I. DEFINITIONS OF THE STATE.

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General definitions.

International law is concerned with the relations of states which constitute the society of nations. In this sense the words "state" and "nation" are used synonymously, without regard to the distinction which political science draws between them. The word state, as used in international law, has been variously defined. Most of the definitions of the publicists may, however, be traced back, in substance if not in form, to Cicero, who, in his De Re Publica, defines the "populus" as a numerous society united by a common sense of right and a mutual participation in advantages." In almost the same words Grotius defined the state (civitas) as a perfect society of free men, united for the promotion of right and the common advantage. Pufendorf propounded the idea, which has been so generally adopted, of treating the state as a moral person, endowed with a collective will. According to Vattel, a nation or state is a body politic or society of men who seek their well-being and common advantage in the combination of their forces. This definition is substantially adopted by Wheaton. But it must be admitted that all the foregoing definitions are imperfect, and that they can be accepted only with certain limitations.

b

"For all purposes of international law, a state (nuos, civitas, volk) may be defined to be a people permanently occupying Particular elements. a fixed territory (certam sedem), bound together by common laws, habits, and customs into one body politic, exercising,

a Est igitur res publica res populi: populus autem non omnis hominum cœtus quoquo modo congregatus, sed cœtus multitudinis juris consensu et utilitatis communione sociatus. (De Re Publica, Lib. I. XXV. 39, M. Tullii Ciceronis Opera Omnia, Nobbe, Lipsiæ, A. D. 1850, p. 1178.)

Est autem civitas cœtus perfectus liberorum hominum, juris fruendi et communis utilitatis causâ sociatus. (De Jure Belli ac Pacis, L. I. c. I. § XIV. No. 2.)

e C'est une personne morale composée, dont la volonté formée par l'assemblage des volontés de plusieurs, réunies en vertu de leurs conventions, est réputée la volonté de tous généralement, et autorisée par cette raison à se servir des forces et des facultés de chaque particulier pour procurer la paix et la sûreté commune. (Le Droit de la Nature et des Gens., trad. par Barbeyrac, VII. c. 2, § 13.)

d Prélim., § 1; L. I. ch. 1, § 1.

e"A body politic, or society of men, united together for the purpose of promoting their mutual safety and advantage by their combined strength." Elements of International Law, C. II. § 2. Both in Lawrence's and in Dana's edition of Wheaton the definition of Cicero is quoted erroneously.

through the medium of an organized government, independent sovereignty and control over all persons and things within its boundaries, capable of making war and peace, and of entering into all international relations with the other communities of the globe. It is a sound general principle, and one to be laid down at the threshold of the science of which we are treating, that international law has no concern with the form, character, or power of the constitution or government of a state, with the religion of its inhabitants, the extent of its domain, or the importance of its position and influence in the commonwealth of nations. 'Russia and Geneva have equal rights.' * * * Provided that the state possess a government capable of securing at home the observance of rightful relations with other states, the demands of international law are satisfied."

Phillimore, Int. Law, 3rd ed., I. 81.

Excluded associa

tions.

The definition of the state must be "understood with the following limitations:

"1. It must be considered as excluding corporations, public or private, created by the state itself, under whose authority they exist, whatever may be the purposes for which the individuals composing such bodies politic may be associated.

"Thus the great association of British merchants incorporated, first, by the crown, and afterwards by Parliament, for the purpose of carrying on trade to the East Indies, could not be considered as a state, even whilst it exercised the sovereign powers of war and peace in that quarter of the globe without the direct control of the crown, and still less can it be so considered since it has been subjected to that control. Those powers are exercised by the East India Company in subordination to the supreme power of the British Empire, the external sovereignty of which is represented by the company towards the native princes and people, whilst the British government itself represents the company towards other foreign sovereigns and states.

"2. Nor can the denomination of a state be properly applied to voluntary associations of robbers or pirates, the outlaws of other societies, although they may be united together for the purpose of promoting their own mutual safety and advantage.

"3. A state is also distinguishable from an unsettled horde of wandering savages not yet formed into civil society. The legal idea of a state necessarily implies that of the habitual obedience of its members to those persons in whom the superiority is vested, and of a fixed abode, and definite territory belonging to the people by whom it is occupied."

Wheaton, Elements of Int. Law, Chap. II, § 2. See, as to migratory hordes, bands of pirates, societies united sceleris causa, and the former piratical states of northern Africa, Phillimore, Int. Law, 3rd ed., I. 82-85.

a Marshall, C. J., The Antelope, 10 Wheaton, 66.

sion and exclusion; illustrations.

Rivier, in his treatise on international law," enumerates, as "the essential elements of the state," which he defines as "an Principles of inclu- independent community, organized in a permanent manner on a certain territory," the following: "Territory and population, collective will and government, independence and permanence." Hence he excludes from the category of the state, which he describes as a "moral person" and "the subject of the law of nations," a horde or nomadic tribe; the negro tribes of Africa and the native races of Australia; the North American Indians, although the United States has allowed them, on grounds of expediency, a certain national existence; and chance communities, organized temporarily, such as bands of brigands and associations of pirates. States, existing and recognized as such, which give themselves over, accidentally or even habitually, to acts of spoliation and ransom, like certain Greek states of antiquity and later still the predatory states of Barbary, do not, he says, for that reason cease to be states. But an association of malefactors, which installed itself on a territory, could not pretend to be treated as a nation, even though it should take the name; war would not be made upon its members according to the laws of war; they would be chastised as criminals, and, in the repression of their depredations on the sea, there would be no question of booty properly so-called or of the observance of the rules of law in regard to prizes. And if anarchists should undertake to found an establishment of some importance, with a view to live according to their maxims, it would not be a state, since the anarchist utopia excludes the idea of government.

