THE STATE.
§ 36. =The Nature and Essential Functions of the State.=
A complete analysis of the nature of law involves an inquiry into the
nature of the state, for it is in and through the state alone that law
exists. Jurisprudence is concerned, however, only with the elements and
first principles of this matter. An exhaustive theory of political
government pertains not to jurisprudence, but to the allied science of
politics. From the lawyer nothing more is required than such an
understanding of the essential nature of the state, as is sufficient and
necessary for the establishment of sound juridical theory.
A state or political society is an association of human beings
established for the attainment of certain ends by certain means. It is
the most important of all the various kinds of society in which men
unite, being indeed the necessary basis and condition of peace, order,
and civilisation. What then is the essential difference between this and
other forms of association? In what does the state essentially differ
from such other societies as a church, a university, a joint-stock
company, or a trade union? The difference is clearly one of _function_.
The state must be defined by reference to such of its activities and
purposes as are essential and characteristic.
But the modern state does many things, and different things at different
times and places. It is a common carrier of letters and parcels, it
builds ships, it owns and manages railways, it conducts savings banks,
it teaches children, and feeds the poor. All these cannot be of its
essence. It is possible, however, to distinguish, among the
multitudinous operations of government, two which are set apart as
primary and essential. These two are _war_ and the _administration of
justice_. The fundamental purpose and end of political society is
defence against external enemies, and the maintenance of peaceable and
orderly relations within the community itself. It would be easy to show
by a long succession of authorities that these two have always been
recognised as the essential duties of governments. The Israelites
demanded a king, that he “may judge us, and go out before us, and fight
our battles;”[94] and this conception of the primary end and aim of
sovereignty obtains recognition still as true and adequate. Leviathan,
as Hobbes[95] tells us, carries two swords, the sword of war and that of
justice. This is the irreducible minimum of governmental action. Every
society which performs these two functions is a political society or
state, and none is such which does not perform them. How much activity
in other directions may be profitably combined with them is a question
with which we are not here concerned. We are dealing with the
definition, and therefore with the essence, not with the accidents of
political society.[96]
It is not difficult to show that war and the administration of justice,
however diverse in appearance, are merely two different species of a
single genus. The essential purpose of each is the same, though the
methods are different. Each consists in the exercise of the organised
physical force of the community, and in each case this force is made use
of to the same end, namely, the maintenance of the just rights of the
community and its members. We have already seen that in administering
justice the state uses its physical power to enforce rights and to
suppress and punish wrongs. Its purpose in waging war—that is to say,
_just_ war, which is the only kind which can be regarded as an essential
form of state activity—is the same. These two primary functions are
simply the two different ways in which a political society uses its
power in the defence of itself and its members against external and
internal enemies. They are the two methods in which a state fulfils its
appointed purpose of establishing right and justice by physical force.
What, then, is the essential difference between these two functions? It
lies apparently in this, that the administration of justice is the
_judicial_, while war is the _extrajudicial_ use of the force of the
state in the maintenance of right. Force is judicial, when it is applied
by or through a tribunal, whose business it is to judge or arbitrate
between the parties who are at issue. It is extrajudicial when it is
applied by the state directly, without the aid or intervention of any
such judge or arbitrator. Judicial force involves trial and
adjudication, as a condition precedent to its application; extrajudicial
force does not. Judicial force does not move to the maintenance of
rights or the suppression of wrongs, until these rights and wrongs have
been authoritatively declared and ascertained by the formal judgment of
a court. The primary purpose of judicial force is to _execute judgment_
against those who will not voluntarily yield obedience to it. Only
indirectly, and through such judgment, does it enforce rights and punish
wrongs. But extrajudicial force strikes directly at the offender. It
recognises no trial or adjudication as a condition of its exercise. It
requires no authoritative judicial declaration of the rights protected
or of the wrongs punished by it. When a rebellion or a riot is
suppressed by troops, this is the extrajudicial use of force; but when,
after its suppression, the rebels or rioters are tried, sentenced, and
punished by the criminal courts, the force so used is judicial. To shoot
a man on the field of battle or at a barricade is war; to shoot him
after capture and condemnation by a court martial is the administration
of justice.[97]
In addition to the essential difference which we have just noticed,
there are several minor and unessential differences, which are commonly,
though not invariably present. The chief of these are the following:
1. Judicial force is regulated by law, while the force of arms is
usually exempt from such control. Justice is according to law; war is
according to the good pleasure of those by whom it is carried on. _Inter
arma leges silent_ is a maxim which is substantially, though not wholly,
true. The civil law has little to say as to the exercise by the state of
its military functions. As between the state and its external enemies,
it is absolutely silent; and even as to the use of extrajudicial force
within the body politic itself, as in the suppression of riots,
insurrections, or forcible crimes, the law lays down no principle save
this, that such force is allowable when, and only when, it is necessary.
