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welfare, and individual welfare. In other words, (1) the treaty must be international in character, not a mere subterfuge for domestic regulations; 78 (2) it must be in pursuance of the fundamental objects of the Constitution, "to promote the general welfare" of the people of the United States," and (3) it must not interfere with the rights guaranteed to individuals within the United States against all interference by the national government.80 Whether the first two requirements are fulfilled is distinctly a political question entrusted to the responsibility of the treaty power itself. The last alone is a legal question which might furnish grounds for a judicial declaration of unconstitutionality.

The means to be employed in executing a treaty are generally indicated by the Constitution according to the kind of acts necessary, and legislative, executive, judicial action or all three may be required. While a treaty is spoken of as "self-executing" only in case private individuals are immediately responsible,81 and hence judicial application in concrete cases is the only official action needed to enforce it, yet all treaties might be called "self-executing" in the sense that their formal conclusion imposes an immediate responsibil

78 "The treaty-making power can not be employed with reference to matter not legitimately a subject for international agreement." (W. W. Willoughby, The Constitutional Law of the United States, N. Y., 1910, 1: 504.) "By the general power to make treaties the Constitution must have intended to comprehend only those objects which are usually regulated by treaty and oan net be otherwise regulated." (Jefferson, Manual of Parl. Practice, sec. 52.) See also, Corwin, op. cit., pp. 19, 122, 226; Root, this JOURNAL, 1:278; Anderson, this JOURNAL, 1: 639; Wright, this JoURNAL, 12: 93.

79 Preamble of Constitution; Anderson, this JOURNAL, 1: 639.

80 Supra, note 64.

81 Treaties being the "law of the land," all provisions affecting individuals impose an immediate responsibility upon them to observe such provisions. The responsibility of private persons has sometimes been insisted upon in the treaty itself. "If any one or more of the citizens of either party shall infringe any of the articles of this treaty, such citizens shall be held personally responsible for the same, and the harmony and good correspondence between the nations shall not be interrupted thereby; each party engaging in no way to protect the offender or sanction such violation." Treaty with Colombia, 1846, Art. 35, sec. 4. See also treaties with Brazil, 1828, Art. 33, sec. 2; Bolivia, 1858, Art. 36, sec. 2; Peru-Bolivia, 1836-1839, Article 30, sec. 2; Peru, 1851-1863, Art. 40, sec. 2. See also this JOURNAL, 10: 713, 730.

83

ity upon every governmental authority whose action may be necessary to give it complete effect.82 Thus, the mere fact that an independent organ of government is called upon to act can not impeach the constitutionality of the treaty. Question could not arise unless the treaty itself prescribed means for its own execution contrary to those required by the Constitution. The point as raised in the case of treaties establishing international courts and institutions has been sufficiently discussed. Suffice it to say that no case appears to have involved an actual departure from the procedure required by the Constitution, and none is likely to do so, for the fact that a form of procedure or an institution for executing the treaty was established in the instrument itself, would create the presumption that the ultimate objects of the treaty required the action of authorities with powers dependent upon international agreement, and hence beyond the scope of any merely national organ, and beyond the possibility of conflicting with the prescribed powers of such an organ.

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EUROPEAN STATES

Although constitutions are not law in countries other than the United States,85 the constitutionality of treaty provisions that violate individual rights or invade the autonomy of governmental units, may require consideration as a political question. In Great Britain, a treaty can not deprive Englishmen of constitutional rights, because an instrument negotiated by the crown and affecting private rights has no legal validity until put in force by an enabling Act of Par

82 See this JOURNAL, 12: 93.

83 Ibid., 12: 70-72.

84 In re Ross, 140 U. S. 453 (1890). See also, this JOURNAL, 12: 71.

85 In most European countries, constitutions are directory in character, each independent organ of government having the final decision on its own competence to act. Thus in France, Germany and Great Britain, a statute promulgated with formal correctness can not be questioned on the score of constitutionality. The legislature in passing it and the executive in promulgating it, have given an ultimate decision that it is valid. The same is true of treaties. Ratification and promulgation with formal regularity is ultimate evidence that the instrument is valid, although this does not mean that it is necessarily a source of law cognizable in the courts. See this JOURNAL, 10: 709 et seq.