Religious communities, continues Rivier, are not states; although, for special reasons, the Holy See occupies a position analogous to that of states, and the Pope is treated as a sovereign, and even as a privileged sovereign. Nor do we recognize the personality of the law of nations in communities and corporations which, although they are permanent and organized, and have a territorial seat, are subordinatesuch as communes, provinces, and colonies, and a fortiori political, scientific, industrial, and commercial corporations and societies. Great companies, established for purposes essentially commercial and industrial, may obtain from the state charters or letters-patent, delegating a part of its powers, as, for example, the English companies in Africathe Royal Niger Company (1886), the East African Company (1888), and the South African Company (1889). Such, also, was the Hudson's Bay Company, and especially the East India Company, which for many years had, under the authority of the British Government, an existence analogous to that of states, possessing notably the powers of peace and war with reference to the Hindus. Nor was the Hanseatic League a state; very powerful at certain moments, it was only a league

a Principes du Droit des Gens, par Alphonse Rivier, Paris, 1896, 2 vols.

of cities, as much territorial as imperial, endowed with important political privileges, but without a proper (propre) existence, and not recognized as an independent community.

Sovereigns, or the heads of states, are sometimes considered as persons or subjects of the law of nations. But, while sovereigns are the universal representatives of states, it is only on this ground that they can be considered as having, and then only indirectly, a personality under the law of nations. This conception, however, seems to be superfluous. More erroneous still is the doctrine which sees in the man a subject of the law of nations; the man has international rights. only in his character of a subject or citizen of a state, and through the intermediary of that state.

The ethnographic nationalities, the real or pretended races to which the inhabitants of the territory belong, and the languages which those inhabitants speak have no direct influence from the point of view of the law of nations; but they have a moral importance, political and social, which may be very considerable.

Principes du Droit des Gens, I. 45-51.

Protected princes of
India.

"The native princes who acknowledge the imperial majesty of the United Kingdom have no international existence. That their dominions are contrasted with the dominions of the Queen, and that their subjects are contrasted with the subjects of the Queen, are niceties of speech handed down from other days and now devoid of international significance, though their preservation may be convenient for purposes internal to the Empire; in other words, for constitutional purposes. So, too, the term 'protectorate' as applied to the Empire in its relation to those princes, and the description of their subjects, when abroad, as persons entitled to British protection, are etymologically correct; but they do not bear the technical meaning which belongs to the protection of the Republic of San Marino and its citizens by the Kingdom of Italy, or that other technical meaning which belongs to a protectorate in Central Africa. They are etymologically correct because every state is the protector of its own people, and the United Kingdom has, for international purposes, absorbed the Indian princes and their subjects into itself. And the government of India was fully justified in the notification which it published in its Official Gazette, No. 1700 E, 21st August, 1891: The principles of international law have no bearing upon the relations between the government of India as representing the Queen-Empress on the one hand and the native states under the suzerainty of Her Majesty on the other. The paramount supremacy of the former presupposes and implies the subordination of the latter.""

Westlake, International Law, 215; citing Lee-Warner, The Protected Princes of India, 373. See also Tupper, Our Indian Protectorates.

H. Doc. 551-2

"We must understand by the word 'state' all the possessions of a nation, in whatever place they may be situated and Colonial posses- whatever may be the distance that separates them. sions. Vattel has formulated on this subject the following important rule: 'Whenever the political laws and the treaties have not established distinctions to the contrary, that which we call the territory of a nation includes its colonies.""

Calvo, Le Droit International, cinquième éd., § 40, p. 170.

II. SOVEREIGNTY AND INDEPENDENCE.

Ideas of sovereignty and independence.

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The words "sovereignty" and "independence" are often used by writers on international law as practically synonymous terms. Sometimes they are carefully distinguished. "Independence, like every negative, does not," says Westlake, "admit of degrees. A group of men dependent in any degree on another group is not independent, but has relations with that other which as between the two are constitutional relations. Sovereignty is partible. A group of men is fully sovereign when it has no constitutional relations making it in any degree dependent on any other group; if it has such relations, so much of sovereignty as they leave it is a kind or degree of semi-sovereignty, though the constitution may not call it by that name. Thus the independence and the full sovereignty of a state are identical, but it would be an abuse of language to speak of semi-sovereignty as partial independence." On the other hand, there are writers who strongly object to the idea of a division of sovereignty, since sovereignty, according to their conception of it, is indivisible and has no degrees. These differences belong rather to the domain of political science than to that of international law. As international law deals with actual conditions, it recognizes the fact that there are states not in all respects independent that maintain international relations, to a greater or less extent, according to the degree of their dependence. Such states are generally called semi-sovereign. A state is sovereign, from the point of view of the law of nations, when it is independent of every other state in the exercise of its international rights externally, and in the manner in which it lives and governs itself internally..

Rivier, Principes du Droit des Gens. I. 52.

"Theoretically a politically organized community enters of right * * * into the family of nations and must be treated in accordance with law, so soon as it is able to show that it possesses the marks of a state. The

Beginning of sovereign existence.

a Int. Law, 87.