ment. But this is by no means the case. The League of Nations, as here planned, is not a federation, in which the component States are combined into a new political organism. It is an autonomous corporation, endowed with its own organs of action. Its being and its powers, when once constituted, would persist if a great part of the constituents should perish.

A mere agreement between sovereign States for their mutual defense, like that in Article X, requires no such organic law. An agreement implies merely an assent, an association, or a partnership of persons, natural or legal, for certain specified purposes, which may terminate when its ends have been accomplished by the performance of certain definite acts on the part of the contractants thus making the agreement. This so-called Covenant is not such an agreement or partnership. It creates a new legal person, acting by itself in a manner to be determined by itself, and in accordance with rules to be devised by itself. It creates a body, at first called the Executive Council, which, in turn, chooses and directs its own organs of action, defines their rights and duties, and confers new authority upon them. It creates obligations on the part of the nations composing the League which these nations owe not to one another but to the League, as a distinct and separate legal person, who can call them to account for non-performance of duty and inflict punishment upon them. It attributes to the League as a corporate entity, powers which, under International Law, the separate States do not, either singly or in combination, themselves possess; thus creating an imperium over States not belonging to the League, which is empowered to coerce and punish them for not submitting to its decisions. The duties of the officers of the League are duties to the League, not to the component States, which cannot separately hold them to accountability or punish them for excesses or disobedience. The League is empowered to govern through its mandataries certain colonies and territories acquired by conquest. These mandataries are required to exercise their authority, which is derived entirely from the League, as explicitly directed by the Council in a special "Act or Charter"; (The words of the original draft. The words are omitted in the revision, but the intention is not changed. See Article XXII, next to last paragraph) which is, in effect, a royal prerogative, such as that which the Kings of England exercised in granting colonial charters in America.

From this enumeration of powers it is evident that the League created by this Constitution is not merely a cor

porate entity but in effect a super-government. If a sovereign State, cited to appear as provided under Article XVII, should refuse the "invitation," and commit a breach of Article XII, all the provisions of Article XVI would become applicable to it. All the members of the League would then be in a state of war with the offending State. If it continued to be refractory, and refused to yield its independence by submitting to the decision of the Executive Council, the League would make war upon it. If the result should be subjugation and conquest, the occasion would arise for designating a mandatary; and the imperium of the League would thus be imposed upon the conquered State. That a defenseless State would probably prefer obedience to conquest does not in the least modify the imperial character of the League.

When we pass from the general nature of the League of Nations to examine more closely the extent and character of the powers possessed by the League, as a corporate entity, it is evident that, if these powers are real and become operative, and are not merely advisory or minatory, they derogate materially from the independence and sovereignty of the States composing the League. If, on the other hand, these powers are not real and operative, but merely advisory, then the League possesses only an apparent but altogether illusory authority.

The ambiguity of this document, as originally worded, whether called a "Covenant" or a "Constitution," is generally admitted. It has received from persons supposed to be competent diametrically opposite interpretations, and such conflicting views have been expressed even by the same person, at different times, and upon different occasions.

More precision is still necessary regarding the exact force of the expression "recommend." When so serious a matter as the punishment or compulsion of a refractory State comes up for action, the Council is 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 Covenant of the League (Article XVI).

Is it conceivable that such a contribution, thus demanded, can honorably be refused? To what purpose, then, is the recommendation made, or authorized? Such a refusal would have two effects; it would produce among members a general condemnation of the delinquent Power for failure

to support the League; and it would render the Executive Council derisory as an organ of executive action. No selfrespecting man would long consent to retain an office of such responsibility when its purpose was thus treated with contempt and left ineffective.

We must assume, therefore, that, while terms of courtesy are employed in this document, the "recommendations" of the Council are to be respected; and that no obstacles of the nature of mere expense, inconvenience, or national preference are to be placed in the way of their prompt and effective execution. It should, then, be clearly understood that this virtually terminates the independent foreign policy of the separate members of the League, and places the guidance and control of strictly foreign affairs in the hands of a Council, in which the United States has but a single voice, and we do not know what voice it may be, while there are eight others that may assent or oppose. If decisions were made by a majority, the American member might be at any time overruled. If they are to be made by unanimity, as for most cases is now proposed, he could prevent undesirable action; but the League could seldom hope to arrive at any positive conclusion, and the liberum veto would virtually paralyze all policy whatever.

