The Diet has also power to regulate the commercical intercourse between the different States, and the free navigation of the rivers belonging to the Confederation, as secured by the treaty of Vienna. (k) 28 The different Christian sects throughout the Confederation are entitled to an equality of civil and political rights; and the Diet is empowered to take into consideration the means of ameliorating the civil condition of the Jews, and of securing to them in all the States of the Confederation the full enjoyment of civil rights, upon condition that they submit themselves to all the obligations of other citizens. In the mean time, the privileges granted to them by any particular State are to be maintained. (1) Of the in eignty of the federation. § 48. Notwithstanding the great mass of powers thus ternal sover- given to the Diet, and the numerous restraints imposed upon the exercise of internal sovereignty, by the individual manic Con- States of which the union is composed, it does not appear that the Germanic Confederation can be distinguished, in this respect, from an ordinary equal alliance between independent sovereigns, except by its permanence, and by the greater number and complication of the objects it is intended to embrace. In respect to their internal sovereignty, the several States of the Confederation do not form, by their union, one compositive State, nor are they subject to a common sovereign. Though what are called the fundamental laws of the Confederation are framed by the Diet, which has also power to make organic regulations respecting its federal relations; these regulations are not, in general, enforced as laws directly binding on the private individual subjects, but only through the agency of each separate government adopting them, and giving them the force of laws within its own local jurisdiction. If there be cases where the Diet may rightfully enforce its own resolutions directly against the individual subjects, or the body of subjects within any particular State of the Confederation, without the agency of the local governments, (and there appear to be some such cases,) then these cases, when they occur, form an exception to the general character of the union, which then so far becomes a (k) Bundesacte, art. 19. Acte final, arts. 108-117. (1) Bundesacte, art. 16. [28 The duties as to commerce and free navigation have not been performed by the Diet, but by a Zollverein, of which Prussia and nearly all the German States are members, and in which Austria is indirectly included by the operation of a treaty with Prussia.]—D. compositive State, or supreme federal government. All the members of the Confederation, as such, are equal in rights; and the occasional obedience of the Diet, and through it of the several States, to the commands of the two great preponderating members of the Confederation, Austria and Prussia, or even the habitual influence exercised by them over its councils, and over the councils of its several States, does not, in legal contemplation, impair their internal sovereignty, or change the legal character of their union. Of the external sover § 49. In respect to the exercise by the confederated States of their external sovereignty, we have already seen eignty of that the power of contracting alliances with other States, these States. foreign to the Confederation, is expressly reserved to all the confederated States, with the proviso that such alliances are not directed against the security of the Confederation itself, or that of the several States of which it is composed. Each State also retains its rights of legation, both with respect to foreign powers and to its co-States. (a) Although the diplomatic relations of the Confederation with the five great European powers, parties to the Final Act of the Congress of Vienna, 1815, are habitually maintained by permanent legations from those powers to the Diet at Frankfort, yet the Confederation itself is not habitually represented by public ministers at the courts of these, or any other foreign powers; whilst each confederated State habitually sends to, and receives such minister from other sovereign States, both within and without the Confederation. It is only on extraordinary occasions, such, for example, as the case of a negotiation for the conclusion of a peace or armistice, that the Diet appoints plenipotentiaries to treat with foreign powers. (b) According to the original plan of confederation as proposed by Austria and Prussia, those States, not having possessions out of Germany, were to have been absolutely prohibited from making alliances or war with any power foreign to the Confederation, without the consent of the latter. But this proposition was subsequently modified by the insertion of the above 63d article of the Federal Act of 1815. And the limitations contained in that article upon the war-making and treaty-making powers, both of the Con (a) Klüber, Oeffentliches Recht des teutschen Bundes, §§ 137-143. federation itself and of its several members, were more completely defined by the Final Act of 1820. (c) It results clearly from these provisions, that such of the confederated States, as have possessions without the limits of the Confederation, retain the authority of declaring and carrying on war against any power foreign to the Confederation, independently of the Confederation itself, which remains neutral in such a war, unless the Diet shall recognize the existence of a danger threatening the federal territory. The sovereign members of the Confederation, having possessions without the limits thereof, are the Emperor of Austria, the King of Prussia, the King of the Netherlands, and the King of Denmark. Whenever, therefore, any one of these sovereigns undertakes a war in his character of a European power, the Confederation, whose relations and obligations are unaffected by such war, remains a stranger thereto; in other words, it remains neutral, even if the war be defensive on the part of the confederated sovereign as to his possessions without the Confederation, unless the Diet recognizes the existence of a danger threatening the federal territory. (d) 29 It seems, also, to result from these provisions, taken in connection with the above-mentioned modification in the original plan of Confederation, that even those States not having possessions without the limits of the Confederation, retain the sovereign authority of (c) Wheaton's Hist. Law of Nations, 447, 448, 457–460. (d) Wiener Schlussacte, arts. 46, 47. Klüber, Oeffentliches Recht des teutschen Bundes, § 152 f. [29 During the Italian war of 1859, Austria invoked the 47th article of the Final Act, on the allegation that