_Necessitas non habet legem._ Within the community the law insists that
all force shall be judicial if possible. This protection against
extrajudicial force—this freedom from all constraint save that which
operates through the courts of law and justice—is one of the chief
privileges of the members of the body politic. We accept it now as a
matter of course, but in older and more turbulent days it was recognised
as a benefit to be striven for and maintained with anxious
vigilance.[98]
2. In the second place judicial force is commonly exercised against
private persons, extrajudicial force against states. It is clear,
however, that this is not necessarily or invariably the case. It is not
impossible that one state should administer justice between two others,
or between another state and itself. And on the other hand, it may wage
war with its own subjects, or with pirates or other persons who do not
constitute a political society.
3. Thirdly, the administration of justice is generally the internal,
while war is generally the external exercise of the power of the state.
In other words, the state commonly proceeds against internal enemies by
way of judicial, and against external enemies by way of extrajudicial
force. The administration of justice is the right and privilege of the
members of the body politic itself. Those who stand outside the
community—whether they are individuals or states—have no claim to the
impartial arbitrament of judicial tribunals, and may be struck at
directly by the armed and heavy hand of the state. Yet this also is
merely a general, and not an invariable rule.
4. Fourthly and lastly, in the administration of justice the element of
force is commonly latent or dormant, whereas in war it is seen in actual
exercise. Those persons against whom the state administers justice are
commonly so completely within its power, that they have no choice save
voluntary submission and obedience. It is enough that the state
possesses irresistible force and threatens to use it; its actual use is
seldom called for. In war, on the other hand, there is commonly no such
overwhelming disparity of power, and a state which in this fashion seeks
to impose its will on others must usually go beyond threats to their
actual execution. Hence it is, that in the administration of justice the
element of trial and adjudication is in appearance far more predominant
and important than that of force. Viewed externally and superficially,
this function of the state looks like the elimination of force as a
method of the settlement of controversies, and the substitution of
peaceful arbitration. But it is not so. Force is the essence of the
administration of justice, no less than of war; but for the most part it
lies latent and concealed. The establishment of courts of justice marks
not the substitution of arbitration for force, but the substitution of
one kind of force for another—of public force for private, of judicial
force for extrajudicial, of latent and threatened force for that which
is actually exercised. As states increase in power, this difference
between their two essential functions is intensified. In feeble,
turbulent, and ill-governed states the element of force in the
administration of justice tends to come to the surface. The will of the
state no longer receives implicit obedience from those that are subject
to its jurisdiction. It may be necessary to execute the judgments of the
courts by military force, and there may be little difference of external
aspect between the use of judicial force in the execution of a judgment,
and the use of extrajudicial force in the suppression of riot,
rebellion, or civil war.[99]
§ 37. =Secondary Functions of the State.=
The secondary functions of the state may be divided into two classes.
The first consists of those which serve to secure the efficient
fulfilment of the primary functions, and the chief of these are two in
number, namely legislation and taxation. Legislation is the formulation
of the principles in accordance with which the state intends to fulfil
its function of administering justice. Taxation is the instrument by
which the state obtains that revenue which is the essential condition of
all its activities. The remaining class of secondary functions comprises
all other forms of activity which are for any reason deemed specially
fit to be undertaken by the state. This special fitness may proceed from
various sources. It is derived partly from the fact that the state
represents the whole population of an extensive territory; partly from
the fact that it possesses, through the organised physical force at its
command, powers of coercion which are non-existent elsewhere; and partly
from the fact that its financial resources (due to the exercise of its
coercive powers by way of taxation) are immensely beyond those of all
other persons and societies. Considerations such as these have,
especially in modern times, induced the state to assume a great number
of secondary and unessential functions which, in a peaceful and
law-abiding community, tend even to overshadow and conceal from view
those primary functions in which the essential nature of the state is to
be found.