We are here confronted with the question, whether or not the League, as finally proposed, offers any promise of being really effective. Between free self-governing nations on the one hand and a super-government on the other, there is no intermediate condition, no third alternative. It is a case of what the logicians call "excluded middle." It is a choice between "free" and "not-free."

There is, no doubt, a possible case of international understanding which does not involve this dilemma. A declaration of principles, with a solemn pledge to support them, does not necessarily create a super-government, and would leave the nations making the declaration free. But there is in this Covenant no such declaration. The determination to treat persistently turbulent or aggressive States as public enemies, and to declare that they should be suppressed, would involve no limitation of national freedom. An agreement between nations to arbitrate justiciable differences, not to make war upon one another without cause, and to submit what they believe to be just causes to examination and mediation, would involve no alienation of sovereignty. A combination of all these "covenants," if one chooses to call them by this name, would be a durable and effective

"Entente of Free Nations"; that is, a mutual understanding and agreement that certain principles are to be sacredly respected and defended, leaving the decision of the manner of action to the participants, in view of the circumstances that may arise.

As between the actual co-belligerents of the existing Entente, such a covenant is possible and desirable; and the proof of it is that it has freely come into existence, has won the war, and is capable of making peace. There can, therefore, be no doubt regarding its effectiveness. It was conceived in freedom, and it should be perpetuated with honor. It may be said—indeed, it is sometimes insisted uponthat an Entente of Free Nations is precisely what the League is intended to be. It is impossible to give the Covenant of the League of Nations this interpretation. The League professes to bind its members to united action, and it is in the next breath pretended that there is nothing binding about it! The choice must be made, and it is important that it should be clearly understood. Does the League invite, or does it command? If it only invites, it is not a League. If it commands, it is a super-government.

If it is not a super-government, if the Executive Council cannot bring an army into the field to enforce its decisions, the provisions of this Covenant create enormous risks and positive dangers. Although it is one of the alleged objects of this League to prevent war, war is not only distinctly provided for, but the occasions when it must occur are plainly indicated and are even rendered necessary. Suppose one of these occasions to arise, which may easily happen through a misunderstanding or even a misrepresentation, when another procedure might avert it; having foreordained the war by prescription, having defined the circumstances in which it must occur, what becomes of the League if the recommendation of the Executive Council is not promptly and effectively followed?

The truth is, if the conditions in which military action, or even economic action, will be unitedly undertaken are distinctly prescribed beforehand, when that action is called for it must be taken, or the whole plan is ridiculous. The same cannot be said of an Entente, which lays down certain principles which it agrees to support and maintain. It does not say that, in such and such conditions, it will act thus and so. It says, We stand for the arbitration of justiciable disputes, for International Law as a standard of

conduct, for a court of justice, for conciliation and mediation, and we shall both respect and support these purposes. If you make war and disregard the rights of humanity, we are against you. We do not tell you now what we shall do; but we shall do what we think right, as we have in the Great War. You may judge for yourself whether you want the United States on your side. We are with all of you, so long as you live according to law; but we shall stand for the law.

No one can carefully examine this Covenant without discerning that it is the work of politicians and not the work of jurists. They have created an organ of power, but not an institution of justice. They have not distinctly recognized any rights, or made any provision for determining them on judicial grounds.

As Mr. Elihu Root has well said of the original draft:

"The scheme practically abandons all efforts to promote or maintain anything like a system of International Law or a system of arbitration, or of judicial settlement, through which a nation can assert its legal rights in lieu of war. It is true that Article XIII mentions arbitration and makes the parties agree that whenever a dispute arises which they recognize to be suitable for submission to arbitration they will submit it to a court 'agreed upon by the parties.' That, however, is merely an agreement to arbitrate when the parties choose to arbitrate, and it is therefore no agreement at all. It puts the whole subject of arbitration back where it was twenty-five years ago.

"Instead of perfecting and putting teeth into the system of arbitration provided for by The Hague conventions it throws those conventions upon the scrap heap. By covering the ground of arbitration and prescribing a new test of obligation it apparently by virtue of the provisions of Article XXV abrogates all the 200 treaties of arbitration by which the nations of the world have bound themselves with each other to submit to arbitration all questions arising under International Law, or upon the interpretation of treaties.

"It is to be observed that neither the Executive Council nor the Body of Delegates to whom disputes are to be submitted under Article XV of the agreement is in any sense whatever a judicial body nor an arbitral body. Its function is not to decide upon anybody's right.

"This is a method very admirable for dealing with political questions; but it is wholly unsuited to the determination of questions of right under the Law of Nations."