies, with the unfortunate exception of Russia, which at the date of the treaty of peaoe had no settled government. Of these Czecho-Slovakia, Hedjaz, Foland, and the Serb-Croat-Slovene State, were formed or reconstructed during the war. On the part of the British Empire there were separate signatures for Canada, 92 THE LEAGUE OF NATIONS. Australia, South Africa, New Zealand, and India. The representation of India not by the Secretary of State but by an Indian ruling prince, the Maharaja of Bikanir, de- serves to be specially marked. For the future historians of Indian constitutional development it wiU be a capital fact. The position of a State which is a party to a treaty of peace embodying the Covenant, but is neither an original member nor one of the States invited to accede, may call for more exact consideration than is given to it in the official commentary. Such a State has conclusive notice of the Covenant and of its contents, and therein of the conditions on which new members are admitted. If it seeks admission it must do so without reservation of any kind, and the suggestion of any amendment or variation is inadmissible; just as every candidate for a club or society governed by rules is understood to accept the whole and every part of the rules as they stand at the date of his election and to submit to all regulations made by the committee or other governing body within the authority, conferred by the ryles, and when elected acquires the ordinary rights of a member, as prescribed by the rules and not otherwise, to move or promote amendments. This, it seems, is the amount of the implied agreement to the constitution of the League which arises from being a party to a treaty including it. But farther, it seems that when the Covenant stands as part of a more general treaty the term " the High Contracting Parties," occurring in the preamble, includes aU the parties to the treaty, and is mot confined to the original signatories of the Covenant. If this construction be right, every party to the treaty must THE CONSTITUTION OF THE LEAGUE. 93. be deemed to "agree to this Covenant of the League olf Nations " expressly and not only by implication. But if not, it does not appear that the practioal i^ult is mate- rially different. In either case the parties to the treaty of peace are all alike bound to recognize the existence of the League of Nations and the terms on which, if not original or invited members, they can become so. It will be specially noted that every joining member is bound to accept the regulations of the League as to its armaments of every kind. The effective guarantees of good faith to be given by a joining member are wisely not defined beforehand. Not only the existing form of government, geographical situation and resources of the candidate Power must be considered, but its previous his- tory and reputation and other relevant circumstances. We may find a useful analogy in the case, familiar in most civilized countries, of a club where election is by the committee. There practice very soon begets a continuous and flexible tradition which is much more effective than any set rule could have been. So far as the present writer's knowledge goes the tendency in such cases is for the standard to be raised by imperceptible degrees rather than lowered; whereas it is notorious that the most express and apparently stringent qualifications imposed by old written rules have constantly fallen into disregard in all kinds of public bodies and corporations. The conditions of membershijD are substantially the same as in the Draft, where they are in a less conspicuous place under Art. 7. Mere variations in the wording or order of the clauses as between the Draft and the final Covenant 94 THE LEAGUE OF NATIONS. will henceforth not be noticed without some special reason. The provision for withdrawal from the League at two years' notice was not in the Draft. It does not seem very likely to he acted upon; if the League were to break up it would break in a different fashion, and so long as it holds firm one can hardly conceive what should make it desirable for any one State to secede. Nevertheless this clause is important in so far as it clearly shows that the League is a concert of independent Powers and not a federal union, and does not aim at establishing a super- national government. There is a school of publicists who may regret this, including some able Amiericans who know everything about the higher politics except that Europe is not America, and the Supreme Court of the United States is not a pattern that can be reproduced to order. Peradventure their ideal may become practicable a century or two hence, unless the whole of our political machinery has become as obsolete as feudalism, which it may then be for anything we know. What is certain is that the time is not ripe at this day for a cosmopolitan federation. It may be added that the formal ease or difficulty of rescind- ing a compact has no conistant relation whatever to its stability in practice. Many partnerships at will, many lettings determinable at half a year's notice or less, many tenures of offices held at pleasure or renewable at short intervals, have lasted over a generation or more, as any man of business can avouch. Let us hope that a hundred years hence the clerk in charge of the file of withdrawal notices at the Secretariat of the League may be ajs hard to identify as was in the early nineteenth century the derk THE CONSTITUTION OF THE LEAGUE. 95 of essoins in the old Court of Common Plea^. On the other hand we know too well that no peace or aUianoe was ever made perpetual by calling it so, not to speak of marriage or other examples in the sphere of private affairs. Article II. The action of the League under this Covenant shall be effected through the instrumentality of an Assembly and ■of a Council, with a permanent Secretariat. Here the essential organs of the League are reduced to the simplest possible terms on the lines of Gen. Smuts's forecast. No mention is made of two elements that are prominent in almost every earlier scheme, namely, a permanent court for " justiciable " questions, and a board or council of conciliation for the discussion and adjust- ment of matters less capable of judicial treatment. As to these, the formation of a tribunal is only postponed; the council is charged with making plans for its establishment, as we shall see in Art. 14. Serious disputes not submitted to the court or to some form of agreed arbitration are to be dealt with by the Council, which may seek an opinion from the court or refer any question to the Assembly (Art. 15). Want of time was the urgent motive, one may presume, for not attempting to make the constitution of the court part of the Covenant itself; but, apart from this, a small council is a much fitter body for such a task! than a general meeting of delegates. In the Draft the Assembly was called a Body of Dele- gates. The abolition of this clumsy name is a distincti improvement. It was doubtless intended to mark the 96 THE LEAGUE OF NATIONS. character of the assembly as being not a world-parliament, but a senate of Powers in which all members of the League are to meet on an equal footing. This, however, is made clear enough by the specific provisions. There has been a demand in some quarters for an assem- bly composed in whole or in part of members eledbed by direct popular representation. Any such demand either belongs to a plan for an entirely different kind of League amounting to a true federation, which, as we have seen, is contrary to the intention of the founders, or springs from radical misapprehension of the principles and usage hitherto recognized in the relations of sovereign States. Independent Powers deal with one another through their governments and not otherwise. The titular rulers of a nation may be bound by a written constitution or by con- stitutional practice to make treaties only with the con- currence of the legislature or a branch thereof, or with the support of a popular vote; and im such cages it may be necessary for them to make their engagements with other Powers conditional on the proper consent being obtained. But it is not the business of one government to interpret the constitutional limitations of another, or to take notice of them without authentic information. Recognition of a foreign government, even if only as a de facto government, implies recognition of its Ministers and diplomatic representatives as authorized agents. Autho- rities being once verified as in due form, there can be no question of going behind them into matters of domestic politics. As a matter of fact the greatest trouble of diplo- matists has often 'been in dealing with nominally autocratic THE CONSTITUTION OF THE LEAGUE. 97 rulers whom their Ministers had no power to bind, and whose final decision might depend on the person who last had the opportunity of button-holing them. With a par- liamentary government one can see the machine at work. But in the strict theory of international law the govern- ment of every State is as regards every othei* State an. indivisible and impenetrable monad. There is nothing, however, to prevent the government of any member of the League from selecting its delegates to the Assembly, or any of them, by some form of direct or indirect popular vote. Only that does not concern the other members. "It is left to the several States to decide how their respective delegatioOiS shall be composed; the members need not all be spokesmen of their governments." Lord Eobert Cecil has suggested a method of semi-official popular representation outside the Assembly. " The As- sembly supplies a real want; there must be some body composed of the representatives of the governments, some ■conference of the member States, in which official decisions can be taken. But there are strong arguments for having, in addition to the Assembly, a body of the representatives of the popular element in each member country, their method of selection being left to the country concerned. The creation of such a body does not require any amend- ment of the Covenant; for I do not suggest that this House of Representatives should be given legislative powers. But I do think that by debating and passing resolutions, or even by drafting treaties for the approval of the Assembly, it could do valuable work." With great respect, would not a body of that kind demand a definite share of real p. 7 98 THE LEAGUE OF NATIONS. power as the condition of doing anj real work ? Or, if it is to be mainly critical, had it not bettea- be quite un- ojffiicial ? Some instruction may be derived from the practice of our own courts of justice in cases where the standing of persons or bodies claimiiig to exercise national rights, is called in question. The court does not hear argument on the suggestion of any such doubt, but asks the Secretary of State for Foreign Affairs whom His Majesty's Govern- ment recognizes as the sovereign of such and such a territory, or whether it has acknowledged such and such a provisional government as independent; and the answer returned from the Foreign Office is received as conclusive (c). The constitution of the Secretariat is dealt with in Art. 6. Akticle III. The Assembly shall consist of Representatives of the Members of the League. The Assembly shall meet at stated intervals and from time to time as occasion may require at the Seat of the League, or at such other place as may be decided upon. The Assembly may deal at its meetings with any matter within the sphere of action of the League or affecting the peace of the world. At meetings of the Assembly eadi Member of the League shall have one vote, and may have not more than three Representatives . (c) The personal immunity of reigning princes from leaial process in our courts, of which I have lately had occasion to speak elsewhere (Fortn. Rev. Dec. 1918, p. 815), is dealt with in a similar but not exactly the same manner: I mention this here only to avoid confusion. See Mighell v. Sultan of Johore, [1894] 1 Q. B. 149. THE CONSTITUTION OF THE LEAGUE. 99 This Article is rather more fully expressed than Art. 2 of the Draft, and, as elsewhere, " Members of the League " takes the place of " High Contracting Parties " ; this makes for clearness, though the intention of the Draft that after-admitted members would by their admission become contracting parties on the same footing as original members was not really ambiguous. The Assembly " will consist of the official representa- tives of all the memberfi of the League, including the British Dominions and India." One delegate for Great Britain, four for the Dominions, and one for India, make a total of six, while the United States have only one. At first sight this looks like a surprising over-representation of the British Empire in proportion to other Powers. But the seeming anomaly disappears wlien we consider that this is not the case of an ordinary delibe.rative assembly deciding questions by a majority. There is really no question of counting votes. " Decisions of the Assembly, except in certain specified cases, must be unanimous," so that no combination can swamp a minority. The practical effect, therefo{re, is to give the Dominions and India an effective voice, and at need the decisive power of a veto, for the representation and protection of their particular interests and views. No one who is tolerably well ac- quainted with the political conditions of the British com- monwealth of nations, in which a unique form of partner- ship has been developed under cover of the nominal supremacy reserved to the King in Parliament, is likely to deny that this is only reasonable. What is more, any such man will easily perceive that the statesmen of the 7(2) 100 THE LEAGUE OF NATIONS. Diominions would not have consented to the British Empire entering into the League of Nations on any other terms. The appearance of India as a oo-equal partner with the Dominions is a fact of the first historical importance, but it is beyond the scope of this work to dwell upon its sig- nificance or its far-reaching consecjuenoes, foreseen and accepted with wisdom for which His Majesty's Govern- ment has received too little credit. It might be supposed offhand that the requirement of unanimity in most matters will make the Assembly a cumbrous and inefficient machine. This would be a great mistake, for the reasons pointed out in the commentary. " At the present stage of national feeling, sovereign States will not consent to be bound by legislation voted by a majority, even an overwhelming majority, of their fellows. But if their sovereignty is respected in theory, it is un- likely that they wiU permanently withstand a strong con- sensus of opinion, except in matters which they consider vital." The like reason applies, as we shall presently see, to the Council. " The Assembly is competent to discuss all matters con- cerning the League, and it is j)resumably through the i^ssembly that the assent of the governments of the world will be given to alterations and improvements in inter- national law (see Art. 19), and to the many conventions that will be required for joint international action." The Assembly of the League of Nations bears a certain superficial resemblance to the Congress of the United States as it existed under the Articles of Confederation framed in 1777, ratified in 1781, and superseded by the THE CONSTITUTION OF THE LEAGUE. 101 Constitution of the United States in 1787, a Congrees which represented not population but States, with a limited optional number of delegates but only one vote for each State, and exercised or attempted to exercise its ordinary executive functions through a " Committee of the States," in which each State had only one delegate. But, for want of any definite or adequate federal organs, the system of tbe Articles broke down in a few years; the decisive element was incompetence in mattera of interstate commerce, a kind of trouble which even under the Constitution was finally subdued only by the cleaa: head and firm hand of John Marshall. It was too much for a league of sovereign States, and too little for a federation. Comparison, there- fore, cannot be undertaken to any profitable end. The text of the Articles as well as of the present Constitution is easy of access, most conveniently perhaps in quite recent British and American publications {d). Article IV. The Council shall consist of Eepresentatives of the United States' of America, of the British Empire, of France, of Italy, and of Japan, together with Representatives of four other Members of the League. These four Members of the League shall be selected by the Assembly from time to time in its discretion. Until the appointment of the Eepresentatives of the four Members of the League first selected by the As- sembly, Eepresentatives of Belgium, Brazil, Greece and Spain shall be Members of the Council. With the approval of the majority of the Assembly, the Council may name additional Members of the League whose (d) The Commpn-weaJth of Nations, Part 1, ed. L. Ourtie, London, 1916, p. 653. James Madison's Notes of debates in the Federal Oonvention of 1787, .&c., by James Brown Soott, New York, London, &o., 1918, p. 110. 102 THE LEAGUE OF NATIONS. Eepresentatives shall always be members o£ the Council; the Council with like approval may increase the number of Members of the League to be selected by the Assembly for representation on the Council. The Council shall meet from time to time as occasion may require, and at least once a year, at the Seat of the League (e), or at such other place as may be decided upon. The Council may deal at its meetings with any matter within the sphere of action of the League or affecting the peace of the world. Any Member of the League not represented on the Council shall be invited to send a Eepresentative to sit as a member at any meeting of the Council during the consideration of matters specially affecting the interests of that Member of the League. ' At meetings of the Council each Member of the League represented on the Council shall have one vote, and may have not more than one Eepresentative. The Council is not now called " Executive Council " as it was in the Draft. It will be se©n that its normal functions are in truth much more administrative than executive. Nevertheless it is officially described as "a political instrument endowed with greater authority than any the world has hitherto seen. In form its decisions are only recommendations, but when those who recommend include the political chiefs of all the Great Powers and of four other Powers selected by the States of the world in assembly, their unanimous recommendations are likely to be irresistible. . . . The fact that for the decisions of the Council, as of the Assembly, unanimity is ordinarily re- quired (/), is not likely to be a serious obstacle in practice. Granted the desire to agree, which the conception of the League deoMJids, it is believed that agreement will be (e) Geneva. See Art. 7. (/) See Art. 5. THE CONSTITUTION OF THE LEAGUE. 103 reached, or at least that the minority will acquiesce. There would be little practical advantage, and a gpod deal of danger, in allowing the majority of the Council to vote down one of the Great Powers. An important exception to the rule of unanimity is made by the clause in Art. 15 providing that, in the case of disputes submitted to the Council, the consent of the parties is not required to make its recommendations valid." Such a recommendation, however, is not to have any automatic effect, as we shall see in considering that Article. As to voting power, the remarks made under Art. 3 on the constitution of the Assembly are no less applicable !to the Council. Except in certain particular oases (see Art. 5) decisions mjust be unanimous, and therefore no Power need fear being outvoted. Both in formal debate and in the informlal conversations that will precede it, the weight of any Power s representatives will not depend on their nuniber, but partly on their personal character and: partly on the extent to which they can assure their col- leagues that they express the true mind of their respective nations. " The relations between the Assembly and the' Council are purposely left undefined, as it is held undesirable to limit the competence of either. Cases wiH arise when a meeting of the Assembly would be inconvenient, and the Council should not therefore be bound to wait on its approval." It is probable, as the Commentary goes on to observe, that the members of the Council will also have seats in the Assembly; the risk of accidental overlapping may therefore be neglected. 104 THE LEAGUE OF NATIONS. Admission of new members to the League is alroady provided for in Art. 1, par. 2, but a Power admitted under that clause will not thereby beoom© entitled to repre- sentation on the Council. Discretion in that respect is en- trusted by the second paragraph of the present Article to the Council itself, with the approval of a majority of the Assembly. A joining member, if of sufficient importance, may acquire standing representation, or if it is not of the first rank an increase in the number of selected members will enable the Assembly to give it a representative with- out prejudice to the choices already made. The cases contemplated as probable in the near future are, as the Commentary points out, those of Germany and Russia. This does not mean, of course, that the founders of the League warrant the existence of an internationally honest government in Germany, or of a stable government in Russia, within the next few months. Whatever some people may, expect of them, they do not profess to be gods or prophets. It is obviously of great importance that all the members of the League, and especially the smaller Powers, should have confidence in the Council, and that decisions affecting the interest of any member should not be made without notice and an opportunity of being heard. The last para- graph but one of this Article gives not only the assurance of notice and opportunity, but an actual seat and effective voice in the Council for the time being; for the invited representative of any Power, not being already rejbresented on the Council, whose interests are affected, is to sit as a member. The constitution of the British Imperial THE CONSTITUTION OF THE LEAGUE. 105 Defence Committee and the recent usage of the Imperial War Cabinet may perhaps have suggested this very useful provision. Everyone summoned to those bodies was sum- moned not as an assessor, but as a full member, whether his attendance was habitual or occasional, or only for some special cause that might not recur. Article V. Except where otherwise expressly provided in this Cove- nant, decisions at any meeting of the Assembly or of the Council shall require the agreement of all the Members. of the League represented at the meeting. All matters of procedure at meetings of the Assembly or of the Council, including the appointment of Committeea to investigate particular matters, shall be regulated by the Assembly or by the Council, and maj- be decided by a majority of the Members of the League represented at the meeting. The first meeting of the Assembly and the first meeting of the Council shad be summoned by tlie President of the United States of America. The exceptional oases in which a majority vote may have effect are the foUoiwing: — Admission of new members to the League. Two-thirds majority of the Assembly (Art. 1). Approval of new members named by the Council to have permanent representatives thereon, and of increase in number of members selected for a share of representation. Majority of Assembly (Art. 4). Procedure. Majority of members represented at meet- ing of Assembly or Council (Art. 5, above). This is the only ordinary case in which the Council need not be unanimous. 