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the United States for excluding such matters from the national treaty power, because the individual States still retain a limited power to conclude treaties. Thus Laband89 thought the treatymaking power in Germany was subject to the same constitutional division between Empire and States as the legislative power, and there has been judicial authority for this view.90 As the legislative power of the central government was much more comprehensive than in the United States, this limitation would not be important; but Kaufmann91 doubts whether such a limitation exists at all, in support of which he points out a number of imperial treaties actually in force regulating matters within State competence.92
In Switzerland the Bundesgericht decided in 1883•* that the national government was competent to conclude treaties even on subjects within the exclusive legislative competence of the Cantons, and writers on Swiss constitutional law have voiced the same opinion.9* In Switzerland and Germany, however, as the Constitutions are not enforceable as law in the courts, a conflict could not, in any case, come before the courts.
8»Paul Laband, Das Staatsrccht des Deutsches Reiches, 3d ed., 1: 639.
»o Urtheilen des Deutsches Reichsgerichts, July 23, 1890, Ent., 26: 123.
•i Kaufmann, Die Rechtskraft des Internationalen Rechtes und das VerhSltiiisse des Staatsorgans zu demselben, Stuttgart, 1899, p. 53. See also Urtheilen des Deutsches Reichsgerichts, November 3, 1884, Ent. Str., 1: 234, 236.
»2 Railroad Freight treaty, Netherlands, November 28, 1892, Art. 10, Marten's N. R. G., II, 19: 900; Canal treaties, Belgium, France, October 8, 1887, ibid., II, 15: 747; Fisheries treaties, Netherlands Switzerland, June 30, 1885, ibid., II, 11: 561.
»* Urtheilen des Schweitz Bundesgerichts, April 9, 1882, Ent., 9: 178.
si Blumer, Handbuch des Schweitz Bundesstaatsrechts, 3d ed. (Morel), 1: 239, cited Kaufmann, op. cit., p. 53.
THE LAW OF ANGARY
The origin of the right of angary is traceable to early Roman times, and a study of its origin and development throws much light on the right as it is understood today. Several writers on international law refer to the first chapter, 41st verse, of Saint Matthew's Gospel, as showing a possible origin of the term angary. This verse reads:
Quicumque te angariaverit mille passus, vade cum Mo et alia duo.
(And whosoever shall compel thee to go one mile, go with him two.)
The Greek word for compel or force is also cited, and it is clear
that the idea of compelling some service was linked up with the early
notion of angary.
The following passage from the Justinian Code (529 A.d.) shows
the word angary in its noun form, and shows that all classes alike
were subject to the law:
Nullus penitus cuius libet ordinis seu dignitatis, vel sacrosancta ecclesia, vel domus regia tempore expeditionis excusationem angariarum seu parangarium habeat.1
The distinction between angary and parangary is that the latter term connotes services over and above those actually required or forced, that is, extra services. The forced services included the furnishing of wagons and teams for public undertakings, such as for the post and for the transport of grain to the common distribution point. Naturally it came to embrace the seizure of vessels for public purposes, and we find that both Huber and Loccennius refer to Book II, Tit. 56 of the Book of Feudalism, which had absorbed the angary
* Corput Juris Civilit, Lib. XII, Tit. LI, art. 21, p. 772 Hermanni ster. edit. Leipzig, 1843.
clauses from the constitution of 1158, granted by Frederick I as a code for the Italians. Huber says:
In lure autem Feudali d. tit. 56 ut ,& sequiori cevo, per angarias & parangarias designantur quodibet operas, maxime vectorice, Frcihnen mit Fuhren und Pferden, An- und Vorspann, quanquam in d. t. 56 non plene recenseantur omnia Regalia, ne quidem, Minora.2
Has angarias imponere possunt navibus ille principes et respublicce, quoz iura maiestatis habent. Inter regalia enim referunter quoque navium prsestationes, in c. un. qua sint regalia lib. 2 feud, tit. 56.*
Here we see that a rough distinction between the prestation of ships and the prestation of wagons and teams, but the angary of vessels is firmly recognized. Kuricke did not believe a distinction necessary or useful. He says:
Sunt qui cum Peckio et alias distinguunt, utrum onus nautum, an vero universatatem, respiciat, et hoc posteriori casu wquum esse putant, per earn succurri. Sed sicut distinctio hcec obscuritate non caret, ita rationem diversitatis me non capere ingenue profiteor.*
It is thus seen that the right of angary had its origin in the demand by the Roman authorities for private property and personal services for necessary public purposes, and that it came to apply to ships. At least, as early as the twelfth century the right referred primarily to ships and lost its other meanings.
n. TREATIES RELATING TO THE EXERCISE OF THE RIGHT OF ANGARY.
