The Capper Resolution

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Denver Law Review

Volume 5 Issue 3 Article 2

August 2021

Nicholas Murray Butler

Hans H. Wolff

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Recommended Citation Nicholas Murray Butler & Hans H. Wolf, The Capper Resolution, 5 Denv. B.A. Rec. 3 (1928).

This Article is brought to you for free and open access by the Denver Law Review at Digital Commons @ DU. It has been accepted for inclusion in Denver Law Review by an authorized editor of Digital Commons @ DU. For more information, please contact [email protected],[email protected]. THE DENVER BAR ASSOCIATION RECORD tion as properly demanding high aca- He referred with great complacency demic requirements as a prerequisite to the enlightened and prosperous eco- for admission to the Bar. Mr. Strawn nomic condition of this country in com- defended such a policy not only in parison with other nations of the world point of theory but also by reference which had come within his personal to instances within his own experience. observation and attributed its favorable aspects, in part at least, to the He concurred in the view of Mr. basic beneficence of a favorable form Rogers with reference to the intensive of government. growth of legal specialization and the He addressed an appeal to the mem- increasing importance of legal educa- bers of the Bar to remain steadfast in tion through law schools as necessi- their support of American Constitu- tated by that condition. He paid a tional polity. compliment to the toastmaster and Mr. In conclusion he recalled (not unin- Rogers in their capacity of professional terruptedly) and delivered the inspir- men who had dedicated themselves to ing lines of the two odes on "Oppor- educational work. tunity".

The Capper Resolution (Correspondence Between Dr. Nicholas Murray Butler and Mr. Hans H. Wolff, Civil Engineer of Denver, an Alumnus of Columbia University.)

Editorial Note: A large number of the fluence with their Senators and Rep- members of the Denver Bar had the privilege of hearing one or both of the ad- resentatives in Congress toward the dresses recently delivered here by Dr. Nicholas lurray Butler. Because of the passage of the so-called Capper reso- legal and international aspects of the lution of which copies were furnished. Capper Resolution, the correspondence herewith published should prove of in- terest. I feel that I have a very clear un- derstanding of what you said, of what 1515 East Ninth Ave. the resolution involves, and of what Denver, Colorado, will be the consequences of our en- December 17, 1927. tering into the proposed compacts. Dr. Nicholas Murray Butler, Yet in discussing these matters with President, Columbia University, others I find that they have taken a New York, N. Y. very different meaning, and it is for My dear Dr. Butler:- the purpose of securing an authorita- It was my privilege to hear the ex- tive interpretation, which I may pre- tremely interesting addresses which sent and publicly cite, that I take this you delivered under the auspices of liberty of writing to you for certain the Foundation for the Advancement specific information of importance. I of the Social Sciences of the Univer- am sure that you feel with me that so sity of Denver at the luncheon in the momentous a change in policy as the *Cosmopolitan Hotel and at the Denver step proposed should be undertaken Auditorium on December 12th. only with eyes open and as clear an In both of these addresses you call- estimate as possible of what we may ed upon the audience to use their in- be called upon to face. THE DENVER BAR ASSOCIATION RECORD

