It is true that in Article V of the first draft of the Covenant (Appendix) there is an agreement to submit to arbitration certain classes of controversies and a method of selecting arbitrators is provided—­a method, by the way, which the actual experience of a century has shown to be the least satisfactory in administering legal justice, since it almost inevitably leads to a compromise which impairs the just rights of one of the parties.  But, to my mind, a provision, far more objectionable than the antiquated and unsatisfactory method of arbitration provided, was that which made an arbitral award reviewable on appeal to the Body of Delegates of the League, which could set aside the award even if the arbitrators had rendered a unanimous decision and compel a rehearing before other arbitrators.  International arbitration as a method of applying the principles of justice to disputes between nations would, in the first instance at least, have become a farce if this provision had been adopted.  As an award based on compromise is seldom, if ever, satisfactory to both parties, the right of appeal would in substantially every case have been invoked and the award would have been reviewed by the Body of Delegates, who would practically render a final decision since the new arbitrators would presumably adopt it.  The effect of this provision as to appeals was, therefore, to supplant judicial settlements by political compromises and diplomatic adjustments, in which the national interests of the judges, many of whom would be untrained in juridical procedure, would be decided, if not deciding, factors.  Manifestly the expediency of the moment would be far more potent in the decisions reached than the principles and precepts of international law.

I shall not express here my opinion as to the reasons which I believe impelled the President to insert in the Covenant these extraordinary provisions which deprived arbitral courts of that independence of the executive authority which has been in modern times considered essential to the impartial administration of justice.  But, when one considers how jealously and effectively the Constitution of the United States and the constitutions of the various States of the Union guard the judiciary from executive and legislative interference, the proposal in the President’s plan for a League of Nations to abandon that great principle in the settlement of international disputes of a justiciable nature causes speculation as to Mr. Wilson’s real opinion of the American political system which emphasizes the separation and independence of the three coordinate branches of government.

That a provision found its way into the draft of the Covenant, which the President, on February 3, 1919, laid before the Commission on the League of Nations, declaring for the creation by the League of a permanent court of international justice, was not due, I feel sure, to any spontaneous thought on the part of President Wilson.