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CHAPTER XXIII

A MORE PERFECT SOCIETY OF NATIONS

Great

THE Society of Nations is approximately composed of fifty States claim- The ing to be sovereign, free and independent. The more perfect Union of the Problem United States is composed of forty-eight States. The official delegates of twelve of the then thirteen sovereign, free and independent American States who met in Federal Convention in the city of Philadelphia in 1787, were faced by the problems which confront every international conference in which an attempt is made to bring and to keep the nations in closer relations. The greatest of these problems is that of renouncing in the common interest the exercise of certain sovereign rights, while retaining unimpaired the exercise of all sovereign rights not so renounced. The line of demarkation between what may be safely renounced in the interest of all and what it is essential to retain in the interest of each is always difficult to draw. That the problem is in itself not insuperable is shown by the success of those delegates of twelve of the thirteen American States, for, as Benjamin Franklin, a delegate from the State of Pennsylvania, said, "we had many interests to reconcile." The delegates to that memorable assembly established in fact and in form, a union for legislative purposes, a union for administrative purposes, and a union for judicial purposes, which, taken together and acting in cooperation as they must, since each depends upon the other, form a more perfect Union than that of the Society of Nations.

The delegates in Federal Convention did not merge the States in a union, but formed a union of the States. They vested the legislative branch with eighteen powers of legislation only, so that the Union is from this standpoint one of enumerated powers merely. The executive branch of the Union possesses no powers save those specified in the instrument of its creation, and any attempt on the part of the legislative or the executive branch to exercise powers in excess of the grant contained in the Constitution is declared null and void and of no effect by the judicial branch of the Union. An attempt on the part of the Union to exercise a power in excess of the grant is, in an appropriate and specific case presented for its decision, declared to be null, void and of no effect by the Supreme Court of the United States. This is accomplished without the use of force against the Union on the part

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of a State or combination of States. Only the individual is coerced. The statute may remain unrepealed, for it has ceased to possess legal validity.

The Society of Nations may not be willing, and indeed even with good will may not be able, to go so far now or at any time as have the States forming the American Union. But however many steps they may take or however few toward the closer Union, the experience of the framers of the Constitution who traversed the entire path should be as a lamp to their feet.

Yet we must not imagine that the Society of Nations is a mere phrase. It is a body politic if it care to consider itself as such, for which statement we have the authority of Respublica v. Sweers (1 Dallas, 41), decided by the Supreme Court of Pennsylvania in 1779, at a time when the Articles of Confederation were still unratified, the court saying that "from the moment of their association the United States necessarily became a body corporate; for, there was no superior from whom that character could otherwise be derived." On two occasions, in 1899 twenty-six nations and in 1907 forty-four nations solemnly recognized in the Pacific Settlement Convention of The Hague "the solidarity which unites the members of the society of civilized nations," thus bringing the Society of Nations within the rule of law defining the association of the American States. They can, if they will, frame the law for the Society through delegates of their own choice meeting in conference at stated intervals and submitting the draft of their labors for ratification to each of the States participating in the conference, thus making of themselves a legislature ad referendum. In like manner delegates of the Nations may in conference assembled establish a court of the Nations, for which they have a precedent in the Supreme Court of the American Union, which can declare and apply the law of Nations now existing or as made by their delegates in conference and ratified by each of the Nations. Delegates of twenty-six Nations in 1899, delegates of forty-four Nations in 1907 in the Pacific Settlement Convention declared it to be "expedient to record in an international agreement the principles of equity and right on which are based the security of States and the welfare of peoples." It can be added that an international court of justice "accessible to all in the midst of the independent Powers" would not only extend "the empire of law" and strengthen "the appreciation of international justice," but to quote still further from the Pacific Settlement Convention of 1899 and 1907, that it would also make for "the maintenance of the general peace."

Should the Powers desire, they may take a third and further step by vesting their diplomatic representatives residing in any city, such as The Hague, under the presidency of the resident minister of foreign affairs, with such powers of supervision and of initiative as to them shall seem

meet and proper. The delegates of the Nations may, if they are willing, enter into a more perfect Union, and in conference assembled render the Society of Nations, as delegates in convention rendered the Articles of Confederation, "adequate to the exigencies of government and the preservation of the Union."

APPENDIX

A. PLANS OF UNION FOR THE COLONIES AND THE STATES OF NORTH AMERICA.1

I. THE NEW ENGLAND CONFEDERATION OF 1643 2

Articles of Confederation (ratified September 7, 1643).

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Confederation betwixt the Plantations under the Government of the Massachusets, the Plantations under the Government of Plimouth, the Plantations under the Government of Connectecut, and the Government of New Haven, with the Plantations in Combination therewith.

Whereas we all came into these parts of America, with one and the same end and ayme, namely, to advance the Kingdome of our Lord Jesus Christ, and to enjoy the liberties of the Gospel, in purity with peace; and whereas in our settling (by a wise providence of God) we are further dispersed upon the Sea-Coasts, and Rivers, then was at first intended, so that we cannot (according to our desire) with convenience communicate in one Government, and Jurisdiction; and whereas we live encompassed with people of severall Nations, and strange languages, which hereafter may prove injurious to us, and our posterity: And forasmuch as the Natives have formerly committed sundry insolencies and outrages upon severall Plantations of the English, and have of late combined themselves against us. And seeing by reason of the sad distractions in England, which they have heard of, and by which they know we are hindred both from that humble way of seeking advice, and reaping those comfortable fruits of protection which, at other times, we might well expect; we therefore doe conceive it our bounden duty, without delay, to enter into a present Consotiation amongst our selves, for mutuall help and strength in all our future concernments, that, as in Nation, and Religion, so, in other respects, we be, and continue, One, according to the tenour and true meaning of the ensuing Articles.

1 For the texts of the various plans and scholarly comment upon them, see Frederick D. Stone, Plans for the Union of the British Colonies of North America, 1643-1776, in Carson's 100th Anniversary of the Constitution of the United States, 1889, Vol. ii, pp. 439-503. For a summary of early plans and suggestions of Colonial Union see also Chapter IV in Richard Frothingham's Rise of the Republic of the United States, 1872, pp. 109–120.

2 Reprinted from the Records of the Colony or Jurisdiction of New Haven, C. J. Hoadly, ed., 1858, pp. 562-6.

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