106 . THE LEAGUE OF NATIONS. Approval of future appointments of Secretary -General hj Council. Majority of Assembly (Art. 6). Disputes referred to Council. Report may be by a majority vote: likewise in the Assembly where the refe- rence is passed on to it by the Counoii (Art. 15). Exclusion from the League for breach of covenant. Re- presentatives of all other members represented on the Council (not only at the particular meeting) (Art. 16). Ratification of amendments to the Covenant. Majority of Powers represented in the Assembly. All represented in the Council must concur (Art. 26). It will be seen that at any meeting any member of the League may give a merely passive assent, signifying either indifference or unwilling acquiescence (like that of a judge who does not wholly agree with the majority of the court but does not formally dissent), by abstaining from attend- ance at the meeting. Such cases are not likely to be frequent or important, and the provision that the agree- ment of members represented at the meeting shall be suffi- cient appears to be inserted rather for the innocent purpose of expediting business and preventing abstention from being used as an instrument of obstructive delay in minor matters. If on questions of procedure an absolute majority of the constituent Powers were required, it would be possible for a small discontented group, whose reasons would not bear examination in open debate, to give con- siderable trouble by hindering the formation of a quorum. In the matters of substance where the members represented at the meeting must be unanimous it is obvious that to require the consent of every member of the League, present THE COXSTITUTION OF THE LEAGUE. 107 ■or not, would be to give every one of thsm, from tha greatest to the least, not only a veto but an arbitrary veto exercisable without assigning any reason. Again, it "was obviously not desirable that the proceedings should be liable to frustration by unavoidable accident keeping the representatives of , one or two membere away, which, though not very likely, is not impossible. In any case the wilful absence of any Great Power's representatives from the •discussion of a serious question is hardly to be thought of. If such a thing happened it would be a signal of some- thing very dangerous in the state of the League. Against radical discords, whether already latent, or even known to be threatening but not remediable at the time (as the con- ilict of free and slave States in North America), or such as m.ay arise from unsuspected causes in the future, there is no safeguard in any written constitution; and the only superiority of an unwritten one, if indeed it has enough substance to count for much except afliong men in love with formulas, is that it is somewhat easier to disguise, revolutionary chajiges with a show of legality, as was done in England in 1688. We may read in this Arti|cle a general intention that the •current business of the League shall be transacted mainly through committees appointed from time to time, standing or transitory according to the nature of the case. It is also possible that the meetings of the Council or the As- sembly which put suOh affairs in train may themselves resemble committee meetings in substance though not in form. A full attendance may be. thought needless when the administrative details to be settled involve no question 108 THE LEAGUK OF NATIONS. of principle; and in such cases it may come to be under- stood that, while every member will have notice and v.iU. be entitled to attend, it is in practice left to the Secre- tariat to ensure a competent quorum. Any such working arrangement implies, of course, large confidence in the Secretary-General's judgment and tact. That, however, is already assumed in the constitution of the Secretariat and the functions entrusted to it. A mediocre depart- mental officer with a staff of ordinary olerks would either tie up the League in red tape or gat its routine into an inextricable tangle. Article VI. The permanent- Secretariat shall be established at the Seat of the League. The Secretariat shall comprise a Secretary - General and such secretaries and staff as may be required. The first Secretary-General shall be the person named in the Annex; thereafter the Secretary-General shall be ap- pointed by the Council with the approval of the majority of the Assembly. The secretaries and the staff of the Secretariat shall be appointed by the Secretary-General with the approval of the Council. The Secretary-General shaU act in that capacitj- at all meetings of the Assembly and of the Council. The expenses of the Secretariat shaJI be borne by the Members of the League in accordance with the apportion- ment of the expenses of the International Bureau of the Universal Postal Union. The person named in the Annex is Sir James Eric Drummond. " A link between the two bodies " — the Assembly and the Council — " is supplied by the permanent Secretariat, or new international Civil Service. This organisation lias immense possibilities of usefulness, and a very wide field. THE CONSTITUTION OF THE LEAGUE, 109 Avill be open for the energy and initiative of the first:, Secivtarjr-General. One of the most important of his ■duties will be the coUeotion, sifting, and distribution of information from all parts of the world. A reliable supply of facts and statistics will in itself be a powerful aid to peaoe. Nor can the value be exaggerated of the continuous ■collaboration of experts and officaals in matters tending to emphasize the unity, rather than the diversity of national interests." It had already been inferred from the Draft at an earlier stage that the Secretariat was intended to be the working centre of the League, and the Secretary- General would be a very important officer. This passage ■of the Commentary makes the inference explicit and authoritative. I cannot help observing, though it is not striotly rele- vant here, that the formation of a secretariat and a general intelligenoe department for the British Empire on very much the same lines has been urged on successive British governments for about fifteen years; but by reason, it is believed, of stubborn departmental obstruction in the Colonial Office, next to nothing was done before the war. The formation of the Imperial War Cabinet put matters on a new footing, of which we may hope to see the fruit in due time, after the pressing business of the peace treaties is disposed of. As the reasons given in the Com- mentary are perfectly applicable to the relations between Great Britain and the Dominions, it will at least be hard to maintain that a scheme which all the Great Powers regard as practicable and highly important for the League of Nations is less practicable or desirable in our own 110 THE LEAGUE OF NATIONS. affairs i It must be allowed tbat in this, as in all matters of the higher politics, the ignorance and indifference of British electors and their representatives in Parliament have much to answer for. Article VII. The Seat of the League is established at Geneva. The Council may at any time decide that the Seat of th& League shall be established elsewhere. All positions under or in connection with the League, including the Secretariat, shall be open equally to men and women. Eepresentatives of the Members of the League and officials of the League when engaged on the business of the League shall enjoy diplomatic privileges and immunities. The buildings and other property occupied by the League or its officials or by Eepresentatives attending its meetings shall be inviolable. It is not likely that we shall see a woman Secretary- General of the League in our time, bait the assertion of the principle marks the change which has come over public opinion as to women's capacity during the war. There is no need to dwell here on the achievements of women in fields of manual and intellectual work, or combinations of both, that were supposed to be fit only for men, or on the skill, devotion, and courage with which they have performed their duties under the hardest conditions and through trials of the most searching kind. But in the ■ present connexion it may be noted that very many women have been employed by our Departments in highly con- fidential dealings with enemy correspondence and the like, and have shown themselves quite as trustworthy as men in keeping official secrets. THE CONSTITUTION OF THK LKAGUE. Ill The suggestion of a distinct women's section in the Secretariat made by soime societies appears to me, as it does to the French National Council of Women, to be misconceived {g). There has been unofficial talk of reconsidering the decision to fix the seat of the League at Geneva. As to this it should be observed that the only serious alternative was to choose Brussels, ajid Belgium was a party to the decision. Moreover the nomination was promptly wel- comed by the Canton of Geneva in a proclamation issued at the end of April, 1919; the language of the Cantonal Council of State is not only cordial but enthusiastic {h). It will'be enough to translate here one paragraph, which is less warm if anything than most of the context: " Geneva, with her continuous histoiy of combats for in- dependence, will take a just pride in welcoming the men who within her walls will pa^ judgment on the inde- pendence of nations." After this one does not see how the League could go back upon its choice without grave incivility towards the governments both of the Canton and of the Swiss Confederation. ' {g) See The League of Nations Journal, Sept., 1919, at p. 331. (A) Full text in "The League of Nations," Berne, No. 4, May 10th, 1919. 112 THE LEAGUE OF NATIONS. CHAPTER VI. RESTKAINT OF WAR. Article VIII. The Members of the League recognise that the mainten- ance of peace requires the reduction of national armaments to the lowest point consistent with national safetj and the enforcement by common action of international obligations. The Council, taking account of the geographical situation and circumstances of each Member of the League, shall formulate plans for such reduction for the consideration and action of the several Governments. Such plans shall be subject to reconsideration and revision at least every ten years. After these plans shall have been adopted by the several Governments, thfe limits of armaments therein fixed shall not be exceeded without the concurrence of the Council. The Members of the League agree that the manufacture by private enterprise of munitions and implements of war is open to grave objections. The Council shall advise how the evil effects attendant upon such manufacture can be prevented, due regard being had to the necessities of those Members of the League which are not able to manufacture the munitions and implements of war necessary for their safety. The Members of the League undertake to interchange full and frank information as to the scale of their armaments, their military and naval programmes, and the condition of such of their industries as are adaptable to war-Hke pur- poses. " There is to be no dictation by the Council or anyone elee as bo the size of national forces. The Council ia merely to formulate plans, which the governments are free to accept or reject. Once aiccepted, the members agree EESTRAINT OF WAR. 113 not to exceed them. The formulation and acceptance of such plans may be expected to take shape in a general Dis- armament Convention, supplementary to the Covenant." So the Commentary explains the spirit of this Article. If anyone thinks the framers of the Covenant have been unduly timid, let him consider that at least they have succeeded in lifting the matter out of the slough of despond where, to all appearance, two Peace Conferences had left it. Disannament was intended to be the principal object of the fii-st Hague Conference in 1899. So far from coming within sight of any convention or general under- standing concerning the limitation of armaments, the Con- ference wholly failed to produce any, appreciable result, and its credit was saved only at a late stage by the creation of the Hague Tribunal, which had been no part of the original plan. At the second Conference in 1907, the German Govern- ment appointed delegates only on condition of the limita- tion of (armaments not being among the heads of discussion. That was twelve years ago, no great lapse of time in any noi-mal circumstances, according to the usual measure of international movements. But even if the subject had not been banned it is hard to see how a large and miscellaneous meeting, in which no really confidential exchange of views and information was possible, could have arrived at any satisfactory result. The only hopeful way would have been to appoint a special and secret committee to inquire and report. It would be idle curiosity to consider at this day whether the Conference would have agreed to set up such a committee, if it had been free to do so, or whether p. 8 1 14 THE LEAGUE OF NATIONS. the time at the committee's disposal would have aUowod it to arrive at conclusions of any value. We now have the Council of the League, a body within which the necessary confidential preliminaries are prac- ticable, charged with making plans for the reduction of armaments in its own time. That is at any rate a reason- able method. How soon it can be put in operation depends on the restoration of settled government (not meaning thereby any return to political systems resembling those which have been cleared away) in eastern and central Europe. So long as the late Russian, German, and Austro-Hungarian Empires are for the most part repre- sented by unknown quantities, the materials for framing a comparative scale of armaments are not at hand. Obviously the Council will not commit itself to the official formulation of any scheme for limitation of armaments, general or partial, without some pirevious assurance that the Powers to whom it will be addressed are disposed to accept and act upon it in substance. As these Powers are in practice pretty sure to be represented on the Council itself, there ought to be no difficulty about this. It is earnestly to be hoped that the contents of the confidential and sometimes delicate communications that must take place at the meetings of the Council or at the Secretariat will be kept out of the field of parliamentary questionings and journalistic gossip. Clients do not expect to be present at all their solicitors' interviews; if they were .foolish enough to demand it, and made their claim good, the ^ olume of litigation would be disastrously multiplied, and the number of failures to complete business of every kind RESTRAINT OP WAR. 115 even more so. Already there have been too many eo-called revelations aboat the intimate proceedingts of the Peace Conference at Paris. There are great diflficulties about the regulation of private enterprise in the production of war material. It must be remembered that this is by no means confined to guns and ammunition. A highly important part of it is the building of warships, which are certainly implements of war though not immediately sugigested by the term. lb forbid minor maritime States to buy their vessels, or some of them, from foreign building yards would be to condemn them to new and heavy expense; and after all the result would probably be that in almost every case one of the great firms would set up a local branch under an ofiicial title. The work, in its higher branches at any rate, and the profits, would be very much as they were before, and the cost of production would be increased. It would be absui-d, again, to say to a former customer of a firm pre- pared to supply both ship and armament: " You may get your ship where you please, but not the guns with it." Whereupon the question would arise whether gun-mount- ings should be reckoned as part of the ship or accessory to the gun, and probably other technical questions that any naval constructor could easily suggest. Then, as regards ships as well as arms and munitions generally, the effect of suppressing private enterprise would be either to multiply centres of production and increase the difficulties of ascer- taining how much they produced, or to make minor Powers customers to the State arsenals of the greater mar'itime and military Powers, and thus in effect create a system of 8(2) 116 THE LEAGUE OF NATIONS. particular dependent alliances which would be fraught with danger to the future harmony of the League and the peace of the world. In short the people who have been talking glibly about suppressing private traffic in the instruments of war have not thought seriously before speaking, or, if they have, were unable to escape from a long acquired habit of think- ing in a strictly parochial manner. The same remark applies to compulsory service, of which there wiU be a word to say presently. This is not to deny that unlimited traffic in deadly weapons, military or other, explosives, poisons and other dangerous goods is not tolerable in any civilized country, and control must be exercised (as in maay respects it is already) by pretty stronig domestic legislation. Neither is it denied that some measure of general regulation under the direction of the Ijeague of Nations is desirable, and with diligence ajid caution ma.y be accomplished. The ultimate remedy, however, is not in checking the pro- duction of instruments of war, but in removing the causes of feai' and mistrust that lead to excessive armaments. A syndicate of all the armament factories in the world could not force its wares on nations who did not want th'em. Proposals have been made from time to time for the mechanical limitation of armaments, as one may call it. Under such a scheme vessels of war, for example, might not exceed a certain tonnage, or guns a certain calibre. We do not think this method is within the range of prac- tical discussion. Certainly there is no chance of the miembars of the League of Nations agreeing to any such RESTRAINT OF WAR. 117 reetrictions at present; moreover it seems gravely doubtful -whether, if practicable, they would tend to prevent war or bo make it less destructive of human life. I know of no reason to believe that casualties were lighter than they are now, in proportion to the numbers engaged, in thfe days when men fought with primitive or comparatively rude weapons; indeed, I believe the evidence is the other way. But an effective comparison would have to be made not between losses in particular combats, but between the proportion of combatant casualties which in the wars or campaigns under review had to be suffered for the attain- ment of definite military results; and here the enormous length of ancient wars (though it was due probably to a rudimentary condition of the art of war rather than to imperfect instruments) would have to be reckoned with. It would lead us too far to pursue this by-path even if I had the necessary special competence (a). Here there is a possible confusion to be avoided. From the earliest historical times the usage of civilized warfare has forbidden the use of certain means of offence, poison being the most familiar example, not with any view to the prevention or discouragement of war, but on groundls of humanity and of a dignity and deoenoy of conduct to be observed even between enemiee. The governing prin- ciple is that the immediate object in war is bo disable one's (o) I do not know from ^luit date (a modern one, I suspeot) trustworthy figures are attainable, or deaths in action distinguish- able from the losses by sickness and want of proper medioal servioe which we have seen leduoed to relatively insignifioant dimensions. 118 THE LEAGUE OF NATIONS. enemy (not necessarily, to kill him', as indeed a wounded man is more of a hindrance to his own side for the time being than a dead one), and whatever exceeds this purpose by inflicting incurable or needlessly painful injuries is unworthy of honourable combatants, and such practices little better, if more tolerable at all, than deliberate slaughter of prisoners, unresisting wounded men, or non- combatants. There is nothing new in this; the Homerio poems show that the use of poisoned arrows was disallowed among Greek warriors before the text was settled' in its present form, though, it seems, the disallowance was not then very old (&). The Hague Conventions defined and in some details reinforced these customary prohibitions; but in the war of 1914 the Gnerman commanders, while they were vehe- ment in denouncing breaches of the Conventions on the (&) Near the beginniiig of tbe Odyssey Athena in the assumed character of Mentes tells a story of Odysseus having begged for poison for his axrows from a man who refused " because he feared the wrath of the immortal gods "; but another and older man gave it him as a special favour. It is clear, however, that the arrov« Odysseus uses to kiU the suitors are not poisoned; there is no suggestion of it in the text. In the poet's time, therefore, the modem rule was already settled. The fuss mad© over a mere scratch from am arrow in II. iv., 13Q sqq., poiaia to an earlier time when arrows were presumed to be poisoned (it was a Trojan arrow, but the Homeric Trojans are no bar- barians though they have barbarous auxiliaries); the story of Philoctetes is another archaic survival, tolerated in classical literature as belonging tpi a world of magic in which all thingg are possible., Poisoned weapons were apparently forbidden by Indian custom from a no legs esrly time: Manu, vii., 90. See Gilbert Murray, The Else of the Greek Epic, p. 120. RESTRAINT OF WAR. 119 part of the Allies, moistly or indeed wholly fictitious, openly followed in their own practice the opinion already proclaimed under the auspices of the Prussian General Staff, that the laws of war are only voluntary observances which may and ought to be disregarded if any considerable military advantage can be gained thereby. The Allies were compelled to retaliate in self-defence, and with such effect that before the end of the war the Germans ware probably rather sorry for their invention of gas attackis. One of the first constructive duties of the League of Nations will be to restore the ideals of civilized warfare, define them with increased clearness, and provide effectual means for enforcing them if the need should arise. " The exchange of information stipulated for in the last paragraph of the Article will, no doubt, be effected through the Commission mentioned in Article 9. The suggestion that this Commission might be given a general power of inspection and supervision, in order to ensure the observ- ance of Article 8, was rejected for several reasons. In the first place, such a power would not be tolerated by many national States at the present day, but would cause friction and hostility to the idea of the League; nor, in fact, is it in harmony with the assumption of mutual good faith on which the League is founded, seeing that the members agree to exchange full and frank information; nor, finally, would it really be of practical use. Preparations for war on a large scale cannot be concealed, while no inspectiooa could hope to discover such really important secrets ad new gases and explosives, and other inventions of detail. The experience of our own Factory Acts shows what an 120 THK LEAGUE OK NATJONS. army of officials is required to make inspection efficient, and how much may escape observation even then. In any case, the League would certainly receive no better in- formation on such points of detail from a Commission than that obtained through their ordinary intelligence services by the several States." So far the Commentary. The French amendment which will be mentioned under the next Article did not propose to confer powers of official inspection. This paragraph develops a suggestion made at the Peace Conference of 1907, of which something came but not much. In 1911 Germany agreed to exchange naval pro- grammes with Great Britain; I do not know to what extent this was acted upon, or whether similar action waa taken by any other Powers. It may be still doubtful "whether the intelligence departments of the leading Powers will really be much wiser than they were before. The real value of the clause is that it sets a standard of good faith and fellowship. Any member of the League who made secret preparations for war, direct or indirect,, would thereby commit an express breach of the Covenant. Moreover the Secretary-General and his staff are hereby fully entitled, though not ordered, to keep their eyes open. Nothing is said about compulsory service here or else- where in the Covenant, and the reason is obvious. The military systems of Continental nations, I believe without material exception, are founded on a general civic duty of training and service in one form or another, and they cannot be expected to commit themselves to radical change, even by the most vague and dilatory assertion