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

My Dear Mr. Secretary: I send you herewith a copy of a letter I have from Lord Robert Cecil, for your perusal, and to complete your files in respect to this general subject matter.

With best wishes [etc.]

Wm. H. Taft

Lord Robert Cecil, Member of the British Delegation in the Assembly of the League of Nations, to the Chief Justice of the Supreme Court (Taft)

Dear Mr. Chief Justice: May I express to you my most sincere gratitude for your letter4 regarding America’s relationship [Page 6] to the Permanent Court of International Justice and for the enclosure therewith of the extract of a letter from Mr. Elihu Root, dated September 9, 1922, outlining a procedure for American entry into the Court.5 This letter followed me on to Geneva where I happened to be attending the Third Assembly of the League of Nations. My delay in answering it has been due, as you can well imagine, first of all to the work attendant on that meeting and, second, to my desire to think out most carefully the various questions involved before attempting to make any comments thereon.

Mr. Root’s proposal is very obviously the shortest and simplest method yet suggested for effecting American co-operation with the Court. It would seem from Mr. Root’s letter to have been conceived very largely from the point of view of the internal situation in America, and to have the very great advantage of reducing to a minimum any objections which might be raised in America to affiliation with the Court. It is undoubtedly true that it is easier to secure approval for a short document than for a long one, as those who want to find trouble might, as Mr. Root says, find much material for distortion if the whole Protocol were to be acted upon.

It would, of course, be impertinent for me, or indeed for any one on this side, to attempt any estimate of what is practicable and what is not practicable in the American situation as it exists to-day. The fact Mr. Root has come to a solution such as that suggested in his letter to you, would seem to indicate his judgment that the formal acceptance of the Protocol on the same basis as that document had been accepted by other nations was not at the moment feasible, and that it is, therefore, necessary to search for a solution somewhat short of this desired goal.

As far as I can see from a study of the Protocol, the relationship of the United States to the Court would not be materially different whether she actually ratified the Protocol or agreed to recognise and support the Court on some special basis as that suggested by Mr. Root. In other words, the actual ratification of the Protocol so far as America is concerned, would seem to have practically no legal consequence which could not similarly be brought about by a plan on the lines of Mr. Root’s.

There then arises the question of the reaction to this plan of States already members of the Court. While, of course, I have no authority to speak for the other nations on this side, nevertheless my personal opinion is that if such a solution as Mr. Root’s were absolutely essential to American participation, the other nations could not but find their way to accepting it. Of course, you can appreciate that from the strict point of view of the Court itself, [Page 7] it would be highly desirable to have all nations on exactly the same basis, and bound by the same Statute. If, however, that be impossible in America’s case, I am sure that what is desired on this side is the substance of American co-operation rather than the mere form.

The greatest difficulty that arises in my mind, however, is that of tracing out the actual steps to be taken to lead up to American co-operation with the Court. I think I am right in saying that everyone on this side is anxious to do all that can be done to bring about this much desired result, but, so far, the difficulty has been in knowing just what specific action would bring it about. In other words, the nations now Members of the Court are anxious to meet America’s desires but they do not know specifically how to do it.

I think I may, without risking any misunderstanding, recall that two years ago when the Protocol of the Court was accepted by the Assembly, a special provision was inserted solely to permit America to become a member of the Court without becoming a Member of the League. It was felt at that time, and had continued to be felt until quite recently, that that provision entirely met the American viewpoint, and in fact left the door open for America to join the Court at any time she so desired. Just recently, however, Secretary Hughes has raised an entirely new question, and admittedly a vitally important question, which had not previously occurred to anyone on this side, and which has again fundamentally changed the relationship of the United States and the Court. Please do not for a moment think that I am recalling this fact with any thought of criticism; quite on the contrary I realise that until the question of American participation in the election of Judges is solved, it would be impossible to expect any real American co-operation with the Court.

This instance, however, shows, to my mind at least, the supreme necessity of having the method and procedure of American cooperation worked out in the first instance by America itself. It would seem to me that as the difficulties which are to be met are purely American difficulties, it would be almost presumptuous for us on this side to attempt to lay down any solution therefor. For example, I think you would agree that it would be unwise, if not undignified, for either the Assembly or the Council to pass a Resolution regarding American participation in the Court unless the American Government had in some way given formal indication that such a Resolution would be acceptable.

Another question which comes to my mind in close connection with this point is the method by which the American co-operation in the Court would be effected within the United States itself. Mr. Root’s proposal would seem to indicate not only suitable action by [Page 8] the League itself, but also action by the Senate. This I deduce not only from the fact that any appropriation for the Court would have to be made by Congress, but also from Mr. Root’s desire to have a very short proposal rather than the whole Protocol itself submitted for discussion.

