CHAPTER XII

THE BIRTH AND DEATH OF THE STATE JURISTICALLY CONSIDERED

THE juristic birth of a particular State occurs when the political organization that is involved first assumes, or becomes endowed with, the attribute of sovereignty. In order, then, that this genesis may be determined, if it has occurred within a period concerning which authentic historical records exist, it is first necessary that some conclusions be reached as to the tests by which the existence of the quality of sovereignty in a given body-politic may be certainly recognised, and some agreement be reached as to the processes by which this juristic attribute may be created. It will conduce to clearness of thought if we separate the discussion of the tests by which the existence of sovereignty may be determined, from the juristic processes by which sovereignty may be brought into being. And first as to the processes.

One Sovereignty Cannot Create Another Sovereignty. It would seem to be a necessary logical conclusion from the nature of sovereignty that legal authority cannot, by its own will or act, create another authority legally superior or even equal to itself. The created cannot be the equal and much less the superior of its creator: it necessarily remains but the agent for the exercise of the authority of the political being that brings it into being. When, therefore, this juristically created entity functions volitionally, it can do no more than express what, in the last analysis, is the legal will of its legal progenitor.

Sovereignty Cannot Be Created by a Union of Sovereign

ties. The same reasoning applies to the attempt of a number of severally sovereign political entities to create, by a joint action or common agreement among themselves, an authority legally superior to themselves. A general or public will, in other words, cannot be created by a mere union of individual or private wills. Thus, a number of severally sovereign States may create for themselves organs of government which each of them will severally regard as their own governmental organs for the purposes specified, and through which they will be able to maintain concerted and unified action. But they cannot create above and over themselves a sovereign body-public. As a result, sovereign States may enter into agreements or compacts with one another by which they or their peoples become morally or politically or internationally obligated, but they cannot conceivably be legally bound by the terms of the treaty or compact into which they have entered or, by that treaty or compact, create a legal superior which, for the future, can legally control them by its commands.

John C. Calhoun, in his Discourse on the Constitution and Government of the United States, expounded the logic of this proposition in a manner that has since permitted no successful denial. His argument is so cogent that it may profitably be quoted at length. Starting with the premise that the Constitution of the United States of America was, in its essential character, a product of the concurring wills of the original thirteen severally sovereign American Commonwealths, he says of its National instrument of government:

"They (the States) stand (to it) in the relation of superior to subordinate-the creator to the created. The people of the several States called it into existence, and conferred by it on the Government, whatever power or authority it possesses. Regarded simply as a constitu

tion, it is as subordinate to them as are their respective State Constitutions, and it imposes no more restrictions on the exercise of any of their sovereign rights than they do."

Such, says Calhoun, remains the relation of the States to their common agent, the National Government. As between themselves, the States having ratified and adopted the constitution, "they stand to it in the relation of parties to a constitutional compact, and of course, it is binding between them as a compact, and not on or over them as a Constitution. But, as solemn and sacred as it is, and as high as the obligations may be which it imposes, still it is but a compact and not a Constitution, regarded in reference to the people of the several States in their sovereign capacity. Hence, a State,

acting in the same manner in which it ratified and adopted the constitution, may be guilty of violating it as a compact, but cannot be guilty of violating it as a law. The case is the reverse as to the action of its citizens, regarding them in their individual capacity. To them it is a law, the supreme law within its sphere. They may be guilty of violating it as a law, or of violating the laws and treaties made in pursuance of, or under its authority, regarded as laws or treaties, but cannot be guilty of violating it as a compact. The constitution was established over them by their respective States, to whom they owed allegiance, and they are under the same obligation to respect and obey its authority, within its respective sphere, as they are to respect and obey their respective State constitutions; and for the same reasons, namely: that the State to which they owe allegiance, commanded it in both cases."

Sovereignty Cannot Be Transferred. It follows from what has been already determined, that one sovereign

1

1 Works of Calhoun, vol. I, p. 275. The italics are in the original.

State can no more obtain its sovereignty by a transfer from another sovereign State already in being, than it can create de novo, a sovereignty over and above itself.

As a matter of fact, of course, it often happens that one State extends its jurisdiction over the citizen body and lands of another State, and, not infrequently, this extension is marked and evidenced by the formal consent of the governing authorities of the State whose lands and citizens are thus absorbed. But, juristically viewed, the change is due to a unilateral act upon the part of the annexing State, which, exercising its sovereign authority, asserts its legal control over the annexed lands and their inhabitants. In other words, the political jurisdiction thus obtained owes its juristic validity in no wise to any consenting act of the State previously having jurisdiction over the lands and peoples that have come under the new sovereignty. This is true even when the transfer of sovereignty is provided for by a treaty between the two States concerned. In such a case the treaty acknowledges rather than accomplishes the transfer."2

Upon this point may be quoted the following from Brownson's The American Republic, chap. IX: "An independent State, a nation, may, with or without its consent, lose its sovereignty, but only by being merged in, or subjected to, another. Independent sovereign States cannot, by convention or mutual agreement, form themselves into a single sovereign State or nation. The compact or agreement is made by the sovereign States, and binds by virtue of the sovereign power of each of the contracting parties. To destroy that sovereign power would be to annul the compact, and render void the agreement. The agreement can be valid and binding only on condition that each of the contracting parties retains the sovereignty that rendered it competent to enter into the compact; and States that retain severally their sovereignty do not form a single State or Nation. The States in convention cannot become a new and single sovereign State unless they lose their several sovereignty and merge it in the new sovereignty; but this they cannot do by agreement, because the moment the parties to the agreement cease to be sovereign, the agreement on which alone depends the new sovereign State is vacated in like manner as a contract is vacated by the death of the parties. The convention either of sovereign States or of sovereign individuals, with the best will in the world, can form only a

Juristically viewed the same result is obtained when we have to deal with the recognition by a State of the independence of a colony or province which has withdrawn from beneath the sovereignty under which it has formerly lived. In such a case the existence of the new State dates from the time of the withdrawal, and not from the time when its independence is conceded by the parent State; and the existence of its sovereignty is founded upon the fact that it no longer recognizes allegiance or renders obedience to the old sovereignty, and not upon the fact that the old sovereignty has by a treaty or other form of declaration indicated that it no longer claims its allegiance. So, similarly, the sovereignty of any new State which is recognized by other States as such and admitted into the "Family of Nations” is not created by or founded upon, such international recognition. That recognition is extended by each State when it sees fit, and, when accorded, is nothing more than an acknowledgment of an accomplished fact. There is no claim that the recognition is a creative act; and this fact is shown, if indeed any demonstration is needed, that it frequently happens that recognition of a new sovereignty is denied by one or more States for years after its existence has been conceded by the other States. If, then, a creative character were assigned to "Recognition" the absurd result would be reached that the new State both existed and did not exist, its status being determined not by any real fact of independent existence, but, in each case, by what might fortuitously happen to be the state of mind of other bodies-politic.

Applying the foregoing reasoning, by way of illustration, to the United States of America, it is seen that the colonies formerly in allegiance to Great Britain acquired compact, whatever its terms or conditions-is only an alliance, a league or a confederation, which no one can pretend is a sovereign State or republic."