The Chief Justice of the Supreme Court (Taft) to the Secretary of State

My Dear Mr. Secretary: I enclose herewith copies of the two letters which I wrote—one to Lord Robert Cecil,1a and the other to Earl Balfour—in respect to the matter which we discussed to-day.

Sincerely yours,

Wm. H. Taft

The Chief Justice of the Supreme Court (Taft) to the British Representative on the Council of the League of Nations (Balfour)

My Dear Earl Balfour: Mr. Hughes’ absence in South America has delayed me in writing the letter which I proposed to write. I consulted Mr. Root about the matter, and his letter written to me is as follows:

“I should think it desirable that any action by the Assembly of the League of Nations or by the Council should be quite general and rather in the direction of conferring authority than in exercising it.

“The matter is not very complicated. There are three respects in which the United States is already a part of the Court.

“(1) She is a competent suitor in the Court. The Court is bound by the law of its creation to hear and determine cases by and against the United States unless she refuses to appear. This is provided by Article 35,2 by making the Court open not only to the members of the League but ‘also to States mentioned in the annex to the Covenant’.

“(2) The United States, as a member of the old Permanent Court of Arbitration at the Hague, is entitled through its members of that [Page 4] Court to take part in making up the eligible list from which the Judges of the Court are elected. The American group of members of the old Court of Arbitration are authorized by Article 5 of the Statute under which the new Court is organized to name four persons for each vacancy in the Court.

“The American members of the Court of Arbitration received last year a formal request to discharge their function, but it was deemed unwise to do this because it might have been very unfortunate to precipitate a controversy in Washington just on the eve of the Conference for the Limitation of Armament.

“(3) American citizens are eligible to sit in the Court. Witness the presence of John Bassett Moore. Incidentally the American members of the Court of Arbitration had agreed that if it were determined that they should make nominations they would nominate Moore for the American member. Of course this was known and doubtless produced an effect upon his selection.

“There seem to be but two things of substance left. (1)—that the United States should undertake to contribute its fair share towards the support of the Court generally, and (2)—that the United States should have its voice in the election of Judges from the eligible list, without having to become a member of the League of Nations in order to exercise that right. So far as I can see there is no objection to either of these things. The United States of course would be quite willing to pay its share of the expense of such a Court, for it is exactly the kind of Court with the kind of jurisdiction that the United States has been urging for many years. On the other hand, there appears to be no objection on the other side of the ocean to having the United States in the Court without being in the League. I should think a provision something like this might be effective as a basis for an arrangement. For example; a resolution by the Assembly of the League:—

“‘Resolved, that whenever the members of the Assembly and the Council of the League of Nations meet for the purpose of electing Judges or Deputy Judges of the Permanent Court of International Justice, established under the protocol executed at Geneva, December 16th, 1920,3 any nation named in the annex to the covenant for the League of Nations, and which shall undertake to bear its fair share of the expense of maintaining the Court, may, without becoming a member of the League of Nations, appoint a representative who shall have authority to sit with the Assembly throughout the electoral proceedings, and who shall have the same right to vote and otherwise take part in such proceedings as the several members of the Assembly. In case such nation, not a member of the League of Nations, shall be one of the powers described in the Treaty of Versailles of June 28th, 1919, as ‘principal, allied and associated powers’, then such nation may appoint a representative to sit with the Council during such electoral proceedings with the same right to vote and otherwise take part in such proceedings as the several members of the Council.

“‘The Council is requested to take such steps as will give effect to the foregoing resolution.’”

“Something like this will put the Council in the position where they will feel authorized to go ahead and negotiate an agreement, the substance of which I think is contained in the resolution. The result will probably have to be passed around among the powers who signed the protocol, but I should think there would be no doubt of their assent because the effect would be to strengthen the Court and decrease their share of expense.

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“I think it is desirable to avoid the proposing of any provision under which the United States would be called upon formally to say they accept the terms of the protocol, because that might seem to be a certain acceptance of the provisions in the protocol which relate to the League of Nations. The shorter and simpler the agreement on our part can be made, the better. If we are called upon to accept the provisions of a long document a lot of people will be afraid of it and the people who want to make trouble will find much material for distortion. Looking at the thing from the European point of view, I should say they ought to feel that an undertaking to contribute to the expense of supporting the Court and the appointment of representatives to take part in the election of Judges was an acceptance of the Court as it is, under the statute by which it was constituted, and that there is no practical occasion to say anything more about the acceptance of that statute”.

I think his views are sound, and that if you were to consult Lord Phillimore you would find that he would agree with him.

I am afraid that this will not reach you in time to secure any direct action by the League of Nations at this session, but perhaps it is just as well, because a year’s delay may make matters more favorable in many respects. I shall write you again as soon as Mr. Hughes returns from South America.

Let me say, in closing the letter, how grateful I feel for the wonderful reception that Mrs. Taft and I were given in England and Scotland, and to express my gratitude to you especially for the part which you took in it. It is a red letter episode in our lives.

With very warm regard [etc.]

Wm. H. Taft
  1. Not printed.
  2. Of the Statute of the Permanent Court; the text of the Statute is printed in Foreign Relations, 1920, vol. i, p. 18.
  3. Foreign Relations, 1920, vol. i, p. 17.