Page:EB1911 - Volume 25.djvu/541

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521
SOVEREIGNTY


that the king is subject to the laws: " Bracton knows of no sovereign in the Austinian sense, and distinctly denies to the royal authority the attribute of being incapable of legal limita- tion " (J. N. Figgis, The Divine Right of Kings, p. 13). We find the same expressed by many German jurists, i.e. the idea of a state which exists only in the law and for the law, and whose life is but by a legal order regulating public and private relationship (Gierke iii., x.).

Among the definitions of sovereignty may be quoted these: " That which decides in questions of war and peace, and of Definitions making or dissolving alliances, and about laws and ofSove- capital punishment, and exiles and fines, and audit reignty. Q £ acC qunts and examinations of administrators after their term of office " (Aristotle, Politics, 4. 4. 3). " Suprematum illi tribuo qui non tantum domi subditos manu militari regit, sed et qui exercitum extra fines ducere et armis, foederibus, legationibus, ac caeteris juris gentium functionibus aliquid momenti ad rerum Europae generalium summam conferre potest " (Leibnitz, Opera, 4. 333). " La souverainete est celle qui sert a exprimer l'independance d'un etat aussi bien a l'interieur qu'a l'exterieur " (F. de Martens, Traite du droit international, translated by A. Leo, 1883, i. 378). " L'independance complete qui peut se manifester a deux points de vue; Fun exterieur, Fautre interieur " (Frentz Despagnet, Droit international public, 1894, p. 80). " Sovereignty as applied to states imports the supreme, absolute, uncontrollable power by which any state is governed " (T. M. Cooley, Constitutional Limitations, p. 1). " Social control, manifesting itself in the authoritative organization of society as the state, and acting through the organs of government, is sovereignty " (Giddings, Elements of Sociology, p. 217). The sovereign is " Absolut unabhangig und nur durch sich selbst beschrankt und beschrankbar " (Zorn, Vblkerrccht, p. 4. See the collection of definitions in Der Souveranitdtsbegrif im, Bodin, &c, by Dr Adolf Dock (1897), p. 6, and in La Conception juridique de Vetat, by Combothecra, p. 90). Many of these definitions describe an ideal state of things rather than realities. Some of the definitions would apply to the authority of powerful religious bodies in certain periods of history, or of illegal associations, such as the Mafia, which have terrorized the community.

Territorial sovereignty is used in a variety of senses. Often the phrase is the equivalent of sovereignty. It may mean a state of things such as existed in the middle ages, in which ownership and sovereignty were not clearly separated: when he who was owner had sovereign rights incident thereto, or, as it was some- times phrased, when sovereignty inhered in the territory, when the king was the supreme landowner (Maine, Ancient Law, p. 106; Figgis, pp. n, 14) ; when all political power exhibited proprietary traits, and was incident to the ownership of land (Maitland, Township and Borough, p. 31). Territorial sovereignty is thus defined by Leibnitz: " Superioritatem territorialem in summo subditos coercendi jure consistere " {Opera, 4. 358. See Laband, 1. c. 8).

Certain propositions are often stated with respect to sove- reignty. One of them, stated by Rousseau (Dm Contrat social, 2. c. 2), is that it is indivisible: a proposition true in Sovere/rai , i'. l ^ e sense that i n regard to the same matters at the same time there cannot be two sovereigns, but not true in the sense in which it has often been employed, namely, that in the last analysis of society there are some persons or person who control all conduct and are habitually obeyed as to all matters. Rather we may say with Maine, " Sovereignty is divisible, but independence is not." To hold sovereignty not to be divisible is for juridical purposes not a working theory; states part, permanently or temporarily, with few or many of the rights and powers comprehended in sovereignty; to speak of it as undivided in the case of Crete, Egypt or Tibet is to do violence to facts.

A frequent deduction from the theory of the indivisibility of sovereignty is that there cannot be double allegiance; in other words, no one can be the subject of two states. This deduction is not in fact true. With the existing differences in the laws of


modern states as to nationality, persons may be, and are, subjects of two or more states. In the native states in India there may be said to be double allegiance. C. L. Tupper, in his Our Indian Protectorate, refers to " the double allegiance of the subjects of native states " in India; and he explains that the native rulers are themselves subject to the Indian government. " For all purposes of our relation with powers the subjects of Indian native states must be regarded as subjects of Her Majesty " {Our Indian Protectorate, 1893, p. 353). Such double allegiance is apt to exist in times of transition from one sovereignty to another; for example, in the 18th century, in the British possessions in India, the Mogul was said to exercise a personal sovereignty. As Sir William Scott remarked in the Indian Chief, 3 C. Rob. 22, it hardly existed otherwise than as a phantom : the actual authority to be obeyed was exercised by the East India Company. The natives of protected states owe not only allegiance to them, but also certain duties, ill defined, to the protecting state.

Another deduction from the same proposition is that any corporation or private body which appears to exercise sovereign powers together with the state does so only by delegation. This theory is thus stated by Burke {Works, 7. 289) with reference to the East India Company: " The East India Company itself acts under two very dissimilar sorts of power, derived from two sources very remote from each other. The first source of its power is under charters which the Crow T n of Great Britain was authorized by act of parliament to grant, the other is from several charters derived from the emperor of the Moguls .... As to those of the first description, it is from the British charters that they derive a capacity by which they are considered as a public body, or at all capable of any public function. . . . This being the root and origin of their power, renders them responsible to the party from whom all their immediate or consequential powers are derived."

A further proposition often stated with respect to sovereignty is that it is unlimited: a proposition which is not true of the legal or political sovereign. In all states are limits, more or less definite, to such powers, according to the character of the subjects and the relations of the state to foreign powers. Even despotism is tempered by assassination and the liability of revolution (Dicey, Law of the Constitution, 6th ed., p. 75). A third pro- position, often expressed with respect to sovereignty, is that it cannot be alienated: a proposition thus stated by Rousseau: " Je disque la souverainete, n'etant que l'exercisede la volonte generate, ne peut jamais s'aliener " {Du Contrat social, 2. 1 ; Figgis, p. 89).

According to one view, sovereignty is not the distinctive note of a state. Many communities usually regarded as true states do not possess it. There are sovereign and non-sovereign states; international law recognizing both. In the view of many writers sovereignty is not a necessary attribute of a state (Laband, Das Staalsrecht des deulschen Reiches, 1. 87; Jellinek, Die Lehre von den Staatenverbindungen, p. 37 ; Meyer, Lehrbuch des deutschen Staatsrechtes, p. 5; Ullmann, Volkerrecht, 29. See the contrary view presented by Professor Burgess, Political Science or Consti- tutional Law, i. 52; Political Science Quarterly, 3. 123; Georges Streit, Revue de droit international, 1900, p. 14). Any division or classification of states must be imperfect. The fact is that there may be an indefinite number of what Merignhac (i. 204) terms political " collectivites secondaires "; that the attributes summed up in sovereignty may be separated and divided in many ways; that there may be new forms of combinations, between states or parts of states; and that their morphology is subject to no hard and fast rules.

The phrase half sovereign states was invented by J. J. Moser to describe states possessing some of the attributes of sovereignty, Under this class are grouped very diverse communities. There are states which possess some attributes Sovereign of sovereignty, but no others; states possessing Siates - internal autonomy, but not externally independent ; states which are more or less under the influence of others. There are also states which have certain of the attributes of sovereignty, but are subject to servitudes or burthens imposed by treaty, usage,