of a general RESTRAINT OF WAR. 121 ■desire, until the working of the League has stood the test of experience for some considerable time. Great Britain is quite unlike other Powers in her military needs and the tradition founded on them. A voluntary professional army became a matter not of choice but of necessity when expeditions to remote parts of the world and the main- tenance of garrisons in India and at many stations over- seas had to be provided for. As to the defence of the realm and the preservation of the peace at home, the public ■duty of bearing arms for these purposes has always been recognized by the common law, and was always distinct from special services incident to military tenure. Sea power has enabled us, until the extraordinary demands of the late war came, to make that duty a very light one in practice, but it has never been abandoaed. For European •expeditions it sufficed in the Middle Ages to compose a mixed body of feudal contingents and mercenaries, the latter often foreign, which had no permanent framework and was dispersed when the business was over; and jealousy of the royal power caused politicians to cling to this idea long after it was obsolete, so that to this day the existence of a British army in time of peace and the King's authority to maintain its discipline depend on the passing of an annual Act.» Curiously enough the con- stitutional objection to a standing army belonged in the first half of the eighteenth century to the political stock in trade not of the Whig, but of the Tory party. These familiar facts are mentioned only to remind the reader Jiow far apart we stand from the other nations of Europe ■both in the nature of our military needs and in the 122 THE LEAGUE OP NATIONS. methods, affected only in detail by political reasons and prejudice, by which we have dealt with them. It may be- added that the late German form of universal service was fitted only for European war in fields accessible by land from the German frontiers. When the Germans under- took to furnish a contingent to the composite army en- gaged in the " Boxer " campaign in (Dhina, and when they had to deal with a rebellion in South-West Africa, their normal military system was inapplicable, and in each case they were driven to make up a special expeditionary force by voluntary enlistment, it is believed with rather in- different success. After the American Civil War the War Department of the United States reverted to its old plan of a quite small voluntary Federal army, supplemented in a rather loose fashion by the militia of the several States in the event of war, and supplementing it at need in time of peace. That precedent, it seems fairly certain, will not now be followed, but there are no materials at present for predicting what the new model of the American army will be like. On the whole it is clear that the subject is in no way ripe for the League of Nations to take in hand. A proposed French amendment to the last paragraph is mentioned under the following Article. Article IX. A permanent Commission shall be constituted to advise the Council on the execution of the provisions of Articles I. and VIII. and on military, naval and air questions generally. This Article has purposely stopped short of creating a. RESTRAINT OF WAR. 123 real General Staff for the League, and an amendment proposed by the French Government for the purpose of strengthening it was not adopted. In the final text " Council " replaces " League," and the words " and air " have been added. " The function of a General Staff," says the Commentary, " is preparation for war, and the latter requires the envisagement of a definite enemy. It would plainly be impossible for British offioers to take part in concerting plans, however hypothetical, against their own country, with any semblance of reality; and aU. the members of a staff must work together with complete con- fidence. It is further evident that no State would com- municate to its potential enemies the information as to its own strategic plans necessary for a concerted scheme of defence. The most that can be done in this direction by the Commission is to collect non-confidential information of militai'y value, and possibly to work out certain transit questions of a special character." Such is the British and, it may be presumed, also the American view; and the reasons are plausibly stated. But the manifest fact that the French Government, doubtless advised by its own General Staff, thought otherwise is enough to show that a different opinion is arguable. It may be conceded that a cosmopolitan staff could not study beforehand the precise measures to be taken against a hypothetical defiance of the League by a rebellious minority. Besides the patriotic objection, as it may be called, which is frankly stated in the Commentary, the character, possible extent, and military aims of any such rejsiptanoe must depend on unforeseen political combinar 124 THE LEAGUB OF NATIONS. tione as well as the standing geographical and strategic elements of the problem. Allowing for all this, it remains to be iseen iwhether a sharp line can really, be drawn between the functions of a military intelligence department, which the Article as it stands undoubtedly does create, and those of a general staff. The military questions, it must be observed, are much simplified by the provisions of Article 16, which decrees an automatic suspension of all commercial relations in the event of any member of the League resorting to war in disregard of its obligations. Short of a rupture that would destroy the League altogether, the commercial sanction ought to be strong enough in almost any oonoeivable case, and the consequent military dispositions would be of a merely local and auxiliary kind. We shall touch on this question again under Article 16. It must also be remembered that Art. 1 expressly enables any member of the League to withdraw from it in a peaceable manner by giving two years' notice. Taking the text of the present Article as it stands, there is a very practical question as to the duty of the Com- mission to advise the Council. Is the Commission to wait for the Council to lay specific points before it, or is it to proceed at onoe to study " the execution of the provisions of Articles 1 and 8 " and submit a repprt or series of reports ? The course to be taken in this respect will depend on the intimate relations of the Commission with the Council and the Secretariat. It may not matter very much whether the results are formally presented as answers to requisitions, or as reports founded on the larger inter- RESTRAINT OF WAR. 125 pretation which would read the Article itself as an operative general instruction. But it is certain that unless the Com- mission is encouraged to do continuous and systematic ■work (or unless the air of Geneva has a singular gift of inspiring public virtue, which it would be rash to assume), the work it doss when its advice is called for at odd times will be of no great value. In the days before Mr. Balfour established the flexible and efficient Imperial Defence Committee there was talk of a Defence Committee of the Cabinet, of which no one could say with certainty whether it h£ld ever met. The Secretary -General will doubtless look to it that there are no such shadowy committees haunting the offices of the League of Nations. It would seem desirable (to speak with some diffidence in a matter of administrative detail) that the Secretary- General should be the permanent secretary of this Com- mission, with such expert assistance as he may require. This appears the most natural way of keeping the Commission in touch with the Council; that it should be done in some way is obvious. The French position as to Articles 8 and 9 has been set forth by M. Leon Bourgeois in the special French number of the Tvmes published on Sept. 6, 1919: " The conditions considered by France to be indis- pensable wiere as follows: first, that the armaments of each State should be limited to the figur'e strictly necessary to assure internal ordier; secondly, that the contingents- required from each State for the establishment of the international force should be so proportioned that the final word should rest with that force in every case; lastly,. 126 THK LEAGUE OF NATIONS. France desired that this international force should be kept in such a state o£ efficiiency that it could suppress any attempt at aggression with sureness and promptitude. " The French Delegation therefore submitted to the Peace Conference two amendments of the greatest importance: — " Art. 8.— The High Contracting Parties being deter- mined to interchange full and frank information as to the scale of their armaments, their military and najval programmes, and the condition of such of their industries as are adaptable to warlike purposes, will appoint a committee for the purpose of ascertaining the necessary information . "Art. 9. — A permanent organization shall be set up for the purpose of providing for and preparing the mili- tary and naval measures for enforcing the obligations which the present Covenant imposes upon the High Con- tracting Parties and making them immediately effective in all cases of urgency (c) . " For reasons of greater importance no vote was taken, (c) It may be convenient to give the Frenoh text: — Art. 8. Les hautes puissances contracbantes, resolues a se ■donner francbe et pleine connaissance mutuell© de I'echelle de leurs armements et leurs programmes militaires et navals, ainsi que des conditions de leuiis industries susceptibles de s'adapter a la guerre, institueront une commission chargee des constatations necessaires. Art. 9. TJn organisme permanent sera constitu6 pour pr6voir et preparer les moyens militaires et navals d'execution des obliga- tions que la pr6sente convention impose aux hautes puissances contractantes, et pour en assurer refHoaoite immediate dans tous les cas d'urgenoe. RESTRAINT OF WAR. 127 and the text presented by the Commission had to be con- sidered as adopted unanimously." These amendments, not having been formally rejected, " will certainly come up again at the first meetings of the League of Nations, and when that time arrives Framoe will be by no means alone in upholding them." Finally M. Bourgeois observes: " It has been said very justly that the greatest force upon which the League of Nations can rely is that of an enlightened public opinion. How can public opinion be informed and how can it act, if no preliminary measures of control and preparation are enacted?" Article X. The Members of the League undertake to respect and preserve as against external aggression the territorial in- tegrity and existing political independence of all Members ■of the League. In ease of any sucJi aggression or in case of any threat or danger of such aggression the Council shall advise upon the means by which this obligation shall be fulfilled. Here the words "as against external aggression" are of the first importance, showing, as the Commentary says, "that the League cannot be used as a Holy Alliance to suppress national or other movements within the boun- daries of the member States, but only to prevent forcible annexation from without." It seems that armed inter- vention by one member State in the domestic troubles of another, such an interference, for example, as that of Nicolas I. of Russia in Hungary in 1849, or of the restored Frencli monarchy against the constitutional party in Spain, would be an external aggression within the mean- 128 THE LEAGUE OF NATIONS. ing of this Article; and it would make no difference ■whether the action so taken were in support of or against the established governmient. The League does not pre- scribe or recommend any particular form of government, much less guarantee to its members the aontinuanee of existing forms. Every member is sovereign in its own affairs, and answerable to the League only for having some kind of settled govieminent capable of appointing fit repre- sentatives for the common business. In the event of internal troubles rising to the height of a conflict between organized bodies maintaining themselves as de facto gov- ernments and acting as regular belligerents, or indeed when they had gone so far as manifestly to threaten such consequences, the case would be such an emergency as the next following Article contemplates. A civil war on a scale involving blockade of ports and interruption of inter- national commerce could not be regarded as of merely domestic concern. But mere transitory and local dis- turbances, even if they call for the use of considerable military force on the spot, are not in themselves the League's business. In the second sentence the words are " the Council shall advise " — not prescribe. They are plain enough, but there is a disposition in some quarters to ignore them. Some Americans are afraid of the United States being com- pelled under this Article to do police work in Europe or Asia which may be foreign to American interests. They forget that the United States has a permanent place and voice in the Council, that nothing can be done without the unanimous advice of the Council, and that even then EESTRAINT OF WAK, 129 the Council has no compulsory power. We have even seen an apprehension expressed that Canada might be called upon to join in operations against Great Britain. Such fears are, to speak frankly, midsummer madness. Still less is there any interference with any constitutional provision in any member State requiring the consent of the legislature to a declaration of war (d) . "It is important that this Article should be read with Articles 11 and 19 " (this last provides for reconsideration of obsolete treaties), " which make it plain that the Cove- nant is not intended to stamp the new territorial settle- ment as sacred and unalterable for all time, but, on the contrary, to provide machinery for the progressive regula- tion of international affairs in accordance with the needs of the future. The absence of such machinery, and the consequent survival of treaties long after they had become out of date, led to many of the quarrels of the past; so that these Articles may be said to inaugurate a new inter- national order, which should eliminate, so far as possible, one of the principal causes of war." Certain critics have been trying to excite prejudice against the League by representing it as no better than a new Holy AUianoe. The very plain repudiation of any such tendency by the Commentary is no doubt designed for the rebuke of these alarmist fancies, and should be sufficient for the purpose. Some of these critics belong to that old school of political sentiment which cherishes a general presumption against the right of any established government to exist. If they (d) As to the action of the TJ. S. Senate since this sheet hat been in print, see the note added to the Preface. P. 9 130 THE LEAGUE OF NATIONS. expected the League of Nations to be the organ of that frame of mind their disappointment is inevitable. The League must be a league of governments and not of revo- lutionary oppositions. Other objectors are partioularists moved by jealousy for the rights of minor Powers. As against these it must be said, at the risk of repetition, that the only alternative to the League is a return to the system of group alliances that has already proved a failure. If this did come back the second state would be worse than the first. Every nation not of the first rank would practically be driven to attach itself as a satellite to one of the rival groups; for the notion that minor Powers alone could form a group of their own strong enough to hold the balance may be dismissed as ohimerical. Then there are the impenitent militarists, for whom any stick is good enough to beat the League with, and with whom it is useless to argue. Article XI. Any war or threat of war, whether immediately affecting any Members of the League or not, is hereby declared a matter of concern to the whole League, and the Leagxi,e BhaU. take any action that miay be deemed wise and effectual to safeguard the peace of nations. In case any such emer- gency should arise, the Secretary-General shall, on the re- quest of any Member of the League, forthwith summon a meeting of the Council. It is also declared to be the friendly right of each Member of the League to bring to the attention of the Assembly or of the Council any circumstance whatever affecting inter- national relations which threatens to disturb international peace or the good understanding between nations upon which peace depends. This Article is of the first importance and of exceedingly wide scope. It has been strengthened in the final recen- sion; in particular the power of any member of the League RESTRAINT OF WAR. 131 to cause a Council meeting to be summoned was not in the Draft. Quite apart from the specifio procedure out- lined in Articles 12—15, the League is hereby invested, in case of any apparent danger to the general peace, with a large authority which can be exercised, according to the ■nature of the case, by inquiry, free conference, mediation, w timely warning to any Power outside the League. Various Irish writers, including some who deserve •serious attention, have raised the question whether the standing problem of Irish autonomy can oome before the League of Nations. There is only one way in which this could happen, namely, that the Grovemment of the United States should declare Irish-American sympathy with unsatisfied nationalist claims in Ireland to be capable of disturbing good understanding between Great Britain and the United States. That is a possible event if a solution is not reached within a reasonable time, but it is more likely that a confidential intimation from the United States would not only precede a formal reference to the Council but avoid the necessity for it. Meanwhile it is clear that a deputation to the League of Nations from Dublin in support of a Dominion con- stitution, or from Cork in support of an Irish Republic, or from Belfast protesting against any kind of Home Rule, would be altogether out of order and could not be received. The League can have no direct dealings with parties or national fractions; it is exempt by its con- stitution from the temptation which has beset too many Britifeh (e) Governments to ally themSelVes with one sec- (e) British, not English. For two centuries the people of 9(2) 182 THE LEAGUE OF NATIONS. tion against another instead of acting for the welfare of the whole. In the old state of Europe there were two, and so far, as I am aware only two partial remedies for a threatening situation, short of war itself, the ultima ratio regum in- solently flaunted in the common inscription to be seen on Prussian giuns. These were the formation of defensive alliances or understandings, and the convocation of a European Congress. The former was a makeshift at best, and aggravated instead of relieving the burden and the danger of comJ)6ting armaments. The latter could be and more than once was frustrated by the dissent of any one Great Power. We now have a comprehensive, flexible, and we may almost add automatic method for securing ventilation and discussion of European "questions," as the current euphemism ran, and for cutting short any attempts at secret combinations.* Even more than the other operative provisions, this one postulates good will and businesslike determination on the part of at least a working majority, and continuous vigilance and efiiciency on the part of the Secretariat. This is only to say once more that, while a covenant can create instruments of action, it cannot create nor does it pretend to create the men who are to act. But finding the necessary instrumient ready to hand makes all the difference when time is of the essence. It cannot be too Scotland have had their full share of power and responsibility for the affairs of the three kingdoms. Talk of any special hostility of " England " is an Irish legend, though Irish Nationaliiita and Unionists agree in the one point of denying that any Englishman or Scotsman can understand Irishmen. RESTRAINT OF WAR. 133 ■often repeated that the aim of the League is not to make waa- wholly impossible, but to make wars of surprise im- practicable and to dissipate gathering war-clouds betimes. Consider what would have been the gain to humanity if anything like the scheme of this Article, even in a much oruder form, had been available when war was in sight in 1870 or in 1914. Neither of those wars could have been started in the face of a standing council of the Powers to whom the disp.ute could have been referred without the delay of preliminary negotiation. Again, the causes of the war pf 1914 might have been averted if Kussia had been definitely entitled to oaU the attention of the Powers to the oppression of Slavonic populations under Magyar rule as likely to disturb friendly relations between Austria-Hungary and Russia, which in fact it notoriously •did. The Covenant now proceeds to set up the maohinary for dealing with specific disputes. We shall see that a wide and elastic discretion is left in justiciable matters to the parties and in others to the Council. Critics of the school that loves cut and dry formulas will no doubt complain of vagueness, but to the present writer's mind this is among the chief merits of the scheme. 134 THE LEAGUE OF NATIONS. CHAPTER VII. JUDICIAL PROCESS AND SANCTIONS. Article XII. The Members of the League agree that if there should arise betweea thera any dispute likely to lead to a rupture, they will submit the matter either to arbitratiou or to in- quiry by the Council, and they agree in no case to resort to war until three months after the award by the arbitrators or the report by the Council. In any case under this Article the award of the arbitrators shall be made within a reasonable time, and the report of the Council shall be made within six months after the sub- mission of the dispute. Heee a general principle is laid down whioh the next three following Articles work out. The action to be taken by the League under Article 11 would obviously cover, in an' appropriate case, advising the parties to submit the matter for arbitration or inquiry under the present Article. If, however, a dangerous dispute should arise without warning, then the parties are bound by the express terms of this Article to lay it before the Councdl. The provisions as to time being duly observed, a delay of about nine months is secured. Ample opportunity is thus given for the people of each country concerned to insist on full infbrmation and explanation, and to weigh the consequences of resorting to war. If, after having had that opportunity, the final determination of any self- governing people is that war with all its known evils and JUDICIAL PROCESS ANU SANCTIONS. 