The Capper resolution reads as fol- The five countries with which it is lows: proposed to enter into such compacts are France, Great Britain, Germany, "Resolved by the Senate and House of Italy and Japan. At the present time Representatives of the United States of major impor- of America in Congress assembled, there is no question That it be declared to be the policy of tance in which the United States any one of these the United States: wants anything from countries. One or more of these coun- "I. By treaty with France and other tries do, however, object to one or like-minded nations formally to re- more of the following: the debt settle- nounce war as an instrument of pub- ments, our tariff, the Monroe Doctrine, lic policy and to adjust and settle its prohibition, our immigration laws. international disputes by mediation, arbitration and conciliation; and All of these subjects are international questions since all of them have "II. By formal declaration to accept been internationally disputed. Let us the definition of aggressor nation as take some hypothetical, but entirely one which, having agreed to submit possible, cases. Assuming that we international differences to concilia- have entered into the proposed com- tion, arbitration or judicial settlement, pacts with the five nations, that Japan begins hostilities without having done objects to our exclusion law as applied so; and to herself on the ground that it is in- "Ill. By treaty with France and other sulting, discriminatory and a possible like-minded nations to declare that the cause of war, that Japan demands a nationals of the contracting govern- change in that law and, conciliation ments should not be protected by their and negotiation having failed, insists governments in giving aid and com- upon arbitration or judicial decision. fort to an aggressor nation; and Similarly, suppose France and sub- "Ba it further resolved, That the Presi- sequently, Germany, Italy and Great dent be requested to enter into nego- Britain express dissatisfaction with tiations with France and other like- the debt settlements and demand that minded nations for the purpose of this question be reopened and left to concluding treaties with such nations, international adjudication, suppose in furtheranc3 of the declared policy that one or more of the five nations of the United States." object on economic grounds to the ex- "To adjust and settle its international clusion of their wines and that strain- disputes by mediation, arbitration and ed relations develop similar to those conciliation." that were brought about by similar No exceptions. You emphasized that circumstances not so long ago betwPen there are to be no exceptions because Norway and Portugal, suppose our to allow any would means to allow tariff again arouse antagonism as it every question to be excepted and ren- has so frequently done in the past, der the pact meaningless. Any nation and, perhaps, above all, suppose our may, therefore, begin a dispute on any Monroe Doctrine is again challenged subject and it must be settled by arbi- in a manner that we believe will jeop- tration if insisted upon. To this the ardize our national security, as for contracting parties are bound. Fur- instance through the colonization by thermore, the nation which declines one of the five nations of a large tract arbitration, not the one which causes of land with a good harbor in a neigh- the dispute, becomes the aggressor if boring country close to our border, war ensues. such as was indeed at one time re- THE DENVER BAR ASSOCIATION RECORD ported to have been attempted and to another nation to submit such ques- have been prevented only by the po- tions as those to international arbi- tential and implied threat of war. trament. Japan may feel, and does feel, aggrieved at our exclusion cf its Under such circumstances are we or people, but it would never enter the are we not, under paragraph I, by head of Japan to ask that the exclu- treaty, in honor and morally bound to sion act passed by Congress be made submit to arbitration and to abide by or judicial the award? If we decline arbitration, the subject of arbitration determination at Geneva or at The are we or are we not, under paragraph Hague. The same is true of such in- II, the aggressor nation and, if so, sub- questions as tariff duties, rates ject to the penalty provided under ternal of taxation, and the like. Great Britain, paragraph III? for example, imposes an income tax on I can see no alternative to a cate- any foreigner, including Americans, gorical yes in answer to each of these who spends more than six months out questions. If my interpretation is of twelve in that country. Such a law correct, are you and are others of your may or may not seem fair, but it is a point of view willing to risk the con- domestic British law and that ends it. sequences of the decisions rendered Our great grandfathers made a strong by foreign arbiters upon questions of fight against taxation without repre- such supreme importance to our coun- sentation, but that very principle is try? now embodied firmly in our legislation, I am, my dear Sir, both Federal and State. No man can Very truly yours, escape paying an income tax on the HHW/M (Signed) H. H. WOLFF. plea that he has not the right to vote. The debt settlements, on the other and have been NIcHOLAS MURRAY BUTLER hand, are international begin- BROADWAY AT 116TH STREET so considered by us from the NEW YORK CITY ning. They will, one of these days, be readjusted and settled, amicably I feel December 22, 1927. sure, by methods of diplomatic discus- H. H. Wolff, Esq. sion and perhaps by conciliation. 