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"a large number of persons,” one naturally asks, how large a number? If the number is not definite, who is to fix it? Some philosophers say "a considerable number;''3 others, “a multitude;" but, if Coke is correct, Multitudinem decem faciunt(First Institute). Rousseau declared one hundred thousand was enough, but Bluntschli rejects it as insufficient. Here is utter confusion, disagreement and vagueness. If a definition is of any value it must have some measure of certainty, but this feature of numbers is decidedly uncertain. It is far better to take the position of Jean Bodin and declare all discussions as to numerical limits to be irrelevant. (Dunning, p. 90.)

It seems more reasonable, therefore, and for present purposes it is sufficient, to adopt the less complex definition, upon which there is substantial agreement, and assume that, when a portion of mankind is united into a community and becomes an organized unit, it is a state.

However, to avoid misunderstanding it will be well to distinguish between the uses of the word in terms. The community of human beings will be called the political state; the territory, which they possess, the territorial state. When the word "state" is used without either adjective, the political state is intended.

It should also be noted that the words "state" and "nation" are frequently used interchangeably. The word nation carries with it an idea of racial and, generally, linguistic characteristics which the word state does not. Today most states, particularly the large and powerful ones, are correctly called nations; and, while the difference between

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Austin says:

"In order that an independent society may form a society political, it must not fall short of a number which cannot be fixed with precision, but which may be called considerable, or not extremely minute.” (Austin, p. 231.) He goes on from this to argue that though “an insulated family” of savages is an independent society, of which the father as chief receives “habitual obedience" from the rest, to call the family “a society political and independent” and the father "a monarch or sovereign" would “somewhat smack of the ridiculous.”

Maine, in considering this argument of Austin's, points out the "seriousness of the admission” that the theory cannot be applied to a family. (Maine, p. 379.)

Lawrence, who appears to favor the Austinian theories, says: “A state may be defined as a political community, the members of which are bound together by the tie of common subjection to some central authority, whose commands the bulk of them habitually obey. This central authority may be vested in an individual or a body of individuals; and, though it may be patriarchal, it must be something more than parental; for a family as such is not a political community and, therefore, not a state." (Lawrence, p. 56.)

the words is recognized, they will be often used in these notes as synonyms in accordance with common usage.

Having thus defined the general terms which will be employed in the succeeding pages, a foundation is laid for the consideration of the specific subject of sovereignty in a state.

Applying the definitions given in the introductory note, of divine and human sovereignty to the sovereignty in a state, the latter would be the power to the extent of the natural capacity of the possessor to do all things in a state without accountability. From this definition the following deductions are drawn:

1. Sovereignty is real (or actual) only when the possessor can compel the obedience to the sovereign will of every individual composing the political state and within the territorial state.

2. Such complete power to compel obedience necessarily arises from the possession of physical force superior to any other such force in the state.

3. The exercise of sovereignty in a state does not involve reasonableness, justice, or morality, but is simply the application or the menace of brute force. Regard for rational, equitable, and ethical ideas may, and in modern states usually does, limit sovereign acts, but the acceptance of such ideas as rules of action is discretionary and not actually compulsive. All such influences being followed only voluntarily by the possessor of the sovereignty and operating by permission rather than by positive power, obedience to them does not determine the possession of the real sovereignty.

The definitions which have been given of sovereignty by accepted authorities in the fields of jurisprudence and political science do not contradict the one given above. A few quotations will suffice.

Wheaton says:

Sovereignty is the supreme power by which a state is governed. (Wheaton, International Law, $20.)

* Maine thus interprets Austin's definition of sovereignty: “There is, in every independent political community; that is, in every political community not in the habit of obedience to a superior above itself, some single person or some combination of persons, which has the power of compelling the other members of the community to do exactly as it pleases. This single person or group, this individual or this collegiate sovereign (to employ Austin's phrase), may be found in every independent political community as certainly as the center of gravity in a mass of matter." (Maine, p. 349.)

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Story defines sovereignty as The union and exercise of all human power possessed in a state; it is the combination of all power; it is the power to do everything in a state without accountability. (Story on the Constitution.)

Burgess says:

I understand by it (sovereignty]original, absolute, unlimited, universal power over the individual subject and over all associations of subjects. (Burgess, vol. i, p. 52.)

The notable thing is that in all these definitions sovereignty is termed a "power," namely, “supreme power," "all human power," and “universal power.” Now the only actual power known in human society is physical. However religious and moral instincts may affect human action, the physical is the power that compels, including in the term the ability to effectively exert it.

