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countries refer to matters which, according to Article IV, belong in the field of imperial legislation, for their conclusion the consent of the Bundesrath is necessary, and for their validity the approval of the Reichstag." The Bundesrath, or Federal Council, as organized in the constitution, consists of 58 members apportioned among the states somewhat arbitrarily, and appointed by the several state executives. The members of the Reichstag are apportioned according to population, and are elected by direct vote of the people.

In a study of the formation of the constitution of the North German Union, which, with the alterations made necessary by the establishment of the German Empire in 1871, serves as the present constitution, the proceedings of two separate bodies are to be considered-the convention of delegates from the several state executives, and the convention of representatives of the peoplewhich assembled at Berlin in 1866-7. The former drew up a plan of a constitution which, after having been amended in numerous particulars by the convention of the people, was adopted and submitted to the several states for ratification. The original Prussian project

"Der Kaiser hat das Reich völkerrechtlich zu vertreten, im Namen des Reichs Krieg zu erklären und Frieden zu schliessen, Bündnisse und andere Verträge mit fremden Staaten einzugehen, Gesandte zu beglaubigen und zu empfangen. * Insoweit die Vertrage mit fremden Staaten sich auf solche Gegenstände beziehen, welche nach Art. 4 in den Bereich der Reichsgesetzgebung gehören, ist zu ihrem Abschluss die Zustimmung des Bundesrathes und zu ihrer Gültigkeit die Genehmigung des Reichstages erforderlich." Reichsverfassung, Art. XI. English translation, Larned, History for Ready Reference, vol. i, p. 549.

Of the 58, Prussia has 17, Bavaria 6, Saxony 4, Wurtemberg 4, Baden 3, Hesse 3, Mecklenburg-Schwerin 2, Brunswick 2, and the others I each. Art. VI.

Burgess, vol. i, p. 116.

considered the right to conclude treaties a prerogative of the President of the Union, subject to the qualification that treaties of commerce and navigation should be submitted to the Bundesrath for approval. The representatives of the states in their deliberations so modified the provision as to require the consent of the Bundesrath to the conclusion of all treaties touching upon matters in the field of legislation. To this the representatives of the people added, without entering into any explanation, the further condition that for their validity the approbation of the Reichstag should be necessary.'

The question has been much mooted by German writers whether the action of the Reichstag is essential to the validity of the treaty as an international compact, or is only requisite in the execution of the treaty so far as it relates to matters which can be regulated only by legislation. Of the advocates of the latter view is the eminent jurist Laband. However this may be, the usual procedure is to withhold the ratification of such treaties until the Bundesrath and the Reichstag have both acted upon them.3 Enumerated in Article IV as under the imperial superintendence and legislation are the protection of literary and industrial property, commerce, customs duties, citizenship, and postal, telegraphic and

'Laband, Das Staatsrecht des deutschen Reichs (1901 ed.), vol. ii, p. 125. Meier, Abschluss von Staatsverträgen, p. 268.

'Das Staatsrecht des deutschen Reichs, vol. ii, p. 136. See Meier, p. 275. Von Mohl, Das deutsche Reichsstaatsrecht, p. 303. Von Rönne, Das Staatsrecht des deutschen Reichs, p. 298.

3 Laband, vol. ii, p. 130. Meier, p. 284. Laband notes as exceptions the treaties of Dec. 16, 1878, with Austria, and of July 12, 1883, and Dec. 30, 1893, with Spain, which touched upon matters regulated by legislation, and which were ratified by the Emperor before they had been acted upon by the Reichstag. Vol. ii, p. 136.

railway matters.' The separate states of the Empire may conclude with each other conventions of an administrative character in reference to postal and telegraphic affairs, the collection of customs and excises, the determination of contested jurisdiction, and similar matters when not regulated by imperial legislation. Extradition with foreign countries, so far as not covered by the imperial law or treaties, may be regulated by the states.3

AUSTRIA-HUNGARY

Treaties are negotiated by the Emperor through the joint Minister for Foreign Affairs. The latter consults the premiers of the two states and is subject to the interpellations of the dual delegations. The Act of Union provides in section 8 of Law XII as passed in 1867 by the Hungarian Parliament, and in section 1 of the Fundamental Law concerning joint affairs of December 21, 1867, as passed by the Austrian Reichsrath, that the approval of treaties, in so far as the constitutions of the two states require, is reserved to the respective legislatures, i. e., the Austrian Reichsrath and the Hungarian Parliament. It is, therefore, necessary to look to the constitutions of the two countries in order to determine what treaties, if any, require legislative approval.