1515 East 9th Avenue, Doctrine is in a peculiar Denver, Colorado. The Monroe situation, since it is not a domestic My dear Mr. Wolff: policy and has never been accepted as I am very much interested in your international law. It gives no particu- careful letter of December 17 and lar offence in Europe, while it gives thank you for writing me. The con- great offence in Latin America. In versations which you report reflect the United States it has been express- just the sort of misunderstanding with ed in so many different forms that no which we have to deal in trying to one can be sure as to what it really make any progress in our international means. In the form in which it was relations. stated by President Monroe it gives It has never been proposed by any- no offence and raises no objection anyone that matters of the internal policy where. It is the extensions and appli- of any nation should be treated as sub- cations of the doctrine in the last Ject to international arbitrament. A thirty years that have aroused antag- nation's immigration laws are its own, onism in Latin America and brought as are a nation's tariff duties. No civ- down ill feeling upon us. Yet the Mon- ilized people would think of asking roe Doctrine is expressly exempted THE DENVER BAR ASSOCIATION RECORD from international determination by safely and honorably entrust any given the statute establishing the League of case to another nation for adjudica- Nations and therefore would lie out- tion and that we do not bind ourselves side the scope of any agreement for in advance to a course which might international arbitration. force us either to jeopardize the vital When anyone asks us these ques- interests of the United States or to tions, he must always be prepared to break our pledge and in so doing bring confront the alternative. Suppose, for upon ourselves the prearranged pen- example, that he is not ready and will- alty; that if all the conciliation and ing to try to settle any or all of these negotiation fail in a matter of such questions as they arise peaceably. supreme importance that we dare not Then do we understand that he is pre- leave it to arbitration, that in that pared to go to war about it? If the case we bring whatever sacrifice may reply is Yes, then let it be made frank- be necessary to defend the honor, the ly and we all understand each other. safety, and the welfare of our country Thanking you for your letter, and as in the past. with all the compliments of the sea- In all the wars in which this coun- son, I am, try has been engaged, negotiation, Faithfully yours, conciliation and compromise have pre- (Signed) NICHOLAS MURRAY BUTLER. ceded the resort to arms, sometimes over a period of many years. There has never been any proposal to dimin- Dr. Nicholas Murray Butler, ish these methods. Permit me, there- Broadway at 116th Street, fore, to point out that your assumption New York, N. Y. that anyone might not be "ready and My dear Dr. Butler:- willing to try to settle any or all of I thank you for your kind letter of these questions as they arise peace- December 22nd, in reply to my letter ably" does not apply. of inquiry. If the Capper resolution means any- In your last paragraph you issue a thing other than what has been the challenge that anyone asking the ques- long established policy of this coun- tions which I have asked, state his try, it means the arbitration of all in- position frankly. ternational disputes in cases when I do so gladly. It is this: That we agreement can not be reached by di- study carefully every serious proposal rect diplomatic negotiation or friendly for the betterment of international mediation; it means the acceptance of relations and the avoidance of war, the arbitral award no matter what may be involved, no matter what the but that we do this impartially in mat- order to ascertain latent dangers as consequences to the country, no caused well as seeming benefits and that we ter what the influences that require the latter safely to outweigh the award; it means placing ourselves the former. If this is not the case, at the-mercy of an arbitrator and de- good that we then discard the plan and pending upon his good faith and continue as we have in the past to judgment, it means an absolute agree- use our Department of State for ne- ment not to wage war. That, or a gotiations and conciliation, that we breaking of the pledge. arbitrate when possible as we have so All this is stated concisely in para- often done with Canada and other graph I. There are no reservations, countries, but that we and we alone no exceptions, no opportunity to quib- remain the judges whether we may ble or hedge as in our previous arbi- THE DENVER BAR ASSOCIATION RECORD tration treaties. It applies to all in- what does it mean? You say also ternational disputes with the treaty that no one can be sure as to what nations. the Doctrine really means in any given But what is an international dis- case. If that is so, then what is it by the League of Na- pute? Who shall decide? You say that is exempted that a nation's immigration law is so tions? If Japan should propose to distinctly its own that no civilized build an extensive port at Maedalena to colonize a large tract of people would think of asking another Bay and land adjacent to it under a perfectly nation to submit such a question to with Mexico, both of these international arbitrament. Permit me legal treaty being sovereign states and to recall to you that it was the United nations States which on two occasions made competent to make such a treaty, who would decide whether this would fall exclusions the subject of international limits of the Monroe Doc- action; one when Japan was opened within the trine? The League of Nations, the to foreigners by the