sarcastically remarked about it, "it is a government, and not a nation." The tendency of modern Europe has, during this century, been in the direction of establishing States on the basis of nationality. The most notable examples of this tendency are the formation in recent times of the empire of Germany and the kingdom of Italy. The desire of uniting all members of one nationality under one government, and thereby rendering that nationality strong and powerful, is very natural, and will always exercise a great fascination over mankind. But it may well be doubted whether the accomplishment of this desire in any way tends to the happiness of the peoples who attain to it. A great empire involves great responsibilities, and creates great jealousies and rivalries. Both Germany and Italy are now compelled to maintain enormous military forces such as they never dreamt of in the days when they consisted of an assemblage of petty States. On the other hand, the sentiment of nationality shows itself in the liability of States made up of diverse races, to break up into their component parts. Austria and Hungary have more than once been on the point of separation, and are now kept together by each division of the Empire being given full control over its own local affairs, while foreign affairs and war are alone dealt with by the central authority. In the constitution of the United States, the term State most frequently expresses the combined idea of people, territory, and govern- American ment. A State, in the ordinary sense of the constitution, is a political Constitution. community of free citizens, occupying a territory of defined boundaries, and organized under a government sanctioned and limited by a written constitution, and established by the consent of the governed. It is the union of such States, under a common constitution, which forms the distinct and greater political unit, which that constitution designates as the United States, and makes of the people and States which compose it one people and one country (e). § 17b. Meaning of State in the $18. princes the international Sovereign princes may become the subjects of inter- Sovereign national law, in respect to their personal rights, or rights subjects of of property, growing out of their personal relations with law. States foreign to those over whom they rule, or with the sovereigns or citizens of those foreign States. These relations give rise to that branch of the science which treats of the rights of sovereigns in this respect (ƒ). Private individuals, or public and private corporations, Individuals, may in like manner, incidentally, become the subjects of tions, the this law in regard to rights growing out of their inter- international (e) [Per Chief Justice Chase, in Texas v. White, 7 Wallace, 721.] (f) See Duke of Brunswick v. King of Hanover, 2 H. of L. Cas. 1; The Char- $ 19. or corpora subjects of law. The terms sovereign and State used synonymously, or the former used metaphorically for the latter. § 20. Sovereignty defined. Internal sovereignty. External sovereignty. national relations with foreign sovereigns and States, or their subjects and citizens. These relations give rise to that branch of the science which treats of what has been termed private international law, and especially of the conflict between the municipal laws of different States. But the peculiar objects of international law are those direct relations which exist between nations and States. Wherever, indeed, the absolute or unlimited monarchical form of government prevails in any State, the person of the prince is necessarily identified with the State itself: l'Etat c'est moi. Hence the public jurists frequently use the terms sovereign and State as synonymous. So also the term sovereign is sometimes used in a metaphorical sense merely to denote a State, whatever may be the form of its government, whether monarchical or republican, or mixed. Sovereignty is the supreme power by which any State is governed. The supreme power may be exercised either internally or externally. Internal sovereignty is that which is inherent in the people of any State, or vested in its ruler, by its municipal constitution or fundamental laws. This is the object of what has been called internal public law, droit public interne, but which may more properly be termed constitutional law. External sovereignty consists in the independence of one political society, in respect to all other political societies. It is by the exercise of this branch of sovereignty that the international relations of one political society are maintained, in peace and in war, with all other political societies. The law by which it is regulated has, therefore, been called external public law, droit public externe, but may more properly be termed international law. The recognition of any State by other States, and its admission into the general society of nations, may depend, or may be made to depend, at the will of those other States, upon its internal constitution or form of government, or the choice it may make of its rulers. But whatever be its internal constitution, or form of government, or whoever may be its rulers, or even if it be distracted with anarchy, through a violent contest for the government between different parties among the people, the State still subsists in contemplation of law, until its sovereignty is completely extinguished by the final dissolution of the social tie, or by some other cause which puts an end to the being of the State. § 21. Sovereignty is acquired by a State, either at the Sovereignty, how acquired. origin of the civil society of which it is composed, or when it separates itself from the community of which it previously formed a part, and on which it was dependent (g). This principle applies as well to internal as to external sovereignty. But an important distinction is to be noticed, in this respect, between these two species of sovereignty. The internal sovereignty of a State does not, in any degree, depend upon its recognition by other States. A new State, springing into existence, does not require the recognition of other