'Der Staat ist die Form der geregelten und gesicherten CHAP. IV. Ausübung der socialen Zwangsgewalt.'-Ihering 1.

It would be rather within the scope of a professed work upon International Law than of a treatise upon Jurisprudence to explain more fully the characteristics of a true State, and to show how it differs from other societies which in some respects resemble it: as, for instance, the Catholic Church; a great trading corporation, such as the East India Company; a great and permanent league, such as that of the Hanse towns; nomad races; rebels and pirates.

of States.

The origin of States has been a favourite subject of The origin speculation. To the Greeks the organised city government in which they delighted seemed the result of superhuman wisdom. It was a commonplace with their earlier poets and philosophers to ascribe a divine origin to States and to legislation. Laws,' says Demosthenes, 'are the gift of God, and the teaching of sages 2.'

Later speculators, not content to veil their ignorance under a pious allegory, have explained the rise of political society by the hypothesis of an original contract,' the covenants of which they have set out with vast, if misplaced, ingenuity. The hypothesis is clearly, though by no means for the first time, stated by Grotius in the following passage: 'Qui se coetui alicui aggregaverant, aut homini hominibusque subiecerant, hi aut expresse promiserant, aut ex negotii natura tacite promisisse debebant intelligi, secuturos se id quod aut coetus pars maior, aut hi quibus delata potestas erat, constituissent 3.'

Even were the theory of an original contract within the scope of the present treatise, it would be unnecessary to

1 Der Zweck im Recht, i. p. 307.

3

2 Adv. Aristogeit. i. (p. 774).

I. B. et P. Proleg. 15; so Hooker, Eccl. Pol. i. c. 10; Locke, Civ. Gov. i. c. viii. 99; Rousseau, Contrat Social. On the other hand, Paley, Mor. Phil. i. p. 146; Bentham, i. pp. 242, 261; Austin, i. pp. 271-316; Maine, Anc. Law, c. ix.

CHAP. IV. repeat here the arguments by which its untenableness has been almost superfluously demonstrated. Jurisprudence is more concerned with the distinction which we are about to explain.

Sovereignty.

Every state is divisible into two parts, one of which is sovereign 1, the other subject.

The sovereign part, called by Bodin maiestas,' is defined by him as summa in cives ac subditos legibusque soluta potestas 2. Grotius calls it 'summa potestas,' which he defines as being illa cuius actus alterius iuri non subsunt, ita ut alterius voluntatis humanae arbitrio irriti possint reddi3;' and so Hobbes defines what he is pleased to call a City' as 'one person, whose will, by the compact of many men, is to be received for the will of them all; so as he may use all the power and faculties of each particular person to the maintenance of peace and for common defence *.'

The sovereignty of the ruling part has two aspects. It is external,' as independent of all control from without; 'internal,' as paramount over all action within. Austin expresses this its double character by saying that a sovereign power is not in a habit of obedience to any determinate human superior, while it is itself the determinate and common superior to which the bulk of a subject society is in the habit of obedience 5.

With reference to each kind of sovereignty, questions arise External. the nature of which must be briefly indicated. External sovereignty, without the possession of which no State is qualified for membership of the family of Nations, is enjoyed most obviously by what is technically known as a 'Simple State,' i. e. by one which is not bound in a permanent manner to any foreign political body.'

1 The term seems only to have come into use in this sense in the time of Louis XIV.

2 De Rep. i. 8. He continues: 'quam Graeci åkpav ¿¿ovoíav, rvpíav åpxòv, KÚριον поλÍтενμa, Itali segnoriam appellant.'

3 I. B. et P. i. c. 3. 7. Works, ii. p. 69.

5 Jurisprudence, i. p. 171,

States which are not 'simple' are members of a 'System CHAP. IV. of States,' in which they are combined upon equal or upon unequal terms. In the former case they compose an 'Incorporate Union,' an 'État fédératif,' or Bundesstaat,' such as are the United Kingdom of Great Britain and Ireland, the United States of America, or the Swiss Confederation; and are collectively subject to a 'federal government.' In the latter case the States occupying the inferior position are known as 'mi-souverain' or 'protected'; such are the Principality of Monaco, the Republic of San-Marino, and, till recently, the Principality of Servia.

When the component states are equally united, their external sovereignty resides in no one of them, but in the federal government which results from their combination. The external sovereignty of a system of unequally united states is to be looked for exclusively in the State which is suzerain or protector of the others.

