gether a community of people and constitutes from them a single unit. Each of these factors invites the formation of a Nation, but no one of them compels it. The essential element is the feeling which is the result of one or more of these factors. Thus, as says Renan: "A Nation is a spiritual principle, resulting from the profound complications of history; a spiritual family, not a group determined by the configuration of the soil. . . . A Nation is, then, a great solidarity constituted by the sentiment of the sacrifices that have been made, and by those which the people are disposed to make. It supposes a past; it is, however, summed up in the present by a tangible fact: the consent, the clearly expressed desire of continuing the common life. The existence of the Nation is (if the metaphor is permissible) a continued Plebiscitum, as the existence of the individual is a perpetual affirmation of life." 1

According to Mill: "a portion of mankind may be said to constitute a nationality if they are united among themselves by common sympathies which do not exist between them and others—which make them coöperate with each other more willingly than with other people, desire to be under the same government, and desire that it should be government by themselves or a portion of themselves exclusively.'

"2

The tendency of course is, as indicated in Mill's definition, for Nations to constitute themselves as individual States, and this demand for political unity constitutes the surest index to the existence of a national feeling. Hence, most publicists see in the national State the most perfect type of political development thus far attained.

The advancing enlightenment of the masses has been instrumental in creating the true feeling of nationality,

'Article "Nation" in Lalor's Cyclopedia of Political Science. "Representative Government," chap. XVI.

that is to say, a demand for unity based upon some other ground than mere coercive political control; and the last hundred years has seen the enormous influence that this principle has had in reforming the political map of Europe. At the same time it is not too much to hope that this same spirit of enlightenment that has given rise to a demand for a re-demarcation of political boundaries will, in turn, as civilization continues to advance, make this demand less imperative. And for this reason; While at first the enlightenment of the masses creates in them a consciousness of their own individuality and solidarity, and thus a national feeling, as the culture of the people increases, their sympathies may become more cosmopolitan, and their appreciation of the true unity of all humanity more real. Ethnic, linguistic and even political unity may thus exercise comparatively less and less influence as Nations find themselves drawn into a higher and more intellectual union. At the same time, also, economic interests tend more and more to cross national and political boundaries, and thus to unite with increasing closeness the material interests of different Peoples. It may thus be entirely possible that the spirit of nationality at present so active in politics will prove to be a phase of civilization rather than a permanent product; and that while the realization of a true World-State may never be possible, we may yet look forward to a growth of internationality that will largely deprive the feeling of nationality of its present force.

CHAPTER VII

TERRITORY AND PEOPLE AS CONSTITUTIVE ELEMENTS
OF THE STATE

Territory. According to the definitions of many political scientists the existence of a State implies the exercise by it of authority over a definite portion of the earth's area. Thus the German jurist Seydel says: "A State comes into existence whenever a number of persons who have taken possession of a part of the Earth's surface unite themselves together under a higher will.” 1

So also Bluntschli declares a State to be "the politically organized national person (Volkperson) of a definite territory." 2 In like manner Rivier says: "A State is an independent community organized in a permanent manner in a definite territory." And a definition substantially similar to this is found in the treatises of almost all writers on international law.

"3

Some writers, among whom the present author was formerly included, incline to the view that a State ma conceivably exist without a territory of its own, and, therefore, assert that the foregoing and similar definitions which included territory as an essential element of the State are incorrect. The author is now convinced, however, that, although the political jurisdiction of a State is not, in some aspects of its exercise, exclusively territorial in character, the existence of sovereignty itself, and 1 Grundzüge einer allgemeinen Staatslehre, p. 1. See Garner, Introduction to Political Science, for a large number of definitions of the State. Theory of the State, p. 23.

'Principes du droit des gens, I, sec. 45.

therefore of a State, is dependent upon the claim upon the part of the State to a territory of its own.

In a later chapter we shall have occasion to show in considerable detail that, in many respects, the political jurisdiction of a State is personal as well as territorial in character; in other words, that sovereignty is recognized by the public law of all constitutionally developed States to imply the legal right upon the part of its possessor to attach legal significance to acts committed, or occurrences taking place outside of its own territorial limits. This legal significance, however, is one which the State cannot enforce outside its own territorial limits except with the express or implied consent of the other States within whose limits the enforcement is to take place. It is, then, not an adequate description of sovereignty to speak of it simply as territorial in character, unless, from the context, it is plain that reference is had to the enforcement, and not to the assertion, of the State's legal right of control.

There is, indeed, some justification for holding that, the essential quality of sovereignty consisting in a predicated right to issue commands legally binding upon individuals, the enforcement of these commands is a secondary matter which may or may not be actually effected, and which, in fact, in no State is always effected; and that, therefore, it is possible to conceive of a State without any territory of its own. Those who argue thus say that, so long as there is an aggregate of individuals who regard themselves as politically united under a ruler or Government which they regard as entitled to determine for them their legal rights and obligations, a State may be fairly said to exist. For example, they would say that during the period, while the World War was in progress, when the territories of Serbia and Montenegro were wholly occupied by Central Powers, these Kingdoms, though

then without any territories upon which they could exercise their rights of sovereignty, were nevertheless States.

Of such a view it may be said that, while a possible one, and of value in so far as it emphasizes the personal element in the conception of sovereignty, it is inadequate as an analysis of present conditions of fact. In the world as we now know it, all, or substantially all, of the land surface is claimed by one State or another as its own territory over which it asserts exclusive political jurisdiction. This being so, no opportunity is presented for the existence of an independent politically organized people which has no land area within which to exercise its sovereignty. Wherever such a hypothetical landless body politic might be unless it remained aboard ship upon the high seas—its members would be subject to the legal jurisdiction of the State within whose borders it was, and, therefore, it would not be a sovereign body.

As for the status of the Serbians and Montenegrins during the Great War, when their territories were in hostile military possession, it may be said that, regarded from their own legal point of view, the military governments of the Central Powers had no more than a de facto character. In other words, that, though for the time being dispossessed of them, their legal claim to these territories persisted. This point will appear more clearly in the chapter in which the distinction between government de facto and governments de jure will be discussed.

In result, then, it becomes necessary that territory be regarded as an essential constituent element of a State, and must therefore appear in its definition.

By some writers the jurisdiction which a State exercises over its territory is spoken of as a special right of sovereignty, and distinguished from the authority which it exercises over its citizens or subjects. This, however, is not