NOTES ON SOVEREIGNTY IN A STATE1

The following notes aim, in a tentative way, to discuss and analyze the source and nature of sovereignty in its relation to mankind, and to the institutions created and developed as a result of man's desire for social order and peace. The term notes excludes the idea of an exhaustive or comprehensive treatment of sovereignty; the sole purpose in view is to direct attention to the wide-reaching importance of the subject and to suggest a line of thought somewhat different from that usually followed by publicists.

In the various systems of philosophical theories of government, which have been given to the world since the human reason was emancipated by the revival of learning, sovereignty, with scarcely an exception has held a prominent place, and upon their conception of it all of the foremost thinkers since that time have rested their philosophic systems. The two great exceptions to this general practice are Montesquieu and Locke. The former neither defines nor treats of sovereignty; and the latter fails even to mention the word. The explanation of this apparently vital omission from their systems may be found in the ethical idealism of these philosophers, who exalted moral obligation to an actual force and gave to man's consciousness of right a determinate authority which is denied by historical experience. They dealt with what they conceived ought to be in human affairs, rather than what really is.

The other political philosophers preceding Montesquieu and Locke, such men as Johannes Althusius, Jean Bodin, Suarez, Hobbes and Spinoza, while often intermingling abstract right with strict legality, saw the necessity of recognizing sovereignty as an ever present factor in all phenomena of government, and, therefore, of introducing it into their systems. When Hume by the force of his logic discredited the

'First Paper. The following works, referred to by author rather than title are: Austin: Principles of Jurisprudence, 5th ed., revised and edited by Robert Campbell, London, 1885. Bluntschli: Theory of the State, 3d ed. Burgess: Political Science and Comparative Constitutional Law, 2 vols. Dunning: History of Political Theories. Lawrence: Principles of International Law. Maine: Early History of Institutions.

"contract" theory of the source of governmental power which had swayed philosophic thought for a century and set in motion those doctrines that found fuller expression in the writings of Bentham and Austin, sovereignty again assumed the importance which it had in a measure lost through the influence of Locke and Montesquieu.?

To modern writers upon political philosophy, jurisprudence and law the subject of sovereignty has been one of recognized importance. Indeed, it has been to the great body of philosophic thought for the past three hundred years the persistent force which affects all the political relations of mankind. To the present-day philosopher, it is even more; it is the fundamental authority which controls, restrains and protects man as a member of society. In the advanced state of modern thought, it is irrational to consider origins or to trace the development of political institutions without admitting the existence and constant activity of sovereignty, and its potency in the creation, evolution, and expansion of such institutions. No problem of government can be proposed in which it is not an essential factor. No explanation of such terms as liberty and law satisfies the reason or appeals to man's consciousness of truth which does not introduce, define, and apply sovereignty.

The organization of a political society without the operation of sovereignty is as incomprehensible as a creation without a creator, as a thought without the mind from which it sprung. Sovereignty, like that energy which is called electrictity and seems to be omnipresent in nature, permeates every political institution and every social organism, however crude and rudimentary, or however complex and highly developed they may be.

Before entering upon an analysis of the subject it is needful to define sovereignty as well as certain other terms which will be used. Definition is always difficult and often unsatisfactory. So much depends upon how a word is used that it is not uncommon to find a course of reasoning and even an entire system of philosophy turn upon the meaning of a single word. To anyone, who appreciates the value of accurate definition and the liability to err through an incomplete grasp of the

2 It is true that Austin relegated the discussion of it to the closing chapters of his work on the Province of Jurisprudence, but for this he is criticised by Sir Henry Maine, who supposes this illogical method to be the result of Austin's antipathy to anything which seemed to be in accord with Blackstone.

subject or through the influence of a preconceived line of argument or through imperfect operation of the reason, the attempt to define cannot be made without great caution, and the claim to correctness without hesitation. The failure of many an attractive philosophical theory may be charged to the self-sufficiency of the theorist in defining the terms which he employs. Nevertheless, words must be defined, especially when used technically; and, though there may not be universal agreement as to the accuracy of the definitions, they will form subjects. of further discussion, and, even if incomplete or faulty, will disclose the basis upon which an argument rests.

Bearing in mind then the difficulties as well as the necessity of definition the writer defines sovereignty in its broadest sense as the power to do all things without accountability.

So extensive a power, which eliminates the elements of time and space, of motion and inertia, of mind and matter, can only find a counterpart in a super-mundane and super-human sovereignty which is coextensive with the limitless universe and which can only be possessed by an Omnipotent and Eternal Being. Sovereignty in the abstract is, therefore, coincident with Divine Sovereignty. It is not intended in these notes to enter that great sphere of thought which embraces the philosophy of religion and kindred subjects, but to deal with that type of sovereignty, which in contrast to the super-mundane and Divine, may be called human sovereignty or world sovereignty.