The five Fundamental Laws of December 21, 1867, form the body of the Austrian constitution. By article. 6 of the Fundamental Law concerning the exercise of executive power the Emperor concludes treaties; but to the validity (Gültigkeit) of commercial treaties and those

1 Subject in Bavaria to Art. XLVI. 'See reservation in Art. XLVIII.

Moore, Extradition, vol. i, p. 726.

R. G. B. 146.

'Oesterreich, Gesetze, vol. xix, p. 101, and supplement p. 83.

that burden (belasten) the state or a portion of it, or impose obligations (verpflichten) on individual subjects, the consent of the Reichsrath is necessary. Section II of the law concerning imperial representation also enumerates, among the duties of the Reichsrath, the examination and approval of treaties of commerce, and all treaties that burden (belasten) the kingdom or a part of it, or bind (verpflichten) individual subjects, or have for their object territorial changes in the kingdoms and lands represented in the Reichsrath."

The constitution of Hungary is not contained in any single document, but is made up of laws and charters some of which are of early date. According to Hungarian writers, all treaties which may change the internal organization of the state, or touch upon the rights of the legislature to concur in levying taxes, in making expenditures or in furnishing recruits, or which may cause a change of territory, require the approval of Parliament.3

The commercial relations between the two countries are regulated by an agreement commonly called the Ausgleich, entered into in accordance with section 2 of the Fundamental Law and Act of Union of Austria, and section 61 of the Hungarian Law XII. As entered into in 1867, it was subject to termination at the end of every ten years; but it was with modifications successively renewed until 1897. On the failure of the Austrian Reichsrath to provide for its renewal in that year, it was provisionally extended by decrees of the Emperor. This agreement provides that while it continues the two countries shall form a customs and commercial union. Treaties

1 R. G. B. 145, ibid., p. 100.

R. G. B. 141, ibid., p. 42.

'Ulbrich, Marquardsen's Handbuch des öffentlichen Rechts, vol. iv, pt. 1, div. 1, p. 150.

which have for their object the regulation of commercial relations abroad, especially commercial, tariff, navigation, consular, postal and telegraphic treaties, shall be equally binding on the territories of the two states. The negotiation and conclusion of such treaties, after the constitutional consent of both legislatures, shall take place through the Minister of Foreign Affairs on the basis to be agreed upon between the ministers for the proper department of the two countries."

SWEDEN AND NORWAY

The treaty-making power in Sweden and Norway is determined by the Act of Union of 1815, and by the separate constitutional provisions of the two countries. By Article IV of the Act of Union the King has the power to make peace, to conclude or dissolve treaties, and to send and receive ministers. The power of the King in this respect is defined in similar terms in Article XXVI of the constitution of Norway (1814).3 In Article XII of the Swedish constitution (1809), it is provided that the King can enter into treaties and alliances with foreign powers, after having ascertained the opinion of the Minister of State for Foreign Affairs and of the Chancellor of the Court. Negotiations not only for Sweden alone, but also for the united kingdoms are accordingly conducted on the advice of the Swedish minister. In those, however, touching matters which concern both countries or Norway alone, the Norwegian minister, who with two councillors represents Norway

'Art. III. Gesetze, vol. xix, pp. 325, 326.

'Martens' Nouveau Recueil des Traités, vol. ii, p. 612.

'Text, Larned's History for Ready Reference, vol. i, p. 569. 'Ibid., vol. i, p. 581.

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