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within the Family of Nations, if any, is always more or less overshadowed by other States.

Sove

contested.

§ 66. The distinction between States full sovereign Divisiand not-full sovereign is based upon the opinion that bity of Sovereignty is divisible, so that the powers connected reignty with sovereignty need not necessarily be united in one hand. But many jurists deny the divisibility of sovereignty, and maintain that a State is either sovereign or not. They deny that sovereignty is a characteristic of every State, and of the membership of the Family of Nations. It is therefore necessary to face the conception of sovereignty more closely. And it will be seen that there exists perhaps no conception, the meaning of which is more controversial than that of sovereignty. It is an indisputable fact that this conception, from the moment when it was introduced into political science until the present day, has never had a meaning which was universally agreed upon.1

of Sovereignty in

teenth

Seven

§ 67. The term sovereignty was introduced into Meaning political science by Bodin in his celebrated work, De la République, which appeared in 1577. Before Bodin, the Sixat the end of the Middle Ages, the word souverain 2 was and used in France for an authority, political or other, which teenth had no other authority above itself. Thus the highest Centuries. courts were called Cours Souveraines. Bodin, however, gave quite a new meaning to the old conception. Being under the influence of, and in favour of, the policy of centralisation initiated by Louis XI. of France (1461-1483), the founder of French absolutism, he defined sovereignty as 'the absolute and perpetual power within a State.'

1 The literature upon sovereignty is extensive. The following authors pire a survey of the opinions of the different writers: - Landman, Der Souveränitätsbegriff bei den franzöchen Theoretikern (1896); Dock, Der Souveränitätsbegriff von Bodin bis zu Friedrich dem Grossen (1897);

VOL. I.

I

Merriam, History of the Theory of
Sovereignty since Rousseau (1900);
Rehm, Allgemeine Staatslehre (1899),
S$ 10-16. See also Maine, Early
Institutions, pp. 342-400.

2 Souverain is derived either from
the Latin superanus or from suprema
potestas.

According to Bodin, such power is the supreme power within a State without any restriction whatever except the Commandments of God and the Law of Nature. No constitution can limit sovereignty, which is an attribute of the king in a monarchy, and of the people in a democracy. A sovereign is above positive law. A contract is only binding upon the sovereign, because the Law of Nature commands that a contract shall be binding.1

The conception of sovereignty thus introduced was at once accepted by writers on politics of the sixteenth century, but the majority of these writers taught that sovereignty could be restricted by a constitution and by positive law. Thus at once a somewhat weaker conception of sovereignty than that of Bodin made its appearance. On the other hand, in the seventeenth century, Hobbes went even beyond Bodin, maintaining that a sovereign was not bound by anything, and had a right over everything, even over religion. Whereas a good many publicists followed Hobbes, others, especially Pufendorf, denied, in contradistinction to Hobbes, that sovereignty involves omnipotence. According to Pufendorf, sovereignty is the supreme power in a State, but not absolute power, and sovereignty may well be constitutionally restricted. Yet in spite of all the differences in defining sovereignty, all authors of the sixteenth and seventeenth centuries agree that sovereignty is indivisible, and contains the centralisation of all power in the hands of the sovereign, whether a monarch or the people itself in a republic. Yet the way for another conception of sovereignty is prepared by Locke, whose Two Treatises on Government appeared in 1689, and paved the way for the doctrine that the State itself

1 See Bodin, De la République, i. c. 8. 2 See Hobbes, De Cive, c. 6, §§ 12-15.

3 See Pufendorf, De Jure Naturae

et Gentium, vii. c. 6, §§ 1-13.

is the original sovereign, and that all supreme powers of the Government are derived from this sovereignty of the State.

reignty

Eigh

Century.