135 unknown risk is more tolerable than any possible alter- native, those who have to answer for such a determination will at any rate not be free to plead ignorance or surprise. If on the other hand either party, disregarding these pro- visions, attempted to gain a military advantage by sudden occupation of strategic points or of disputed territory,, it would thereby put itself in the wrong and in a ptatei of hostility with the whole League. The section of the Commentary entitled " The Pre- vention of War" (pp. 209 — 215, below) should be care- fully read as a whole with this and the next five Articles. Article XIII. The Members of the League agree that whenever any dispute shall arise between them which they recognise to be suitable for submission to arbitration and which cannot be satisfactorily settled by diplomacy, they will submit the whole subject-matter to arbitration. Disputes as to the interpretation of a treaty, as to any question of international law, as to the existence of any fact which if established would constitute a breach of any inter- national obligation, or as to the extent and nature of the reparation to be made for any such breach, are declared to be among those which are generally suitable for submission to arbitration. For the consideration of any such dispute the court of arbitration to which the case is referred shall be the court agreed on by the parties to the dispute or stipulated in any convention existing between them. The Members of the League agree that they will carry out in full good faith any award that may be rendered and that they will not resort to war against a Member of the League which complies therewith. In the event of any failure to carry out such an awaxd, the Council shall propose what steps should be taken to give effect thereto. This Article lays down the principles on which " jus- ticiable " oontroversies are to be dealt with. It is fuUar 136 THE LEAGUE OK NATIONS. than the corresponding Article in the Draft; par. 2 is new, and handles a question which baffled the Peace Con- ference of 1907. Under par. 1 how is it to be ascertained that a dispute "cannot be satisfactorily settled by diplomacy"? Are the parties themselves to be the judges of this fact, or if not, who? Does "satisfactorily" mean no more than "peaceably," or is it to be understood that a settlement is to be deemed satisfactory only when it is such as to give reasonaWe promise of being durable? So far ap the words go, there is room for a broad or for a narrow construction. But, having regard to the objects and general intention of the Covenant, and to the working of these provisions in practice, it appears that the wider view must be preferred. If the partira them- selves say that they do not find ordinary diplomatic methods adequate to settle a dispute to their own satis- faction, it is haird to sec who can be in a position to contradict them, or how it is possible to maintain that the dispute can be " satisfactorily settled by diplomacy." Certainly the Council will have no right (even if it were disposed) to make difficulties; it does not come into the procedure at all unless and until there is a failure to carry out ajn award. The result then is that arbitration is by no means confined to disputes that have reached an acute staige. As in civil affairs parties often agree, without any quarrel, to obtain judicial settlement of a doubtful question— it may be of boundaries, or of the distribution of public burdens, or of construing a standing contract, , or of the devolution of property — by a frifendly suit, a;8 JUDICIAL PROCESS AND SANCTIONS. 137 we call it in English practice, so may any two Powers refer any matter for arbitration which they think libely to give trouble hereafter. There are many questions of a legal nature, boundary questions for instance, which are better disposed of by a decision on the legal merits than by diplomatic bargain and compromise. It would have saved a great expenditure of ink and some risk of estrangement between Great Britain and the United States if the Guiana boundary dispute between Great Britain and Venezuela had been referred to the award of a judicial commission, or of a third Power, forty or fifty years before it suddenly became dangerous in 1895. Only in thoee days nobody thought of it. The official tradition wiehs to let sleeping controversies lie in the hope that they might finally perish in obscurity and never beoomie known to the general public: a tradition useful within bounds in email affairs but hazardous in great, ones. On the whole it is conceived that under this paragraph members of the League may submit for arbitration, at their pleasure, any matter in difference that is not manifestly trifling or in- capable of judicial determination. The second paragraph enumerates four classes of dis- putes as being " among those " that may generally be considered justiciable. Let it be well noted that the words ■ " among those " are expressly framed to exclude any in- ference that the list purports to be exhaustive. There is nothing to prevent other kinds of dispute from being sub- mitted to. arbitration if the parties desire it. " Any ques- tion of international law " covers, of course, questions of boundaries arid territorial claims in so far as they are not ]38 THE LEAGUE OF NATIONS. dependent on conventional obligations. We mjay say therefore for practical purposes that any question will be justiciable which the parties choose to make so, subject only to the condition of putting it in a form capable of a judicial answer. Under the third paragraph the parties have full freedom to choose their own tribunal. All known methods of arbitration are open to them pending the establishment of the permanent court to be formed under the next Article, and indeed after it. Existing arbitration treaties, and references thereunder to the Hague tribunal, or to a stand- ing special commission as the case may be (see p. 38, above), are in no way interfered with. It is hoped, no doubt, that ultimately the new permanent court will be preferred on its merits. Par. 4 requires the parties to a submission to carry out the award, puts those who duly comply with it under the protection of the League, and makes it not only the right but the duty of the Council to see that failure to execute awards is not tolerated. The words " propose what steps should be taken to give effect thereto " are purposely elastic. The League might authorize the law-abiding party to execute the award itself, or it might take the- matter into its own hands. It will be observed that the automatic sanctions of Article 16 do not apply to mere passive failure to perform an award, but this does not exclude the use of similar means of coercion under the present Article by special resolution of the League. Obstinate refusal to abide by an arbitral decision does not seem a likely event, for even in the absence of any^ JUDICIAL PROCESS AND SANCTIONS. 139' international sanction otedienoe to awards made under treaties or special agreements was the rule, and the ex- ceptions very few. Still the ease of refusal or vexatious delay has to be provided for. Article XIV. The Council shall formulate and submit to the Members of the League for adoption plans for the establishment ofi a Permanent Court of International Justice. The Court shall be competent to hear and determine any dispute of an international character which the parties thereto submit to it. The Court may also give an advisory opinion upon any, dispute or question referred to it by the Council or by the Assembly. Here the founders of the League had to deal with a problem which has been the despair of publicists, official and unofficial, for several years. They have wisely chosen the only way to an effectual solution. Many problems of constructive reform are such that a body of delegates, expert or not expert, turned loose on it to discuss at large and free to discharge themselves even by a merely negative report will never agree, but a commission of competent persons who are not asked to report whether the thing can be done, but told that it has to be done, can and will do it. Now the Council is bound to prepare a scheme: no limit of time is assigned, and I do not think it would have been wise to prescribe one, but a reasonable time is to be understood: I should be disposed to estimate this at about a year from the Council getting to wiork. Materials are to hand in the debates of the Hague Conference of 1907, and the more rational of the plans more lately set forth by private enterprise. In the meantime, as we have 140 THE LEAGUK OF NATIONS. already observed, all existing forms of arbitration are available. If anyone asks why they should not be accepted as sufficient, and the trouble of setting up a new court dispensed with, the Commentary supplies the answer. " The Permanent Court of Justice ... is essential for any real progress in international law. As things now stand, the political rather than the judicial aspect of the settlement of disputes is prominent in the Covenant, but ' political ' settlements can never be entirely satisfactory or just. Ultimately, and in the long run, the only alter- native to war is law, and for the enthronement of law there is required such a continuous development of inter- national jurisprudence, at present in its infancy, as can only be supplied by the progressive judgments of a Per- manent Court working out its own traditions. Isolated instances of arbitration, however successful, can never result to the same extent in esta'blishing the reign of law " (a). It would be useless here to speculate on the manner in which the plan to be formulated is likely to secure fair representation on the court for the members of the League other than the principal Powers. Doubtless the Secre- tariat will prepare for the Council an analytical report on the schemes of selection and rotation already put forward at the Hague Conference and by sundry unofficial authors. A simpler way might be to let every State nominate a judge, with liberty for two or more to send in the same name, subject to a standard of qualification, and the (a) See Appendix No. IV. for a fuller statement of reasoDB by the present writer published in April, 1919. JUDICIAL PROCESS AND SANCTIONS. 141 Assembly (excluding the representatives of those Powers who have a standing right to a seat in the court) choose the required number from that list by the proportional representation method of the transferable vote, now used in several countries for parliamentary and other elections and pretty generally understood. But the matter is now in the hands of the Council, who will have full command of expert advice, and there does not seem to be much room for volunteered suggestions. The competenoe of the court extends to " any dispute of an international character which the parties thereto submit to it." One would think that any dispute between two sovereign States which they agree in thinking im- portant enough to call for a judicial decision cannot well help being of an international character. Presumably the words are intended fo quiet some doubt that was raised during the revision of the Covenant, for they do not appear in the Draft. In any case they are words of abundant caution which can do no harm, and enable the court to decline jurisdicitio.n in the improbable event of attemptts being made to abuse its process. The power of the court to give an advisory opinion at the request of the Council or the Assembly has also been added in the final recension. It may well be found useful, and without an express declaration it would have been disputable whether the court could properly give effect to such a request. Nothing is said about the form of the proceeding, but it may be presumed that the court would sit in its usual manner and heax argument. There is European precedent in the statutory authority, of the 142 THE LEAGUE OP NATIONS. Judicial Committee of tbe Privy Council to advise th.« Crown on questions officially referred to it. Ameriaaji courts have held, I think uniformly so far as the occasion has arisen, that it is beyond their competenae, in the absence of a special constitutional provision, to advise the ■executive authorities of their respective jurisdictions. Article XV. If there should arise between Members of the League any dispute likely to lead to a rupture, which is not sub- milted to arbitration as above, the Members of the League agree that they will submit the matter to the Council. Any party to the dispute may effect such submission by giving' notice of the existence of the dispute to the Secretary -General, who will make all necessary arrangements for a full investi- gation and consideration thereof. For this purpose the parties to the dispute will communi- cate to the Secretary-General, as promptly as possible, state- ments of their case with all the relevant facts and papers ,i and the Council may forthwith direct the publication thereof. The Council shall endeavour to effect a settlement of the ■dispute, and if such efforts are successful, a statement shall be made public giving such facts and explanations regarding the dispute and the terms of settlement thereof as the Council may deem appropriate. i If the dispute is not thus settled, the Council, either unani- mously or by a majority vote, shall make and publish a report containing a statement of the facts of the dispute and the recommendations which are deemed just and proper in regard thereto. Any Member of the League represented on the Council may make public a statement of the facts of the dispute and •of its conclusions regarding the same. If a report by the Council is unanimously agreed to by the members thereof other than the Eepresentatives of one or more of the parties to the dispute, the Members of the League agree that they will not go to war with any party to the dispute which complies with the recommendations of the report. If the Council fails to reach a report which is unanimously ragreed to. by the members thereof, other than the Repre- JUDICIAL PROCESS AND SANCTIONS. 143 sentatives of one or more of the parties to the dispute, the Members of the League reserve to themselves the right to take such action as they shall consider necessary for the maintenance of right and justice. If the dispute between the parties is claimed by one of them, and is found by the Council to arise out of a matter which by international law is solely within the domestic jurisdiction of that party, the Council shall so report, and shall make no recommendation as to its settlement. The Council may in ajiy case under this Article refer the dispute to the Assembly. The dispute shall be so referred at the request of either party to the dispute, provided that such request be made within fourteen days after the sub- mission. of the dispute to the Council. In any case referred to the Assembly, all the provisions of this Article and of Article XII. relating to the action and powers of the Council shall apply to the action and powers of the Assembly, provided that a report made by the Assembly., if concurred in by the Eepresentatives of those Members of the League represented on the Council and of a majority of the other Members of the League, exclusive in each case of the Representatives of the parties to the dis- pute, shall have the same force as a report by the Coun'cil concurred in by all the members thereof other than the Eepresentatives of one or more of the parties to the dispute. We mow comie to the provisions for donciliation as dis- tinct from judicial pfpcess. Under this Article " a dispute referred to the Council >caii be dealt with by it in several ways: — (1) " The Council can keep the matter in its own hands, as it is certain to do with ' any essentiially political question in whioh a powerful State feels itself closely interested. (2) " It can submit any dispute of a legal nature for the opinion of the Permanent Court, though in this case the finding of the Court will haVe no force till endorsed by the Council. 144 THE LEAGUE OF NATIONS. (3) " While keeping the matter in its own hands, the Council can refer single points for judicial opinion. (4) "There is nothing to prevent the Council from referring any matter to a committee, or to pre- vent such a committee from being a sta^ding body. An opening is left, therefore, for the reference of suitable issues to such non-political bodies as the ' commissions of conciliation ' which are desired in many quarters. The reports of such committees would of course require the approval of the Council to give them authority, but the Covenant leaves wide room for develop- ment in this direction. (5) " The Council may at any time refer a dispute to the Assembly. The procedure suggested under (2), (3) and (4) will then be open to the Assembly." The text is fuller and more precise than its earlier form in the Draft. The fifth paragraph is new. One could guess from the text alone that the work of the Council, or the Assembly under a reference from the Council, would in practice have to be done through com- mittees, and that if cases of this kind were frequent they would come to be dealt with by a standing committee, so that in substance though not in form there would be a board or commission of conciliation such as is prominent in almost all recent schemes prior to the formation of the League. All doubt on this head is removed by the im- portant explanation we have just quoted from the Com- JUDICIAL PROCESS AND SANCTIONS. 145 mentary. Clearly the general intention is to give the widest possible scope for all and any forms of inquiry, discussion, and mediation that may be appropriate in the particular case. It was thought, seemingly, that a stand- ing special council, however carefully chosen, would not have so much freedom of action as the Council of the League: also, perhaps, that experience alone can show whether there will be much or little .occupation for any such body, and the oreation of a special board, with the inevitable sub -departmental office and staff, would do no good at this stage and might do harm by weakening the Secretariat. The security for publicity given by the third, fourtlx, and fifth paragraphs deserves particular attention. With- out such provisions the lesser Powers might well stand in fear of compromises being made at their expense for reasons that would not bear the light of day. But these paragraphs make it impossible for any such things to he done in a corner. The liberty of publishing a separate report given by par. 5 is an additional safeguard. In practice the risk of such a report being published ought, at need, to be a sufficient inducement to the Council to state the facts adequately and fairly in its own report, and give due weight to the views pf a minority or of any one considerable member. Having regard to the variety of procedure purposely allowed by this Article, it was obviously neither practicable nor desirable to lay down a limit of time. In any case of real difficulty the more time can be gained the better. p. 10 146 THE LEAGUE OF NATIONS. Article XVI. Should any Member of the League resort to war ia dis- regard of its covenauts under Articles XII., XIII., or XV., it shall! ipso fatito be deemed' to have oomlmitted an act of war against all other Members of the League, which hereby undertake immediately to subject it to the severance of all trade or financial relations, the prohibition of aU intercourse between their nationals and the nationals of the covenant- breaking State, and the prevention of all financial, com- mercial, or personal intercourse between the nationals of the covenant-breaking State and the nationals of any other State, whether a Member of the League or not. It shall be the duty of the Council in such case to recom- mend to the several Governments concerned what effective military, naval or air force the Members of the League shall severally contribute to the armed forces to be used to protect the covenants of the League. The Members of the League agree, further, that they will mutually support one another in the financial and economic measoiree which, are taken under this Articile, in order to minimise the loss and inconvenience resulting from the above measures, and that they will mutually support one another in resisting any special measures aimed at one of their number by the covenant-breaking State, and that they will take the necessary steps to afford passage through their territory to the forces of any of the Members of the League which are co-operating to protect the covenants of the League. Any Member of the League which has violated any cove- nant of the League may be declared .to be no longer a Member of the League by a vote of the Council concurred in by the Representatives of all the other Members of the League represented thereon. The following are the breaches of covenant which are to put the wrongdoing State in a condition of hostility; against all other members. Under Article 12, resort to war without submission to arbitration or inquiry,' or, if the dispute is submitted, within three months after the award or report. Under Article 13, making war on a JUDICIAL PROCESS A.ND SANCTIONS. 147 member of the League which complies with an award. Under Article 15, the like as to a member complying with the recommendations of a report made after inquiry by the Council or the Assembly. It appears to be assumed that the occurrence and character of any such acts, i£ they do occur, will be notorious, and that the duty of the other members of the League to break off commercial relations with the offend- ing member will arise at once without any direction from the Council. But as the Council is bound to take action under the second paragraph, it is clear that in practice it would issue a declaration within a very short time. " In the first instance, it is left to individual States to decide whether or not such a breach has occurred and an act of war against the League been thereby committed. To wait for the pronouncement of a court of justice or even of the Council would mean delay, and delay at this crisis might be fatal. Any State, therefore, is justified in such a case in breaking off relations with the offending State on its own' initiative, but it is probable, in fact, thjat the smaller States, unless directly attacked, will wait to see what decision is taken by the Greater Powers or by the ■Council, which is bound to meet as soon as possible, and is ■certain to do so within a few hours." The commercial sanction is not only automatic, but extends to a, blockade cutting off trade even with subjects of States outside the League. Inasmuch as the offending State is to " be deemed to have committed an act of war against all other members of the League," it seems that this would be a war blockade and not a strengthened form 10 (2) 148 THE LEAGUE OF NATIONS. of the pacific blockade which was formerly disallowed by the majority of learned opinions, but nevertheless was established as part of modern international law by the practice of the nineteenth century. Thus a question would not arise which, so far as I know, has never been decided in any jurisdiction, namely, whether a pacific blockade is binding on third parties. It might have arisen during the pacific blockade of Crete in 1897. If a Dutch vessel had been captured by a British or French cruiser in an attempt to break that blockade, and the Dutch Government had asked by what right the Powers acting as the Concert of Europe claimed to forbid the subjects of States that were no parties to their proceedings to traffic with a Turkish port in time of peace, it is not easy to see what convincing answer could have been given in any terms recognized by the la;W of nations . At that time the present writer ventured to say to the ambassador of a Great Power in London (not now living) tha.t the only sovereign whose position was correct from a strictly technical point of view was the Sultan of Turkey: from which that high diplo- matic personage did not dissent. Of course a pacific blockade might always be treated as a hostile act and a cause of war by the government of the blockaded coast. 'Equally of courae a pacific blockade was never declared except in CEUses where it was obviously not the interest of the government thus coerced to expose itself to severer measures. But this as well as various other minor problems may well be thought at this day to belong to a superseded order of international relations. Any further steps of a warlike nature which may be JUDICIAL PROCESS AND SANCTIONS. 