§ 38. =The Territory of the State.=
The territory of a state is that portion of the earth’s surface which is
in its exclusive possession and control. It is that region throughout
which the state makes its will permanently supreme, and from which it
permanently excludes all alien interference. This exclusive possession
of a defined territory is a characteristic feature of all civilised and
normal states. It is found to be a necessary condition of the efficient
exercise of governmental functions. But we cannot say that it is
essential to the existence of a state. A state without a fixed
territory—a nomadic tribe for example—is perfectly possible. A
non-territorial society may be organised for the fulfilment of the
essential functions of government, and if so, it will be a true state.
Such a position of things is, however, so rare and unimportant, that it
is permissible to disregard it as abnormal. It is with the territorial
state that we are alone concerned, and with reference to it we may
accordingly define a state as _a society of men established for the
maintenance of peace and justice within a determined territory by way of
force_.
§ 39. =The Membership of the State.=
Who then are the members of this society, and by what title do men
obtain entrance into it? In all civilised communities the title of
state-membership is twofold, and the members of the body politic are of
two classes accordingly. These two titles are citizenship and residence.
The former is a personal, the latter merely a territorial bond between
the state and the individual. The former is a title of permanent, the
latter one of temporary membership of the political community. The
state, therefore, consists, in the first place, of all those who by
virtue of this personal and permanent relationship are its citizens or
subjects, and in the second place, of all those who for the time being
reside within its territory, and so possess a temporary and territorial
title to state-membership. Both classes are equally members of the body
politic, so long as their title lasts; for both have claims to the
protection of the laws and government of the state, and to such laws and
government both alike owe obedience and fidelity. They are alike subject
to the dominion of the state, and it is in the interests of both that
the state exists and fulfils its functions.
These two titles of state-membership are to a great extent united in the
same persons. Most British subjects inhabit British territory, and most
inhabitants of that territory are British subjects. Yet the coincidence
is far from complete, for many men belong to the state by one title
only. They are British subjects, but not resident within the dominions
of the Crown; or they are resident within those dominions, but are not
British subjects. In other words, they are either non-resident subjects
or resident aliens. Non-resident aliens, on the other hand, possess no
title of membership, and stand altogether outside the body politic. They
are not within the power and jurisdiction of the state; they owe no
obedience to the laws, nor fidelity to the government; it is not for
them or in their interests that the state exists.[100]
The practical importance of the distinction between the two forms of
state-membership lies chiefly in the superior privileges possessed by
citizens or subjects. Citizenship is a title to rights which are not
available for aliens. Citizens are members _optimo jure_, while aliens
stand on a lower level in the scale of legal right. Thus British
subjects alone possess political as opposed to merely civil rights;[101]
until a few years ago they alone were capable of inheriting or holding
land in England; to this day they alone can own a British ship or any
share in one; they alone are entitled when abroad to the protection of
their government against other states, or to the protection of English
courts of law against illegal acts of the English executive; they alone
can enter British territory as of right; they alone are entitled to the
benefit of certain statutes from the operation of which aliens are
expressly or by implication excluded. It is true, indeed, that we must
set off against these special privileges certain corresponding burdens
and liabilities. Subjects alone remain within the power and jurisdiction
of the Crown, even when they are outside its dominions. Wheresoever they
are, they owe fidelity and obedience to the laws and government of their
own state, while an alien may release himself at will from all such ties
of subjection. Nevertheless the status of a subject is a privilege and
not a disability, a benefit and not a burden. Citizenship is the
superior, residence the inferior title of state-membership.
Viewing the matter historically, we may say that citizenship is a legal
conception the importance of which is continuously diminishing. The
consistent tendency of legal development is to minimise the peculiar
rights and liabilities of subjects, and to make residence rather than
citizenship the essential and sufficient title of state-membership. The
acquisition and loss of citizenship are being gradually made easier,
while the legal effects of its acquisition and loss are being gradually
made less. The present state of things is, indeed, a compromise between
two fundamentally different ideas as to the constitution of a political
society. Citizenship and its remaining privileges are the outcome of the
primitive conception of the state as a personal and permanent union of
determinate individuals, for whose exclusive benefit the laws and
government of the state exist. Residence, regarded as a title of
membership and protection, is the product of the more modern conception
of the state, as consisting merely of the inhabitants for the time being
of a certain territory. The personal idea is gradually giving place to
the territorial, and the present twofold title of membership is the
outcome of a compromise between these two coexistent and competing
principles. It is not suggested, indeed, that the final issue of legal
development will be the total disappearance of personal in favour of
territorial membership. A compromise between the two extreme principles,
in some such form as that which has now been attained to, may well prove
permanent. In the present condition of international relations it is
clearly necessary.