her territory within the Confederation was threatened by France and Sardinia. Prussia refused to consider that war as a matter affecting the Confederation, and gave official notice that she would not be bound by a decision of a majority of the Diet to that effect. At the same time, she agreed to the federal contingent being put upon a war footing. The more southern German powers favored the Austrian application; but the attitude of Prussia defeated it. Russia also remonstrated against any construction of the confederative union which carried it beyond a purely defensive combination. Annuaire des deux Mondes, 1859. Annual Register, 1859. The correspondence of 1859 shows that the construction of the articles relating to defence is not settled; that the action of the Confederation depends largely on either Prussia or Austria; and that the parties to the treaty of Vienna consider themselves entitled to a voice, to the extent of seeing that the Confederation adheres to its limits of duties, they having admitted it into the public law of Europe, and being interested in its action. The threat of coercion by Prussia on Saxony, in 1865, and the acquiescence of Austria, and the results of the Schleswig-Holstein war (vide infra), have combined to impair very much the guaranties of the Confederation.] — D. separately declaring and carrying on war, and of negotiating and making peace with any power foreign to the Confederation, excepting in the single case of a war declared by the Confederation itself; in which case, no State can negotiate with the enemy, nor conclude peace or an armistice, without the consent of the rest. In other cases of disputes, arising between any State of the Confederation and foreign powers, and the former asks the intervention of the Diet, the Confederation may interfere as an ally, or as a mediator; may examine the respective complaints and pretensions of the contending parties. If the result of the investigation is, that the co-State is not in the right, the Diet will make the most serious representations to induce it to renounce its pretensions, will refuse its interference, and, in case of necessity, will take all proper means for the preservation of peace. If, on the contrary, the preliminary examination proves that the confederated State is in the right, the Diet will employ its good offices to obtain for it complete satisfaction and security. (e) manic Con confederated It follows, that not only the internal but the external The Gersovereignty of the several States composing the Germanic federation is Confederation, remains unimpaired, except so far as it a system of may be affected by the express provisions of the funda- States. mental laws authorizing the federal body to represent their external sovereignty. In other respects, the several confederated States remain independent of each other, and of all States foreign to the Confederation. Their union constitutes what the German public jurists call a Staatenbund, as contradistinguished from a Bundesstaat; that is to say, a supreme Federal Government. (ƒ) § 50. Very important modifications were introduced into the Germanic Constitution, by an act of the Diet of the 28th of June, 1832. By the 1st article of this act it is declared, that, whereas, according to the 57th article of the Final Act of the (e) Wiener Schlussacte, arts. 35-49. Klüber, § 462. Act of the Diet of 1832. (ƒ) Klüber, §§ 103 a, 176, 248, 460, 461, 462. Heffter, Das europäische Völkerrecht, § 21. The Treaty of Paris, 1814, art. 6, declares: "Les états de l'Allemagne seront indépendans et unis par un lien fédératif.” The Final Act of the Congress of Vienna, 1815, art. 54, declares: “Le but de cette Confédération est le maintien de la sûreté extérieure et intérieure de l'Allemagne, de l'indépendance et de l'inviolabilité de ses états confédérés.” . And the Schlussacte, of 1820, declares : ART. 1. The Germanic Confederation is an international union of the sovereign Princes and Free Cities of Germany, formed for the maintenance of the independence Congress of Vienna, the powers of the State ought to remain in the hands of its chief, and the sovereign ought not to be bound by the local constitution to require the co-operation of the legislative Chambers, except as to the exercise of certain specified rights; the sovereigns of Germany, as members of the Confederation, have not only the right of rejecting the petitions of the Chambers, contrary to this principle, but the object of the Confederation makes it their duty to reject such petitions. ART. 2. Since according to the spirit of the said 57th article of the Final Act, and its inductions, as expressed in the 58th article, the Chambers cannot refuse to any German sovereign the necessary means of fulfilling his federal obligations, and those imposed by the local constitution; the cases in which the Chambers endeavor to make their consent to the taxes necessary for these purposes depend upon the assent of the sovereign to their propositions upon any other subject, are to be classed among those cases to which are to be applied the 25th and 26th articles of the Final Act, relating to resistance of the subjects against the government. ART. 3. The interior legislation of the States belonging to the Germanic Confederation, cannot prejudice the objects of the Confederation, as expressed in the 2d article of the original act of confederation, and in the 1st article of the Final Act; nor can this legislation obstruct in any manner the accomplishment of the federal obligations of the State, and especially the payment of the taxes necessary to fulfil them. ART. 4. In order to maintain the rights and dignity of the Confederation, and of the assembly representing it, against usurpations of every kind, and, at the same time, to facilitate to the States which are members of the Confederation the maintenance of the constitutional relations between the local governments and the legislative Chambers, there shall be appointed by the Diet, in the first instance, for the term of six years, a commission charged with the supervision of the deliberations of the Chambers, and with directing their attention to the propositions and resolutions which may be found in opposition to the federal obligations, or to the and inviolability of the confederated States, as well as for the internal and external security of Germany. ART. 2. In respect to its internal relations, this Confederation forms a body of States independent between themselves, and bound to each other by rights and duties reciprocally stipulated. In respect to its external relations, it forms a collective power established on the principle of political union. |