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beck and Hamburg within its scope. Treaties were also made in that year between the United States and the Kingdoms of Bavaria and Wiirtemburg, concerning naturalization, which contained the provision that the previous conventions between them and the United States in respect of fugitives from justice should remain in force without change.
Then came the adoption of the Constitution of the German Empire. It found the King of Prussia, the chief executive of the North German Union, endowed with power to carry into effect its international obligations, and those of his kingdom, and it perpetuated and confirmed that situation. The official promulgation of that Constitution recited that it was adopted instead of the Constitution of the North German Union, and its preamble declared that "His Majesty the King of Prussia, in the name of the North German Union, His Majesty the King of Bavaria, His Majesty the King of Wiirtemburg, His Highness the Grand Duke of Baden, and His Royal Highness the Grand Duke of Hesse and by Rhine for those parts of the Grand Duchy of Hesse which are situated south of the Main, conclude an eternal alliance for the protection of the territory of the Confederation, and of the laws of the same, as well as for the promotion of the welfare of the German people." As we have heretofore seen, the laws of the Empire were to take precedence of those of the individual States, and it was vested with the power of general legislation in respect of crimes.
Article 11 read "The King of Prussia shall be the president of the Confederation, and shall have the title of German Emperor. The Emperor shall represent the Empire among nations, declare war, and conclude peace in the name of the same; enter into alliances and other conventions with foreign countries, accredit ambassadors, and receive them. * * * So far as treaties with foreign countries refer to matters which, according to Article IV, are to be regulated by the legislature of the Empire, the consent of the Federal Council shall be required for their ratification, and the approval of the Diet shall be necessary to render them valid."
It is contended that the words in the preamble translated "an eternal alliance" should read "an eternal union," but this is not material, for admitting that the Constitution created a composite State instead of a system of confederated States, and even that it was called a confederated Empire rather to save the amour propre of some of its component parts than otherwise, it does not necessarily follow that the Kingdom of Prussia lost its identity as such, or that treaties theretofore entered into by it could not be performed either in the name of its King or that of the Emperor. We do not find in this Constitution any provision which in itself operated to abrogate existing treaties or to affect the status of the Kingdom of Prussia in that regard. Nor is there anything in the record to indicate that outstanding treaty obligations have been disregarded since its adoption. So far from that being so, those obligations have been faithfully observed.
And without considering whether extinguished treaties can be renewed by tacit consent under our Constitution, we think that on the question whether this treaty has ever been terminated, governmental action in respect to it must be regarded as of controlling importance. During the period from 1871 to the present day, extradition from this country to Germany, and from Germany to this country, has been frequently granted under the treaty, which has thus been repeatedly recognized by both governments as in force. Moore's Report on Extradition with Returns of all Cases, 1890.
The learned Chief Justice then quoted with approval the following note of Mr. J. C. Bancroft Davis in his notes to his edition of Treaties and Conventions between the United States and other Powers:
The establishment of the German Empire in 1871, and the complex relations of its component parts to each other and to the Empire, necessarily give rise to questions as to the treaties entered into with the North German Confederation and with many of the States composing the Empire. It cannot be said that any fixed rules have been established.
Where a State has lost its separate existence, as in the case of Hanover and Nassau, no questions can arise.
Where no new treaty has been negotiated with the Empire, the treaties with the various States which have preserved a separate existence have been resorted to.
The Chief Justice next quoted with approval the following language of Mr. Justice Blatchford, then District Judge, In re Thomas (12 Blatchford, 370), involving the continuance of the extradition treaty of September 12, 1853, between Bavaria and the United States:
It is further contended, on the part of Thomas, that the convention with Bavaria was abrogated by the absorption of Bavaria into the German Empire. An examination of the provisions of the Constitution of the German Empire does not disclose anything which indicates that then existing treaties between the several States composing the confederation called the German Empire, and foreign countries, were annulled, or to be considered as abrogated.
Indeed, it is difficult to see how such a treaty as that between Bavaria and the United States can be abrogated by the action of Bavaria alone, without the consent of the United States. Where a treaty is violated by one of the contracting parties, it rests alone with the injured party to pronounce it broken, the treaty being, in such case, not absolutely void, but voidable, at the election of the injured party, who may waive or remit the infraction committed, or may demand a just satisfaction, the treaty remaining obligatory if he chooses not to come to a rupture. 1 Kent's Com. 174. In the present case the mandate issued by the Government of the United States shows that the convention in question is regarded as in force by both the United States and by the German Empire, represented by its envoys, and by Bavaria, represented by the same envoy. The application of the foreign government was made through the proper diplomatic representative of the German Empire and of Bavaria, and the complaint before the commissioner was made by the proper consular authority representing the German Empire and also representing Bavaria.
It is a fact that the United States has no extradition treaty with the German Empire. It is also a fact that the United States has no naturalization treaty with the German Empire. It has, however, extradition treaties and naturalization conventions with the various States now forming part of the German Empire, and both countries regard these solemn treaties and conventions as binding upon them in their entirety, notwithstanding the fact that the German Empire has been formed since their negotiation.