Therefore, if sovereignty is the supreme coercive power in a state, it must rest upon material force without regard to the righteousness of its exercise.

While the existence of sovereignty rests upon the possession of superior physical strength, its exercise must depend upon an operation of the will of the possessor; but because there is no such mental operation is no ground for denying the existence of the sovereignty. In fact it is impossible to conceive of a human community, whether organized or unorganized, in which there is not superior physical strength resident in an individual or a collection of individuals, and where this superiority of strength resides there is the sovereignty (even if it is never exercised) and its possessor is the sovereign.

In view of the physical nature of sovereignty the following assertion of Bluntschli cannot be accepted without material modification. He says:

It is illogical to consider sovereignty as the source of the state and of law, and to put the sovereign above the state. The sovereignty is a conception of public law and not superior to it. (Bluntschli, p. 496, note.)

In the first place such a statement manifestly excludes all consideration of divine sovereignty or world sovereignty, for which reason, if for no other, it would be objectionable. But further, the characteristics of a state are union and organization, the union and organization of the individuals composing a community, each of whom possesses a certain measure of physical power. These individual powers must

have existed en masse prior to the union and organization of those possessing them; and, therefore, the collective power of the community must have existed from the time that the community came into being; and, if it did, this power was present before the state came into existence as an organized unit. It makes no difference by what name it is known, the superior power of the community existed in the community identical in its characteristics with the power which Bluntschli declines to term sovereignty until the state is formed and law is operative. Now, it is evident that there can be no act of union and organization without the consent of the possessor of this superior power; and, therefore, the act of organizing a state is an exercise of the will of the possessor. To distinguish this power by different names before and after a state is organized is a mere quibble in nomenclature, which can serve no good purpose.

Take another quotation from the same writer, in which he expresses an idea, which was advanced by the French philosopher, Jean Bodin, two hundred and fifty years before Bluntschli wrote:

Without force a state can neither come into being nor continue. (Bluntschli, p. 293.)

What is this "force?" Bluntschli calls it sovereignty after the state is organized, that is, when it is the continuing force. Why then is it not sovereignty when it is the creative force? What other appropriate name can be given to it? Since the force that brings a state into existence is identical with the force that continues it, it is rational to term it under all circumstances sovereignty. What certain publicists have tried to avoid and what they cannot avoid is that sovereignty and the sovereign existed before the state.

This is particularly true of those who maintain that sovereignty rests in the state alone as a living organism, that is, that the state and the sovereign are identical; as well as of the other class who confuse the sovereign and the government. To the former theorists the state is necessarily pre-existent to sovereignty. To the latter, the state must have been before the government and, therefore, before the sovereign. The result is that both schools are forced to assume positions which are unnatural, and to advance propositions which, though advocated with ingenious logic, are unsupported by historical facts.

As an example of the confusion caused by attempting to maintain that the state is the sovereign, place in contrast two quotations from Burgess' work. First, a state is a particular portion of mankind viewed as an organized unit. (Burgess, vol. i, p. 51.)

Second, referring to the granting of Magna Charta, the aristocracy seized the sovereign power, became the state, whereas, before this, the king had held the sovereign power, had been the state as well as the government. (Ibid., p. 92.)

Here is evidently contradiction, unless the writer views Plantagenet England as some other type of state from the one defined. The state, composed of “a particular portion of mankind,” is forced into the narrow compass of a single individual, the king, or of a small group, the aristocracy. What becomes of the thousands of persons outside of the few? Are they not members of the state? If they are, how can the state be the sovereign? The position is paradoxical, and the theory is irrational. But separate the state and the sovereign; make the former the field of operation, and the latter, the operator; then the state and the sovereign will take separate places logically consistent, and their relations will be entirely harmonious though interdependent.

This relation of the sovereign to the state and of sovereignty to the state may be more clearly brought out by studying it in the rudimentary institutions which existed in primitive communities and still exist among the savage races of today. Whether these communities were or are entitled to the name "state" is unessential; the necessary premises are the existence of a community and the presence of a superior physical force which can compel complete obedience from all persons in the community. These two facts are for the present sufficient.

In the formative period of human society, when man was little better than a beast, the strongest individual in a community overcoming his fellows in combat or causing them to fear his superior strength compelled obedience to his will. He was a master, a despot, and the small group, of which he formed a part, was forced to submit to his will. It has a likeness to the leadership among gregarious animals, and doubtless had its origin in the same sexual instinct which impels the rivals of a herd to battle for the mastery; but there is this distinction, in

Professor Boughton in his History of Ancient Peoples (New York, 1897) says: *Primeval men were only gregarious, there was no government-might made right.”

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