§ 68. In the eighteenth century matters changed Meaning again. The fact that the several hundred reigning int princes of the member-States of the German Empire in the had in practice, although not theoretically, become teenth more or less independent since the Westphalian Peace enforced the necessity upon publicists of recognising a distinction between an absolute, perfect, full sovereignty, on the one hand, and, on the other, a relative, imperfect, not-full or half sovereignty. Absolute and full sovereignty was attributed to those monarchs who enjoyed an unqualified independence within and without their States. Relative and not-full sovereignty, or half sovereignty, was attributed to those monarchs who were, in various points of internal or foreign affairs of state, more or less dependent upon other monarchs. By this distinction the divisibility of sovereignty was recognised. And when in 1787 the United States of America turned from a Confederation of States into a Federal State, the division of sovereignty between the sovereign Federal State and the sovereign memberStates appeared. But it cannot be maintained that divisibility of sovereignty was universally recognised in the eighteenth century. It suffices to mention Rousseau, whose Contrat Social appeared in 1762, and defended again the indivisibility of sovereignty. Rousseau's conception of sovereignty is essentially that of Hobbes, since it contains absolute supreme power, but differs in so far as, according to Rousseau, sovereignty belongs to the people only and exclusively, is inalienable, and therefore cannot be transferred from the people to any organ of the State.

§ 69. D ing the nineteenth century three different factors of great practical importance exercise their

Meaning influence of Sove

reignty in Sovereignty.

teenth

on the

the history of the conception of

the Nine- The first factor is that, with the exception of Russia, Century. all civilised Christian monarchies during this period

turn into constitutional monarchies. Thus identification in practice of sovereignty with absolutism belongs to the past, and the fact is during the nineteenth century generally recognised that a sovereign monarch may well be restricted in the exercise of his powers by a constitution and positive law.

The second factor is, that the example of a Federal State set by the United States is followed by Switzerland, Germany, and others. The Constitution of Switzerland (Art. I.) declares decidedly that the member-States of the Federal State remain sovereign States, thus indirectly recognising the divisibility of sovereignty between the member-States and the Federal State according to different matters.

The third and most important factor is, that the science of politics learns to distinguish between sovereignty of the State and sovereignty of the organ which exercises the powers of the State. The majority of publicists teach henceforth that neither the monarch, nor Parliament, nor the people is originally sovereign in a State, but the State itself. Sovereignty, we say nowadays, is a natural attribute of every State as a State. But a State, as a Juristic Person, wants organs to exercise its powers. The organ or organs which exercise for the State powers connected with sovereignty are said to be sovereign themselves; yet it is obvious that this sovereignty of the organ is derived from the sovereignty of the State. And it is likewise obvious that the sovereignty of a State may be exercised by the combined action of several organs, as, for instance, in Great Britain, King and Parliament are the joint administrators of the sovereignty of the State. And it is,

thirdly, obvious that a State can, as regards certain matters, have its sovereignty exercised by one organ, and as regards other matters by another organ.

In spite of this condition of things, the old controversy regarding divisibility of sovereignty has by no means died out. It acquired a fresh stimulus, on the one hand, through Switzerland and Germany turning into Federal States, and, on the other, through the conflict between the United States of America and her Southern member-States. The theory of the concurrent sovereignty of the Federal State and its memberStates, as defended by The Federalist (Alexander Hamilton, James Madison, and John Jay) in 1787, was in Germany taken up by Waitz,1 whom numerous publicists followed. The theory of the indivisibility of sovereignty was defended by Calhoun,2 and many European publicists followed him in time.

troversy

Sove

§ 70. From the foregoing sketch of the history of Result of the conception of sovereignty it becomes apparent that the onthere is not, and never was, unanimity regarding this regarding conception. It is therefore no wonder that the en- reignty. deavour has been made to eliminate the conception of sovereignty from the science of politics altogether, and likewise to eliminate sovereignty as a necessary characteristic of statehood, so that States with and without Sovereignty would in consequence be distinguishable. It is a fact that sovereignty is a term used without any well-recognised meaning except that of supreme authority.

Under these circumstances those who do not want to interfere in a mere scholastic controversy must cling to the facts of life and the practical, though abnormal and illogical, condition of affairs. As there can pe no doubt about the fact that there are semiindependent States in existence, it may well be maintainer that sovereignty is divisible.

Politik (1862).

A Disquisition on Government (1851).

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