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In the case of disputes more particularly relating to the financial budget, the effect of the arbitration extends to the period of time for which the same may have been voted.
10. The costs and expenses of the arbitration are to be exclusively borne by the State interested, and, in case of disputes respecting their payment, they shall be levied by a decree of the Diet.
11. The same tribunal shall decide upon the differences and disputes which may arise, in the free towns of the Confederation, between the Senate and the authorities established by the burghers in virtue of their local constitutions.
12. The different members of the Confederation may resort to the same tribunal of arbitration to determine the controversies arising between them; and whenever the consent of the States respectively interested is given for that purpose, the Diet shall take the necessary measures to organize the tribunal according to the preceding articles.1 (a)
1 For further details respecting the Germanic Constitution, see Wheaton's History of the Law of Nations, p. 455, et seq.
(a) [In 1848, an attempt was made to establish a new German nationality on the basis of a confederation of all the States, with one general Diet or Parliament, and a Central Executive at Frankfort. A national Assembly, elected by the people of the German States, including Schleswig and Holstein, in proportion to their respective populations and in the manner prescribed by the several local constitutions, met on the 18th of May, of that year, and adopted a law for the creation of a provisional central power, which was confided to the Archduke John of Austria, who was installed as Regent on the 12th of July. The Provisional Central Power was vested with the right of deciding on questions of peace and war, and, with the consent of the Assembly, of making treaties with foreign powers. The Diet, representing the old Federal Constitution of Germany, on his election, communicated to the Archduke the assent of their respective governments. A constitution was, at the same time, proposed, by which the Confederation was to be a Constitutional Monarchy, with a Diet of two Chambers. The "Emperor of Germany" was to be hereditary and inviolable, the ministers being responsible for all acts, and the existing German sovereigns to be members, though not exclusively, of the Upper Chamber, of which the other members were to be elected by the sovereigns, or the local Diets of the States; the Lower Chamber to be elected for six years from electoral districts of equal population, one third retiring biennially. A Court of Imperial Judicature was to be established to have cognizance of all disputes between German States and princes, of disputes between citizens of different States, and disputes between princes and their State Diets; also of all imperial fiscal matters. Free municipal constitutions to be guaranteed; a national guard;
§ 24. United States of America.
The Constitution of the United States of America is of a very different nature from that of the Germanic Confederation. It is not merely a league of sove
unrestrained freedom of public meetings; and absolute freedom of religion and the press. Austria refused to take any part in a confederation of this character; but the Assembly proceeded to the adoption of the Constitution, and, on the 28th of March, 1849, elected the King of Prussia Emperor of Germany. The result, however, of his appeal to the other German States, being, that Austria, Wurtemburg, Bavaria, and Hanover, at once declared their decided dissent, and the Frankfort Assembly having refused some modifications of the Constitution, on which the king insisted, he gave a distinct and unequivocal refusal, on the ground that the Imperial Supremacy was an unreal dignity, and the Constitution only a means, gradually, and under legal pretences, to set aside authority and introduce a Republic.
The Plenipotentiaries of Prussia, Hanover, and Saxony, published the draught of a new Imperial Federal Constitution, preceded by an address which stated that, "because the Frankfort Assembly ceased to exist as a legal body when it completed its plan of a constitution, which could not be accepted by the Government without alteration; all the after acts of the Chamber were to be considered as exceeding its powers, and without validity." The constitution thus proposed did not go into operation; but Austria convened at Frankfort, on the 10th of May, 1850, the Diet under the Federal Act of 1815, while Prussia contended that the assumption of a political superiority by Austria, and the summoning of the old Diet, were contrary to the spirit of the Confederation, and the resolution passed by it on the 13th of July, 1848, which abolished the former organization of the whole body. Two rival congresses were sitting at the same time, one at Berlin, headed by Prussia, and one at Frankfort, over which Austria presided. The object of the former was to establish a new Confederation, of which Prussia should be the acknowledged leader; of the latter to preserve to Austria her old preeminence, while taking into consideration a new organization of the Diet. After warlike demonstrations on the part of Austria and Prussia, for which an intervention in the disputes between the Elector of Hesse Cassel and his Diet were the apology, a conference of the different German States was had at the close of the year 1850, at Dresden, on the invitation of the two principal powers. This, after ineffectual efforts on the part of Austria to bring all the States of her Empire into the Germanic Confederation, resulted in the restoration, assented to in May, 1851, by all the German powers, of the old Frankfort Diet, as it had existed since 1815. Annual Reg. 1848, p. 362; id. 1849, p. 347; id. 1850, pp. 313, 320; id. 1851, p. 276.