If I am right, I should say that at the present moment the United States was entering into the phase of executive co-operation with the League of Nations. The State Department has already formally nominated a representative to sit “in an unofficial and consultative capacity” on the Anthrax Committee of the International Labour Office and, according to Press announcements is willing to nominate representatives to sit in a similar capacity on the Opium and White Slave Commissions. If America finds it possible to cooperate thus effectively in these Commissions, it does not seem at all impossible that as time goes on her co-operation may be extended into a considerably wider field. Parenthetically, I should like to add just a word of most profound gratification that this happy solution has now been achieved.

As regard the Court, however, it would seem to me highly desirable that American co-operation be assured not only by Executive action but also by legislative endorsement. Though I assume from Mr. Root’s letter that this intention was in his mind, nevertheless it seems important enough from the European point of view to stress with special emphasis. Such final endorsement by both branches of the American Government would give the Executive far greater freedom, I should imagine, in co-operating with the Court, and would demonstrate that co-operation with the Court had entered into the very fibre of American foreign politics.

Fortunately we already have the precedent of Senate ratification of the Yap Treaty6 which quotes verbatim the League of Nations Mandate for the North Pacific Islands. At the same time, I understand that one of the Senators who was at Geneva this summer, had in mind a plan to initiate action in the Senate looking towards American membership in the Court in order specifically to relieve the Administration of appearing to attempt to force the League issue once more on to the Senate.

Curiously enough, just before Mr. Root’s proposal came, I had received another proposal almost equally ingenious from Lord Phillimore. The salient points of his letter may be quoted as follows:

“… What does occur to me for the moment is this: The election has taken place. The U.S. has one of its citizens on the Bench. There will be no further general election for about eight years though there may probably be death vacancies to fill.

[Page 9]
  • “1. Would the U.S. rebus sic stantibus sign the Protocol, which can be done as an unilateral act, accompanying it with a Reservation Counter Protocol or other diplomatic act, stating that if before the next election of judges she is not admitted to (say) a vote with the Council and a vote with the Assembly, either her adhesion is to be deemed non avenu or withdrawn, or she reserves to herself the liberty in that event to withdraw?
  • “2. Would the Secretary-General or the Council accept such a qualified or conditional acceptance? I think he or they might. The qualifying document might recite as a matter of history that the U.S. members of the Hague Tribunal had taken their part according to the statute in nominating candidates and that though the U.S. had not taken part in the voting she was represented on the Court by a citizen in whom she had every confidence. …”7

This plan, you will see, provides for immediate American co-operation in the Court as it exists to-day, and would give the Members of the League adequate time to make all the necessary changes in order to secure American participation in the first new election of Judges. From that point of view, and assuming that the present composition of the Court is acceptable to America, it would seem to be an even shorter method than Mr. Root’s. In any case, I think it is very worth while submitting it to your judgment as another possible way out of the difficulty. From the strictly Court point of view, it would have the advantage of formal American endorsement of the Protocol on the same basis as other nations, and would allow time for the necessary readjustments. The question of participation in the expenses of the Court, as suggested by Secretary Hughes and Mr. Root would easily be arranged.

Whatever form of solution may be arrived at, certain actions will have to be taken here which will require considerable thought and effort. For example, the Court Statute provides that the Judges shall be elected “by the Assembly and by the Council”, while the Covenant defines both those bodies in clearly-expressed terms, the Assembly for instance consisting “of representatives of the Members of the League”. Quite obviously this difficulty can be overcome in any one of several ways but as with all constitutional questions of that sort it will be necessary that those on this side give the matter considerable thought and allow the procedure a certain amount of time.

The necessity of these internal changes would seem to me to afford another argument for the most precise and the earliest possible definition of the solution which would be acceptable to the American Government. Precision would, of course, be necessary if the Members of the League were to have a definite programme on which to work, while at the same time an early decision would allow all the [Page 10] various plans to be worked out so that perhaps some immediate provisional steps might be initiated by the Council.

I can not help but feel that some solution should be achieved within a reasonably short time. While again disavowing any claim to speak for the nations on this side, I should not hesitate to assert unequivocally that any reasonable suggestion made by America would be immediately accepted here. At the same time, if my information and observations are correct, America herself is equally desirous of having this question put to rest in the normal and reasonable way. When there is such good will on both sides it is impossible to think that a solution can not be had just as soon as the American Government shall have worked out the form which would be acceptable to it.

I am deeply grateful for the interest you have taken in this matter and very much hope that all the efforts now being made may come to an early result. I should very much appreciate your views as to the various points raised in this letter, and should be more than glad to be of any possible service should any further questions arise, or should you arrive at any new or combined project. It would be superfluous for me to say that I am eager to do anything in my power to bring about the happy event of American admission to the Court.

Yours very truly,

Robert Cecil
  1. Not printed.
  2. Quoted in letter from Chief Justice Taft to Lord Balfour, supra.
  3. Foreign Relations, 1922, vol. ii, p. 600.
  4. This omission and the omission at the beginning of the quotation are indicated in the file copy of Lord Robert Cecil’s letter.