We have seen that citizens are those members of a state, whose relation
to it is personal and permanent, and who by virtue of this relation
receive from the state special rights, powers, and privileges. If we ask
further, what is the title of citizenship, or how this special bond of
union is constituted, no general answer is possible. This is a matter of
law, varying in different systems, and from time to time in the same
system. English law claims as subjects all who are born within the
dominions of the Crown, regardless of their descent; while French law,
on the contrary, attaches French citizenship to French blood and
descent, regardless in general of the place of birth.[102] Viewed,
however, in respect of its historical origin and primitive form, we may
say that citizenship has its source in _nationality_. Fellow citizens
are those who belong not merely to the same state but also to the same
nation.
It is quite common to use the term citizenship and nationality as
synonymous, and this usage, though incorrect, is significant of a very
real connexion between the two ideas. Nationality is membership of a
nation; citizenship is one kind of membership of a state. A nation is a
society of men united by common blood and descent, and by the various
subsidiary bonds incidental thereto, such as common speech, religion,
and manners. A state, on the other hand, is a society of men united
under one government. These two forms of society are not necessarily
coincident. A single nation may be divided into several states, and
conversely a single state may comprise several nations or parts of
nations. The Hellenes were of one blood, but formed many states, while
the Roman empire included many nations, but was one state. Nevertheless
nations and states tend mutually to coincidence. The ethnic and the
political unity tend to coalesce. In every nation there is an impulse,
more or less powerful, to develop into a state—to add to the subsisting
community of descent a corresponding community of government and
political existence. Conversely every state tends to become a nation;
that is to say, the unity of political organisation eliminates in course
of time the national diversities within its borders, infusing throughout
all its population a new and common nationality, to the exclusion of all
remembered relationship with those beyond the limits of the state.
The historical origin of the conception of citizenship is to be found in
the fact that the state has grown out of the nation. Speaking generally
we may say that the state is in its origin the nation politically
organised. It is the nation incorporated for the purposes of government
and self-defence. The citizens are the members of a nation which has
thus developed into a state. Citizenship is nationality that has become
political. Men become united as fellow-citizens, because they are, or
are deemed to be, already united by the bond of common kinship. It is
for their benefit and protection that the body politic has been
established, and they are its only members. Their citizenship is simply
a legal and artificial bond of union superimposed upon the pre-existing
bond of a common nationality. With aliens this national state has no
concern. It was not created on their behalf, and they have no part or
lot in it, for its law and government are the exclusive birthright of
its citizens. Only by slow degrees does the notion of territorial
membership arise and make good its claim to legal recognition. Gradually
the government and the laws cease to be exclusively national and
personal, and become in part territorial also. The new principle makes
its way, that the state exists for the benefit and protection of the
whole population of a certain territory, and not merely on behalf of a
certain nationality. The law becomes more and more that of a country,
rather than that of a people. State-membership becomes twofold,
residence standing side by side with citizenship. It becomes possible to
belong to the Roman state without being a Roman. The citizens consent to
share their rights with outsiders, but the two classes never reach
equality, and the personal union stands permanently on a higher level
than the territorial. The special privileges retained by citizens at the
present day are the scanty relics of the once exclusive claims of the
nation to the protection and activities of the state.[103]
The relation between a state and its members is one of reciprocal
obligation. The state owes protection to its members, while they in turn
owe obedience and fidelity to it. Men belong to a state in order that
they may be defended by it against each other and against external
enemies. But this defence is not a privilege to be had for nothing, and
in return for its protection the state exacts from its members services
and sacrifices to which outsiders are not constrained. From its members
it collects its revenue; from them it requires the performance of public
duties; from them it demands an habitual submission to its will, as the
price of the benefits of its guardianship. Its members, therefore, are
not merely in a special manner under the protection of the state, but
are also in a special manner under its coercion.
This special duty of assistance, fidelity, and obedience, is called
_allegiance_, and is of two kinds, corresponding to the two classes of
members from whom it is required. Subjects owe _permanent_ allegiance to
the state, just as they are entitled to its permanent protection.
Resident aliens owe _temporary_ allegiance during the period of their
residence, just as their title to state protection is similarly limited.
