Hawaiian Islands together with every right and appurtenance thereto appertaining; therefore be it

"Resolved, that said cession is accepted, ratified and confirmed and that the said Hawaiian Islands and their dependencies be, and they are hereby annexed as a part of the territory of the United States, and are subject to the sovereign dominion thereof, and that all and singular the property and rights herein before mentioned are vested in the United States of America."

Later, on August 12, 1898, upon the occasion of the formal raising of the American flag over the Hawaiian Islands, Mr. Dole, who until then had been the President of the Hawaiian Republic, addressing the American representative, said:

"A treaty of political union having been made, and the cession formally consented to by the Republic of Hawaii having been accepted by the United States of America, I now in the interest of the Hawaiian bodypolitic, and with full confidence in the honor, justice and friendship of the American people, yield up to you as the representative of the Government of the United States, the sovereignty and public property of the Hawaiian Islands."

Analyzing the foregoing steps by means of which the absorption of Hawaii into the United States, and its consequent disappearance as a sovereign entity was effected, it is clear that, so far as the United States was concerned, no more than a moral or political significance was attached to the fact that the Hawaiian Government, presumably voicing the wishes of the Hawaiian people, had given its assent to the annexation. As a legal proposition, the extension of American sovereignty over the Islands resulted from the act of the American Government as manifested in the Joint Resolution. As to the legal effect, if any, which the action of the Hawaiian

Government had as towards the Hawaiian people or State, it can be said that it was not an illegal act since it was one authorized by the Hawaiian constitution; and yet it cannot be said to have operated, ipso facto, to terminate the juristic life of the Hawaiian State. That did not occur until the American sovereignty was extended over the Islands and their inhabitants. It is correct, therefore, to say that, even in this case, in which express constitutional authority was given to the Government to agree to union with the United States, the annihilating stroke to the Hawaiian sovereignty was the act of the American State.

Summary. In result then, we are justified in saying that, as regards the termination of sovereignty, the situation is the reverse of that of its birth or creation. In other words, every State derives its sovereignty from itself. Sovereignty is a spontaneous or self-generated status and is never derived from an outside source. Upon the other hand, the juristic death of a sovereign State necessarily results from the act of another State, except perhaps in the conceivable case of the disappearance of every vestige of political authority over a people brought about by the acts of that people and without acceptance by them of the sovereignty of or the assertion of such sovereignty by another State.

As contrasted with the birth of a sovereign body-politic, the creation of a non-sovereign body is always due to the juristic act of some other sovereign State. But sovereign and non-sovereign entities are alike as regards their death or destruction. In both cases this is brought about by the act of another State.

Tests for the Determination of the Existence of Sovereignty. As has been above pointed out, the question as to the manner in which, from a juristic point of view, a sovereignty may be created or terminated, is distinct

from the enquiry as to the tests by which the existence of a sovereign body-politic may be determined.

The conclusion that we have reached that each sovereignty begins de novo, and is not the juristic product of another sovereign will, leads necessarily to the proposition that the existence or non-existence of sovereignty is, strictly speaking, a matter of fact rather than of law. This fact is whether or not the political organization in question is regarded as having complete juristic competence to determine its own legal powers.

The phrase "recognized as having" is used advisedly since it points to the fact that if sovereignty, in its strict juristic sense, be divorced from the ideas of physical power, of ethical rights, or of political expediency, the question whether or not a given political organization is an agency of a legal sovereignty depends upon the point of view from which it is regarded. It is not only conceivable, but often the actual case, that a given government is regarded by certain of the individuals of a community as legally entitled to declare and enforce the will of the sovereign State, whereas other persons of that same community assert that the Government in question has no legal basis and therefore that it is not qualified, in their opinion, to express and enforce the sovereign will to which they conceive themselves to be subject, and, consequently, that such actual powers of coercion over them as it is able to exercise are matters of mere superiority of might and not of legal right. Thus arises the important distinction between Governments de facto merely, and those which are de jure.

De Facto and De Jure Governments Distinguished. As an abstract or detached proposition, it cannot be said that any given government is de jure or de facto, for the application of the terms necessarily depends upon the points of view of those who employ them. Thus a gov

ernment is de jure as well as de facto when it is recognized as such by the individuals over whom its control is extended. It is de facto but not de jure as to any particular individual when, though actually in existence and able to exercise a certain amount of power, its legal character is denied by him. Thus, in the case of an attempted revolution, from the standpoint of those who have repudiated their allegiance to the old State, who refuse obedience to its government, and have organized for themselves a new political machinery, the old government has only an actual and not a legal existence, the new government being the only one which, in their eyes, possesses a legal basis. Upon the other hand, from the point of view of those who still support the old State, the newly established government has but a de facto existence, the old government being regarded as the only legal organization. Thus, during the American Civil War, the existence of the Southern Confederacy as a State, though regarded as de jure by its adherents, was never recognized by the United States nor by Foreign Powers. The existence of a de facto Confederate Government was, however, recognized by the United States for belligerent purposes. The continued allegiance of its supporters to the United States was, however, always asserted by the United States, and no legal force of any sort was ever ascribed, then, or after the end of the war, to any of the acts of the Southern Confederacy. No formal treaty of peace was entered into between the United States and the Southern Confederacy, the surrender of its armies being received simply as military acts, and its Government permitted to go out of actual existence without any formal action to mark its demise. Thus, also, in 1660, when the Stuarts were restored to rule in England, the beginning of the reign of King Charles II was dated from the death of his father, Charles

I, in 1649, for, from the standpoint of the Stuarts, the Commonwealth Government, though in actual control for more than a decade, had never had more than a de facto existence. So, also, when the Bourbons again ascended the French throne, the first ruler took the title of Louis the Eighteenth, although the legitimate successor of Louis the Sixteenth never, in fact, for a moment held the reins of government. If he had done so, however, he would have been styled Louis the Seventeenth. During the time that the Commonwealth Government was in existence in England and the period of revolutionary rule in France, the governments that existed were, of course, de jure, regarded from the points of view of their supporters.

No government which is regarded as de facto can be said to evolve by mere effluxion of time into a de jure government. Therefore Bryce is not correct when he says: "Sovereignty de facto, when it has lasted for a certain time and shown itself stable, ripens into sovereignty de jure."s What really happens in such a case is that the persons who at first deny a legal character to the de facto government abandon this point of view, accept the situation of fact, and give their allegiance to the existing government.

Final Test of Sovereignty. In the chapter which follows, dealing with the Federal State, we shall have occasion to apply, in the case of the United States, the distinction that has been made between governments de facto merely, and those which are de jure, and also to examine the juristic tests by means of which it is possible to determine whether, in the American Union, the sovereignty resides in the National body or is retained by each of the constituent States. The general proposi

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Studies in History and Jurisprudence; chapter: "The Nature of Sovereignty."