Brief as was the duration of the " German Empire," it became involved, under circumstances somewhat complicated, in a war with Denmark, growing out of a question which arose before its inauguration, and which was prolonged beyond its own existence · - the succession of the crown connected with the integrity of the Danish States. See for the merits of the controversy, "Mémoire sur l'Histoire du Droit de la Succession à la Couronne de Danemark, par M. Wheaton,
reign States, for their common defence against external and internal violence, but a supreme federal government, or com
read before the French Institute, Compte Rendu, Mars, 1847. The Duchies of Schleswig and Holstein were under the same sceptre as Denmark, but in the kingdom, on the failure of heirs in the male line, then anticipated, the females of the same line are called to the throne; while in the Duchies of Schleswig and Holstein, and in Lauenburg ceded to Denmark in 1815, as a partial indemnity for Norway, after the extinction of the males of the elder royal line, the males of the next collateral line succeed. This view of the case, however, was not acquiesced in by the reigning monarch, at least as regards Schleswig and Lauenburg; and though he admitted that there were doubts as to Holstein, he declared that every effort would be made to maintain the integrity of the Danish States. While Holstein and Schleswig were supposed to be united by a rule of succession which would continue the union of the Duchies, long established for administrative purposes, they both claimed to be considered a portion of the Germanic Confederation; but Holstein alone had been represented by Denmark in the Diet under the Federal pact of 1815. It was contended by Denmark, that the Duchy of Schleswig had always, with the exception of a brief interval, during which it enjoyed a doubtful state of independence, been a fief of the crown of Denmark, and that it never had belonged to the old German Empire, while Holstein had been, from time immemorial, a fief of Germany. So early as 1846, the Diet of the Germanic Confederation charged itself with this subject, on the application of Holstein, in order to preserve the rights of the Confederation and of the collateral branches to the successsion. Prussia took the initiative, in 1848, in the recess of the Diet, in sustaining Schleswig-Holstein against Denmark, and the Frankfort Assembly approved the conduct of the King of Prussia, and declared that the Confederation was bound to maintain the interests and rights of the Duchy of Holstein, in union with Schleswig, as being included in the Germanic Confederation. The King of Prussia was requested to represent to the King of Denmark the necessity of evacuating Schleswig, or should that be of no avail, to order out the troops of the Confederation to conquer it, and the Provisional Government of the Duchies was acknowledged by the Confederation, and placed temporarily under the protection of Prussia. Russia and Sweden protested against the interference of Germany, and an armistice was concluded, but not till actual hostilities had occurred. A temporary administration was formed for the Duchies, chosen in part by Denmark, and in part by Prussia, acting for the central power of Germany, which transferred, in 1851, its authority to commissioners of the Germanic Confederation, to be restored after establishing the old relations between Schleswig and Holstein, into the hands of their legitimate sovereign. This was done in February, 1852, and the authority of the King of Denmark again became paramount. The matter of the succession was settled by a treaty, concluded in May, 1852, at the invitation of His Danish Majesty, between Denmark, Great Britain, Austria, France, Russia, Prussia, and Sweden, so as to insure the unity and integrity of the Danish dominions. The King of Denmark, with the assent of the Hereditary Prince, and of the nearest cognåtes, and in concert with the Emperor of Russia, as head of the elder branch of the House of Holstein-Gottorp, agreed that in default of issue in a direct line
positive State, acting not only upon the sovereign members of the Union, but directly upon all its citizens in their individual
of Frederic III., of Denmark, his crown should devolve on Prince Christian of Schleswig-Holstein-Sonderbourg-Glücksbourg, and on the issue of his marriage with Louisa, born Princess of Hesse. By this arrangement several, both of the agnate and cognate lines were passed over. Hansard's Debates, vol. cxxiv. p. 440. Annuaire, &c., 1851 - 2, App. p. 961. Annual Reg. 1852, p. 441.
Contrary to the usage which prevailed with the Diet of the Confederation of 1815, which received foreign ministers, but did not maintain regular missions on its own part, there was an interchange of legations between the United States and the German Empire, the latter of which contemplated a national unity, like our own, with reference to foreign powers. Nor were the functions of these ministers confined to mere ordinary relations. In the project to create among other federal institutions a German navy, a war-steamer was purchased by the Imperial Government in the United States, the sailing of which was objected to in consequence of the existence of the war with Denmark, as a violation of the American neutrality act of 20th of April, 1818. The vessel was only permitted, after a protracted negotiation, to leave an American port, on a bond being executed in compliance with the statute, that it should not be employed to cruise or commit hostilities against any State with which the United States were at peace. An nuaire des Deux Mondes, 1852-3, p. 485. Cong. Doc. 31st Cong. 1 Sess. H. of R. Ex. Doc. No. 5.
