VIII

THE TREATY IN THE SENATE 1

WHY THE PARIS COVENANT CANNOT BE AMENDED WITHOUT POSTPONING THE PEACE THE WORLD NEEDS

IF Section I of the treaty with Germany, being the Covenant of the League, is amended by the Senate, neither the treaty as a whole nor any of its provisions can become effective either to restore peace or for any other purpose until it has been ratified in its amended form by all of the signatory nations.

Late dispatches indicate that the treaty provides that it will become operative when signed by Germany and three of the principal allied powers. Thus, after Germany shall have signed the treaty, Great Britain, France and Japan or Italy, by ratifying it, will immediately be able to enjoy the advantages of a resumption of their commercial activities under peace conditions, while our enjoyment of the same advantages will be delayed until amendments made by the Senate shall have been formally accepted by all of the signatories. Not only would such delay prevent us from engaging in international trade on equal terms with the nations signing the treaty, but our internal trade would continue to be shackled by such things as the fixing of prices of wheat and other commodities, the necessity for obtaining freight and shipping licenses, the activities of the Alien Property Custodian, and other like restrictions, most of which under the law remain effective until a state of peace has been proclaimed by the President.

1 Paper reprinted from an article published in the New York Times of May 30, 1919.

THE WAR CANNOT BE ENDED BY JOINT RESOLUTION BY

CONGRESS

It has been suggested that because Congress has power to declare war it has, by necessary inference, the power to end it by joint resolution. Such a theory is based on an interpretation of the distribution of powers under the Constitution contrary to all precedent, is inadmissible upon any reasonable theory of implied powers, and is contrary to uniform historical practice.

The war has required the regulation, and, to a greater or less extent, the requisitioning of a large part of the industrial and transportation facilities of the nation. Personal and property interests and contract rights of an infinite variety and involving immense sums of money, are governed by special rules of law applicable during a state of war and by numerous special war measures, and these cannot be put on a definite legal peace basis except by a formal treaty. Indeed, some of the war statutes provide that their provisions shall remain effective until the ratification of a treaty of peace, and others until peace shall be proclaimed by the President; and important private contracts frequently provide that their obligations shall, or may, at the option of the parties, be terminated upon such ratification or proclamation. A peace treaty can only be ratified in the constitutional manner, and it is absurd to suppose that the President would proclaim it before such ratification. If Congress should attempt by joint resolution to declare that peace had been restored, such a condition of doubt and confusion concerning a multitude of transactions legally affected by the war would be created, that there would be brought down on the heads of Congressmen such uni

versal condemnation that we are safe in assuming that the suggestion for such action will never be treated seriously.

HOW AN AMENDMENT TO THE COVENANT WILL AFFECT THE REST OF THE TREATY

The treaty with Germany is made by the twentyseven allied and associated nations. It forms a large book, containing fifteen sections or chapters, the first of which is the Covenant of the League of Nations. The Covenant and many of the provisions of the other sections are interdependent.

The much-discussed Article X of the Covenant binds all members to preserve "as against external aggression the territorial integrity and existing political independence of all the members of the League." This article has for its chief purpose the preservation of the seven new European nations and the four autonomous nations in the Near East created by the treaty; and it is the only provision of the treaty which effectively gives to the new governments the sanction of the combined support of all of the signatory nations. Its omission or amendment would make a vital change in sections of the treaty other than that containing the Covenant. Furthermore, by those sections important functions are directly vested in the League.

Thus, the League is to create an international commission which is to govern the Saar Basin for fifteen years, and another under which Danzig is to be governed as a free city. If Germany ultimately buys the mines in the Saar Valley from France, the League is to determine the amount of coal to be sold annually to France. In connection with the neutralized zone east of the Rhine, established by the treaty to protect France and Belgium, the League is to question Ger

many at any time concerning a violation of neutrality. It is also to act as a final court in relation to the establishment of the Belgian-German frontier and in disputes as to the Kiel Canal. Under its direction, an international conference on labor is to be held in October, and it is also to establish a permanent organization for the international adjustment of labor conditions. For five years, and under conditions of reciprocity thereafter, ships of the allied powers are, unless the League otherwise decides, to enjoy the same rights in German ports as German vessels. Riparian states on the Danube and other international streams are to enjoy advantages in relation to navigation, subject to an appeal to a special tribunal of the League, which may also arrange for a general international waterways convention.

Thus, it will be perceived, the League is to perform functions of a varied, extensive, and highly important character; and it is idle to talk of separating from the rest of the treaty Section I, by which the League is created, or materially amending its provisions, without dislocating the entire scheme of the treaty and necessitating a resumption of the formal peace negotiations.

WHAT THE SENATE MAY DO

The Senate may, of course, consider the Covenant independently of the rest of the treaty. It may make its own position clear by adopting a preliminary resolution approving all the sections except that containing the Covenant, and it may amend the Covenant or any part of the treaty. Such an amendment may even be the entire omission of the Covenant. But the Senate must ultimately take some definite action upon the entire treaty-amended or unamended. If such action