States to confirm its internal sovereignty. The existence of the State de facto is sufficient, in this respect, to establish its sovereignty de jure. It is a State because it exists. Thus the internal sovereignty of the United States of America was complete from the time they declared themselves "free, sovereign, and independent States," on the 4th of July, 1776. It was upon this principle that the Supreme Court determined, in 1808, that the several States composing the Union, so far as regards their municipal regulations, became entitled, from the time when they declared themselves independent, to all the rights and powers of sovereign States, and that they did not derive them from concessions made by the British King. The treaty of peace of 1782, contained a recognition of their independence, not a grant of it. From hence it resulted, that the laws of the several State governments were, from the date of the declaration of W. (g) Klüber, Droit des Gens moderne de l'Europe, § 23. Ꭰ independence, the laws of sovereign States, and as such were obligatory upon the people of such State from the time they were enacted. It was added, however, that the Court did not mean to intimate the opinion, that even the law of any State of the Union, whose constitution of government had been recognised prior to the 4th of July, 1776, and which law had been enacted prior to that period, would not have been equally obligatory (h). "A de jure government is one which, in the opinion of the person using the phrase, ought to possess the powers of sovereignty, though at the time it may be deprived of them. A de facto government is one which is really in possession of them, although the possession may be wrongful or precarious”(i). There are several degrees of what is called de facto government. Such a government in its highest degree assumes a character very closely resembling that of a lawful government. This is when the usurping government expels the regular authorities from their customary seats and functions, and establishes itself in their place, and so becomes the actual government of a country. The distinguishing characteristic of such a government is, that adherents to it in war against the government de jure do not incur the penalties of treason; and, under certain limitations, obligations assumed by it on behalf of the country, or otherwise, will in general be respected by the government de jure when restored. The government of England under the Commonwealth is an example of such a de facto government. There is another species of de facto government, and it is one which may be perhaps aptly called a government of paramount force. Its distinguishing characteristics are: (1) That its existence is maintained by active military power, within the territories, and against the rightful authority of an established and lawful government; and (2) that while it exists, it must necessarily be obeyed in civil matters by private citizens who, by acts of obedience, rendered in submission to such force, do not become responsible, as wrong-doers, for those acts, though not warranted by the laws of the rightful government. The government of the Confederate States was one of this class. The rights and obligations of a belligerent were conceded to it in its military character, very soon after the war began, from motives of humanity and expediency by the United States. The whole territory controlled by it was thereafter held to be enemy's territory, and the inhabitants of that territory were held in most respects for enemies. But it was never recognised as an independent power (k). (h) M'Ilvaine v. Coxe's Lessee, 4 Cranch, 212. [Wharton, Dig. §§ 6, 150.] (i) [Montague Bernard, Neutrality of Great Britain during American Civil War, p. 108.] (k) [Thorington v. Smith, 8 Wallace, 8-11.] The external Sovereignty of any State, on the other hand, may require recognition by other States in order to render it perfect and complete. So long, indeed, as the new State confines its action to its own citizens, and to the limits of its own territory, it may well dispense with such recognition. But if it desires to enter into that great society of nations, all the members of which recognise rights to which they are mutually entitled, and duties which they may be called upon reciprocally to fulfil, such recognition becomes essentially necessary to the complete participation of the new State in all the advantages of this society. Every other State is at liberty to grant, or refuse, this recognition, subject to the consequences of its own conduct in this respect: and until such recognition becomes universal on the part of the other States, the new State becomes entitled to the exercise of its external sovereignty as to those States only by whom that sovereignty has been recognised (7). The identity of a State consists in its having the Identity of a same origin or commencement of existence; and its difference from all other States consists in its having a different origin or commencement of existence. A State, as to the individual members of which it is composed, is a fluctuating body; but in respect to the society, it is one and the same body, of which the existence is perpetually kept up by a constant succession of new members. This existence continues until it is interrupted by some change affecting the being of the State (m). State. $22. by internal If this change be an internal revolution, merely alter- How affected ing the municipal constitution and form of government, revolution. the State remains the same; it neither loses any of its rights, nor is discharged from any of its obligations (n). The habitual obedience of the members of any political society to a superior authority must have once existed in order to constitute a sovereign State. But the temporary (7) [See post, § 27d.] (m) Grotius, de Jur. Bel. ac. Pac. lib. ii. cap. 9, § 3. Rutherforth's Inst. b. ii. c. 10, §§ 12, 13. Heffter, Das Europäische Völkerrecht, § 24. [Texas v. White, 7 Wallace, 729.] (n) Grotius, lib. ii. cap. 9, § 8. Rutherforth, b. ii. c. 10, § 14. Puffendorf, de Jur. Nat. et Gent. lib. viii, cap. 12, §§ 1-3. |