liament.86 In most of the continental European countries, treaties affecting private rights require assent of both houses of the legislature before they become cognizable by the courts.87

Although the autonomy of local units does not impose any legal limits upon the treaty power in Europe, yet in practice the treaty power itself usually recognizes and respects the constitutional rights of such autonomous units. The unwritten constitution of Great Britain recognizes certain matters as within the local competence of the self-governing and other colonies, and in treaties dealing with such subjects provision is usually made for ratification by each colony before the treaty becomes operative for that territory.88 A conflict, however, could not come before the courts, because the treaty provision, if law at all, would be so because incorporated in an Act of Parliament, which would unquestionably prevail in any court.

In both Germany and Switzerland there has been doubt of the competence of the national government to conclude treaties on subjects within the legislative power of the States or Cantons, but, as in the United States, practice appears to have settled in favor of this authority. In these countries there is a stronger argument than in

86 Walker v. Baird, App. C. (1892), 491, 497. A resolution requiring that all treaties be laid before both houses of Parliament before being ratified was proposed in 1873 (Hansard, 214: 440, 1166, 1178, 1309, 1319) but not carried. Premier Asquith, in 1908, thought such submission not necessary (Hansard, 197: 701), though Lord Grey stated, in 1911, that such "momentous" treaties as the American arbitration treaties of 1911 would require Parliamentary sanction (Hansard, 22: 1990). Parliament, as a matter of fact, has always passed enabling acts to give effect to treaties affecting private rights either before or after ratification, and occasionally the treaty itself makes its effectiveness dependent upon such action by Parliament, Xth Hague Convention, 1907, Art. 21. See Crandall, op. cit., p. 280 et seq. and this JOURNAL, 10:709, 716.

87 Crandall, op. cit., p. 314 et seq., this JOURNAL, 10: 713 et seq.

88 Cobbett, Cases on International Law, London, 1909, 1: 53; Todd, Parliamentary Government in the British Colonies, 2nd ed., p. 266; Tupper, "Treaty Making Powers of the Dominions," Journ. Comp. Leg., 17:5. For treaties allowing such assent by the colonies, between Great Britain and the United States, see Convention as to Tenure and Disposition of Real and Personal Property, 1899, Art. IV; Arbitration treaty 1908, Art. II, Malloy, Treaties, pp. 775, 814. British colonies have frequently been parties to general international conventions, as that for the publication of customs tariffs, 1890, Malloy, p. 1996. See also D. P. Myers, Representation in Public International Organs, this JOURNAL, 8: 96.

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 Laband 89 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 93 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. 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.

94

QUINCY WRIGHT.

89 Paul Laband, Das Staatsrecht des Deutsches Reiches, 3d ed., 1: 639. 90 Urtheilen des Deutsches Reichsgerichts, July 23, 1890, Ent., 26: 123. 91 Kaufmann, Die Rechtskraft des Internationalen Rechtes und das Verhältnisse des Staatsorgans zu demselben, Stuttgart, 1899, p. 53. See also Urtheilen des Deutsches Reichsgerichts, November 3, 1884, Ent. Str., 1: 234, 236.

92 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.

93 Urtheilen des Schweitz Bundesgerichts, April 9, 1882, Ent., 9: 178.

94 Blumer, Handbuch des Schweitz Bundesstaatsrechts, 3d ed. (Morel), 1: 239, cited Kaufmann, op. cit., p. 53.

THE LAW OF ANGARY

I. ORIGIN

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 illo 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

1 Corpus Juris Civilis, Lib. XII, Tit. LI, art. 21, p. 772 Hermanni ster. edit. Leipzig, 1843.

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