That the exercise of the right of angary was found in the seventeenth century, and that the right was much abused, may be surmised from the character of the treaties which were signed in that period. In the first place, it is clear that vessels must have been seized for almost any purpose. This is shown by the prohibitory clauses appearing in three of the treaties, stating that the vessels of the contracting parties shall not be seized "under pretence that he has occasion for them;" "pour quelque cause que ce soit;" "ni de transporter quelque chose." In the second place, clauses from these treaties show that the personnel of the vessels were seized with their ship and forced to serve with it. Thus it is prohibited to the contractants to seize "les maitres, pilots, matelots," or, the "mariners or merchants."8
»De Iure Civitatis (1752), p. 203.
»Iure Maritimo et Navali, Cap. V. Lib. III, p. 927 Heinnecius ed. Magdeburg.
* lus Maritimum Hanseaticum, p. 887, Heinnecius ed. Magdeburg, 1740.
So strong was the opposition to the exercise of the old right that in the Pyrenees Treaty it is provided that vessels shall not be seized "meme sous pretexte de s'en vouloir servir pour la conservation et deffense du pays."" The English- Portuguese Treaty of July 10, 1654, provides:
Art. IX. The King of Portugal shall not detain any of the republic's ships, merchants, or mariners, under pretence that he has occasion for them, without the consent of the Protector, or of those concerned.7
Article eleven of the Danish-French Treaty of 1645, provides:
Les vaisseaux de guerre ou marchands ne seront pas contraints d'aller en guerre, ni de transporter quelque chose, sans le consentment de leur souverain, des maitres ou proprietaires de navire*
The requirement of the consent of the owners of the vessels in the case of the two last-mentioned treaties is equivalent to denying the right of angary.
The clause of the Danish-French Treaty cited above was renewed as Article 30 of the treaty of August 23, 1742.9 The right of angary is denied by the Holland-Naples Treaty of 1753, and the United StatesMorocco Treaty of July 18, 1787, Article 19. Article 8 of the United States-Netherlands Treaty of January 22, 1783, which was abrogated in 1795 upon the overthrow of the Netherlands Government, provides:
Merchants, masters and owners of ships, mariners, men of all kinds, ships and vessels, and all merchandizes and goods in general, and ef
sMoetjens et Van Bulderen,—Recucil des Traitis de Pais, Vol. IV, p. 775 (1700).
i Jenkinson, C. "Collection of Treaties between Great Britain aid Other Powers" (1785), p. 72.
■ Dumont, VI, 329.
» Clercq, Recueil des Traitis de la France, p. 54.
feets of one of the confederates, or subjects thereof, shall not be seized
This clause is very comprehensive and makes clear that the right
With the treaty of 1799 between the United States and Prussia, the right of angary entered upon a new phase.
As a result of the Napoleonic Wars, the place of the right of angary in international law was radically changed. The change came about from the precedent established by Napoleon in 1798. In the midst of his wars, he, as head of the Directorate, issued an order which provided for the requisitioning of ships in the French ports of Vecchia, Nice, Marseilles, and others. Among the vessels so requisitioned for the transport of troops to Egypt, were several neutral vessels.
With this precedent freshly in mind, the negotiators of the treaty of July 11, 1799, between the United States and Prussia, drew up, as Article 16, the first treaty stipulation expressing a new interpretation of the right of angary, that is, that the right might be exercised in cases of urgent necessity if full indemnity is paid to the injured party. This article provides:
... in times of war, or in cases of urgent necessity, when either of the contracting parties shall be obliged to lay a general embargo, either in all its ports or in particular places, the vessels of the other party shall be subject to this measure, upon the same footing as the most favored nations, but without having any right to claim the exemption in their favor stipulated in the 16th article of the former treaty of 1785. But on the other hand, the proprietors of the vessels which shall have been detained, whether by some military expedition or for what other purpose soever, shall obtain from the government that shall have employed them, an equitable indemnity, as well for the freight as for the loss occasioned by the delay.11
io Malloy, II, 1236.
11United States Statutes at Large, VIII, 384.