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SOVEREIGNTY

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Originally appearing in Volume V25, Page 522 of the 1911 Encyclopedia Britannica.
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SOVEREIGNTY. The word sovereignty (Fr. souverainete) is said to be derived from the medieval Latin word supremitas, i.e. suprema polestas, supreme power. (See Skeat's Etymological Dictionary as to various forms of the word, and Meyer, Lehrbuch des deutschen Staatsrechts, If, as to its derivation.) Sovereignty may be viewed in three ways: there is the historical explanation of its origin and growth, its rude beginning in the savage horde, its completion in the modern state; there is the analytical or juridical explanation; there is also what (for want of a better phrase) may be called the organic explanation of sovereignty. The following are some of the chief stages in the history of sovereignty: While society is in a rude state or only tribally organized there is no distinct sovereignty, no power History. which all persons habitually obey. Thus there is no sovereignty among wandering groups of Australian savages: each family is isolated, each horde is a loose and unstable collection. When the horde has become a tribe there may exist no definite sovereign. Distinct in time of war, the power of the chief may be fluctuating and faint in time of peace; even in time of war it may be subject to the authority of a council. Tribes of the same ethnic stock may form a sort of federation, permanent or temporary. " With the council of the confederacy," it has been said, " and, more generally, in the confederacy, sovereignty arises and the true political tradition is evolved " (F. H. Giddings, Principles of Sociology, p. 285). When the city and the state are conterminous the seat of sovereignty becomes defined. Such was the condition of things in Greece, as considered by Aristotle in his Politics. He discusses the question what is the supreme power in the state (3. 10), which he defines as an aggregate of citizens (3. i.), and he recognizes that it may be lodged in one, a few, or many. In his view the distinctive mark of the state is not so much sovereignty (7. 4) as self-sufficiency; a state is not a mere aggregate of persons; it is a union of them sufficient for the purposes of life (7. 8) ; sufficiency being " to have all things and to want nothing " (7. 5. I). The Roman jurists say little, and only incidentally, as to sovereignty. But in the middle ages, under the influence of the Roman law, and with the belief in the existence of an empire entitled to universal sway, an absolutist theory of sovereignty was developed in the writings of the jurists' who revived the study of that law: the emperor was sovereign; " quod principi placuit legis habet vigorem " (Institutes, i. 2. 6). Those jurists often justified the plenitudo potestatis conceded to the emperor by the fact that he stood at the )lead of Christendom. Among the theories prevalent in the middle ages was one that mankind formed a unity, with the pope and the emperor at the head of it: the universal Church and the universal emperor ruled the world (Rehm, Geschichte der Rechtswissenschaft, p. 198.) Even to Leibnitz, writing in the 17th century, it seemed that " totam Christianitatem unam velut Rempublicam componere, in qua Caesari auctoritas aliqua competit" (Opera, 4. 330). When the power of the emperor was weakened, and the idea of a universal ruler was gone, a new test of sovereignty was applied —that of external independence; the true sovereign states were universitates superiorem non recognoscentes. There were times and countries in the middle ages in which the collective power of the community was small: many of the great corporations were virtually autonomous; the central authority was weak; the matters as to which it could count upon universal obedience were few. In such circumstances the conception of sovereignty was imperfect. It has been suggested that the modern conception of it was evolved from the contest between three powers: the Church, the Roman Empire, of which the individual states in Europe were theoretically provinces, and the great landowners and corporations. Whatever may be the truth as to this, the modern theory is first clearly stated in Jean Bodin's book On the Commonwealth (French ed., 1576; Latin version, 1586), which was the first systematic study of sovereignty. Bodin defines the state thus: " Respublica est familiarum rerumque inter ipsas communium, summa potestate ac ratione moderata multitudo." His theory, which corresponded on the whole to the state of things in France in the time of Louis XI., was a theory of despotism. It may be also described as a type of the mechanical or juridical theory of sovereignty. According to Bodin, there is in the state unlimited one power: " Majestas est summa in cives ac subditos ]egibusque soluta potestas " (i. 8). There exists a central force from which are derived all the powers which make or give effect to laws; a power which he describes sometimes as " majestas summa potestas summum imperium." This was the conception ex-pressed by Bossuet, " Tout 1'etat Est en la personne du prince," or in Louis XIV.'s saying, " L'etat c'est moi." One favourite theory was that sovereignty originated in a social contract. It was assumed that the individual members of society, by express or implied pact, agree to obey some person or persons; sometimes it is described as an unqualified handing over; sometimes it is a transfer subject to qualifications, and with notice that in certain contingencies this will be withdrawn. Gierke, in his book Johannes Althusius and die Entwickelung der naturrechilichen Staatstheorie, shows (p. 76) that the conception of a treaty or agreement as the basis of the state was in the middle ages a dogma which passed almost unchallenged, and that this theory was maintained up to a late period. It is to be found in the writings of Thomas Aquinas (De Regimine