Such sovereignty may be defined as the power to the extent of human ] capacity to do all things on the earth without accountability. Even thus limited to the earth and to mankind, sovereignty is too comprehensive and, in a sense, too intangible to yield readily to analysis or to furnish historical illustration. It is proposed, therefore, in these notes to consider a more circumscribed type, which will be perceived in familiar phenomena, and be more fruitful of example. This lesser sovereignty is that which prevails in a state. It is the sovereignty which history knows and law recognizes, the sovereignty which affects the individual members of states, and which is the force constantly at work forming and reforming political institutions and regulating human conduct.

Before proceeding it is necessary to reach some basic idea of a state; and for a satisfactory definition the one given by Burgess may be adopted, provided it is not limited to a "modern state," but is applied to a state generally. The definition, which is concise and comprehen

sive, is as follows: "A state is a particular portion of mankind viewed as an organized unit" (Burgess, vol. i, p. 51). The definitions of the American jurists, Story and Cooley, are more elaborate but convey the same idea of unity and organization. Story says that a state is a self-sufficient body of persons united together in one community for the defense of their rights and to do right and justice to foreigners. In this sense the state means the whole people united into a body politic, and the state, the people of the state, are equivalent expressions. (Story on the Constitution.)

Cooley defines a state as

a body politic, or society of men, united together for the purpose of promoting their mutual safety and advantage by the joint efforts of their combined strength. (Cooley, Constitutional Limitations, p. 1.)

The criticism of the last two definitions is that they assert definitely a reason for the union, which may seem to some open to objection or at least to question. However, if the definitions stopped here, there would be little disagreement, but they do not. Publicists have seen fit to expand their concepts of the state by declaring that they must possess particular qualifications which sometimes lead to paradoxes and contradictions. Among these required qualifications the most general are that an organized community to be a state must have a fixed territorial abode and that it must consist of a large number of persons. Undoubtedly these are characteristics of most modern states; but to admit this limitation would deprive a large number of independent communities of a name to which they appear to be entitled by the completeness of their political organization and the influence which they have exerted upon the world's history.

It must be recognized that the word "state" from its derivation carries the idea of fixity of abode; but there should be a careful distinction made in the use of the word in its application to persons and to territory. In the consideration of sovereignty, the state as an organized community of individuals is of importance. In fact, the qualification of occupation of territory is for the purpose of these notes non-essential; and its omission from the definition avoids controversy as to the correctness of the limitation which its adoption would impose.

The same objection applies to the requirement as to numbers. When it is said that a community in order to be a state must be composed of

"a large number of persons," one naturally asks, how large a number? If the number is not definite, who is to fix it? Some philosophers say "a considerable number;"" others, "a multitude;" but, if Coke is correct, “Multitudinem decem faciunt" (First Institute). Rousseau declared one hundred thousand was enough, but Bluntschli rejects it as insufficient. Here is utter confusion, disagreement and vagueness. If a definition is of any value it must have some measure of certainty, but this feature of numbers is decidedly uncertain. It is far better to take the position of Jean Bodin and declare all discussions as to numerical limits to be irrelevant. (Dunning, p. 90.)

It seems more reasonable, therefore, and for present purposes it is sufficient, to adopt the less complex definition, upon which there is substantial agreement, and assume that, when a portion of mankind: is united into a community and becomes an organized unit, it is a state.

However, to avoid misunderstanding it will be well to distinguish between the uses of the word in terms. The community of human beings will be called the political state; the territory, which they possess, the territorial state. When the word "state" is used without either adjective, the political state is intended.

It should also be noted that the words "state" and "nation" are frequently used interchangeably. The word nation carries with it an idea of racial and, generally, linguistic characteristics which the word state does not. Today most states, particularly the large and powerful ones, are correctly called nations; and, while the difference between

'Austin says: "In order that an independent society may form a society political, it must not fall short of a number which cannot be fixed with precision, but which may be called considerable, or not extremely minute." (Austin, p. 231.) He goes on from this to argue that though "an insulated family" of savages is an independent society, of which the father as chief receives "habitual obedience" from the rest, to call the family "a society political and independent" and the father "a monarch or sovereign" would "somewhat smack of the ridiculous."

Maine, in considering this argument of Austin's, points out the "seriousness of the admission" that the theory cannot be applied to a family. (Maine, p. 379.)

Lawrence, who appears to favor the Austinian theories, says: A state may be defined as a political community, the members of which are bound together by the tie of common subjection to some central authority, whose commands the bulk of them habitually obey. This central authority may be vested in an individual or a body of individuals; and, though it may be patriarchal, it must be something more than parental; for a family as such is not a political community and, therefore, not a state." (Lawrence, p. 56.)