If the various diplomatic incidents, which have been cited, and if the decisions of the courts of the United States, left any doubt whether the treaty of May 1,1828, concluded between Prussia and the United States binds the German Empire, notwithstanding the inclusion of Prussia in the North German Confederation and later in the German Empire, the express admission by Germany that the treaty with Prussia applies to and binds the German Empire, contained in the note of April 5, 1915, of the German Minister for Foreign Affairs in discussing the destruction of the William P. Frye, an American schooner, by the German auxiliary cruiser Prin z Eitel Friedrich on January 27, 1915, and the acceptance by the United States of that admission in its note of April 28, 1915, remove any doubt that a treaty applicable to a state of war, concluded by Prussia before it was merged in the North German Confederation and later in the German Empire, is binding upon the German Empire.1 If the treaty of May 1, 1828, between Prussia and the United States binds the German Empire, it is difficult to see how the treaty of April 19, 1839, concerning the neutrality of Belgium does not bind the German Empire, and how the convention of London of May 11, 1867, to which Prussia was a party, does not bind the German Empire, for in all three cases the treaties were concluded with Prussia before it was merged in the North German Confederation and the Empire, and all three treaties contemplate a state of war, and indeed the last two were negotiated primarily to take effect in time of war.
The conclusion to be drawn from these diplomatic instances and judicial decisions is that the Imperial German Chancellor, Dr. von Bethmann Hollweg, was well advised when he informed the Reichstag on August 4, 1914, that the invasion and occupation of Luxemburg by German troops was a violation of international law.
1 Another case may be cited to show that Germany does not contend that the treaty of 1828 was abrogated by the absorption of Prussia into the North German Confederation and the Empire. The Act of Congress of July 26, 1911, entitled "An Act to permit reciprocal trade relations with the Dominion of Canada," admitted chemical wood pulp, etc., free of duty from Canada, and Germany claimed that the favored-nation clause of Article 9 of the treaty with Prussia of 1828 entitled it to freedom from export duties. The decision of the Board of General Appraisers levying the tax was reversed in the case of The American Express Co. et al. t>. United States, decided by the United States Court of Custom Appeals in December, 1912. (This Journal, Vol. 7,1913, pp. 891 et seq.)
THE HAGUE CONVENTIONS AND THE NEUTRALITY OF BELGIUM AND
It is constantly stated that the invasion of Luxemburg and Belgium by the German army on August 3, 1914, was a violation of the Hague conventions, and Convention No. V of the Second Hague Conference respecting the rights and duties of neutral Powers and persons in case of war on land is pointed to as proof positive of the assertion. The articles referred to are the following:
The territory of neutral Powers is inviolable. (Art. 1.)
Belligerents are forbidden to move troops or convoys of either munitions of war or supplies across the territory of a neutral Power. (Art. 2.)
A neutral Power must not allow any of the acts referred to in Articles 2 to 4 to occur on its territory. (Art. 5.)
The fact of a neutral Power resisting, even by force, attempts to violate its neutrality can not be regarded as a hostile act. (Art. 10.)
These articles must be considered with Article 20, which limits the convention to the contracting Powers, "and then only if all the belligerents are parties to the convention."
They do not, however, guarantee neutrality, nor do they prevent a state from declaring war against a state wishing to remain neutral, which thus becomes a belligerent and loses the benefit of the convention. If the Hague conventions were violated by Germany in this matter it would appear to be a violation of the spirit, not of the letter, and indeed it is difficult to maintain that there was a violation even of the spirit, because international law in its present development apparently allows nations to go to war whenever they please, and the Hague conventions do not modify or abridge this provision of the law of nations.
Convention No. Ill of the Second Hague Conference, relative to the opening of hostilities, states in its preamble that "it is important, in order to ensure the maintenance of pacific relations, that hostilities should not commence without previous warning; " and Article 1 of the convention negotiated to give effect to this provision of the preamble states that "the contracting Powers recognize that hostilities between themselves must not commence without previous and explicit warning, in the form either of a reasoned declaration of war or of an ultimatum with conditional declaration of war."
Let us now see how far the provisions which have been quoted of the two Hague conventions, respecting the rights and duties of neutral Powers and persons in case of war on land, and the convention concerning the opening of hostilities, apply to the cases of Luxemburg and Belgium.
On the third and fourth days of August, when German armies invaded Luxemburg and Belgium, all Powers with which Germany was then at war were parties to the convention, and thus Article 20 did not apply. Germany at that time was at war with Russia and with France, both of which countries had ratified the convention. Luxemburg and Belgium were likewise contracting Powers, so that, in the war between Germany, on the one hand, and Russia and France, on the other, Luxemburg and Belgium were neutral Powers, and all were bound by the provisions of Convention No. V. It is true that Great Britain was not a party to the convention, but war did not exist between Germany and Great Britain at the time of the invasion of Belgium, but by reason of that invasion Great Britain declared war. It is also true that AustriaHungary was at war with Serbia and that Germany was the ally of Austria-Hungary. It is a fact, however, that Germany did not declare war against Serbia until August 8, and the fact that a nation is an ally does not necessarily mean that it is at war with the enemies of its ally. For example, Japan and Germany are at war, but Japan is not at war with Turkey, Germany's ally. Again, Italy is at war with AustriaHungary and with Turkey, but is not at war apparently with Germany, the ally of Austria-Hungary and of Turkey. Therefore, when Germany invaded Luxemburg and Belgium on August 3d and 4th, Germany was only at war with Russia and with France, in which war Luxemburg and Belgium were neutral.
The five countries were bound by Convention No. V, and Luxemburg and Belgium were beneficiaries of Convention No. V respecting the rights and duties of neutral Powers and persons in case of war on land. This would seem to be a demonstration that Germany's action was in the teeth of this convention, that it violated neutral territory, that it moved troops or convoys of war across neutral territory, which was forbidden, and that Luxemburg and Belgium were bound to oppose the violation of neutrality, and that resistance by force to the violation of its territory could not be regarded, to quote the language of Article 10 "as a hostile act."
While this view appears to be technically correct, it must be borne in mind that Germany had requested a permission for its armies to pass through Luxemburg and Belgium, and that both of these countries