principum, 266), Marsilius of Padua, Buchanan, J. de Mariana, and F. Suarez. It is the kernel of the theories of Hobbes, Rousseau, Filmer and Locke. Among the clearest and most logical exponents of this theory was Hobbes, who in his Leviathan expounded his notion of an agreement by which absolute power was irrevocably transferred to the ruler. Pufendorf, with some variations, states the same theory. In his view there is a pact um unionis, followed by a pactum subjectionis. The best-known exponent of this theory of the source of sovereignty is Rousseau, who assumes the existence of a pacte social, the terms of which are: " Chacun de nous met en commun sa personne et toute sa puissance sous la supreme direction de la volonte generale; et nous recevons encore rhaque membre comme partie indivisible de tout" (Du Contrat social, I. c. 6). It is convenient for the jurist to assume that in every state is one determined or determinable authority in which is vested sovereignty, and from which all other authorities derive their power. The assumption is not true of some states; the legal authority is divided among several persons or bodies. It is at best an unfruitful assumption; and the tendency of students of sociology is to treat discussions as to sovereignty much as modern physiologists treat discussions as to " vital force " or " vitalprinciple." Comte, Spencer, Bagehot, Durkheim and Giddings, for example, refer to it, if at all, only briefly and incidentally; they conceive society as an organism, or at all events as a growing whole, no one part or force being the cause of all others, and all interacting; society is not the product of any agreement or of force alone, but of a vast variety of interests, desires and needs. Now the state or government comes at a certain stage of organization: small groups are drawn together; powerful corporations fall into line; a national feeling develops; eventually the state as we know it is formed. Sovereignty is a resultant of many forces. It may not exist as to some regions of conduct; as to others it may be weak and mutable; only in certain conditions is the sovereign power supreme as to all matters of conduct. Among the different senses in which " sovereign " has been used are the following: a. " Sovereign " may mean titular sovereign--the king in the United Kingdom, the kaiser in Germany. b. The legal sovereign: the person or persons who, according to the law of the land, legislate or administer the government. c. The political or constitutional sovereign: the body of persons in whom the actual power at any moment or ultimately resides. Sometimes this is designated " the collective sovereignty." d. Sovereignty is also used in a wider sense, as the equivalent of the power, actual or potential, of the whole nation or society (Gierke, 3. 568). The distinction between real and nominal sovereignty was familiar to medieval writers, who recognized a double sovereignty, and distinguished between (I) the real or practical sovereignty resident in the people, and (2) the personal sovereignty of the ruler (Adolf Dock, Der Souveranitatsbegriff, &c., p. 13). By many writers sovereignty is regarded as resident not in any one organ, but in the Gesammt person of the community (Maitland, Political Theories of the Middle Ages, xliii.). Sometimes sovereignty is defined as the organized or general will of the community (Combothecra, Conception juridique de l'etat, p. 96). " Sovereignty is the organized will of an organized independent community. . . . The kings and parliaments who serve, as its vehicles." " Sovereignty resides in the community " (Woodrow Wilson, p. 1448). The same theory is often expressed by saying that the majority in a community, or a particular group, in fact, rules (Guizot, Representative Government, i. 167). This was the doctrine of the French Revolution. " Sachez que vous etes rois et plus des rois," said a revolutionary orator cited by Tafne. It was the language of the founders of the American constitution and contemporary political writers; the language, for example, of Paine: " In republics such as there are established in America the sovereign power, or the power over which there is no control and which controls all others, remains where nature placed it—in the people" (Dissertations on Government, i.6). The same theory assumes a more subtle form, especially in the writings of Hegelians. Sovereignty is with them a term descriptive of the real will of the community, which is not necessarily that of the majority. " If the sovereign power is to be understood in this fuller, less abstract sense, if we mean by it the real determinant of the habitual obedience of the people, we must look for its sources much more widely and deeply than the analytical jurists do; it can no longer be said to reside in a determinate person or persons, but in that impalpable congeries of the hopes and fears of a people bound together by common interest and sympathy, which we call the common will " (Green's Works, 2. 404). " Though it may be misleading to speak of the general will as anywhere, either actually or properly, sovereign . yet it is true that the institutions of political society are an expression of, and are maintained by, the general will " (2. 409). Sovereignty is used in a further sense when Plato and Aristotle speak of the sovereignty of the laws (Laws, 4. 715; Politics, 4. 4; 3. 15). Thus Plato remarks: " I see that the state in which the law is above the rulers, and the rulers are the inferiors of the law, has salvation." (See also Gierke, Genossenschaftsrecht, 3. 8.) Even in medieval writers, such as Bracton, is found the notion 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 limitation " (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 relgnty. of accounts 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 qua l'exterieur " (F. de Martens, Traite du droit international, translated by A. Leo, 1883, i. 378). " L'independance complete qui peut se manifester a deuce points de vue; l'un exterieur, l'autre interieur " (Frentz Despagnet, Droit international public, 1894, p. 8o). " 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 and nur durch sich selbst beschrankt and beschrankbar " (Zorn, Volkerrecht, p. 4. See the collection of definitions in Der Souveranitatsbegriff inn Bodin, &c., by Dr Adolf Dock (1897), D. 6, and in La Conception juridique de Fetal, by Combothecra, p. 9o). 