149 necessary to enforce the commercial blockade or suppress open resistance to the League are not automatic, but have to be provided for on the reoommendation of the Counoil. Neither has that recommendation any oompulsory autho- rity. But any government requested to contribute to the >common armed force will have had a voice in the Council; " each member from which a contribution is required has the right to attend the Council, with power of veto, during the consideration of its partiaular case." So says the Commentary, the right being apparently deduced from Art. 4, par. 5. Therefore the persuasive weight of the ■Council's recommendation should be as effectual as a com- mand. ■ It is assumed that the forces of the acting members will co-operabe, see par. 3, but nothing is said about unity of plan or direction. Speaking with deference aa a civilian, I do not see how the conditioniB neoassary for prompt and decisive co-operation are to be fulfilled unless the League has already some organ in being, under what- ever name, in the nature of ja, real general staff. The framers of the Commentary have not overlooked this diffi- culty, and meet it as follows: — " But it is desirable at this point to meet the objection that under such conditions the League will always be late, ■and consequently offers no safeguard against sudden aggression. "It is true that in default of a strong international striking force, ready for instant action in all parts of the world, the members of the League must make their own, arrangements for immediate self-defence against any force that could be suddenly concentrated against them, relying On such understandings as they have come to with their 150 THE LEAGUE OF NATIONS. neighbours previously for this purpose. There is nothing in the Covenant (see Article 21) to forbid defertsive con- ventions between States,"— in fact Prance, Great Britain, and the United States have made such a convention (6) — " so long as they are really and solely defensive, and their contents are made public. They will, in fact, be welcomed, in so far as they tend to preserve the peace of the world. " To meet the first shock of sudden aggression, therefore. States must rely on their own resistance and the aid of their neighbours. But where, as in the case of the mora- torium being observed, the aggression is not sudden, it is certain that those Powers which suspect a breach of the Covenant will have consulted together unofficially to decide Oil precautionary measures and to concert plans to be immediately put into force if the breach of the Covenant takes place. In this event these meetings of the repre- sentatives of certain Powers will develop into the Supreme War Council of the League, advised by a joint staff. Some reasons why this staff must be an aS, hoc body, and not a permanent one, have been stated under Article 8." With all respect, I do not find this wholly satisfying. There is a fairly well known form of caiTying on enter- prises undertaken not with a primary view to profit, but for public ends usually of an artistic sort, by mieans of a governing body whose members take on themselves to be guarantors to a limited extent. In this manner a reserve fund is provided by which the society can obtain credit for the expenses it has to incur and in the result, if aU goes well, to cover out of the returns. It is well under- (6) Ratified by France and Great Britain only down to th& end of November, 1919. JUDICIAL PROCESS AND SANCTIONS. 151 stood that the guarantee is a last resource, and that an; actual call on the guarantors would signify failure, or at least a grave emergency : nevertheless the known exist- ence of the guarantee is a necessary condition of etahility and confidence. It is not fanciful, in my judgment, to see here a real analogy to the sanctions of the League of Nations. We must hope that in practice threatening con- ditions will hardly ever be allowed to ripen to the point where even the penal suspension of commercial relations will have to be applied. But that can be accomplished only through the knowledge of all Powers concerned that the sanctions are there, and a well founded belief that at need they are ready to become effective. The more thoroughly the League is equipped for dealing with emer- gencies, the less likelihood will there be of coercive action being in fact required. Within the domestic jurisdiction of a well ordered State the peace is kept with little show of force because it is known to all men that whoever is rash enough to fall on the State'e reserve power will be broken. Not that any government in the world can give perfect assurance against occasional and partial disturb- ance. Riots occur from time to time in every jurisdiction of any considerable extent. It is enough that men can go about their lawful business in peace at most times and in most places. So long as that is so, there is, in the current phrase of French eighteenth century writers, a pooys fvlice. More cannot be expected of the League of Nations than is accomplished on the whole by the authorities of existing civilized commonwealths within their own bounds. " The last paragraph of Article 16 is intended to meet 152 THE LEAGUE OF NATIONS. the case of a State which, after violating ite covenants, attempts to retain its position on the Assembly and Council." No further comment appears to be called for. A case not provided for in terms by this Article is that of unauthorized hostilities breaking out between two States in such circumstances that neither of them can be said to have made any honest endeavour for the preserva- tion of peace, and so both of them are in fault. In suoh a case it seems obvious that whatever degree of penal sanction is needful ought to be applied impartially to both, and neither should be allowed to retain any advan- tage from its action. If anyone thinks the supposition extravagajit, we beg to direct his attention to the lament- able current events in the eastern parts jof Europe. Indeed, we may well think a reckless wax of this kind between minor States less unlikely than a barefaced attack by a stronger Power on a weaker. Likely or not, we conceive that the event is covered in substance. Several propounders of earlier schemes, both before and during the war, have pleaded for the abolition of national armaments and the formation of a cosmopolitan world police under the immediate control of an international authority. The founders of the League have not taken any notice of this proposal: they appear therefore to be clearly of opinion that (supposing it ultimately desirable) it is not practicable in our time, and those who are bold enough to maintain that this opinion is wrong may be left to make what they can of their own. Obviously the derogation from national sovereignty would go far beyond anything contemplated by the Covenant. If that objec- JUDICIAL PROCESS AND SANCTIONS. 153 tion were out of the way, there would still be extredne difficulty in making a oomposite army, not to speak of a navy, homogeneous and efficient (c), and in framing such provisions for its control as would avoid the undue pre- ponderance of a few Great Powers without nmning into the absurdities of divided or alternating command, whose «ff€cts may be learnt from the Greek historians. And when all was done, and nothing left anywhere capable of ■opposing this new instrument, we should for our paina have something very like an international Praetorian guard, ready to be captured by the ambition of some future Napoleon and used as the foundation of a new military despotism. There might' be worse themes for an imaginative writer, but there is no serious reason for dwelling farther on the topic here. It may be suggested, however, that a small mixed guard of honour at the headquarters of the League would be free from objection and an appropriate symbolic ornament, having the same kind of moral signiiicanoe as the presence in London of select Indian officers attached to the King's person. This would not entail any interference with ordinary local juri-sdiotion, though it may be fit to b© considered hereafter whether an extra-territorial character should be accorded to the offices and precincts in the occupation of the League. In that event there ■s\ould be much less risk of friction than in the relations between the Vatican and the Italian executive authorities in Rpme, which in fact have given no trouble for many years. (c) The experience of the late Austro-Hungaxian dual monardhy may be taken as a warning. 154 THE LEAGUE OF NATIONS. Article XVII. In the event of a dispute between a Member of the Leagua and a State which is not a Member of the League, or between States not Members of the League, the State or States nob Members of the League shall be invited to accept the obU- gations of membership in the League for the purposes of such dispute, upon such conditions as the Council may deem just. If such invitation is accepted, the provisions of Articles XII. to XVI. inclusive shall be applied with sucli modifications as may be deemed necessary by the Council. Upon such invitation being given the Council shall imme- diately institute an inquiry into the circumstances of the- disx^ute and recommend such action as may seem best and most effectual in the circumstances. If a State so invited shall refuse to accept the obligations of membership in the League for the purposes of such dis- pute, and shall resort to war against a Member of the League, the provisions of Article XVI. shall be applicable as against the State tEuking such action. If both parties to the dispute when so invited refuse ta accept the obligations of membership in the League for the purposes of such dispute, the Council may take such measures and make such recommendations as will prevent hostilities and will result in the settlement of the dispute. "Article 17 aaserts the claim of the League that np- State, whether a member of the League or not, has th& right to disturb the peace of the world till peaceful methods of settlement have been tried. As in early English law any act of violenoe, wherever committed, cam& to be regarded as a breach of the King's peace," — origin- ally a privilege extended from the King's biousehold and immediate surroundings, to persons in his service and places taken under his specdal protection — " so any and every sudden act of war is henoeforward a breach of the peace of the League, whioh will exact due reparation." In other words the League hereby gives notice that it JUDICIAL PROCESS AND SANCTIONS. 155 will act as the general guardian of public peaoe. Tliis cannot impose any oonventional obligation upon Powers that are not parties to the treaties embodying the Cove- nant; it is, like the Monroe doctrine, a deolaration of policy and not an offer to be accepted or discussed. At the same time it is a material addition to the inducements to come into the League. For the rest, it is not expected that any considerable State will ultimately remain out- side, so this Article is really in the nature of a transitory provision. The Commentary points to the growth of the King's peace in England as a precedent for the new-born cosmo- politan peace of the League. This is no far-f etched academic illustration; the parallel is not only justified by historical fact, but closer tlia.n it appears at first sight, notwithstanding the want in the old European system (for the Holy Roman Empire was a futile pretence) of any central power that oan be said to ajiswer to the King's authority in England. Some such work as was done here in the King's name from the consolidiation of the English provincial kingdoms to the great oonstruetive work of the thirteenth century was done in modem Europe, in a clum- sier but still analogous fashion, by the undefined concert of the Great Powers of which we have spoken in the in- troductory chapters. Here the King's protection was gradually extended for the security of traffic on the great highways, which accordingly were called the King's, and the protection of royal officers, permanent or temporary, however far away from the Court; and his jurisdiction, starting from offences against his own person and within 156 THE LEAGUE OF NATIONS. his own househeld, came to include under the head of " Pleas of the Crown," as modern lawyers know it, all serious crimes and ultimately all breaches of public law. The so-called Concert of Europe had no such definite starting point. But it did establish a certain number of partial guarantees of independence and neutralit}', regu- lations for European waterways and so forth, under a real though imperfect conventional sanction; and these may well be likened to the state of the nascent King's peace in England. At this day the law of nations has arrived at the point where a fearless constructive effort is called' for, on a greater scale than that which was happily undertaken here under Edward I., but essentially of the same kind. Moreover the parallel is not without its lessons in the matters of police and armaments. The League of Nations is making a King's peace. But the King's peace demands a sheriff and the power of the county, a.8 indeed, to use terms that may better come home to a modem American, the authority of the Supreme Court demands a United States marshal. If we could caR up Henry of Bratton to peruse our Covenant, one of his first questions Avould certainly be: Where is your sheriff? And if we could summon Alexander Hamilton, he would no less surely ask: Where is your United States marshal? 1 have already ventured to express my opinion that the Fxench delegation to the Conference of Paris had a clearer -^ ision of the proper answer to those questions than their col- leagues have yet attained. Then as to armaments, he would indeed ha-\'e been a; rash counsellor who should have advised Edward I. (if JUDICIAL PROCESS AND SANCTIONS. 157 Ave can oonoeive such rashness as possible) to suppress the feudal levies and armed retinues of his great lords in order that the King's peace might be firm. In the fulness of time that had to come, but the work was reserved for the Tudor kings and their ser'vants. Any attempt in that direction in the thirteenth century would have provoked a rebellion capable of wrecking not only the King's peace but the kingdom. William the Conqueror had already, with great wisdom, required the direct allegiance of all men, from the highest to the lowest, but he never talked or dreamt of taking over immediate command. The only practicable course was to enlist and use existing means of defence and order on the side of royal authority, so far as might be. So it is at this day with the League of Nations. It may be that national armies will be^needless a century or two hence; we must leave posterity to look to it. Thepe are people, and I suppose there always will be, who have no sense of history and no belief in its present use: just as there are some, not foolish otherwise, who can never learn the points of the oompaiss or remember their bearings even in familiar places. In such people's eyes all these comparisons will be the merest ajntiquarian futility. Yet they do not despise recent precedent and tradition in their own affairs, or even think bills of ex- change obsolete because they are a medieval invention. The so-called practical man who puts his trust in rule of thumb fails to see that ancient or medieval history ia some- times nearer to our affairs than what we call modern. Eorms, institutions, manners, government's and the scale 158 THE LEAGUE OF NATIONS. and instruments of their action, have all changed greatly since Roman legionaries marched on Roman roads in Britain, and the rate of change has been inareasing (not- withstanding the apparent stability which deceived many but not all able men in the eighteenth century) ever sine© the Eefqrmation. But the human nature of which all these things ane the trappings, and of which rulers and legislators have to take account at their peril, has changed very little. If our bis&t men make fewer and lese dangerous mistakes than the best of their ancestors, it is not that they are better or wiser men in themselves, but that they have more past experience to guide them, and ampler and more exact means of knowledge. Another sort of teachers err and will continue to err not as men, walking on earth in a fog, but as creatures out adrift from earth and soaring aloft in a cloud. Ignorance of anything but mankind i's not their fault; they may be very well informed. StiU less is want of faith to be laid to their charge. They despise history and its lessons because they believe in some project for making a new heaven and a new earth all at once, either their own or some prophet's whom they acknowledge as their master, and think all the world's troubles can be cured by the mechanical removal, as it were, of this and that peccant element on which they can lay their finger. For them society is a machine, and the problem is only to locate some grit that lurks in the working parts; an easier task, no doubt, if that were all, than the detection and counter- working of enemy forms of life within a living organism. Their favourite piece of grit may be capitalism, or JUDICIAL PROCESS AND SANCTIONS. 159 ■churches, or aloohol, or indirect taxation, or competition, or officialism, or the very existence of law and government, which William Morris, no small man, and Tolstoy, a great one, took for their scapegoat in all seriousness. Mem of the world point out that from the beginning of history- many prophets have tried many short cuts, of which some have done nothing but harm and none unmixed good. But neither fact nor argument will shake the fanatic's confidence that the secret of the real short cut is his at last, and this time the world will be proved wrong. Obviously no categorical disproof can be produced against him. As I begin this sentence I really have no proof that the sun will not blow up before it is finished. But it is finished and the sun goes on shining, and I shall continue bo act on the faith of the solar system justifying the Nautical Almanack for my time and a long time after. The greater and saner part of mankind will believe, in spite of all dogmatists, that experience is worth using, and the wider it oan be both in space and in time, the better. Need we say that the founders of the League of Nations are not fanatics advertising a panacea? They knpw as well as any critic that they are fallible men working with imperfect instruments on more or less refractory matter. So far, indeed, as there has been any competent cenisure of the peace treaties or of the Covenant, the exceptions have mostly been taken not to anything alleged to be too! much, but to various things alleged to be too little; not to excess of zeal, hut to lack of courage and faith. There is said to be overmuch compromise and caution, too many 160 THE LEAGUE OF NATIONS. concessions to the old European spirit of selfish amlbition, too little infusion of the new spirit that ie to exoroise it. As it is no part of Our undertaking to weigh these criti- cisms, we can only say that any result arrived at by the composite work of men representing many different interests and opinions must be exposed to censure of this kind; that in many cases the objectors' reasons are likely to be plausible; but that in a large proportion of those cases full knowledge would probably show the actual con- clusion to be the best or the most tolerable one Brttainable here and now. The framers of the Covenant, at any rate, have honestly done their best to profit by both old and recent experience, to seek out the miost promising paths of improvement, and to advance in them as far as oan be safely done at present. THE LEAGUE IN PEACE. 161 CHAPTER VIII. THE LEAGUE IN PEACE. (Treaties, Mandates, Economic Co-operation, Amendments.) Article XVIII. Every treaty or international engagement entered into hereafter by any Member of the League, shall be forthwith registered with the Secretariat and shall as soon as possible be published by it. No such treaty or international engage- ment shall be binding until so registered. " ARTICLES 18 — ^21 describe the new conditions which must govern international agreements if friendship and mutual confidence between peoples are to prevail; the first thTee. provide that all treaties shall be (1) public, (2) liable to reconsideration at the instance of the Assembly, and (3) consonant with the terms of the Covenant. These provisions are of the very first importance." The Commentary further explains why registration is made the one positive condition for the validity of treaties. If their force dated only from publication an uncertain element of delay would be introduced. The express duty of the Secretariat to publish the text as soon as possible will suffice as a precaution against secrecy. The provisions of this group of Articles agree in sub- stance with those of the Draft, but the order and to some extent the wording are varied. p. 11 162 THE LEAGUE OF NATIONS. Article XIX. The Assembly may from time to time advise the reooa- sideration by Members of the League of treaties which have become inapplicable and the consideration of international conditions whose continuance might endanger the peace of the world. "Article 19 should be read together with Article 11," which authorizes every member of the League to call the attention of the Council or the Assembly to conditions appearing likely to endanger the peace. The weakness of these Articles, taken separately or together, is that they do not provide for any systematic revision or consolidation of the law of nations. That is a work which ought to be taken in hand and for which only the' League is competent. Revival of the Hague Conferences in their original form is out of the question. But there is nothing to prevent either the Assembly or the Council from appointing a special commission for this purpose under the very wide powers given by Articles 3 and 4. It should be a permanent commission meeting at stated periods and reporting to the Council. Assuming its reports to be approved by the Council or the Assembly, they would still have to be adopted by the several members of the League in order to become authoritative. We are still a long way from the method suggested by Mr. Taft in 1915, and approved by several other writers. This was to create a competent expert body, under whatever name, for the formulation of international law, and to lay its projects, when approved by the executive of the League, before the constituent governments after the manner of statutory Orders in Council in this country, that is, to THE LEAGUE IN PEACE. 163 take effect unless objection is notified within a certain time. Some publicists went so far as to think that the drafts thus put forward might safely be enacted by a three-fourths majority of States. Unless the League is content to leave international law in its present formless condition (which may be described as a btody of undefined general custom partly consolidated in conventions of various extent and authority received by more or less general ueagie), further provision wiU have to be made in this behalf by the addition of one or more Articles to the Covenant. It is not a matter to be dealt with in haste, and it may well be that in the long run we shall gain by waiting patiently for some years. Mean- while it is rather amusing to look back to the sanguine •expectations of well-meaning publicists who thirty or forty years ago were cheerfully talking of codifying the law of nations without having given any serious attention to the practical difficulties of the undertaking. One or two complete projects of fairly recent date are in print. Article XX. The Members of the League severally agree that this •Covenant is accepted as abrogating all obligations or under- standings inter se which are inconsistent with the terms thereof, and solemnly undertake that they will not hereafter «nter into any engagements inconsistent with the terms thereof. In case any Member of the League shall, before becoming -a Member of the League, have undertaken any obligationsi inconsistent with the terms of this Covenant, it shall be the duty of such Member to take immediate steps to procure its release from such obligations. 11 (2) 164 THE LKAGUE OF NATKJNS. A general clause of this kind was obviously desiriable- even if not strictly necessary. The next following Article indicates in a general way what kinds of international engagements may be deemed consistent with the Covenant. In any case of doubt the proper course of the member or members concerned would be to refer the question to the Council. Article XXI. Nothing' in this Covenant shall be deemed to affect the- validity of international engagements such as treaties of arbitration or regional understandings Uke the Monroe Doctrine for securing the maintenance of peace. Engagements consistent with the Covenant " would in- clude special treaties for compulsory arbitration " — which is a clear case — "and military conventions that are, genuinely defensive." Such a Convention has already been made in two identical treaties between France of the one part and Great Britain and the United States of the other parts (June 28, 1919) (a). It is expressly provided' that the treaty must be submitted to the Council and recognized as an engagement which is consistent with the Covenant of the League. As to the Monroe Doctrine the Commentary says that "at first a principle of American foreign policy, it has become an international understanding, and it is not ille- gitimate for the people of the United States to ask that the Covenant should recognise this fact." It is at least doubtful whether thiis could have been truly said before the war, for German and Austrian publicists always dis- liked the Monroe Doctrine, and often took occasion ta (a) Only tli© Pranoo-British Treaty is ratified so far. THE LEAGUE IN PEACE. 