An alien, when in England, must be faithful to the state, must submit to
its will, and obey its laws, even as an Englishman; but when he leaves
English shores, he leaves behind him his obligation of allegiance,
together with his title to protection. A British subject, on the other
hand, takes both of these things with him on his travels. The hand of
the state is still upon him for good and evil. If he commits treason
abroad he will answer for it in England. The courts of justice will
grant him redress even against the agents of the Crown itself; while the
executive will see that no harm befalls him at the hands of foreign
governments.[104]
§ 40. =The Constitution of the State.=
In the definition of a state as a society with a special end and
function, there is implied a permanent and definite organisation—a
determinate and systematic form, structure, and operation. A body
politic is not constituted by a temporary and casual union of
individuals, for the purpose of repelling an external enemy, or of
executing judgment on some domestic evildoer. The transition from
natural to political society is effected only when the union of
individuals has assumed a certain measure of permanence and
organisation, and when their combined operations in pursuit of their
common end have become in a certain degree systematic and definite. It
is only when a society has acquired such an organisation, whether by way
of agreement, custom, forcible imposition, or otherwise, that it takes
on the nature of a body politic or state. It is only then, that there
comes into existence the _organ_ which is essential to the performance
of those _functions_ which constitute political government.
The organisation of a modern state is of extraordinary complexity, and
it is usual to regard it as divisible into two distinct parts. The first
consists of its fundamental or essential elements; the second consists
of its secondary elements—the details of state structure and state
action. The first, essential, and basal portion is known as the
_constitution_ of the state. The second has no generic title.
Constitutional law is, as its name implies, the body of those legal
rules which determine the constitution of the state. It is not possible
to draw any hard and fast line between the constitution and the
remaining portions of the state’s organisation; neither, therefore, is
it possible to draw any such line between constitutional law and other
branches of the legal system. The distinction is one of degree, rather
than one of kind, and is drawn for purposes of practical convenience,
rather than in obedience to any logical requirement. The more important,
fundamental, and far-reaching any principle or practice is, the more
likely it is to be classed as constitutional. Conversely, the more
special, detailed, and limited in its application, the less likely it is
to find a place in any exposition of the law and practice of the
constitution. The structure of the supreme legislature and the methods
of its action pertain to constitutional law; the structure and
operations of subordinate legislatures, such as those possessed by the
colonies, are justly entitled to the same position; but those of such
subordinate legislatures as a borough council would by general consent
be treated as not sufficiently important and fundamental to be deemed
part of the constitution. So the organisation and powers of the Supreme
Court of Judicature, treated in outline and not in detail, pertain to
constitutional law; while it is otherwise with courts of inferior
jurisdiction, and with the detailed structure and practice of the
Supreme Court itself.
In some states, though not in England, the distinction between
constitutional law and the remaining portions of the legal system is
accentuated and made definite by the embodiment of the former in a
special and distinct enactment, the terms of which cannot be altered
by the ordinary forms of legislation. Such constitutions are said to
be _rigid_, as opposed to those which are _flexible_. That of the
United States of America, for example, is set forth in a document
agreed upon by the founders of the Commonwealth as containing all
those principles of state structure and action sufficiently important
to be deemed fundamental and therefore constitutional. The provisions
of this document cannot be altered without the consent of
three-fourths of the legislatures of the different states. The English
constitution on the other hand is flexible; it is defined and set
apart in no distinct document, and is not distinguishable from the
residue of the law in respect of the methods of its alteration.
We have defined constitutional law as the body of those legal principles
which determine the constitution of a state—which determine, that is to
say, the essential and fundamental portions of the state’s organisation.
We have here to face an apparent difficulty and a possible objection.
How, it may be asked, can the constitution of a state be determined by
law at all? There can be no law unless there is already a state whose
law it is, and there can be no state without a constitution. The state
and its constitution are therefore necessarily prior to the law. How
then does the law determine the constitution? Is constitutional law in
reality law at all? Is not the constitution a pure matter of _fact_,
with which the law has no concern? The answer is, that the constitution
is both a matter of fact and a matter of law. The constitution as it
exists _de facto_ underlies of necessity the constitution as it exists
_de jure_. Constitutional law involves concurrent constitutional
practice. It is merely the reflection, within courts of law, of the
external objective reality of the _de facto_ organisation of the state.
It is the theory of the constitution, as received by courts of justice.
It is the constitution, not as it is in itself, but as it appears when
looked at through the eye of the law.