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. 1o6; Figgis, pp. 11, 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 sovereignty. One of them, stated by Rousseau (Du Contrat social, 2. c. 2), is that it is indivisible: a proposition true in Nature of soverelgnty.the sense that in 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 ofmodern 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 Crown 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 dis que la souverainete, n'etant que 1'exercise de la volonte genet-ale, 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 Staatsrecht des deutschen 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 Constitutional 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 communi- ties. ffatt There are states which possess some attributes Sovereign of sovereignty, but no others; states possessing States. 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, or force. Feudalism had a phraseology to express the varieties the United States was the question whether the individual states of fiefs which existed under it; modern international law has no generally-accepted terminology for the still greater variety of states which now exist. These varieties tend to multiply, and it is difficult to reduce them all to a few types. The theory that states are equal, and possess all the attributes of sovereignty, was never true. It is still more at variance with the facts in these days when a few great states predominate, and when the contact of western states with African and Asiatic states or communities gives rise to relations of dependence falling short of conquest. The division into federations, confederations and alliances is not complete. Jellinek has suggested this classification (Die Lehre von den Sta.atenverbindungen, p. 58): (a) Unorganized associations, including—(1) treaties; (2) occupation of the territory of one state and administration by another, as in Bosnia and Cyprus; (3) alliances; (4) protectorates, guarantees, perpetual neutrality; (5) Der Staatenstaat, the feudal state, of which Jellinek gives the Turkish Empire and the old Holy Roman Empire as examples. (b) Organized associations, including—(r) international commissions (internationale Verwaltungsvereine, such as international postal and telegraph unions, &c.); (2) the Staatenbund or confederation of states; (3) real unions of states as distinguished from personal; (4) the Bundesstaat or federal state.' Most of the existing varieties may be conveniently ranged in the following classes: 1. States which have complete independence, complete autonomy, external and internal, and which are recognized in international law as sovereign states. 2. States which have complete external independence, but are more or less subject permanently to other states as to their internal affairs. Of this class there are now few examples. Perhaps, however, such states as permit, permanently or normally, of interference by others on behalf of certain classes of subjects maybe so described. The general principle is that a treaty does not detract from sovereignty. As Jellinek expresses it. " Der Staatenvertrag bindet, aber er unterwirft nicht " (Gesetz and Verordnung, p. 205); or as Grotius (I. ch. 3, 22, 2) expresses it, Nec regi aut populo jus demit summi imperii." 3. States which enjoy complete autonomy as to internal affairs, but which are more or less subject to other states as to foreign relations. Some writers would place in this category all states forming part of a true confederacy. It includes states which are united temporarily—cases of inorganic unity, to use Jellinek's expression. It includes also permanent alliances or organic unions. These are some examples: a. Protectorates and Suzerainties.—The status of certain states, such as Bulgaria and Rumania and the late South African Republic, were peculiar. Even before the independence of the two first-named states, they undoubtedly were for many purposes sovereign. b. The unions between a superior and inferior state, e.g. the relations of the various states to the old Holy Roman Empire; the relations of the Ottoman Porte to its Christian provinces. In the middle ages the question was often mooted whether states subject to feudal superiors, or the states forming the empire, were sovereign. According to one common definition they were not: a true sovereign state was universitas quae non superiorem recognoscit. Celui est ahsolument souverain qui ne rien tient apres Dieu que de 1'espee. S'il tient d'autrui it n'est plus souverain." The prevalent opinion, however, was that sovereignty was compatible with rights such as were possessed by the Reich over the princes of Germany; that there might be fiefs held in full sovereignty; and that vassal states, when subject only to " nude vassalage," were sovereign. That was the view of Grotius (1. I. ch. 3, 23. 2), who holds that the nexus feudalis is consistent with summum imperium. 4. States which have, by treaty or otherwise, parted with some portion of their sovereignty and formed new political units: what Herbert Spencer calls " compound political heads," or, to use Austin's expression, " composite states." The most important examples of this class consist of federal or composite states which by treaty or otherwise have surrendered certain of their powers, or which have created a new state (Staatenbund). For many years one of the burning questions in the politics of ' The distinction between the Staatenbund and the Bundesstaat is discussed in the articles CONFEDERATION andFEDERAL GOVERN-
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