[CH. I. ernment of the United States without taking into consideration the great cardinal fact that the UNITED STATES IS A

versally recognized is that the governmental conditions of inhabitants of ceded territory remain the same until altered by the new sovereignty, there are no legal difficulties, therefore, in recognizing that the sovereignty transferred by the former rulers may be of a different nature from the sovereignty existing in the new ruling power.

The expressions of some of the leading authorities on international law in regard to the term sovereignty are appended to this note.

BLUNTSCHLI'S VIEWS.

Bluntschli, in his Theory of State which has been translated and published in English, devotes the whole of chapters I. to IV., pages 463–481, to the discussion of the word sovereignty. On pages 464-5 he states that Sovereignty implies:

"1. Independence of the authority of any other State. Yet this independence must be understood as only relative. International law, which binds all States together, no more contradicts the Sovereignty of States than constitutional law, which limits the exercise of public authority within. Even the separate States (Länderstaten) in a composite State may be regarded as sovereign, although dependent in essential matters, e. g., foreign policy and control of the army.

"2. Supreme public dignity--what the Romans called majestas. "3. Plenitude of public power, as opposed to mere particular powers. Sovereignty is not a sum of particular isolated rights, but is a general or common right: it is a central conception,' and is as important in Public as that of property is in Private Law.

"4. Further, it is the highest in the State. Thus there can be no political power above it. The French Seigneurs of the middle ages ceased to be sovereign when they were compelled to submit in all essential matters to the king as their feudal lord. The German Electors were able to maintain sovereignty in their own dominions from the fourteenth century, because they exercised supreme authority in them as their proper right.

"5. Unity, a necessary condition in every organism. The division of sovereignty paralyses and dissolves a State, and is therefore incompatible with its healthy existence." The Theory of the State, by Bluntschli, pp. 464–465.

Chapter II., page 467, is devoted to answering the question to whom sovereignty belongs. He refers to the difference between the sovereignty in the people and the sovereignty in the State, and in a note, page 473, he discusses what the sovereignty of the people means as follows:

"The phrase 'sovereignty of the people' is sometimes used to express, not the supremacy of the majority, but only the idea that a form of State or a manner of government, which is incompatible with the existence and welfare of the majority of the people, cannot be maintained,

NATION; that as to all matters connected with foreign relations it is not federal in its character, but national, and that

or, that the form of the State and the government are there for the people—an idea which is true, but badly expressed.

"Again, if by sovereignty of the people' it is meant that the authority of the State is derived originally from the will of the majority, we must indeed admit that many democratic constitutions, and even some monarchical (e. g., the Roman Empire, the French Empire), are based, in theory or principle at least, on the voluntary act of the majority of the people. In the same way the constitutions of several Swiss Cantons declare, not that the people (Volk) is sovereign, but that the sovereignty resides in the people as a whole (auf der Gesammtheit des Volks beruhe), and is exercised by the Great Council,' (e. g., the Zurich Constitution of 1831, sec. 1). But even this principle would not be applicable to all States, and the term 'sovereignty,' which expresses a permanent right, is inappropriate when applied to particular and transitory acts.

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"Finally, if the phrase 'sovereignty of the people' be understood, as has often happened in practice, to imply that the people, as distinct from the government, or even any powerful and excited multitude, is justified in arbitrarily overthrowing the government or destroying the constitution, this is an idea which is altogether to be condemned, and which is irreconcilable even with democratic principles.

"(In England, the question of sovereignty has in recent times been chiefly discussed in connection with the famous definition of Austin, Jurisprudence, Lect. vi.: 'If a determinate human superior, not in a habit of obedience to a like superior, receive habitual obedience from the bulk of a given society, that determinate superior is Sovereign in that society, and the society, including the superior, is a society political and independent.' This abstract analysis of the conception of sovereignty, which is quite unhistorical and difficult to apply in practice, is criticised by Maine, Early History of Institutions, Lect. xii, xiii. See also F. Harrison on The English School of Jurisprudence, in Fortnightly Review, vol. 30 (1878); Clark's Practical Jurisprudence, a Comment on Austin, Part I., ch. xiv.; Holland's Jurisprudence, ch. iv.)" The Theory of the State, by Bluntschli, pp. 473–474.