American Navy, the other when President Taft ended World Court, an Arbitrator, or we? if any but the last, then would our treaty of amity with Russia be- And relinquish the right to say that we cause certain of our citizens were pre- we prevent this even at the cost of vented from entering Russia in entire will accordance with domestic Russian law. war? I cannot imagine that Japan would In paragraph II there is ambiguity want better precedents than these. in the words "without having done The debt question must, as you say, so". Paragraph I unequivocably elim- be re-opened sooner or later. With or inates war as between the treaty pow- without the proposed treaties the final ers, substituting arbitration and the settlement will be made without war. like. Paragraph II, however, defines The only difference is that under the an aggressor not as one which begins treaty we could, apparently, be forced hostilities, but as one which begins to arbitrate, when we should wish to hostilities without having submitted negotiate. to arbitration, leaving the possible in- ference that hostilities might be begun Of the Monroe Doctrine you say thereafter-a palpable contradiction; that it was expressly exempted by the yet a meaning which I know to have statute establishing the League of Na- been taken by some. tions and that therefore it would lie outside the scope of any agreement Together, no doubt, with many thou- for international arbitration. In your sands of others, I hoped, as I had lecture you emphasized that there hoped before, that we might now have must be no exceptions, the Capper a proposal that would lead us forward, resolution itself mentions no excep- only to be again disillusioned, to find tions. Yet now the League of Na- again something which upon even cur- tions is cited to establish an exception sory examination discloses many con- of the utmost importance. Are the tradictions and a probability of bring- proposed treaties with the five na- ing nearer rather than of distancing tions to come under the rules of the that which it seeks to avoid, some- League of Nations? Then why not thing whose uncharted path leads to a say so in the resolution? If the Cap- stupendous gamble of which the stake per resolution does not mean exactly is the happiness, the greatness, the what it says "to adjust and settle its power of the people of the United international disputes by mediation, States, something which every son of arbitration and conciliation," then America who loves his country should THE DENVER BAR ASSOCIATION RECORD fight to the uttermost of his power. questions should be added to the list Please accept my best wishes for of those that are now customarily ne- this New Year both personally and as gotiated and arbitrated, they imme- the honored President of our famous diately exclude all that we may name, Alma Mater. or they avoid the issue with generali- Sincerely yours, ties, or they decline to reply. Why this HHW/M (Signed) H. H. WOLFF. lack of candor? Is it reasonable to believe that the supporters of this movement go to all this trouble and CONCLUDING COMMENTS BY expense of sending many speakers MR. WOLFF- across the continent knowing that No further communication has been nothing of consequence is to be added received from Dr. Butler. It seems re- to what we now do by way of arbitra- grettable that Dr. Butler lacked time tion? Or do they wish by denial and or inclination to explain the apparent silence to cover the inclusion of such contradictions and to elucidate how questions as they are certain that the the proposed treaties would tend to people of the United States would avoid war. On the one hand he tells never knowingly allow to be arbitrat- us that all international disputes with- ed? Or do they wish surreptitiously out exception must be so subject to to put us in a position where we are arbitration and the resolution itself at the mercy and dependent upon the clearly states the same. On the other goodwill of other nations? Or are hand he writes that disputes arising they actually trying to produce a for- under the Monroe Doctrine are ex- mula by which both sides concede cepted. May these therefore be everything while each retains free- handled in the old fashioned way with dom with regard to its particular threats of force when necessary? But needs, by which both sides agree not he tells me that it is uncertain what to wage war under any circumstances, comes under the Monroe Doctrine. yet each remains free to wage war in Some nations might therefore exclude all matters sufficiently important to what we include. Is not this in itself cause war? a new and very promising source of Which of these explanations is the disputes and likely to produc2 that correct one? Or is there some other? very psychology which our pacifists H. H. WOLFF. so justly decry? Dr. Butler excludes, as being domestic, such questions as the tariff and Lawyers in Maryland Paid our immigration laws. Yet economic $5 Each necessities and national affronts have In 1810 Martin Luther was stricken been among the most prolific causes with paralysis, and every lawyer in of war, and Dr. Shotwell, his coadju- the State was compelled by legislative tor, publicly proclaims our tariff as a act to pay a yearly license fee of $5.00 most probable cause of war with for his support. He died in 1826. Japan. The supporters of.the Capper resolution, as do pacifists generally, tell us Ben Butler's Funeral that we must make further treaties to When Senator Geo. F. Hoar was ask- avoid war or face the doom of civiliza- ed if he was going to attend Butler's tion. Yet, when we ask them specifi- funeral, he replied: "No, but I ap- cally to. state what type of serious prove of it."