The questions which arise with reference to internal sove- Internal. reignty relate to the proportion borne by the sovereign part of the State to the subject part; in other words, to forms of government. These were analysed by the Greek philosophers in a way which left little to be desired. The power may be confided to all members of the State who are not under some disability on account of age, sex, or otherwise; or it may be restricted to one or more of the members. In the former case, the form of polity is a democracy. In the latter, it is an aristocracy or a monarchy, as the case may be.

Whether the ruling power be as widely diffused as possible, or be concentrated in the hands of a despot, makes but little difference for the purposes of our present enquiry. It is by the sovereign, be that sovereign one individual or the aggregate of many individuals, that all law is enforced. The Lawes of Nature,' says Hobbes, ' are not properly Lawes, but qualities that dispose men to peace, and to obedience. When a Common-wealth is once settled, then are they actually

CHAP. IV. Lawes, and not before; as being then the commands of the

Difficulties

of the theory of sovereignty.

Common-wealth 1? In the words of an eminent living jurist: Das Recht existirt erst vermöge der Sanction der Rechtsgemeinschaft des einzelnen Staates 2."

Considerable doubt has of late been thrown upon the doctrine that apart from the existence of a State, and of a sovereign power within it, there can be no Law, because all laws are rules enforced by such a power. Real difficulties in applying the doctrine to the facts of history have been pointed out by Sir Henry Maine, with that fertility of illustration and that cogency of argument for which his writings are so conspicuous. He asks in what sense it is true that the village customs of the Punjaub were enforced by Runjeet Singh, or the laws of the Jews, during their vassalage to Persia, by the Great King at Susa. He denies that Oriental empires, whose main function is the levying of armies and the collection of taxes, busy themselves with making or enforcing legal rules; nor will he concede that it is a serious answer to his objections to say that 'what a government does not forbid it allows.' He would almost restrict to the Roman Empire, and the States which arose out of its ruins, the full applicability of the Austinian conception of positive law. As applied to other political societies, he looks upon it as an ideal or abstraction, related to actual phenomena as are the axioms of mathematics to the actual conditions of matter, or the postulates of political economy to the dealings of ordinary life 3.

These remarks are no less valuable than they are interesting. When legal phenomena are explained by the action of an

1 Leviathan, p. 138.

2 Von Bar, Das internationale Privat- und Strafrecht, p. 519. Cf. Sir Henry Maine's remarks on the retreat out of sight of the force which is the motive power of law' in the modern world. The great difficulty,' he says, ' of the modern analytical jurists has been to recover from its hiding-place the force which gives its sanction to the law.' Early Law and Custom, p. 388. 3 Early History of Institutions, Lect. xiii.

absolute political sovereign, the student of Jurisprudence CHAP. IV. should always remember, and may no doubt be in danger of forgetting, that the explanation, though true as a general statement, necessarily leaves out of account many other characteristics of such phenomena.

tion of the

Sir Henry Maine has done good service by pointing out Justificathe mistake of supposing that the obligation of law rests theory. everywhere, and at all times, as immediately and obviously upon a sovereign political authority as it does in England at the present day. In guarding against a crude application of the doctrine of sovereignty, this great jurist has however perhaps hardly done justice to its essential truth. The reply which we would venture to make to his remarks upon this point would be to the following effect.

With reference to the Western nations, we would submit that the dependence of law upon sovereignty was as obvious in Attica and Lacedaemon as it ever was under the Roman Empire. A law as carried by Pericles, or as imagined by Plato, would conform to Austin's definition as completely as would a constitution of Marcus Aurelius.

With reference to the relation of a great Oriental taxgathering empire to the village customs of its subjects, or to the more distinctly formulated laws of a conquered province, it is necessary to draw a distinction. Disobedience to the village custom or the provincial law may either be forcibly repressed, or it may be acquiesced in, by the local authority. If it be habitually repressed by such local force as may be necessary, it follows that the local force must, if only for the preservation of the peace, be supported, in the last resort, by the whole strength of the empire. In this case the humblest village custom is a law which complies with the requirement of being enforced by the sovereign. If, on the other hand, disobedience be habitually acquiesced in, the rules which may thus be broken with impunity are no laws; and, so far as such rules are concerned, the tax-gathering empire is lawless, its organisation consisting