JUDGE COOLEY'S VIEWS.

"A state is a body politic, or society of men, united together for the purpose of promoting their mutual safety and advantage by the joint efforts of their combined strength. The terms nation and State are frequently employed, not only in the law of nations, but in common parlance, as importing the same thing, but the term nation is more strictly synonymous with people, and while a single State may embrace different nations or peoples, a single nation will sometimes be so divided politically as to constitute several States.

"In American constitutional law the word State is applied to the several members of the American Union, while the word nation is applied

as such it possesses, and exercises, every function exercisable by any other sovereign government in the world.

to the whole body of the people embraced within the jurisdiction of the federal government.

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Sovereignty, as applied to States, imports the supreme, absolute, uncontrollable power by which any State is governed. A State is called a sovereign State when this supreme power resides within itself, whether resting in a single individual, or in a number of individuals, or in the whole body of the people. In the view of international law, all sovereign States are and must be equal in rights, because from the very definition of sovereign State, it is impossible that there should be, in respect to it, any political superior.

"The sovereignty of a State commonly extends to all the subjects of government within the territorial limits occupied by the associated people who compose it; and, except upon the high seas, which belong equally to all men, like the air, and no part of which can rightfully be appropriated by any nation, the dividing line between sovereignties is usually a territorial line. In American constitutional law, however, there is a division of the powers of sovereignty between the national and State governments by subjects; the former being possessed of supreme, absolute, and uncontrollable power over certain subjects throughout all the States and Territories, while the States have the like complete power, within their respective territorial limits, over other subjects. In regard to certain other subjects, the States possess powers of regulation which are not sovereign powers, inasmuch as they are liable to be controlled, or for the time being to become altogether dormant, by the exercise of a superior power vested in the general government in respect to the same subjects." Cooley's Constitutional Limitations, 6th edition pp. 3-4, and also see cases cited in footnotes.

GEORGE TICKNOR CURTIS' DEFINITION.

"Lest, however, the controversy may degenerate into a dispute about the meaning of a word, it may be well to define here what I mean by 'sovereignty,' and what Mr. Tyler appears to mean. He says (Tyler I., 285): 'Sovereignty is the will of the sovereign people, and government which is a mere servant or trustee can never be sovereign, for it wields delegated powers only. The people might have a hundred governments, each a specific power, without surrendering an atom of sovereignty. Sovereignty being the will of the people, is spiritual and indivisible. It may grant powers for the common good, but the invocation of those powers is of the essence of free will. Accordingly, all that talk of the Jackson-Webster-Madison school of sovereignty, part delegated to the Federal Government and part to the State Government, is the merest clap-trap ever devised.' He adds in a note, 'The error lies in confusing powers, which are capable of division, with sovereignty, which is not.' "Sovereignty' as I use the term, as it is used by other American publicists, means simply the right to govern. Undoubtedly, sovereignty is the will of the sovereign people; and in our American sense all gov

