has the legal power to determine its own competency as well as that of others. For the essential criterion of the sovereign State is that it is supreme, not only as giving the ultimate validity to all law, but as itself determining the scope of its own powers, and itself deciding what interests shall be subject to its regulation. It sets to itself its own rights and establishes the limits of its own authority. As Jellinek puts it in his Gesetz und Verordnung: "The rights and duties of individuals receive their potency and authority from grounds set forth in objective law. The State finds the grounds for its own rights and duties in itself." 2 Or, as he expresses it in another work: "Obligation through its own will is the legal characteristic of the State." 3

Sovereignty Cannot Be Limited. Sovereignty as a State attribute is not only a unity, but one that, by its very nature and definition, connotes absolute legal authority. To place a legal limit upon it is, therefore, to destroy it. As Austin says in his Province of Jurisprudence Determined: "Supreme power limited by positive law is a flat contradiction of terms." And he continues: "Nor would a political society escape from legal despotism, although the power of the sovereign were bound by legal restraints. The power of the superior sovereign imposing the restraints, as the power of some other sovereign superior, would still be absolutely free from the fetters of positive law. For, unless the imagined restraints were ultimately imposed by a sovereign not in a state of subjection to a higher or superior sovereign, a series of sovereigns, descending to infinity, would govern the imagined community, which is impossible and absurd."

If, then, we have the case in which one State is recognized to have the legal authority to place a legal restraint 'Op. cit., p. 196.

3

Die Lehre von den Staatenverbindungen, p. 34. There will later be occasion to criticize Jellinek's conception of "own will."

of any sort upon the legal will of another political body, that political body cannot be said to possess sovereignty.

A Sovereign State Cannot Impair Its Own Sovereignty. Equally true is it that no State is able to impair its own sovereignty. Since, ex hypothesi, its own sovereignty is the source of all law for itself, it cannot by a law (except formally) limit itself, for, by an exercise of the same will that creates the limitation, the limitation may be removed. To this point we shall later return.

The State not a Subject of Legal Rights and Obligations. X There is some dispute among jurists as to whether or not a sovereign State may be regarded as itself a "subject" of legal rights and duties.*

If, however, the viewpoint of the analytical jurist is rigidly adhered to, there would seem to be no difficulty in asserting the negative upon this point. The State, being regarded as itself the source of a law, cannot be regarded as bound by the obligations which that law creates; and, even as to rights, the ascription of them to the State is meaningless, since their continuance as well as their creation, their character and their content, are wholly subject to the State's will. In other words, 'there would seem to be no more value in attaching legal rights and duties to the sovereign State than there is in predicating the attributes of goodness and justice of a Divine Being who is regarded as Himself the creator, by His own unrestrained will, of all distinctions between goodness and badness. XIt scarcely need be said that this denial of legal rights and duties has reference only to the State and not to its various governmental organs or officials. These, as has been earlier pointed out, have their competences determined by law, and, therefore, they must, at least in every constitutionally organized State, be regarded as the 'See especially, Brown's, The Austinian Theory of Law, pp. 191-193: Gray's Nature and Source of Law, paras. 184-190. Cf. also Holland's Jurisprudence; Markby's Elements of Law.

possessors of legal rights and as the subjects of legal obligations. This will presently be made more evident when the nature of constitutional law and of constitutional government is discussed.

Hobbes in whose writings are to be found so many of the fundamental principles which Bentham and Austin were later to develop into a system of Analytical Jurisprudence, fails to make this distinction between the monarch or other instruments of government and the sovereign political entity or person, the State, but, in the following passage the logic of his argument as to the impropriety of ascribing legal rights and duties to the person or organ that creates them cannot be successfully attacked. He says: "The sovereign of a commonwealth, be it an assembly or one man, is not subject to the civil law. For, having power to make and repeal laws, he may when he pleaseth, free himself from that subjection, by repealing those laws that trouble him and making of new; and consequently he was free before. For he is free, that can be free when he will: nor is it possible for any person to be bound to himself, because he that can bind, can release; and therefore he that is bound to himself only, is not bound." 5

Austin who subjected juristic ideas and terminology to meticulous, although not always successful, analysis, first, after Hobbes, emphasized the doctrine that a sovereign law-making power cannot be held to be itself a subject of legal rights any more than it can of legal obligations. To hold that the sovereign State can be legally obligated, he declares, would be contrary to the very definition of sovereignty. Thus, in Lecture VI of his Province of Jurisprudence Determined," he says:

"Every legal right is the creature of positive law; and

Leviathan, chap. XXVI, sec. 2.

Edition of 1875, New York, ed. by Campbell, p. 166.

it answers to a relative duty imposed by that positive law, and incumbent on a person or persons other than the person or persons in whom the right resides. To every legal right, there are therefore, three several parties: namely, a party bearing the right; a party burdened with the relative duty; and a sovereign government setting the law through which the right and the duty are respectively conferred and imposed. A sovereign government cannot acquire rights through laws set by itself to its own subjects. A man is no more able to confer a right on himself than he is able to impose on himself a law or duty. Consequently, if a sovereign government had legal rights against its own subjects, those rights would be the creatures of positive law set to its own subjects by a third person or body, who must, therefore, be sovereign over them. The community would therefore be subject to two different sovereigns, which is contrary to the definition of sovereignty."

Therefore, says Austin, when a sovereign State appears in a court as a plaintiff, or, with its own consent, as a defendant, the rights and duties that appear to attach to it, are only quasi legal rights and duties,-analogous to, but not identical in character with the rights and duties predicated of non-sovereign persons or bodies.

Markby in his Elements of Law takes practically the same position as Austin upon this point. So, also, does Sheldon Amos in his Science of Law.8

Holland in his Elements of Jurdisprudence, and Gray in his Nature and Sources of Law 10, take emphatically the position that legal rights and duties may be predicated of the sovereign State, but it is clear that, in doing so, insofar as they assert more than Austin admits under

the term quasi or analogical legal rights, they confuse the ideas of State and Government, and, as a result, apply to the former entity an amenability to law that can properly be imputed only to the latter. Thus Gray says: "It is for the interest of the State that robbery should be prevented. It protects this interest by issuing a command and imposing a duty; it creates for itself a legal right. . . . The State has an indefinite power to create legal rights for itself, but the only legal rights which the State has at any moment are those interests which are then protected by the Law,-that is, by the rules in accordance with which the judicial organs of the State are then acting."

Here there is a double error. In the first place there is the incorrect assumption that interests can be predicated of the State as distinguished from its citizens. The truth is that it is because of the citizen's interest that robbery is sought to be prevented. As an abstract legal entity, considered apart from its own citizens, a State cannot possibly have substantive interests to be protected or advanced. Secondly, the law as it exists at any given time operates not as a limitation upon the State, or to endow it with legal rights or powers, but solely, in these respects, upon individuals whether as private citizens or as public officials.

XA similar failure to distinguish between the State as the creator of law, and as operating through law, but as not itself subject to the control of law, and its governmental agencies which have only such legal rights and obligations as are given to them by law, is seen in the energetic protest made by Mr. John M. Zane to the statement made by Mr. Justice Holmes in his opinion in the case of Kawananakoa v. Polyblank 1 that "there can be 11 "1205 U. S. 349.

1