723.2515/2165a: Telegram
The Secretary of State to the Consul at Arica (Von Tresckow)
For Lassiter. Your recent messages dealing with plebiscitary situation are receiving our most careful consideration. I expect later on to cable you fully on the matter. Meanwhile I desire to outline what I deem to be for the moment the general principles of policy which should govern our action if good offices should fail.
1. The sole vital and indispensable condition that we must always keep before us is the unfaltering maintenance, in its absolute integrity, of the Arbitrator’s impartial position in dealing with this international controversy. He can not act in this matter except upon an appeal duly taken or certified and accompanied by a proper record embodying the proceedings and the evidence necessary for a decision. The Arbitrator can not undertake to prejudge any aspect of the case and no one else can undertake either directly or indirectly to attribute any opinion to him which he is not yet duly called upon to express.
2. The president of the Plebiscitary Commission is in much the same position, in that his opinions and decisions should not be discounted in advance; he should not himself prejudge any aspect of the case until it has actually been submitted to him for decision.
3. The Commission’s every decision must have as its basis a record which embodies the proceedings and evidence appropriate and adequate to sustain action taken. Obviously, the record upon which the Commission could act is same record which goes to Arbitrator in event of an appeal.
4. My associates and I, as well as Mr. Hughes, with whom we are in consultation, are much disturbed by point of view which your legal advisers apparently take with respect to power of Plebiscitary Commission [Page 401] and of Arbitrator to deal with question of frustration of plebiscite and responsibility for it when and if that question arises. The assumption seems to be that the ordinary principles requiring legal support for a finding may be relaxed or disregarded, and that findings may be made and sustained by accepting mere opinions and general conclusions without an adequate showing of fact to support them, the statement being made that from nature of the case proof in usual sense can not be made.
I do not mean to assert that strict legal proof meeting all technical evidential requirements is necessary, but in all instances the proceedings in absence of such proof as is commonly required must in some way be justified otherwise than by mere unsupported opinion coupled with statement that proof is impossible. Evidence can not be replaced by sweeping allegations of fraud and intimidations; there must be substantial foundation of fact. That is why I have been endeavoring to elicit precise information as to the evidence actually in your possession and the possibility of presenting a record in form and substance adequate to serve as basis of a finding and a decision.
5. Issue, if it eventually has to be met, is one of gravest import. Commission and Arbitrator would, in effect, be asked to indict Chile for fraud, intimidation, and dishonorable practices, resulting in frustration of plebiscite, the celebration of which she is solemnly committed to assist. No matter how restrained or how measured might be the terms of this indictment, it would indelibly stain Chile’s honor. Viewed from any aspect this would be most serious matter for all involved; and it is unthinkable that the Arbitrator, himself head of a sovereign State, should be placed in position of being invited to condemn in this fashion another sovereign State without at least having before him a record which satisfied the elementary requirements. It is highly important, therefore, that question of imposing further conditions to insure a proper plebiscite should be considered carefully to end that failure to provide adequate safeguards may be proved satisfactorily. I shall make further suggestions in this direction after you advise me of extension of period for registration.