165 speak of it in barely civil or less than civil terms. Else- where, too, there has been a good deal of misconception, and it mjay not be superfluous to recall the elementary facts. " The origin of the Monroe Doctrine is well known. It was proclaimed in 1823 " — not in a diplomatic com- munication, but in a Presidential message to the Congress of the United States — " to prevent America becoming a theatre for the intrigues of European absolutism." Presi- dent Monroe stated in effect that two kinds of action would be regarded as unfriendly by the United States: the settlement of a new colony on American ground by any European Power, and interference by any European Power with the independence of any American common- wealth or its freedom to determine its own form of govern- ment (6). There has not been any later official formula- tion of the doctrine; on the one occasion when it was most applicable, that of Napoleon III.'s ni-axivised attempt to force a monarchical government under an Austrian prince on Mexico, there was no mention of it by name in the protest of the United States, really in the nature of an ultimatum, which made an end of that plan. In fact the diplomatic utterances of the United States have uni- formly avoided the use of any language that might give colour to the charge of pretending to lay down a new rule of international law. As between the United States and Great Britain the case is rather different, for the second and at this day more important branch of the doctrine arose out of a suggestion made by Canning of joint British (6) His actual words will be found in the Appendix below, No. 5. 166 THE LEAGUE OF NATIONS. and American opposition to the Holy Alliance in the matter of the Spanish-American republics, and it seems to have been in great part because of the slownees of communication at that time that there was not a joint or identical manifesto. It may be asked why, in the face of this Articl,e, a certain section of American politicians professes to be stiU uneasy about the Monroe Doctfine. American colleagues can answer that question better than any English com- mentator, and, what is more, without rsiserve. We there- fore leave it in their hands. It is allowable, however, to note the fear expressed by a presumably detached Irish critic that the aim of the anti-Treaty and anti-Covenant agitators in the Republican party is less to secure that the world shall be made safe for democracy than that America shall be made unsafe for the Democrats (c). Article XXII. To those colonies and territories which as a consequence of the late war have ceased to be under the sovereig-nty of the States which formerly governed them and which are inhabited by peoples not yet able to stajid by themselves under the strenuous conditions of the modern world, there should be applied the principle that the well-being and development of such peoples form a sacred trust of civilisa- tion and that securities for the performance of this trust should be embodied in this Covenant.- The best method of giving practical effect to this principle is that the tutelage of such peoples should be entrusted to advanced nations who by reason of their resources, their experience or their geographical position, can best undertake this responsibility, and who are willing to accept it, and that this tutelage should be exercised by them as Mandatories on behalf of- the League. (c) The Irish Statesman, Sept. 13th, 1919, at p. 281. THE LEAGUE IN PEACE. 167, The character of tlie mandate must differ according- to the stage of the development of the people, the geographical situation of the territory, its economic conditions and other similar circumstances. Certain communities formerly belonging- to the Turkish Empire have reached a stage of development where their existence as independent nations can be provisionally re- cognised subject to the rendering of administrative advice and assistance by a Mandatory until such time as they are able to stand alone. The -wishes of these communities must be a principal consideration in the selection of the Manda- tory. Other peoples, especially those of Central Africa, are at such a stage that the Mandatory must be responsible for the administration of the territory under conditions -which -will guarantee freedom of conscience or religion, subject only to the maintenance of pubHo order and morals, the prohibition of abuses such as the slave trade, the arms traffic and the liquor traffic, and the prevention of the establishment of fortifications or military and naval Ijases and of military training of the natives for other than police purposes and the defence of territory, and will also secure equal oppor- tunities for the trade and commerce of other Members of the League. There are territories, such as South-West Africa and cer- tain of the South Pacific Islands, which, owing to the sparseness of their population, or their small size, or their remoteness from the centres of civilisation, or their geo- graphical contiguity to the territory of the Mandatory, and other circumstances, can be best administered under the laws of the Mandatory as integral portions of its territory, subject to the safeguards above mentioned in the interests of the indigenous population. In every case of mandate, the Mandatory shall render to the Council an annual report in reference to the territory, committed to its charge. The degree of authority, control, or adminiistration to be exercised by the Mancfetory shall, if not previously agreed upon by the Members of the League, be explicitly defined in each case by the Council. A permanent Commission shall be constituted to receive and examine the annual reports of the Mandatories and to advise the Council on all matters relating to the observance of the mandates. 168 THE LEAGUE OF NATIONS. This Article creates a sphere of activity for the League extending far beyond anything that was contemplated in ^rlier projects. European troubles will have to be quieted before it can come into full operation, but the Parliament of the South African Union has already accepted a man- date for the late German colony of South- West Africa. Little is to be found in earlier publications on the subject that bears on the importance of the League's ad- ministrative work in time of peace. Gen. Smuts pointed to it, in advance though not much in advance of the Paris Conference, in words that merit special citation (p. 8 of his pamphlet): "An attempt will be made in this sketch to give an essential extension to the functions of the League; indeed to look upon the League from a very different point of view, to view it not only as a possible means for prevent- ing future wars, but much more as a great organ ocf the ordinary peaceful life of civilisation, as the foundation of the new international system which vrill be ereoted on the ruins of this war, and as the starting point from which the peace arrangements .... It is not sufficient for the League to be merely a sort of deus ex tnachina, called in in very grave emergencies when the spectre of war appears; if it is to last, it must be much more. It muet become part and parcel of the common international life of States, it must be an ever visible, living, working organ of the polity of civilisation. It must function so strongly in the ordinary peaceful intercourse of States that it becomes irresistible in their disputes; its peace activity must be the foundation and guarantee of its war power." THE LEAGUE IN PEACE. 169 He went on to deal at some length, and much on the lines adopted in the Covenant, with the government and protection of populations not oapiable of self-government. I do not find any clear forecast of the still wider under- takings contemplated in Art. 23. The official Commentary has very little to say here, for the sufficient reason that the causes and the intention of the novel institution are set forth in the text itself. Only, the last three paragraphs of this unusually full Article are really operative enactments; the most important of these is the requirement of an annual report to the Council from every mandatory authority. We say authority, not State; the possibility of a mandate being exercised by a joint commission in the name of more than one Power does not appear to be excluded, although such an arrange- ment would be desirable and workable only in some very special case. Some persons may fear that a mandatory State will be ' exposed to officious intermeddlingpn the partof the League. Any one who is acquainted with the relations 'between the Colonial Office and our Crown Colonies may be apt to think that the danger is the other way, and that one duty of the Secretary-General will be to prevent the annual reports and the advice of the commission charged to exa- mine them from degenerating into a perfunctory routine. Unless the Secretariat of the League is very unlike all other official departments all over the world, its tempta- tion will be to keep its papers in order with as little trouble as possible, not to ask inconvenient questions, and not to interfere until the necessity for interference is 170 THE LEAGUE OF NATIONS. urgent {d). " Avant tout on ne veut pas d'histoires," the- French say with a conciseness we cannot match. I know of one case in which a long series of complaints, not very clearly or skilfully formulated, led to a commission being sent out to report on the administration of justice in a. small Crown Colony. When that commission came into touch with the facts on the spot, it found the complaints, more than justified on all material points. Indeed there was not too much time to save the colony from ruin. Action was effective enough in that case when taken, for the result was a cleaai sweep of the whole judicial estab- lishment. The intelligence departmetnt of the League must see to it that things do not come to such a pass in any of the territories put under mandates. Article XXIII. Subject to and in accordance with the provisions of inter- national conventions existing or hereafter to be agreed upon,, the Members of the League — (a) will endeavour to secure and maintain fair and humane conditions of labour for men, women and children both in their own countries and in all countries to- which their commercial and industrial relations ex- tend, and for that purpose will establish and main- tain the necessary international organisations; (b) undertake to secure just treatment of the native in- habitants of territories under their control; (c) will entrust the League with the general supervision over the execution of agreements with regard to the traffic in women and children, and the traffic in opium and other dangerous drugs; {d) This does not apply without qualification to the class known as " spending departments "; but their peculiar activity does not. concern us hers, and on the clerical side of even those depart- ments the desire of complete formal accuracy too often comes, before practical ntiUty. THE LEAGUE IN PEACE. 171 (d) •will entrust the League with the general supei'vision of the trade in arms and ammunition with the countries in which the control of this traffic is neces- sary in the common interest; (e) will make provision to secure and maintain freedom of communications and of transit and equitable treatment for the commerce of all Members of the League. In this connection, the special necessities of the regions devastated during the war of 1914 — 1918 shall be borne in mind; (f) will endeavour to take steps in matters of international concern for the prevention and control of disease. Here we have an even wider extension of the League's competenoe and activity than in the preceding Articlei. It is believed to be due to Continental publicists, but we have not been able to trace its origin . There is a roughly similar but much less developed Article in the German project which will be found in the Appendix. The corresponding provisions of the Draft were less full, but contained an agreement " to establish as part of the organisation of the League a permanent Bureau of Labour" which is not here, but is replaced by the more elastic words "the necessary national organisations." A single Bureau, it seems to be thought, would not suffice for the objects of par. (a), much less for those of the whole Article. The lines on which this Article, especially par. (a), is to be worked out were to some extent disclosed at the General Labour Conference held at Washington in November, 1919, which was in close touch with the League though not formally under its authority. FuU accounts are not yet accessible, but the results are known to be considerable. The great political importance of Articles 22 and 23^ 172 THE LEAGUE OF NATIONS. in addition to the positive benefits to be expected from their application, is that they make the nations of the civilized world active partners iii a large field of humane undertakings unconnected with any immediate danger of war. In its very birth the League has outgrown and dis- carded the narrow conception of it as a merely negative system of mutual insurance; and this without any dero- gation from the independence of the member States. There is nothing in either of these Articles whereby an unwilling Power can be compelled to undertake any specific task which it finds repugnant or even inconvenient. Intimate counsel and free co-operation are the methods proposed. It would be foolish not to be prepared for occasional disappointment. The leagued Powers are a squadron limited to a speed at which they can keep com- pany. But if the temper of sincere endeavour is main- tained, and the due measure of patience and tact is not wanting, there is no assignable end to the fruit of good works which these Articles may bring forth. Article XXIV. There shall be placed under the direction of the Leagiie all international bureaux already established by general treaties if the parties to such treaties consent. All such, international bureaux and all commissions for the regula- tion of matters of international interest hereafter constituted' shall be placed under the direction of the League. In all matters of international interest which are regulated by general conventions but which are not placed under the control of international bureaux or commissions, the Secre- tariat of the League shall, subjedt to the consent of the Council and if desired by the parties, collect and distribute all relevant information and shall render any other assistance which may be necessary or desirable. THE LEAGUE IN PEACK. 173 The Council may include as part of the expenses of the Secretariat the expenses of any bureau or oommission which is placed under the direction of the Lesigue. Something has been said above (p. 81) of the various international administrative and regulative bodies already organized and at work under a number of Conventions. All these wiU now be brought into touch under the common direction of the Leaigue. Here again the Secre- tariat has an ample field of occupation quite beyond and apart from the League's primary object of preventing war. Article XXV. The Members of the League agree to encourage and pro- mote the establishment and co-operation of duly authorised voluntary national Bed Cross organisations having as pur- poses the improvement of health, the prevention of disease and the mitigation of suffering throughout the world. This is a profitable suppleimentary Article of which the effect is to enlist the medical profession throughout the world in aid of the League's efforts for the welfaje of humanity. Specific comment on the methods of working it out is a matter for experts of that profession rather than for lawyers and publicists. Article XXVI. Amendments to this Covenant will take effect when ratified by the Members of the League whose Representatives oom- pose the Council and by a majority, of the Members of the- League whose Representatives compose the Assembly. No such amendment shall bind any Member of the League ■which signifies its dissent therefrom, but in that case it shall oease to be a Member of the League. Under this Article amendments can be carried only by a majority of the members constituting the Assembly on the unanimous recommendation of the Powers represented 174 THE LEAGUE OF NATIONS. oji the Council. This is ample security against haste or surprise. Nevertheless it seems far from unlikely that the Covenant, like the Constitution of the United States, may be supplemented by a group of amendments before it is many years old; after which, if the precedent holds, a long period of stability may follow. We have indicated points on which it might be strengthened with advantage, and others will probably be disclosed. So far as the word- ing goes, it will be observed that an amendment might be framed and enacted by direct negotiation among the con- stituent Powers without any formal meeting of the Council or the Assembly, but it cannot be supposed that such will be the practice. Presumably the intention is to make it clear that the consent of the Powers represented at a pai'ticular meeting of the Council, or a majority of those represented at a particular meeting of the Assembly, would not suffice. The Draft required a three-fourths majority of the Powers represented in the Assembly; this was thought on revision to be an excess of caution, as the leading Powers have to be unanimous. ANNEX TO THE COVENANT. 1. Original Members of the League op Nations. Signatories op the Treaty op Peace (e). United States of British Empire. China. America. Canada. Cuba Belgium. l^utAfrica. Czecho-Slovakia. liolivia. j^g^ Zealand. Ecuador. Brazil. India. Prance. (e) Belgium, Brazil, the British Empire and Dominions, France, Italy, Japan, Peru and Uruguay have ratified the Treaty. (Jreece is waiting, to ratify all the peace Ijreaties together. THli LEAGUE IN PKACE. 175 •Greece. Japan. Portugal. -Guatemala. Liberia. Roumania. Haiti. Nicara^a, Serbia. Hedjaz. Panama. Siam. Honduras. Peru. Uruguay. Italy. Poland. States Invited to Accede to the Covenant. *Argentine Netherlands. ♦Spain. Eepublie. Norway. Sweden. *Chile. *Paraguay. Switzerland, Colombia. *Persia. Venezuela. Denmark. Salvador. The States whose names are thus * marked have in substance joined the League. Their adhesion will be formally complete when the Treaty comfes into force. With regard to the rest their acoession is understood to be, with few exceptions if any, subject only to tho delay necessary, for satisfying legislative and oonstitutional requirements. The nations of the world stand at the parting of the ways. Temporary delays notwithstanding, the States joined in this League and Covenant will soon dispose of a greater collective power of counsel, united action, persuasion, and in the last resort enforced control, than has ever yet been in the hands of mortal rulers. Will the people and the leaders rise to the height of their great endeavour, or will they suffer ambition, greed, and anvy to drag them down and renew the bad old days of strife in even more ruinous forms? Will the wise men of the future say of the leaders in action, as Alfred Lyall's Indian ascetic said: Is it a god or a king that comes. Both are evil and both are strong? 176 THE LEAGUE OF NATIONS. Or will he deem them -worthy of the blessing invoked by the Psalmist on the just king? " Specie tua et pulchri- tudine tua intende, prospere prooede, et regna, propter veritatem, et mansuetudinem, et iustitiam: et deducet te mirabiliter dextera tua." " Because of truth, meekness and righteousness." That is the spirit in which the League of Natiohs must go forward if it is to earn the blessing. A constant will for justice even to the unjust is the first thing needful; next, perseverance in well-doing; ability for planning and means for execution are not wanting. Good will and perseverance being assured, both actors and spectators in so great a matter will still have need of patience. If they are oppressed by the sight of the war-clouds still lowering over sundry regions, let them recall the words of a wise Englishman, John Selden: " Though we had peace, yet 'twill be a great while ere things be settled: though the wind lie, yet after a storm the sea will work a great while." And if they are cast down by the failure of the Covenant to satisfy the whole world at once, or to realize in a few months the completion of tasks that former generations did not find it possible even to begin, let them take heart from the saying of Colbert, a great French man of affairs: "II ne faut jamais se mettre dans I'eisprit que oe que Ton fait est parfait. Mais il faut toujours chercher a avancer pour approcher de la perfection, qu'on ne trouve jamais." All human endeavour is subject to disappointment; never- theless, if honest and competent, it seldom whoUy fails, and an undertaking of unexampled scope and unbounded opportunities deserves endeavour of the best. ( 177 ) APPENDIX I. DKAFT AGREEMENT FOR A LEAGUE OE NATIONS. Presented to the Plenary Inter- Allied Conference OF February 14, 1919. COVENANT. Preamble. In order to promote intematioaal oo-operatioa aad to secure intematioaal peace and security by the acceptance of obligations not to resort to war, by the prescription of open, just and honourable relations between nations, by the firm; establishment of the understandings of international laiwt as the actual rule of conduct among governments, and by the maintenance of justice and a scrupulous respect for aU treaty obligations in the dealings of organised peoples with one another, the Powers signatory to this Covenant adopt this constitution of the League of Nations. Article 1. The action of the High Contracting Parties under the terms of this Covenant shall be effected through the instru- mentality of meetings of a Body of Delegates representing the High Contracting Parties, of meetings at more frequent intervale of an Executive Council, and of a permanent inter- national Secretariat to be established at the Seat of the jue. 12 178 THE LEAGUE OF NATIONS. Article 2. Meetings, of the Body of Delegates shall be held at stated intervals and from time to time as occasion may require for the purpose of dealing with matters within the sphere of action of the League. Meetings oi. the Body of Delegates shall be held at the Seat of the League, or at sudi other place as may be found convenient, and shall consis^; of representatives of the High Contracting Parties. Each of the High Contracting Parties shall have one vote, but may have not more than three representatives. Article 3. The Executive Council shall consist of representatives of the United States of America, the British Empire, France, Italy, and Japan, together with representatives of four other States, members of the League. The selection of these four States shall be made by the Body of Delelgates on such principles and in such manner as they think fit. Pending the appointment of these representatives of the other States, representatives of shall be members of the Executive Council. Meetii^s of the Council shall be held from time to time as occasion, may require, and at least onoe a year at whatever place may be decided on, or failing any such decision, at the Seat of the League, and any matter within the sphere of action of the League or affecting the peace of the world may be dealt with at such meetings. Invitations shall be sent to any Power to attend a meeting of the Council at which matters directly affecting its inte- rests are to be discussed, and no decision taken at any meeting will be binding on such Power unless so invited. Article 4. AH matters of procedure at meetings of the Body of Delegates or the Executive Council, including the appoint- ment of committees, to investigate particular matters, shall APPENDIX I. 179 1)6 regulated by the Body of Del^ates or the Executive 'Council, and may be decided by a majority of the States' represented at the meeting. The first meeting of the Body of Delegates and of the Executive Council shall be summoned by the President of the United States of America. Article 5. The permanent Secretariat of the League shall be estab- lished at which shall constitute the Seat of the Lea^e. The Secretariat shall comprise such secretaries and staff as may be required, under