The constitution as a matter of fact is logically prior to the
constitution as a matter of law. In other words constitutional practice
is logically prior to constitutional law. There may be a state and a
constitution without any law, but there can be no law without a state
and a constitution. No constitution, therefore, can have its source and
basis in the law. It has of necessity an extra-legal origin, for there
can be no talk of law, until some form of constitution has already
obtained _de facto_ establishment by way of actual usage and operation.
When it is once established, but not before, the law can and will take
notice of it. Constitutional facts will be reflected with more or less
accuracy in courts of justice as constitutional law. The law will
develop for itself a theory of the constitution, as it develops a theory
of most other things which may come in question in the administration of
justice.
As an illustration of the proposition that every constitution has an
extra-legal origin, we may take the United States of America. The
original constituent states achieved their independence by way of
rebellion against the lawful authority of the English Crown. Each of
these communities thereupon established a constitution for itself, by
way of popular consent expressed directly or through representatives. By
virtue of what legal power or authority was this done? Before these
constitutions were actually established, there was no law in these
colonies save that of England, and it was not by the authority of this
law, but in open and forcible defiance of it, that these colonial
communities set up new states and new constitutions. Their origin was
not merely extra-legal; it was illegal. Yet so soon as these
constitutions succeeded in obtaining _de facto_ establishment in the
rebellious colonies, they received recognition as legally valid from the
courts of those colonies. Constitutional law followed hard upon the
heels of constitutional fact. Courts, legislatures, and law had alike
their origin in the constitution, therefore the constitution could not
derive its origin from them. So also with every constitution that is
altered by way of illegal revolution. By what legal authority was the
Bill of Rights passed, and by what legal title did William III. assume
the Crown? Yet the Bill of Rights is now good law, and the successors of
King William have held the Crown by valid titles. _Quod fieri non debet,
factum valet._
Constitutional law, therefore, is the judicial theory, reflection, or
image of the constitution _de facto_, that is to say, of constitutional
practice. Here, as elsewhere, law and fact may be more or less
discordant. The constitution as seen by the eye of the law may not agree
in all points with the objective reality. Much constitutional doctrine
may be true in law but not in fact, or true in fact but not in law.
Power may exist _de jure_ but not _de facto_, or _de facto_ but not _de
jure_. In law, for example, the consent of the Crown is no less
necessary to legislation, than is that of the two houses of Parliament.
Yet in fact the Crown has no longer any power of refusing its consent.
Conversely, the whole system of cabinet government, together with the
control exercised by the House of Commons over the executive, is as
unknown in law as it is well established in fact. Even in respect of the
boundaries of the state’s territories the law and the fact may not
agree. A rebellious province may have achieved its _de facto_
independence, that is to say, it may have ceased to be in the _de facto_
possession and control of the state, long before this fact receives _de
jure_ recognition.
Nowhere is this discordance between the constitution in fact and in law
more serious and obvious than in England. A statement of the strict
legal theory of the British constitution would differ curiously from a
statement of the actual facts. Similar discrepancies exist, however, in
most other states. A complete account of a constitution, therefore,
involves a statement of constitutional custom as well as of
constitutional law. It involves an account of the organised state as it
exists in practice and in fact, as well as of the reflected image of
this organisation as it appears in legal theory.
Although the constitution _de jure_ and the constitution _de facto_ are
not necessarily the same, they nevertheless tend towards coincidence.
Constitutional law and practice react upon each other, each striving to
assimilate the other to itself. The objective facts of state
organisation tend to mould legal theory into conformity with themselves.
They seek expression and recognition through legislation, or through the
law-creating functions of the courts. Conversely, the accepted legal
theory endeavours to realise itself in the facts. The law, although it
necessarily involves a pre-existing constitution, may nevertheless react
upon and influence the constitution from which it springs. It cannot
create a constitution _ex nihilo_, but it may modify to any extent one
which already exists. Constitutional practice may alter, while
constitutional law remains the same, and _vice versa_, but the most
familiar and effective way of altering the practice is to alter the law.
The will of the body politic, as expressed through the legislature and
the courts, will commonly realise itself in constitutional fact no less
than in constitutional theory.
§ 41. =The Government of the State.=
_Political_ or _civil power_ is the power vested in any person or body
of persons of exercising any function of the state. It is the capacity
of evoking and directing the activities of the body politic. It is the
ability to make one’s will effective in any department of governmental
action. The aggregate of all the persons or groups of persons who
possess any share of this civil power constitutes the _Government_ of
the state. They are the agents through whom the state, as a corporate
unity, acts and moves and fulfils its end.
