Page:EB1911 - Volume 25.djvu/822

From Wikisource
Jump to navigation Jump to search
This page needs to be proofread.
800
STATE


mutual covenants, one with another, have made themselves every one the author, to the end he may use the means and strength of them all as he shall think expedient for their peace and common defence."

The term is also used to distinguish the civil from the ecclesi- astical authority in countries where they are or have been in conflict.

A large number of definitions and classifications, according to political structure, international status, national homogeneity, &c, have been attempted, but it is beyond the scope of a short article to do more than mention these different senses of a word so variously employed.

In international law the term has a more precise meaning, according to which the state is the external personality or Attributes
in Inter-
national
Law.
outward agency of an independent community. In its fullest form its attributes are: (a) possession of sovereign power to pledge the community in its relations with other similarly sovereign communities, (b) independence of all external control, and (c) dominion over a determinate territory. In practice, however, there are still incomplete forms of states which join in the international life of states, paramount states whose relations to subordinate parts of their empire are in a condition of uncertainty, and there is, at any rate, one body carrying on international state intercourse without dominion over any territory at all. Thus, Great Britain, has diplomatic relations, purely formal though they may be, with several of the subordinate states forming the German Empire. Egypt, while legally under the suzerainty of the Porte, is practically a British protectorate. Great Britain treats Cyprus as a dependency, though she is in mere occupation of the island for the purpose of carrying out certain reforms for the protection of Christians. Austria-Hungary considered herself in the same position, though she occupied Bosnia and Herzegovina " without affecting the rights of sovereignty of his majesty the Sultan on those provinces." Though Bulgaria, by the Treaty of Berlin, was an " autonomous and tributary principality under the suzerainty of his imperial majesty the Sultan," Turkey did not consider her suzerainty to involve her in the war of 1885 between her vassal and Servia. The Roman Catholic Church has permanent diplomatic relations as an independent state, though it has no independent territory against which international rights can be enforced. We saw in the Boer War the army of an annexed community wandering from place to place recognized as a belligerent with whom Great Britain negotiated as an independent state.

A new and somewhat shadowy form of suzerainty is growing up in the " paramountcy " first enunciated (with the concurrence of Great Britain) by the President of the United States in 1823 (see Monroe Doctrine), asserted with a certain measure of success against Great Britain in 1896 (see Venezuela, also Arbitration), and proclaimed formally by the United States at the Hague peace conference in 1899 as a condition of her signature of the Peace Convention. While the Spanish republics of Central and South America are recognized in international law as sovereign states, they can only be said to fulfil the conditions of absolute independence subject to the limitations which the Monroe Doctrine has placed upon their treaty-making powers with Europe.[1]

" In constitutional law, the state," says a leading English authority, " is the power by which rights are created and British
and Con-
tinental
Con-
captions.
maintained, by which the acts and forbearances necessary for their maintenance are habitually enforced " (Anson, Law and Custom of the Constitution, pt. i. p. 2). In France, where the state embraces a hierarchy of bodies and authorities culminating in the president of the republic, whose acts are the final form of a series of incomplete acts of the members of the hierarchy, it comes nearer to the theoretical meaning of the word. In Great Britain the sovereign power of the state is diffused among a number of authorities which have rights against each other and stand in independent relation towards the individual citizens. Actions can be brought by private citizens in the ordinary law courts against individual authorities, and there is no system of hierarchical responsibility which prevents a state official from being personally accountable for his administrative conduct. In A. V. Dicey's admirable Introduction to the Study of the, Law of the Constitution, this distinction between the French, or, as we should rather call it, continental system of entire subordi- nation of the organs to the state as a whole, and the less logical British system is dwelt upon. "Few things," he observes, " are more instructive than the examination of, the actions which have been brought in Great Britain against officers for retaining ships about to proceed to sea. Under the Merchant Shipping Act 1876 the board are open to .detain any ship which, from its unsafe and unsea worthy condition, is a serious danger to human life." " Most persons would suppose that the officials of the board of trade, so long as they — bona fide and without malice or corrupt motive — endeavour to carry out the provisions of the statute, would be safe from action at the hands of a shipowner. This, however, is not so. The board and its officers have more than once been sued with success. They have never been accused of either malice or negligence, but the mere fact that the board acts in an administrative capacity is not a protection to the board; nor is mere obedience to the orders of the board an answer to an action against its servants " (P- 324)-

In England, we may say, the notion of state, from the constitu- tional point of view, is still inchoate, but the play of international intercourse seems to be gradually leading to a clearer conception of the fact that an increasing national responsibility requires a corresponding increase in the power of . co-ordinate state control. An instance of its absence is shown by the loose way in which the British Crown has granted governing powers to chartered companies (see Raid), This uncertainty applies as much to the United States as to Great Britain. In the Louisiana lynching riots, of which some Italian citizens were the victims, it was contended that the United States government was not responsible, and that the responsibility fell upon the government of Louisiana alone. This contention could not be pressed, and compensation was of course paid to Italy. Sirnilar difficulties arose in connexion with the Japanese school question in Cali- fornia. The subject is well known to have raised apprehension as to the adequacy of the United States system to meet its centralized state responsibilities.

Another, and, in some respects, more dangerous feature of an inchoate conception of state responsibility is the growing apart, so to speak, of certain British dependencies. The British state, for international purposes, is the British Empire, for domestic purposes it is the United Kingdom. Any limb of the former's huge body can have interests different from those of the United Kingdom, and involve its responsibility. A signifi- cant step towards concentration of liability and control was taken by the Australian colonies in the federation brought about by the Commonwealth Act of 1900. Under this act, by the way, an element of confusion has been created by the application of

the term " state " to the federating colonies. Section 6 of the act provides " the states " shall mean such of the colonies of New

  1. Great Britain, in acceding to the arbitration imposed by President Cleveland, has, in the opinion of a number of American and Continental publicists, recognized the Monroe Doctrine. See Chretien, Principes; De Beaumarchais, La Doctrine de Monroe; De Bustamente, Le Canal de , Panama el le droit international; De Pressense, " La Doctrine de Monroe et le conflit anglo- americain," Revue des deux mondes (1896); also the writings of Ridgway, W. L. Scruggs, Sibley and G. F. Tucker, and the Annates de jurisprudence (Colombia), June 1897 and following numbers. M Pradier-Foder6, Professor of International Law at Lyons University, and formerly professor of the University of Lima, observes that " En declarant que la grande republique americaine considererait comme dangereuse pour sa tranquillite et sa security toute tentative de la part des puissances europeennes d'etendre leur systeme politique a une partie quelconque du continent americain, il (le president) s'est m616 indirectement des affaires int6rieures des republiques du Nouveau Monde, autres que les Stats Unis; il a fait de l'intervention par anticipation et au profit de l'Union; car, c'est d'intervenir que d'interdire aux autres gouvernements d'intervenir."