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This is perfectly consistent with the fullest retention by the State Governments of the control of all matters pertainernment is derived from that will. But when it is said that government can never be sovereign, there is a begging of the question, for it may be the will of the people that a particular government shall exercise the powers of sovereignty, or, in other words, shall hold and exercise the power of governing. I have elsewhere said that the framers of the Constitution of the United States made a great discovery in the science of government, which was that political powers, or the powers of government, may be distributed by the sovereign people among different governments, part of them being assigned to one class of public servants or trustees, and the residue being retained by the sovereign people, and bestowed according to their pleasure, on another class of public servants and trustees. It is therefore just as correct to speak of the sovereignty of the Federal Government as it is to speak of the sovereignty of the States; for in either case what is meant is the right to govern on certain subjects and relations. This idea of sovereignty is entirely different from the European idea. Vattel, who is quoted by Mr. Tyler, was entirely right, in the European sense, in saying, that every sovereignty properly so called, is, in its own nature, one and indivisible.' It is so in the European sense, but not in the American. In Great Britain, for example, the sovereignty is held by the king and the two houses of Parliament, and the people have no power, save by a revolution, to do anything but what the king, lords, and commons in Parliament assembled prescribe and ordain. The chief executive ruler, who is called the sovereign, is so designated because he or she is the chief executive ruler, and not because he or she has any sovereign powers separate from the conjoint action of the reigning monarch and the two houses of Parliament. In some of the other European countries the sovereignty is held by the monarch alone; in others, in recent times especially, the sovereignty is held and exercised by the conjoint action of the executive head and other bodies; but in none of them is there the same sovereignty of the people that there is in the American system. For this reason, among others, it is rare to find a European writer of a former period or of later times who has a correct understanding of our system of government. I once had an amusing but very instructive proof of this. Fifty years ago, being in England, I was told by a very eminent English judge (no less a person than the late Lord Campbell, then Chief-Justice of the Queen's Bench, afterwards Lord Chancellor) that he could not understand the distinction between the jurisdiction of our Federal and our State Courts. When I explained to him that it is founded on the fact that the Federal Government has the exclusive right to govern on certain subjects and relations, and that as to other subjects and relations the separate States have the exclusive right to govern, he replied that I had given him information which he never had before. At the same time, he owned that this was contrary to all English ideas, inasmuch as their system does

ing to their internal affairs, and also with the well established rule and Constitutional provisions, that, as to those

not admit of such a partition of the powers of sovereignty." Curtis' Constitutional History of the United States, vol. 2, pp. 520-521.

J. R. TUCKER'S VIEWS.

"The two rival theories of government may therefore be described as follows: The polity of individualism and the polity of paternalism.

"In the ancient world the system of paternalism was most prevalent, and, as a late writer has very strongly said, 'the Hellenic State, like the ancient State in general, because it was considered all-powerful, actually possessed too much power. It was all in all. The citizen was nothing, except as a member of the State. His whole existence depended on and was subject to the State. . . . The independence of the family, homelife, education, even conjugal fidelity, were in no way secure from State interference; still less, of course, the private property of the citizens. The State meddled in everything, and knew neither moral nor legal limits to its power. It disposed of the bodies, and even of the talents, of its members.' (Bluntschli's Theory of the State, page 37.)

"The ideal republic of Plato was a system under which all individualism was merged in the State, and everything was regulated by it, as the parent of its citizens; and while he clearly held the governor should not consider his own good, but only the good of the government for whom he was steward, yet he held that the State was created so that all might be happy to the fullest extent by the State giving happiness to every one.

"The history of this system of political thought repeated itself about two centuries ago in the Patriarcha of Sir Robert Filmer, the champion of the House of Stuart. In this work he maintained that, by derivative title from God through Adam, there had been transferred to the king the original patria potestas of the family, and that to this royal patriarcha absolute obedience was due by all and to him were confided the care and training of his children-the men and women of the Nation. This was the patriarcha of the Stuarts, which had its first condemnation on the scaffold where Charles I. was beheaded, and in the abdication of the last of the Stuarts in 1688.

"The paternal government, the patriarcha, is based on falsehood and is a political fraud. It takes the paternal name to sanction its absolute authority, but discards the paternal duty in administering government. A father in name, it is without his natural love to mitigate tyranny, or to do equal justice among its people. It claims unlimited power to dispense blessings or cursings at its will. It has petted parasites attached to itself, because they feed upon it, and it draws the resources with which to supply them from the disinherited mass of its children, whom it exhausts, but never helps. It has its foster children and its foundlings-its favorites and its victims-and burdens many for the benefit of the few." Tucker on the Constitution, vol. 1, § 61.