CHAPTER I. THE CONCEPTION OF SOVEREIGNTY. THE HE State is the embodiment and personification of the national power. This power, considered in its highest dignity and greatest force, is called Sovereignty. 'Sove The name Sovereignty arose first in France, and the con- The term ception was first developed by French science. Bodin made reignty.' it a fundamental conception of Public Law. Since then the word and the notion have exercised great influence on the development of modern constitutions and on the whole politics of modern times. In the middle ages the expression Sovereignty (suprema potestas, supremitas) was used in a still wider sense. Every authority which gave a final decision, so that there was no appeal to a higher authority, was called sovereign. The highest courts of justice were called cours souveraines. Thus a State contained a great number of sovereign offices and corporations. Gradually, however, the name ceased to be given to mere branches of administration, and came to be limited to the one highest ruling power in the State, and the conception was applied only to the concentrated power of the State. of Sove reignty in Sove From the sixteenth century the notion was entirely domi- Conception nated by the centralising tendencies of French politics and the efforts of the French kings to obtain absolute power. Bodin France.declared sovereignty to be the absolute and perpetual power of reignty as a State (puissance absolue et perpétuelle d'une république): absolute and this sense prevailed. Louis XIV and the Jacobins power. German terms for Sovereignty. Character istics of Sovereignty. of the Convention of 1793 alike regarded themselves as omnipotent1. Both were wrong. Modern representative government knows nothing of absolute power, and there is no such thing upon earth as absolute independence. Neither political freedom, nor the right of the other organs and elements of the State, are compatible with such unlimited sovereignty, and wherever men have attempted to exercise it, their presumption has been condemned by history. Even the State as a whole is not almighty, for it is limited externally by the rights of other States, and internally by its own nature and by the rights of its individual members 2. The German language has no completely equivalent expression. The word Obergewalt (superior power), or, as the old Swiss expression ran, der höchste und grösste Gewalt 3' (the highest and greatest power), signifies authority only on its inner side, and not independence externally. The word Statshoheit signifies the dignity (majestas) rather than the power of the State. Statsgewalt implies power rather than dignity. We are therefore compelled, in order to express what is implied in Sovereignty, to use both words, Statshoheit und Statsgewalt. At the same time. the German expressions have this advantage-that they are less liable than the French to be misunderstood as if they implied absolute power. 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 1 Thiers, Hist. de la Révol. franç. ii. p. 200, says that in the opinion of the Jacobins, The nation can never renounce the power of doing and willing at all times that which it pleases: this power constitutes its omnipotence (sa toute puissance), and this is inalienable. Thus the nation could not bind itself to Louis XIV. The Abbé Sieyes recognised the error in this theory. Cp. Bluntschli, Gesch. d. Statsw. p. 326. 2 Hanoverian Declaration of 1814, in Hormayr, Lebensbilder, i. p. 111: "The rights of sovereignty do not imply any idea of despotism. The King of Great Britain is undeniably just as much sovereign as any prince in Europe, and the liberties of his people establish his throne, instead of overthrowing it.' Blumer, Rechtsgesch. der Schweizer Demokratien, ii. 140, 141. 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. a [The superior authority of the Electors, as compared with that of the other German princes, was based upon the Golden Bull, issued by Charles IV in 1356.] The draft of the Treaty of Westphalia (1648) in saying 'que tous.les princes et Estats seront maintenus dans tous les autres droits de souveraineté, qui leur appartiennent,' used an expression which was new to Germany, souveraineté instead of Landeshoheit, evidently with the intention of relaxing the bonds of the Empire. But as a matter of fact most of the German princes were already almost 'sovereign.' 5 Imman. Herrm. Fichte, Beiträge zur Statslehre, 1848, goes too far in declaring that sovereignty is only the unity of the government' (Einheit der Regierung). Complete power and majesty form the essence of sovereignty. Notes.-1. Rousseau, whose theories were translated into fact by the French Revolution, based Sovereignty on the 'general will' (la volonté générale), and thus made the mistake of substituting suprema voluntas for suprema potestas. He then argued that since 'power may be transferred but not will' (Contr. Soc. ii. 1), Sovereignty is inalienable-a conclusion belied by history. He understands Law [Bluntschli says das Recht, but Rousseau, ii. 6, says la loi, holding that 'dans l'état civil tous les droits sont fixés par la lei'] as the product and not as the limitation of arbitrary will. In 'Will' he forgets 'Ought;' H h |