the nomination of the umpire, and be transmitted to the Diet, in order to be communicated to the government of the State interested. 9. The sentence of the judges arbitrators shall have the effect of an austrëgal judgment, and shall be carried into execution in the manner prescribed by the ordinances of the Confederation. 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 (n). The growing power of the Germanic Confederation, and the desire of § 51a. establishing German unity, gave rise to the project of creating an empire German that should embrace the whole German race. In 1848, a congress asunity. sembled at Frankfort for the purpose of discussing this scheme, but nothing was then effected. Since that date the idea has been frequently revived, but the rivalry of Austria and Prussia, and the ambition and jealousy of the minor States long prevented its being carried out. The war of 1864 entered into by Austria and Prussia against Denmark, tended materially to promote German unity; and the subsequent war of 1866, between Austria and Prussia, resulted in the dissolution of the Germanic Confederation, and the establishment of the North German North Confederation. Austria was thereby excluded from participating in the German affairs of Germany (0), and Prussia placed at the head of a national movement. This Confederation consists of the kingdoms of Prussia and Saxony, the Grand Duchies of Mecklenburg-Schwerin, Mecklenburg-Strelitz, Oldenburg, and Saxe Weimar, the Duchies of Anhalt, Saxe-Meiningen, (n) For further details respecting the Germanic Constitution, see Wheaton's History of the Law of Nations, p. 455, et seq. (0) [Hertslet, Map of Europe by Treaty, vol. iii. p. 1699]. Confedera tion. § 51b. The German Empire since the war with France. § 51c. The Zoll verein. Saxe-Coburg, and Saxe-Altenburg, some smaller States, and the free cities of Hamburg, Bremen, and Lubeck (p). These States agreed to enter into a perpetual confederation for the defence of the Federal territory, and of the rights prevailing therein, as well as for fostering the welfare of the German people. After the war of 1870-71 with France, the idea of unity received its fullest development. The kingdoms of Bavaria and Wurtemburg, and the Grand Duchies of Baden and Hesse, were united to the North German Confederation, and the whole received the name of the German Empire (q). Within this Confederate territory the empire exercises the right of legislation according to the tenor of the Constitution, and with the effect that the imperial laws take precedence of the laws of the States (r). Legislation is carried on by a Council of the Confederation, and an Imperial Diet (s). The Council consists of the representatives of the members of the Confederation, amongst whom the votes are divided in such manner that Prussia has, with the former votes of Hanover, Electoral Hesse, Holstein, Nassau and Frankfort, seventeen votes, Bavaria six, Saxony four, Wurtemburg four, Baden three, Hesse three, Mecklenburg-Schwerin two, Brunswick two, and seventeen smaller States, one each (t). The totality of such votes can only be given in one sense, and there are fifty-eight votes in all. The Presidency of the Confederation belongs to the King of Prussia, who bears the name of German Emperor, and who represents the empire internationally, declares war, makes peace, enters into treaties, and receives ambassadors. The consent of the Council is necessary for declaring war, unless the territory of the empire is actually attacked (u). The Imperial Diet is elected by universal and direct election (x), and its proceedings are public (y). The army and navy of the whole Empire are single forces under the command of the Emperor (z). Thus, Germany has now become a compositive State, and the independence of its various members is merged in the sovereignty of the empire. One of the drawbacks to the Germanic Confederation of 1815 was the preservation by each State of its own custom-houses and imposts. This was found to interfere so materially with the development of trade, that the Diet endeavoured to frame some legislative scheme for regulating the whole customs duties of the union, and for abolishing internal custom-houses within its territories. The Diet failed in its attempt, but the idea was gradually carried out by independent action on the part of several of the States. In 1827, Bavaria and Wurtemburg signed a treaty suppressing the custom-houses between themselves, adopting a uniform tariff of duties, and dividing the receipts proportionally (a). This was (p) [State Papers, vol. lvii. p. 296. Hertslet, Map of Europe by Treaty, vol. iii. p. 1807]. (q) [Hertslet, Map of Europe, vol. iii. p. 1930]. (r) [Art. ii. of the Constitution of the German Empire]. (x) [Art. xx.]. (t) [Art. vi.]. (y) [Art. xxii.]. (a) [Marten's Nouveau Receuil, vol. vii. p. 167. p. 803]. (u) [Art. xi.]. (z) [Arts. liii. and lxiii.]. State Papers, vol. xiv. the first treaty of the kind, and was soon followed by two others with the same object, one by Prussia with Anhalt and Hesse Darmstadt, another by Saxony with Hesse-Cassel, Brunswick, Nassau, and some smaller States. The customs association to which Prussia belonged was called the Zollverein, and by the year 1855, the exertions of that State had absorbed into this league the whole of Germany, except Austria, the two Mecklenburg Duchies, Holstein, and the Hanse Towns (b). In 1867, the Zollverein was re-constituted by a treaty which came into force on the 1st of January, 1868, and was to continue till the 31st of December, 1877. In 1868, the Mecklenburg Duchies and Lubeck joined the league, which, as Austria had then been excluded from the affairs of Germany, embraced all the German Empire except the free towns of Hamburg and Bremen. The constitution of the German Empire of 1871 expressly keeps in force the treaty of July, 1867, and confirms the right of Hamburg and Bremen to remain as free ports outside the customs frontier, until they shall apply to be admitted therein (c). 