_Legislative, judicial, and executive power._—In respect of its
subject-matter, civil power is of three kinds, distinguished as
legislative, judicial, and executive; and the government is similarly
divisible into three great departments, namely, the legislature, the
judicature, and the executive. The functions which pertain to the first
and second of these departments have been already sufficiently
explained. The executive is simply the residue of the government, after
deducting the legislature and the judicature.
_Sovereign and subordinate power._—In respect of its extent civil power,
whether legislative, judicial, or executive, is of two kinds, being
either sovereign or subordinate. Sovereign or supreme power is that
which is absolute and uncontrolled within its own sphere. Within its
appointed limits, if any, its exercise and effective operation are not
dependent on or subject to the power of any other person. An act of
sovereign power is one which cannot be prevented or annulled by any
other power recognised by the constitution of the state. Subordinate
power, on the other hand, is that which, even in its own sphere of
operation, is in some degree subject to external control. There exists
some other constitutional power which is superior to it, and which can
prevent, restrict, or direct its exercise, or annul its operation.[105]
§ 42. =Independent and Dependent States.=
States may be classified in two different ways: (1) with respect to
their external relations to other states and (2) with respect to their
internal composition. The former mode has regard to their international,
the latter to their constitutional position and structure. Classified
internationally or externally, all states are of two kinds, being either
_independent_ or _dependent_. Classified constitutionally or internally,
they are also of two kinds, being either _unitary_ or _composite_.
An independent or sovereign state is one which possesses a separate
existence, being complete in itself, and not merely a part of a larger
whole to whose government it is subject. A dependent or non-sovereign
state, on the other hand, is one which is not thus complete and
self-existent, but is merely a constituent portion of a greater state
which includes both it and others, and to whose government it is
subject. The British Empire, the United States of America, and the
Kingdom of Italy are independent states. But the Commonwealth of
Australia, the Dominion of Canada, and the States of California and New
York are dependent, for they are not self-existent, but merely parts of
the British Empire and of the United States of America respectively, and
subject to their control and government.
It is maintained by some writers that a dependent state is not, properly
speaking, a state at all—that the constituent and dependent parts of an
independent state may be termed colonies, provinces, territories, and so
on, but have no valid claim to the name of state. This objection,
however, seems unfounded. It is contrary to the received usage of
speech, and that usage seems capable of logical justification. Whether a
part of a thing is entitled to the same name as the whole depends on
whether the whole and the part possess the same essential nature. A part
of a rope is itself a rope, if long enough to serve the ordinary
purposes of one; but part of a shilling is not itself a shilling.
Whether, therefore, any territorial division of a state is to be classed
as itself a state depends on whether, in itself and in isolation, it
possesses and fulfils the essential functions of one. This in its turn
depends on the extent of the autonomy or independent activity which is
permitted to it by the constitution. Speaking generally, we may say that
any such division which possesses a separate legislature, judicature,
and executive, and is thus separately organised for the maintenance of
peace and justice, is entitled to be regarded as itself a state. The
Commonwealth of Australia is a true state, though merely a part of the
larger state of the British Empire, for it conforms to the definition of
a state, as a society established and organised for the administration
of justice and for external defence. Were it to become independent, it
could, without altering its constitution, or taking upon itself any
further function than those which it now possesses, stand alone as a
distinct and self-sufficient political community. But a municipal
corporation or a district council has not in itself the nature of a
political society, for it does not in itself fulfil the essential ends
of one.
International law takes account only of independent or sovereign states,
for it consists of the rules which regulate the relations of such states
to one another. A dependent state is not an international unit, and
possesses no international personality. Internationally regarded, its
existence is simply a detail of the internal constitution of the larger
and independent state of which it forms a part. This internal structure
pertains exclusively to the constitutional law of the state itself, and
the law of nations is not concerned with it. The existence of the
Dominion of Canada or of the State of Victoria is a constitutional, not
an international fact, for in the eye of the law of nations the whole
British Empire is a single undivided unit.[106]
Independent states are themselves of two kinds, distinguished as _fully
sovereign_ and _semi-sovereign_. A fully sovereign state is, as its name
imports, one whose sovereignty is in no way derogated from by any
control exercised over it by another state. It is possessed of absolute
and complete autonomy. A semi-sovereign state, on the other hand, is one
which is to a greater or less extent subordinate to some other, its
sovereignty or autonomy being imperfect by reason of external control.