the general direction and control of a Secretary-General of the League, who shall be chosen by the Executive Council; the Secretariat shall be appointed by the Secretary-General, subject to confirmation by the Executive Council. The Secretary-General shall act in that capacity at all meetings of the Body of Delegates «r of the Executive Council. The expenses of the Secretariat shall be borne by the States members of the League in accordance with the apportionment of the expenses of the International Bureau •of the Universal Postal Union. Article 6. Eepresentatives of the High Contracting Parties and ■officials of the League when engaged on the business of the League shall enjoy diplomatic privileges and immu- nities, and the buildings occupied by the League or itsi oflieials or by representatives attending its meetings shall enjoy the benefits of extraterritoriality. Article 7. Admission to the League of States not signatories to the Covenant and not named in the Protocol hereto as States to be invited to adhere to the Covenant, reqidres the assent of 12(2) 180 THE LEAGUE OF NATIONS. not leas thaa two-thirds of the States represented in the- Body of Delegates, and shall be limited to fully self-govern- ing countries, including Dominions and Colonies. No State shall be admitted to the League unless it is able to give effective guarantees of its sincere intention to observe its international obligations, and unless it shall conform to such principles as may be prescribed by the League in regard to its naval and military forces and armaments. Article 8. The High Contracting Parties recognise the principle that the maintenance of peace will require the reduction of national .armaments to the lowest point consistent with national safety and the enforcement by cominon action of international obligations, having special regard to the geo- graphical situation and circumstances of each State; and the Executive Council shall formulate plans for effecting such reduction. The Executive Council shall also determine for the consideration and action of the several Governments what military equipment and armament is fair and reason- able in proportion to the scale of forces laid down in the progrsjnme of disarmament; and these limits, when adopted,, shall not be exceeded without the permission of the Exe- cutive Council. The High Contracting Parties agree that the manufacture by private enterprise of munitions and implements of war lends itself to grave objections, and ^direct the Executive- Council to advise how the evil effects attendant upon such manufacture can be prevented, due regard being had ,to the necessities of those countries which are not able to manu- facture for themselves the munitions and implements of war necessary for their safety. The High Contracting Parties xmdertake in no way to conceal from each other the condition of such of their in- dustries as are capable of being adapted to warKke purposes or the scale of their armaments, and agree that there shall APPKNDIX I. 181 be full and frank interchange of information as to their military and naval programmes. Aeticle 9. A permanent Commission shall be constituted to advise the League on the execution of the provisions of Artiele 8 and on military and naval questions generally. Ae-ticle 10. The High Contracting. Parties undertake to respect and preserve as against external aggression the territorial in- tegrity and existing political independence of all Statea members of the League. In case of any such aggression' or in case of any threat or danger of eudh aggression the Executive Council shall advise upon Ijhe means by which this obligation shall be fulfilled. Aeticle 11. Any, •war or threat of war, whether immediately affecting' ■any of the High Contracting Parties or not, is hereby de,' clared! ja matter of concern to the League, and the High Contraoting Parties reserve the right to take any action that may be deemed wise and effectual to safeguard the peace of nations. It is hereby also declared and agreed to be the friendJy, right of each of the High Contracting Parties to draw the attention of the Body of Delegates or of the Executive Council to any circumstances affecting international inter- course which threaten to disturb international peace or the good understanding between nations upon which peace depends. / Article 12. The High Contracting Parties agree that should disputes arise between them which cannot be adjusted by the ordi- nary processes of diplomacy, they will in no case resort ta ■wax without previously submitting the questions and matters 182 THE LEAGUE OF NATIONS. involved either to arbitratioa or to inquiry by the Executive- Council and until three months after the award by the arbi- trators or a recommendation by the Executive Council; and that they wiU not even then resort .jio war as against a» member of the League which complies with the award of the arbitrators or the reoomtaendation of 'the • Executive Council. In any case under this article, the award of the arbitrators shall be made within a reasonable time, and the recommen- dation of the Executive Council shall be made within six months after the submission of the dispute. Article 13. The High Contracting Parties ag'ree that whenever any dispute or difficulty shall arise between them which they recognise to be suitable for submission to arbitration and which cannot be satisfactorily settled by diplomacy, they will submit the whole subject matter to arbitration. For this purpose the Court of arbitration to which the case is- referred shall be the Court agreed on by the parties or stipulated in any Convention existing' between them. The High Contracting Parties agree that they will carry out in fuU good faith any award that may be rendered. In the event of any failure to carry out the award, the Executive Council shall propose what steps can best be taken to give effect thereto. Article 14. The Executive Council shall formulate plans for the establishment of a Permanent Court of International Justice and this Court shall, when established, be competent to hear and determine any matter which the parties recognise as suitable for submission to it for arbitration under the foregoing article. Article 15. If there should arise between States members of tha League any dispute likely to lead to a rupture, whidi is APPENDIX I. 183 not submitted to arbitration as above, the High Contracting- Parties agree that they will refer the matter to the Execu- tive Council; either party to the dispute may give notice of the existence of the dispute to ,the Secretary-General, who will make all necessary arrangements for a full in- vestigation and consideration thereof. jPbr this purpose the parties agree tp communicate to the Secretary-General, as promptly as possible, statements of their case with all the relevant facts and papers, land the Execxi,tive Council may forthwith direct the publication thereof. Where the efforts of the Council lead to the settlenuent of the dispute, a statement shall be published indicatinjg the nature of the dispute and the tennis of settlem;ent, together with such explanations as |may be appropriate. If the dispute has not been settled, ,a report by the Council shall be published, setting forth with all necessary facts and explanations the reoominendation which the Council think just and proper for the settlement of the dispute. ► If the report is unanimously agreed to by the members of the Council other than the parties to the dispute, the High Contracting Parties agree that they will not go to war with any party which complies with the recomjnendation and that, if any party shaJI refuse so to oompty, the Council shall propose the measures necessary to give effect to tlie recommendation. If no such unanimous report can be made, it shaU. be the duty of the majority and the privilege of the minority to issue statemjents indioating what tliey believe to be th© facts' and containing the reoommendations which they consider to be just and proper. The Executive Council may in any case under this article refer the dispute to the Body of Delegate®. The dispute shall be so referred at the request of either party to the dispute, provided that such request mlist be made within fourteen days after the submission of the dispute. In any case referred to the Body of Delegates all the provision^ of this article and of article 12 relating to the action end. 184 THE LEAGUE OP NATIONS. powers of the Executive Council shall apply to the action and powers of the Body of Delegates. Article 16. Should any of the High Contracting Parties toeajc or disregard its covenants under article 12, it shall thereby ipso facto he deemed to have committed an act of war against all the other members of the League, which hereby undertake immediately to subject it to the severance of all trade or financial relations, the prohibition of ,aU intercourse between their nationals and the nationals of the covenant- breaking State, and the prevention of all ifinanoial', com- mercial, or personal intercourse between the nationaJls of the covenant-breaiing' State and the nationals of any other State, whether a mein!ber of the League or not. It shall be the duty of the Executive Council in such case to recommend what effective military or naval ; force the members of the League shall severally contribute to the armed forces to be used to protect the covenants of the League. The High Contracting Parties agree, further, that ,tliey, will mutually support one another in the financial and economic measures which are taken under this ^article, in order to minimise the loss and inconvenience resulting from the above measures, and that they will mutually support one another in resisting any special measures aim^' at one of their number by the covenant-breaking State, and that they will afford passage through their territory to the forces of any of the High Contracting Parties who are co-operating to protect the covenants of the LeEigue. Article 17. In the event of disputes between one State member of the Lea^e and another State which is not a member of the League, or between States not members of the League, the High Contracting Parties agree that the State or States APPENDIX I. 185 not members of the League shall be invited to accept the obligations of membership in the League for the purposes ■of such dispute, upon such conditions as the Executive Coun- cil may deem just, and upon aeoeptanoe of any such invita- tion, the above provisions shall be applied with such modi- fications as may be deemed necessary by the League. Upon Buch invitation being given the Executive Council shall immediately institute an inquiry into the eircumstanoes and merits of the dispute and recommend such action as may seem best and' most efEeetual in the circumstances. In the event of a Power so invited' refusing' to accept the obligations of membership in the League for the purposes of such dispute, and taking any action against a State member of the League which in the case of a State member of the League would constitute a breach of article 12, the provisions of article 16 shall be applicable as against the State taking such action. If both parties to the dispute when so invited refuse to accept the obligations of membership in the League for the purposes, of such dispute, the Executive Council may take such action and make such recommendations as wiU pre- vent hostilities aoad will result in the settlement of the •dispute. Article 18. The High Contracting Parties agree that the League shall be entrusted with the general supervision of the trade in arms and ammunition with the countries in which the con- trol of this traffic is necessary in the common interest. Article 19. To those colonies and territories which as a consequence of the late war have ceased to be under the sovereignty of the States which formerly governed' them and which are in- habited by peoples not yet able to stand by themselves under the strenuous conditions of the modern world, there should be applied the principle that the well-being and development of such peoples form a sacred trust of civilisation and that 18d THE LEAGUE OF NATIONS. securities for the performaace of this trust should be em- bodied in the constitution of the League. The best method of giving practical effect to this principle is that the tutelage of such peoples should be entrusted to advanced nations who by reason of their resources, their ex- perience or their geographical position, can best undertake this responsibility, and that this tutelage should be exercised by them as mandatories on behalf of the League. The character of the mandate must diSer according to- the stage of the development of the people, the geographical situation of the territory, its economic conditions and other similar eircumstanoes. Certain communities formerly belonging to the Turkish Empire have reached a stage of development where their exist-ence as independent nations can be provisionally recog- nised subject to the rendering of administrative advice and aesastanee by a mandatory Power until such time as they are able to stand alone. The wishes of these communities must be a principal consideration in the selection of the mandatory Power. Other peoples, especially tliose of Central Africa, are at such a stage that the mandatory must be responsible for the administration of the territory subject to conditions whicli will guarantee freedom of conscience or religion, subject only to the maintenance of public order and morals, the pro- hibition of abuses such as the slave trade, the arms traffic and the liquor traffic, and the prevention of the establishment of fortifications or military and naval bases, and of military training of the natives for other than police purposes, and the defence of territory, and will also secure equal opportunities for the trade and commerce of other members of the League. There are territories, such as South-West Africa and cer- tain of the South Pacific Islands, which, owing to the sparse- ness of their population, or their small size, or their remote- ness from the centres of civilisation, or their geographical contiguity to the mandatory State, and other eircumstanoes, can be best administered under the laws of the mandatory APPENDIX I. ] 87 State as integral portions thereof, subject to tlie safeguards above-mentioned in the interests of tlie indigenous popu- lation. In everj- case of mandate, the mandatory State shall render to the League an annual report in reference to the territory committed to its charge. The degree of authority, control, or administration to be exercised by the mandatory State shall if not previously agreed upon by the High Contracting Parties in each case be explicitly defined by the Executive Council in a special Act or Charter. The High Contracting' Parties further agree to establish at the seat of the League a Mandatory Commission to receive and examine the annual reports of the Mandatory Powers, and to assist the League in ensuring the observance of the terpiis of all mandates. Article 20. The High Contracting Parties will endeavour to secure and maintain fair and humane conditions of labour for men, women, and children, both in their own countries and in all countries to whicih their commercial and industrial relations extend-, and to that end agree to establish as part of the organisation of the League a permanent Bureau of Labour. Article 21. The High Contracting Parties agree that provision shall ^be made through the instrumentality of the League to secure and maintain freedom of transit and equitable treatment for the commerce of all States members of the League, hav- ing in mind, among other things, special arrangements with regard to the necessities of the regions devastated during the war of 1914-1918. Article 22. The High Contracting Parties agree to place under the control of the League all international bureaux already estab- lished by general treaties if the parties to such treaties con- 188 THE LEAGUE OF NATIONS. sent. Furthermore, they agree that all such international bureaux to be constituted in future shall be placed under the control of the League. Aeticle 23. The High Contraoting Parties agree that every treaty or intemational engagement entered into hereafter by any State member of the League shall be forthwith registered with the Secretary-General, and as soon as possible published by him, and that no sudh treaty or international engagement shall be binding until so registered. Article 24. It shall be the right of the Body of Delegates from time to time to advise the reconsideration by States members of the League oi treaties whidh have become ioappHoable, and of international conditions, of whicih the continuance may en- danger the peace of the world. Aeticle 25. The High Contracting Parties severally agree that the present Covenant is accepted as abrogating all obligations inter se whicih are inconsistent with the terms thereof, and eolemnly engage that they will not hereafter enter into any engagements inconsistent with the terms thereof. In case any of the Powers signatory hereto or subsequently admitted to the League shall, before becoming a party to this Covenant, have undertaken any obligations which are inconsistent with the terms of this Covenant, it shall be the duty of such Power to take immediate steps to procure its release from such obligations. Aeticle 26. Amendments to this Covenant will take effect when ratified by the States whose representatives compose the Executive Council and by three-fourths of the States whose representa- tives compose the Body of Delegates. ( 189 APPENDIX II. THE COVENANT OP THE LEAGUE OE NATIONS With a Commentary Thereon. [^oie.— The Covenant of the League of Nations forms Part I of the Draft Treaties of Peace presented to the Delegates of the German Empire at Versailles on May 7, and to those of Austria at Saint-Germain on June 2, 1919. It is provided that these Treaties shall come into force as soon as they have been ratified by Germany and Austria respectively, and by three of the Principal Allied and Associated Powers. The Principal AUied and Associated Powers comprise the United States of America, the British Empire, France, Italy and ■Japan.] The High Contracting Parties, in order to promote inter- national co-operation and to^chieve international peaoe and security by the acoeptanoe of obligations not to resort to war, by the prescription of open, just and, honourable relations between nations, by the firm establishment of the understand- ings of international law as the actual rule of conduct among Governments, and by the maintenanoe of justice and a sca^- pulons respect for all treaty obligations in the dealings of icyrganised peoples with one another, agree to this Covenant of the League of Nations. Article I. The original Members of the League shall be those of the Signatories which are niaaned in the Annex to this Covenant 190 THE LEAGUE OF NATIONS. and also such of those other States najned in the Annex as shall accede without reservation to /this Covenant. Such accession shall be effected by a Declaration deposited with the Secretaiiat within two months of the coming into force of the Covenant. Notice thereof shall be sent to all other Members of the League. Any fully self-governing State, Dominion or Colony not named in the Annex, may become a Member of the League if its admission is agreed to by two-thirds of the Assembly, provided that it shall give effective guarantees of its sincere intention to observe its international obligations, and shall accept such regulations las may be prescribed by the League in regard to its military, naval and air forces and arlmaments. Any Member of the League may, after two years' notice of its intention so to do, withdraw from the' League, provided that all its internationjal obligations and all its obligations under this Covenant shall have been fulfilled at the time of its withdrawal. Article II. The action of the League under this Covenant shall be effected through the instrumentality of an Assembly and ■of a Council, with a permanent Secretariat. Article III. The Assembly shall consist of Eepresentatives of the Members of the League. The Assembly siliall meet at stated intervals and from time to time as occasion may require, at the Seat of the League or at such other place as may be decided upon. The Assembly may deal at its meetings with any matter -within the sphere of action of the League or affecting the peace of the world. At meetings of the Assembly each Member of the League shall have one vote, and may have not more than ^three Representatives . APPENDIX II. 191 Article IV. The Council sliaJl consist of Eepresentatives of the Prin- ■cipal Allied and Associated Powers, together with Repre- sentatives of four other Members of the League. These four Members of the League shall be selected by the Assembly from time to time in its discretion. Until the ajppointment of the Eepresentatives of the four Members •of the League first selected by the Assembly, Representatives of Belgium, Brazil, Greece, and Spain shall be membters ■of the Council. With the approval of the majority of the Assembly, the ■Council may name additional Members of the League whose Representatives shall always be members of the Council; the Council with like approval may increase the number of Members of the League to be selected by the Assembly for representation on the Council. The Cotincil shall meet from time to time as occasion may require, and at least once a year, at the Seat of the League, or at such other plaoe as may be decided upon. The Council may deal at its meetings with any matter within the sphere of action of the League or affeoting the peace of the world. Any Member of the League not represented on the Council shall be invited to send a Representative to sit as a member at any meeting of the Council during the consideration of matters specially affecting the interests of that Member of the League. At meetings of the Council each Member of the League represented on the Council shall have one vote, and may have not more than one Representative. Article V. Except where otherwise expressly provided in this Covenant or by the terms of the present Treaty, decisions at any meeting of the Assembly or of the Council shall re- quire the agreement of all the Members of the League repre- sented at the meeting. 