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 sovereign states for their common defence against external and internal violence, but a supreme federal government, or composite State, acting not only upon the sovereign members of the union, but directly upon all its citizens in their individual and corporate capacities. It was established, as the constitutional act expressly declares, by "the people of the United States, in order to form a more perfect union, establish justice, ensure domestic tranquillity, provide for the common defence, promote the general welfare, and secure the blessings of liberty to them and their posterity." This constitution, and the laws made in pursuance thereof, and treaties made under the authority of the United States, are declared to be the supreme law of the land; and that the judges in every State shall be bound thereby, anything in the constitution or laws of any State to the contrary notwithstanding. $ 52. United States of America. § 53. Legislative The legislative power of the Union is vested in a Congress, consisting of a Senate, the members of which are chosen by power of the local legislatures of the several States, and a House of the Union. Representatives, elected by the people in each State. This Congress has power to levy taxes and duties, to pay the debts, and provide for the common defence and general welfare of the Union; to borrow money on the credit of the United (b) [Calvo, vol. i. § 63, p. 166]. (c) [Arts. xl. and xxxiv. See Hertslet, Map of Europe, vol. iii. pp. 1939, 1941. Statesman's Manual, 1877, Tit. Germany]. $ 54. Executive power. § 54a. States; to regulate commerce with foreign nations, among the several States, and with the Indian tribes; to establish a uniform rule of naturalization, and uniform laws on the subject of bankruptcy throughout the Union; to coin money, and fix the standard of weights and measures; to establish postoffices and post-roads; to secure to authors and inventors the exclusive right to their writings and discoveries; to punish piracies and felonies on the high seas, and offences against the law of nations; to declare war, grant letters of marque and reprisal, and regulate captures by sea and land; to raise and support armies; to provide and maintain a navy; to make rules for the government of the land and naval forces; to exercise exclusive civil and criminal legislation over the district where the seat of the federal government is established, and over all forts, magazines, arsenals, and dock-yards belonging to the Union, and to make all laws necessary and proper to carry into execution all these and the other powers vested in the federal government by the Constitution. To give effect to this mass of sovereign authorities, the executive power is vested in a President of the United States, chosen by electors appointed in each State in such manner as the legislature thereof may direct. The judicial power extends to all cases in law and equity arising under the constitution, laws, and treaties of the Union, and is vested in a Supreme Court, and such inferior tribunals as Congress may establish. The federal judiciary exercises under this grant of power the authority to examine the laws passed by Congress and the several State legislatures, and, in cases proper for judicial determination, to decide on the constitutional validity of such laws. The judicial power also extends to all cases affecting ambassadors, other public ministers, and consuls; to all cases of admiralty and maritime jurisdiction; to controversies to which the United States shall be a party; to controversies between two or more States; between a State and citizens of another State; between citizens of different States; between citizens of the same State claiming lands under grants of different States; and between a State, or the citizens thereof, and foreign States, citizens, or subjects. Mr. Dana considers the language of this clause likely to mislead Legislation foreign readers. He denies there being any tribunal which has special in the and direct power to decide questions of constitutional law. The Supreme United Court is the court of final resort, from whose decision there is no appeal; States. but, like all other courts, it only decides the questions of law that litigants bring before it. The American Constitution is a code of positive law; and is, moreover, the law having the highest authority in the Union. Acts of Congress do not correspond to English Acts of Parliament. The latter are supreme; and the only business of an English Court, when an Act comes before it, is to fix upon it the interpretation which the legislature is supposed to have intended. In America, a litigant may appeal to the Supreme Court against an Act of Congress, and the Court may declare whether the Act is constitutional or not. If the Court pronounces an Act to be unconstitutional, it remains on the statute book, but is inoperative, unless the Court at a subsequent time reverses its own decision (d). Story, in his Commentary on the Constitution, says, "In measures exclusively of a political, legislative, or executive character, it is plain that, as the supreme authority as to these questions belongs to the legislative and executive departments, they cannot be re-examined elsewhere. But where the question is of a different nature, and capable of judicial inquiry and decision, there it admits of a very different consideration. It is in such cases that there is a final and common arbiter provided by the Constitution itself, to whose decisions all others are subordinate; and that arbiter is the supreme judicial authority of the Courts of the Union. No mode is provided by which any superior tribunal can re-examine what the Supreme Court has itself decided ” (e). In 1866, an application was made to the Supreme Court to restrain the President from carrying into effect an Act of Congress alleged to be unconstitutional; but the Court decided that such a proceeding was not within their jurisdiction (ƒ). can Treaty The treaty-making power is vested exclusively in the Presi§ 55. dent and Senate; all treaties negotiated with foreign States making being subject to their ratification. No State of the Union power. enter into any treaty, alliance, or confederation; grant letters of marque and reprisal; coin money; emit bills of credit; make any thing but gold and silver coin a tender in the payment of debts; pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts; grant any title of nobility; lay any duties on imports or exports, except such as are necessary to execute its local inspection laws, the produce of which must be paid into the national treasury; and such laws are subject to the revision and control of Congress. Nor can any State, without the consent of Congress, (d) [Wheaton, by Dana, note 31, p. 79]. (e) [Story on the Constitution of the United States, vol. i. p. 266 (4th ed.)]. (f) [State of Mississippi v. Johnson, 4 Wallace, 475]. |