The authority so exercised over it is termed a protectorate or sometimes
suzerainty. Most independent states are fully sovereign, the others
being few in number and anomalous in character. An example is Zanzibar,
which stands in this relation to the British Empire.
It is carefully to be noticed that semi-sovereign states are
independent, in the sense already explained. They are self-existent,
international units, and not merely parts of the state under whose
control they are. Zanzibar is not part of the British Empire. These are
two distinct states, bearing towards each other a relation which is
international and external, and not merely constitutional and internal.
In order that a state should be dependent or non-sovereign, it is not
enough that it should be under the control of another state; it must
also be a constituent part of the state under whose control it is. The
mere exercise of a partial dominion by one state over another does not
of necessity incorporate the two into a higher unity. The establishment
of a protectorate is not equivalent to annexation. The acts of the one
state are not imputed to the other; the property and territory of the
one are not those of the other also; the subjects of the one are not
those of the other; one may be at peace while the other is at war. The
Ionian Islands were formerly a protected state under the control of
Great Britain; but during the Crimean War they remained neutral and at
peace.
A semi-sovereign state is in a position of unstable equilibrium. It is
the outcome of a compromise between dependence and independence, which,
save in exceptional circumstances, is not likely to be permanent. The
control exercised by one independent state over another is in most cases
destined either to disappear altogether, so that the semi-sovereign
state becomes fully sovereign, or to develop until the separate
international existence of the inferior is merged in that of the
superior, the semi-sovereign state descending to the lower level of
dependency, and becoming merely a constitutional subdivision of the
state to which it is subordinate.
§ 43. =Unitary and Composite States.=
Classified constitutionally, in respect of their internal structure,
instead of internationally, in respect of their external relations,
states are of two kinds, being either _unitary_ or _composite_. A
unitary or simple state is one which is not made up of territorial
divisions which are states themselves. A composite state on the other
hand is one which is itself an aggregate or group of constituent states.
The British Empire is composite, because many of its territorial
divisions are possessed of such autonomy as to be states themselves.
Some of these constituent states are also composite in their turn,
Australia and Canada, for example, being composed of unitary states such
as Queensland and Quebec.
Composite states (whether dependent or independent) are of two kinds,
which may be distinguished as _imperial_ and _federal_. The difference
is to be found in the nature of that common government which is the
essential bond of union between the constituent states. In an imperial
state the government of one of the parts is at the same time the common
government of the whole. In a federal state, on the contrary, the common
government is not that of one of the parts, but a central government in
which all the constituent states participate. The constitution of the
British Empire is imperial; that of the United States of America is
federal. In the former, one of the parts, namely, Great Britain and
Ireland, is preferred before the others, as supplying the authority
which binds all of them into a single whole. The government of the
United Kingdom possesses a double capacity, local and imperial. In its
local capacity it administers the affairs of England, Scotland, and
Ireland, just as the government at Cape Town administers the affairs of
Cape Colony. But in another capacity it is the government of the whole
empire, and provides the bond of common authority which unites all the
constituent states of the empire into a single body politic. In a
federal, as contrasted with an imperial constitution, there is no such
predominance of one of the constituent states. The government of the
whole is one in which all the parts have their allotted shares. The
unity of an imperial state is a relation of all the other parts to one
of them; the unity of a federal state is a relation of all the parts to
a central and common authority.[107]
SUMMARY
Definition of the State.
Functions of the State { Essential { Administration of Justice.
{ { War.
{ Secondary.
Relations between the two essential functions.
The judicial and extrajudicial use of force.
Minor differences.
The territory of the State.
The members of the State { Citizens or subjects.
{ Resident aliens.
Citizenship in its historical aspect.
Citizenship and nationality.
Allegiance { Personal and permanent.
{ Local and temporary.
The constitution of the State.
Constitutional law.
Its nature.
Its relation to constitutional fact.
The government of the State.
Civil power.
Legislative, judicial, and executive power.
Sovereign and subordinate power.
The classification of States:
{ Independent { Fully Sovereign.
{ Externally or { { Semi-Sovereign.
{ Internationally {
States { { Dependent.
{
{ Internally { Unitary.
{ or Constitutionally { Composite { Imperial.
{ { Federal.