192 THE LEAGUE OF NATIONS. All matters of procedure at meetings of the Assembly or of the Council, including the appointment of oommittees to investigate particular matters, shall be regulated by the As- sembly or by the Council, and may be decided by a majority of the Members of the League represented at the meeting. The first meeting of the Assembly and the first meeting of the Council shall be summoned by the President of the United States of America. Article VI. The permanent Secretariat shall be established at the Seat of the League. The Secretariat shall comprise a Secretary- General and such secretaries and stafE as may be required. The first Secretary-General shall be the person named in the Annex; thereafter the Secretary-General shall be ap- pointed' by the Council with the approval of the majority of the Assembly. The secretaries and stafE of the Secretariat shall be ap- pointed by the Secretary-General with the approval of the Council. The Secretary-General shall act in that capacity at all meetings of the Assembly and of the Council. The expenses of the Secretariat shall be borne by the Members of the League in accordanoe with the apportion- ment of the expenses of the International Bureau of the Uni- versal Postal Union. Article VII. The Seat of the League is established at Geneva. The Council may at any time decide that the Seat of the League shall be established elsewhere. AU positions under or in connection with the League, in- cluding the Secretariat, shall be open equally to men and women. Representatives of the Members of the League and officials of the League when engaged on the business of the League shall enjoy, diplomatic privileges and immunities. : APPENDIX II. 19S The buildings and other property occupied by the League or its ofloicials or by Kepresentatives attending its meetings shall be inviolable. Article VIII. The Members of the League recognise that the main- tenance of peace requires the reduction of national armaments to the lowest point consistent with national safety and the enforcement by common action of international obligations. The Council, taking account of the geogsaphical situation and circumstances of each State, shall formulate plans for such reduction for the consideration and action of the several Grovernments. Such plans shall be subject to reconsideration and revision at least every ten years. After these plans shall have been adopted by the several Governments, the limits of armaments therein fixed shall not be exceeded without the concurrence of the Council. The Members of the Leag;ue agree that the manufacture by private enterprise of munitions and implements of war is open to grave objections. The Council shall advise how the evil effects attendant upon such manufacture can be pre- vented, due regard being had to the neoessities of those Members of the League which are not able to manufacture the munitions and implements of war necessary for their safety. The Members of the League undertake to interchange full and frank information as to the scale of their armaments, their military, naval and air programmes and the condition of such of their industries as are adaptable to war-like purposes. Article IX. A permanent Commission shall be constituted to advise the Council on the execution of the provisions of Artiolee I and VIII, and on military, naval and air questions generally. P. 13 194 THE LEAGUE OF NATIONS. Akticle X. The Members of the League undertake to respect and preserve as against external aggression the territorial in- t^rity and existing political independence of all Members of the League. In case of any such aggression or in case of any threat or danger of such aggression the Council shall advise upon the means by which this obligation shaJI be fulfilled. Article XI. Any war or threat of war, whether immediately alEecting any of the Members of the League or not, is hereby declared a matter of concern to the whole League, and the League shall take any action that may be deemed wise and effectual to saf^uard' the peace of nations. In case any such emer- gency should arise the Secretary-General shall on the request of any Member of the League forthwith summon a meeting of the Council. It is also declared to be the friendly right of each Member of the League to bring to the attention of the Assembly or of the Council any ciroumstance whatever affecting inter- national relations which threatens to disturb international peace or the good understanding between nations upon which peace depends. Article XII. The Members of the League agree that if there should arise between them any dispute likely to lead to a rupture, they will submit the matter either to arbitration or to inquiry by the Council, and they agree in no case to resort to war until three months after tbe award by the arbitrators or the report by the Council. In ahy case under this Article the award of the arbitrators shall be made within a reasonable time, and the report of the Council shall be made within six months after the sub- mission of the dispute. APPENDIX II. 195 Article XIII. The Members of the League agree that whenever any dis- pute shall arise between them which they recognise to be suitable for submission to arbitration and which cannot be satisfactorily settled by diplomacy, they will submit the "whole subject-matter to arbitration. Disputes as to the interpretation of a treaty, as to any ■question of international law, as to the existence of any fact which if established would constitute a breach of any inter- national obligation, or as to the extent and nature of the re- paration to be made for any such breach, are declared to be among those which are generally suitable for submission to -arbitration. For the consideration of any such dispute the court of ■arbitration to which the case is referred shall be the court agreed on by the parties to the dispute or stipulated in any •convention existing between them. The Members of the League agree that they wiU carry out in full good faith any award that may be reMered and that they will not resort to war against a Member of the League which complies therewith. In the event of any failure to carry out such an award, the Council shall pro- pose what steps should be taten to give effect thereto. Article XIV. The Council shall formulate and submit to the Members ■of the League for adoption plans for the establishment of a Permanent Court of International Justice. The Court shall be competent to hear and determine any dispute of an inter- national character which the parties thereto submit to it. The Court may also give an advisory opinion upon any dis- pute or question referred' to it by the Councdl or by the: Assembly. Article XV. If there should arise between Members of the League any dispute Utely to lead to a rupture, which is not submitted 13(2) 196 THE LEAGUE OF NATIONS, to arbitration as above, the Members of the League agree that they -will submit the matter to the Council. Any party to the dispute may effect such submission by giving notioe of the existence of the dispute to the Secretary-General who- will make all necessary arrangements for a full investigation and consideration thereof. For this purpose the parties to the dispufce will com- municate to the Secretary-General, as promptly as possible,, statements of their case with all the relevant facte and papers, and the Council may forthwith direct the publiaation thereof. The Council shall endeavour to effect a settlement of the- dispute, and if such efforts are successful, a statement shall be made public giving such facts and explanations regarding the dispute and the terms of settlement thereof as the Council may deem appropriate. If the dispute is not thus settled, the Council, either un- animously or by a mjajority vote, shall make and publish a report containing a statement of the facts of the dispute and the recommendations which are deemed just and proper in regard thereto. Any Member of the League represented on the Council may make public a statement of the facts of the dispute and of its conclusions regarding the same. If a report by the Council is unanimously agreed to by the members thereof other than the Representatives of one or more of the parties to the dispute, the Members of the League agree that they will not go to war with any party to the dispute which complies with the recommendations of the report. If the Council fails to reach a report iwhioh is unanimously agreed to by the members thereof, other than the Repre- sentatives of one or more of the parties to the dispute, the Members of the League reserve to themselves the right to take such action as they shall consider necessary for the maintenanoe of right and justice. If the dispute between the parties is claimed by que -of APPENDIX It. 197 tliem, and is found by the Council, to arise out of a matter whioh. by international law is solely within the domestic jurisdiction of that party, tiie Council shall so report, and shall make no recommendation as to its settlement. The Council may in any ease under this Article refer the dispute to the Assembly. The dispute shall be so re- ferred at the request of either party to the dispute, pro- vided that such request be made within fourteen days after the submission of the dispute to the Council. In any case referred to the Assiembly, all the provisions of this Article and of Article XII relating to the action and powers of the Council shall apply to the action and powers of the Assembly, provided that a report made by the As- sembly, if conooirred' in by the Representatives of those Members of the League represented on the Council and of a majority of the other Members of the League, exclusive in each case of the Representatives of the parties to the dis- pute, shall have the same force as a report by the Council concurred in by all the members thereof other than the Representatives of one or more of the piarties to the dispute. Article XVI. Should any Member of the League resort to war in dis- regard of its covenants under Articles XII, XIII, or XV, it shall ipso facto be deemed to hiave committed an act of war against all other Members of the League, which hereby undertake immediately to subject it to the severance of all trade or financial relations, the prohibition of all intercourse between their nationals and the nationals of the covenant- breaking State, and the prevention of all financial, com- mercial, or personal intercourse between the nationals of the covenant-breaking State and the nationals of any other State, whether a Member of the Leiague or not. It shall be the duty of the Council in such case to reconi- mend to the several Governments concerned what efieetive military, naval or air force the Members of the League shall 198 THE LEAGUE OF NATIONS. severally contribute to the armed forces to be used to pro- tect the covenants of the League. The Members of the League agree, further, that they will mutually support one another in the financial and economic measures which aie taken under this article, in order tO' minimise the loss and inconvenience resulting from the above measures, and that 'they wiU mutually support one another in resisting any special measures aimed at one of their number by the covenant-breaking State, and that they will take the necessary steps to afford p>assage through their territory to the forces of any of the Members of the League which are co- operating to protect the covenants of the League. Any member of the League wliich has violated any cove- nant of tlie League may be declared to be no longer a Member of "the League by a vote of the Council concurred in by the Efepresentatives of aU the other Members of the League represented thereon. Article XVII. In the event of a dispute between a Member of the League and a State which is not a Member of the League, or be- tween States not Members of the League, the State or States not Members of the League shall be invited to aooept the obligations of membership in the League for the purposes- of such dispute, upon sudi conditions as the Council may deem just. If such invitation is accepted, the provisions of Articles XII to XVI inclusive shall be applied with such modifications as may be deemed necessary by the Council. Upon such invitation being given the Council shall im- mediately institute an inquiry into the circumstances of the dispute and recommend such action 'as may seem best and most effectual in the circumstances. If a State so invited shall refuse to accept the obligations of membership in the League for the purposes of such dispute, and shall resort to war against a Member of the League, the provisions of Article XVI shall be applicable as against the State taking such action. APPENDIX II. 19f> If both parties to the dispute when so invited refuse to aooept the obligations of membership in the League for the purposes of such dispute, the Council may take such measures and make such recommendations as will prevent hostilities and will result in the settlement of the dispute. Article XVIII. Every treaty or international engagement entered into hereafter by any Member of the League shall be forthwith registered with the Secretariat and shall as soon as possible be published by it. No such treaty or international engage- ment shall be binding until so registered. Akticlb XIX. The Assembly may from time to time advise the recon- sideration by Members of the League of treaties which have become inapplicable and the consideration of international conditions whose continuance might endanger the peace of the world. Article XX. The Members of the League severally agree that this Covenant is accepted as abrogating all obligations or under- standings inter se which are inconsistent with the terms thereof, and solemnly undertake that they will not hereafter enter into any engagements inconsistent with the terms thereof. In ease any Member of the League shall, before becoming a Member of the League, have undertaken any obligations inconsistent with the terms of this Covenant, it shall be the duty of such Member to take immediate steps to procure its release from such obligations. Article XXI. Nothing in this Covenant shall be deemed to affect the validity of international engagements such as treaties of aa^bitration or regional understandings like the Monroe Doc- trine for securing the maintenance of peace. 200 THE LEAGUE OF NATIONS. Article XXII. To those colonies and territories -which as a consequence of the late war have ceased to be under the sovereignty of the States which formerly governed them and which are in- habited by peoples not yet able to stand by themselves under the strenuous conditions of the modern world, there should be applied the principle that the well-being and development of such peoples form a sacred trust of civilisation and that eeourities for the performance of this trust should be em- bodied in this Covenant. The best method of giving practical effect to this principle is that the tutelage of such peoples should be entrusted to advanced nations who by reason of their resources, their experience or their geographical position, can best undertake this responsibility, and who are willing to accept it, and that this tutelage should be exercised by them as Mandatories on behalf of the League. The character of the mandate must differ according to the stage of the development of the people, the geographical situation of the territory, its economic conditions and other similar circumstances. Certain communities formerly belonging to the Turkish Empire have reached a stage of development where their existence as independent nations can be provisionally recog- nised subject to the rendering of administrative advice and assistance by a Mandatory until such time as they are able to stand alone. The wishes of these communities must be a principal consideration in the selection of the Mandatory. Other peoples, especially those of Central Africa, are at such a stage that the Mandatory must be responsible for the administration of the territory under conditions which will guarantee freedom of conscience or religion, subject only to the maintenance of public order and morals, the prohi- bition of abuses such as the slave trade, the arms traffic and the liquor traffic, and the prevention of the establishment of fortifications or military and naval bases and of military APPENDIX II. 201 training of the natives for other than police purposes and the defence of territory, and will also secure equal oppor- tunities for the trade and commerce of other Members of the League. There are territories, such as South-West Africa and cer- tain of the South Pacific Islands, which, owing to the sparse- ness of their population, or their small size, or their remote- ness from the centres of civilisation, or their geographical i Net,iil.2s. AVERAGE.— Lowndes' Law of General Average.— Fifth Edition. By E. L. de Haht anii G. E. Rudolf. 1912. II. 16s. BANKING.-Hart's Law of Banking.- Third Edition. 1914. 11. 12s. "The best all-round work on banking law which is jn exist- enoe."- — Vinanoial News. ^ BANKRUPTCY.— Aggs' Handbook on Bankruptcy. 1915~ Net, 4s. Lawrance's Deeds of Arrangement, with Precedents. Eighth Edition. By Sydney E. Williams." 1914. 7s. &3. " Oonoiae, practical, and reliable." — Law Times. Williams' Liaw and Practice in Bankruptcy.— Eleventh Edition. By E. W. Hansell, and M. E, HansellI 1915. ■ IJ. 16s. " The leading text-book on bankruptcy." — Law Journal. BILLS OF EXCHANGE.— Chalmers' Bills of Exchange. Eighth -Edition. % Sie M. D,. Chalmers, K.C.B., C.S.I., and Kenneth Chalmihis. 1919. 11. 10s. CARRIERS.— Carver's Treatise on the Law relating to the Carriaige of Goods by Sea. — Sixth Edition., By James S. Henderson. 1918. 21. 2s. "The standard modem bookoii carriage by sea." — Law (iuoHerl^. Disney's Law of Carriage by Railway.— Fourth Edi- tion. 1915. ,. / 7s. 6«. "Can be cordially recomm&ided to the lawyer," — Law Times. CHANCERV.— Daniell's Chancery Practice.— Eighth Edi- tion. By Sydney E. Williams and F. Guthrie-Smith. 2 vols. 1914. 51. 5s Daniell's Chancery Forms and Precedents.-^Sixtt. Edition. By R. White, F. E, W. Nkhoj-s and H. 0-.. Garrett. 1914; 21. 10s.' " The two volumes on Practice and the one ^volume' of Form^ constitute together a most valuable work on the practice of the Chancery Division." — Lnw Quarterly Bevieiw. COLLISIONS AT SEA.— Marsden's Collisions at Sea.— Seventh Edition. By Marcus W. Slai^e. 1919-. ll.lBs^ "Indispensable for Admiralty praotitioners."^ — Law Journal. COMPANY LAW.— Palmer's Company Law. A Praotioal Handbook for Lawyers and Business. Men. Tenth Edi- tion. By Alfred p-. Topham. 1916., Net, 15s. Palmer's Company Precedents.— Eleventh Edition. Part L General Forms. 1912. 21. 10s. Part n. Winding-up Forms aad Practice. 1912. I ■•, - '~ 21. Part III. Debentures and Debenture Stock. 1912. 11. 10s. "Palmer's works on Company Law are all beyond criticisi?i." — Law Magatina. COMPANY LA W-o(m«nuea. ; Palmer's Private Companies.— Fortieth Edition. 1918. Net, Is, Palmer's Shareholders', Directors', and Voluntary ,- Liquidators' Legal Companion.— Thirtieth. Editrdn. 1919.. _ , .Net,2s.Gd. CONSTITUTIONAL LAW.— Ridges' Constitutipnal Law of England.— Second Edition. 1915. ^?**ti CONTRACTS.— Addison's Law of Contracts.-^Eleventh Edition. By "W, E. ^oedon and J. EiTGHiB. 1911. . y 2l.2s. "Among all the works on Contracts, there is none more useful to the praotitioner than Addison." — Law Timet. Leake's Principles of the Law of Contracts, — Sixth Edition. By A. E. Randall. 1911. 11. 18s. *'A full and reliable guide to_the principles of the English -liaw of Contract.'' — Law Journal. , Pollock's Principles of Contract. — Eighth Edition. 1911. .. i;. 12s. '"Phere is no book on the English Law of Contract which deals 80 lucidly and yot so comprehensively as this." — Law Jourhal. CONVEYANCING. — Armitage's Short Conveyancing Forms. 1918. Net, 12s. §d., Prideaux's Forms and Precedents in Conveyancing. Twenty-^st Edition. By B. L. CtrisHRy and R. Bed- DiNGTON. 2 vols. 1913. ' Net, 4?. 4s. "'PridOaux" is the best wort on Conveyancing." — Law Jourrud.. ^ ' , ' * ■ \ \ COVENANTS.— Wurtzburg's Law relating to Covenants for the Settlement of a Wife's After-acquired Pro- perty.— 1912. " . , 5s. CRIMINAL LAW. — Archbold on Indictments. -With Forms. By H. D. Roome. 1916. 10s. 6rf. Archbold's Pleading, Evidence and Practice in Criminal Cases.— Twenty-fifth Edition. By H. D. Roome and |l. E. Ross., 1918. -^ Net, 21. 2s. ■ ; Denman's Digest of Criminal Law. — Second Edition. ; 1918., Net; 11. 5s. Russell's Treatise. on Crimes and Misdemeanors.— Seventh Edition. By W. F. Ckaies and L. Y[- Km&- ^HAW. 3 vols. 1909. , 4Z. 10s. " Indispensable in every Court of criminal jostioe here and in our ooknues." — J*** Ttrnw. DEATH DUTIES.— Webster-Br«wn*sv Finance Acts.— (Estate and other Death Duties.) Third Edition. 1915. , 12s. 6^. "Oontains muph piaotical advice which will be of substa&tial assistance to pr^ittdnefs," — The Times. DIARY.^The Lawyer's Comjian^ion and Diary, 1920. {NoM-ly ready.) ' Net, is. 6d. to IQs. DICTIONARY.— Wharton's Law Lexicon.— Twelfth Edi- tion. By E. A. WuiTZBURG. 1916. ' " 21. 10s. , "The moat useful of legal ,*6rks." — Law Journal. The Pocket Law Lexicon.— Fourth Edition. 1905. ^' / . •", ',: ,'■ ; ,.'' ■" : , 'Net, 6s. %d. i; "A wonderful little 1^41 dictionary." — Law Students' Journal, < DIGEST.— Mews' Digest , to ^nd of 1920. Net, 14?. , Full-PdlirUiMiafs on appUcation. DIVORCE,— Browne and Watts' Law and Practice in Divorce and Matrimonial Causes. — Eighth Edition. o. By J. H. Watts. 1913. 'i ;, Net, 11. 8s. • !.7;;;,'; " The jraotitioinor'a standard work on divoroe praotipe.^'- — Law S\.'i;< Quarterly Review. EASEMENTS.— Goddard's Treatise on the Law of Ease- ments. — Seventh Edition. 1910. ', ■ 1^ 10s., "Nowhere has the subject been treated so eihaiisfivfely." — Law ' Times. ^. , ^ ' '-■'■'-.. Innes' digest of the Law of Easements.— Eighi^ Edi- tion.', 1911, , is.-ed. " The student will flnd in it everything that he wants, while the , ^ , ' pra(>titioner wUl be jgla^, tg hive so safe and comprehensive a guide."— iow Journal. >, ' ELECTIONS.— Rogers' Parliamentary Elections and PetitionsJ— Nineteenth Edition. 1918. Net, 11. 5s. EQUITY.— Seton's Forms of Judgments and Orders. With Practical- Notes. Seventh Edition. By A. R. Ingpen, K.C, p. T. BL(»i:AM ,and H. G. GaUrett. 3 vols. 1912., ' felisSta 6Z. "A most valuable and Indispensable woi^.^^^^H Journal, Smith's ^Practical Exposition of tne^Ptinciiples of Equify.—Fifth, Edition. 1914. \ - 2is.' "Useful tb both practitioner and student aiike:"—rLay> Stu- dents' Joufnal. , ' EVIDENCE.— Holt's Outline of the Rules of Evidence.-^ 1917. ' . ' ■ Net, is: Tregartheh's Law of Hearsay Evidence.-*-i9l5. '■ J ^- '''■ . ' '''; '":-':.■-' . ■ _. . ^.NiSt;:.?S.' "An elaborate and detailed ,aodoun;t of a viery imperfeetly-. understood topidi" — Law Qfiarterlj/ Seview. ' i ,' ,■ Watson's Law of Evrdence.— 1917. , Net^ 12s. 6d. EXCESS PROFITS.— Sutcliffe's Excess Profits Duty and the Cases Decided thereon. 1919. 7s.Gd: t EXEGUTOHS.f-lngpen's Law relating to Executors and 'V Administrators.r^Secoad ^Editioa. 1914. Net, 11. 5s. " The book iflf,y be reoonmiendedj with oojafldence, as aoonrate, practical, and learned. "-^Zow Quartetily Beview. ^ FORMS.— Bpwstead's Collection, of Forms and Prece ' dents other than Cbnveyanoing, Company, Local Govern, m&nt and Practice Forms.— 2 vok. 1914. Net, lil. 10s. "An indJBpenBable adjunct to every praotising lawyer's library." — Law Journcd. Chitty's Forms of' Civil Proceedings in the King's Bench Division .—Fourteenth Edition. By T. W. Chitty, E. H. Chapman and p. Clakk. 1912. -21,10$ " An indispensable adjunct to every working lawyer's library." — Law Journal. ■ , Dariiell's Chancery Forms and Precedents.— Si^th Edition. By R. Whitb, Fi E. W; Nichols and H. G. GabbStt. 1914. 2Z. 10«, "The standard 'Work on Ohancery ProoeduTe."--i Quarterly Review. ^HIRE-PURCHASE SYSTEM.-Russell's Practical Manual of Hire^Trade. Law.— Fifth, Edition. 1914. la.U. "The book-. IB ifuU- of praetioiil siiggestlai)^."— SoZtaifioy*' Jowrtud. , i INCOME XyiLX.—Ag^s' Income Jax Act, 1918. With FuU Notes and an Litrpduction and Indeix. 1919. Net, 12s. &d, INSURANCE.— Arnould on the Law of Marine Insurance and Average.— Ninth Edition. . By E. L. db Habt and R. I. Simey. , 2 vols.. 1914. , ' ,4Z. 4«. "Arnould's/ Marine Insurance' is recognised, ijlcoqghont thta British Empire and the United States as a stauflard work of . almoet judicial authority. "^iau' Journal. ' ~ ' Stone's Irisuritnce and Workmen's Compensation Cases.— a vols. i9l4. . Net, 21. 2s. "A very valuable bpnipendiuin of the case law of insurance." — Solieitor^ Journal. INTERNATIONAL LAW.^Anthonis' Sanctions of Inter- national Law. U917. ^ Net, Is. Wheaton's Elements of International Law.— Fifth English Edition. By Coleman Phillipson, LL.D. .With an Introduotiop by the Slight Hon. Sir Frederick Pollock, Bart., D.O.L,, I^L.D. 1916. . %l. "Wheaton stands too high for oritieism."— Cow Timet. • LAND VALUES^Napier's New Land Taxes and their Practical Application.— Secoad Edition. 1912. 11. Is. " Napier's explanatory summary of the new taxatioji and his notes on the sections are admiraole." — Lmu Quarterly Reviaw. LANDLORD AND TENANT.— Woodfall's Law of Land- lord and Tenant, — Nineteenth Edition. By W. Han- bury AsGS. 1912. ' i •2!. 2s. " Wopd.f all is really indispensable to the practising lawyer, of. whatever degree he may be." — Law Journal. LAW LIST, 1919. Net, 10s. &d. LEADING CASES.— Caporn's Selected Cases on the Law oif Contracts. — Second Edition. 1914. 15s. Petrides' Student's Cases, illustrative of all branches of the Law. 1910. - , 12s. %d. *<( The cases appetur to be well chosen and correctly stated." — SoUoitors^ Journal. Randall's- Selection of Leading Cases in Equity.— 1912. , , 10s. ^d. "One of the foremost, if not the best, of Equitjr case books." — ' Imw Student^ Journal. Shirley's Selection of Leading Cases in the Common "Law.— Ninth Edition. By R. Watson.' 1913. 18s. " The eelectiom is very large, though allare distinctly ' Xieading Cases,' and tile notes are 'by no means the least meritorious part of the work." — -ija/w Journal. LEGAL HISTORY.— Deans' Student's Legal History.-r Third Edition. 1913\ 10s. '" There is no better short introduction to the study of the law." — Imw Notet. 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