A reference to the events which have occurred, affecting the Constitution of Germany, would be incomplete without a notice of an institution, which has, for several years, exercised the most important functions in relation to matters usually regarded among the attributes of sovereignty.
One of the objects of the Federal pact of 1815 was the regulation of commerce between the different States. This duty was never, however, undertaken by the Diet, but in 1833 a commercial association between several of the States commenced, under the name of Zollverein, at the head of which was Prussia, and which, in 1845, numbered upwards of twenty sovereign States as members. Another association called the Steuerverein, was formed in 1834, between Hanover and Brunswick, and with which Oldenburg soon after united. Through these unions uniform tariffs were established, all internal custom-houses were abolished, and the duties collected by the frontier States, and distributed among the members of the leagues, according to their respective population. On 4th of April, 1853, a treaty was concluded between all the members of the two associations, (Zollverein and Steuerverein,) uniting them, and extending the existence of the Zollverein to 31st of December, 1865. This arrangement was preceded by a Treaty of Commerce between Austria and Prussia, of the 9th of February, 1853, by which, with the exception of certain monopoly articles, (tobacco, salt, &c.,) they agreed to remove every prohibition between the two countries, with respect to the exportation, importation, or the transit of merchandise. All the German States, which, on the 1st of January, 1854, or subsequently, should belong to the Zollverein, were to have the privilege of acceding to the treaty, as well as the Italian States, united, or which should be united, in a customs-union with Austria. Annuaire, &c., 1852-3, p. 494.
and corporate capacities. It was established, as the Constitution expressly declares, by "the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquillity, provide for the common defence, promote the general welfare, and secure the blessings of liberty to them and their pos
The Zollverein was not confined to the establishment of commercial intercourse between its own members, but it entered into treaties, through Prussia, whose government had a full power for that purpose, with foreign nations. One of this character, formed on the basis of equivalent and reciprocal reductions of duties, and to effect which had been the principal object of his mission at Berlin, was signed by Mr. Wheaton, on behalf of the United States, on 25th of March, 1844. But, though recommended by the President in two successive Annual Messages and in submitting the treaty to the Senate, the Committee of Foreign Relations of that body reported, that it was "an innovation on the ancient and uniform practice of the government to change (by treaty) duties laid by law;" that "the. Constitution, in express terms, delegates the power to Congress to regulate commerce and to impose duties, and to no other; and that the control of trade and the function of taxing belong, without abridgment or participation, to Congress." The Senate having omitted to give their assent to the treaty before their adjournment, the Secretary of State, Mr. Calhoun, in communicating to Mr. Wheaton the result of their proceedings, with a view to the extension of the time for the exchange of ratifications, states, that the objections of the committee were opposed to the uniform practice of the government; and he refers to numerous treaties, which contain stipulations changing the existing laws regulating commerce and navigation, and duties laid by law. "So well," says he, "is the practice settled, that it is believed it has never before been questioned. The only question, it is believed, that was ever made was, whether an Act of Congress was not necessary, to sanction and carry the stipulations making the change into effect." The President had announced to the Senate that, when it was ratified, he would transmit the treaty and accompanying documents to the House of Representatives, for its consideration and action. Cong. Globe, 1843-4, p. 6. Id. 1844-5, p. 5. Cong. Doc. 28th Cong. 1st Sess. Senate-Executive, confidential. Mr. Calhoun to Mr. Wheaton, 28th June, 1844, MS.
It may here be noticed, that the objections made to the Zollverein treaty, founded on the competency of the treaty-making power of the Federal Government, seems no longer to be deemed tenable, inasmuch as the Reciprocity treaty of June, 1854, in reference to the trade between the United States and the British Provinces, though materially varying the existing tariff, was at once ratified, and a law to carry it into effect passed through Congress. U. S. Statutes at Large, 1853-4, p. 587.
Though not successful in any plan of Constitution which would make her sovereign the nominal, as well as real political, chief of Northern Germany, the effect of the Zollverein has been to make Prussia the representative of the minor States in their relations with foreign powers, not only in commercial affairs, but, as a reference to the Extradition Treaty with the United States will show, in other matters.]