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subject or through the influence of a preconceived line of argument or through imperfect operation of the reason, the attempt to define cannot be made without great caution, and the claim to correctness without hesitation. The failure of many an attractive philosophical theory may be charged to the self-sufficiency of the theorist in defining the terms which he employs. Nevertheless, words must be defined, especially when used technically; and, though there may not be universal agreement as to the accuracy of the definitions, they will form subjects of further discussion, and, even if incomplete or faulty, will disclose the basis upon which an argument rests.
Bearing in mind then the difficulties as well as the necessity of definition the writer defines sovereignty in its broadest sense as the power to do all things without accountability.
So extensive a power, which eliminates the elements of time and space, of motion and inertia, of mind and matter, can only find a counterpart in a super-mundane and super-human sovereignty which is coextensive with the limitless universe and which can only be possessed by an Omnipotent and Eternal Being. Sovereignty in the abstract is, therefore, coincident with Divine Sovereignty. It is not intended in these notes to enter that great sphere of thought which embraces the philosophy of religion and kindred subjects, but to deal with that type of sovereignty, which in contrast to the super-mundane and Divine, may be called human sovereignty or world sovereignty.
Such sovereignty may be defined as the power to the extent of human capacity to do all things on the earth without accountability. Even thus limited to the earth and to mankind, sovereignty is too comprehensive and, in a sense, too intangible to yield readily to analysis or to furnish historical illustration. It is proposed, therefore, in these notes to consider a more circumscribed type, which will be perceived in familiar phenomena, and be more fruitful of example. This lesser sovereignty is that which prevails in a state. It is the sovereignty which history knows and law recognizes, the sovereignty which affects the individual members of states, and which is the force constantly at work forming and reforming political institutions and regulating human conduct.
Before proceeding it is necessary to reach some basic idea of a state; and for a satisfactory definition the one given by Burgess may be adopted, provided it is not limited to a “modern state," but is applied to a state generally. The definition, which is concise and comprehensive, is as follows: "A state is a particular portion of mankind viewed as an organized unit" (Burgess, vol. I, p. 51). The definitions of the American jurists, Story and Cooley, are more elaborate but convey the same idea of unity and organization. Story says that a state is a self-sufficient body of persons united together in one community for the defense of their rights and to do right and justice to foreigners. In this sense the state means the whole people united into a body politic, and the state, the people of the state, are equivalent expressions. (Story on the Constitution.)
Cooley defines a state as a body politic, or society of men, united together for the purpose of promoting their mutual safety and advantage by the joint efforts of their combined strength. (Cooley, Constitutional Limitations, p. 1.)
The criticism of the last two definitions is that they assert definitely a reason for the union, which may seem to some open to objection or at least to question. However, if the definitions stopped here, there would be little disagreement, but they do not. Publicists have seen fit to expand their concepts of the state by declaring that they must possess particular qualifications which sometimes lead to paradoxes and contradictions. Among these required qualifications the most general are that an organized community to be a state must have a fixed territorial abode and that it must consist of a large number of persons. Undoubtedly these are characteristics of most modern states; but to admit this limitation would deprive a large number of independent communities of a name to which they appear to be entitled by the completeness of their political organization and the influence which they have exerted upon the world's history.
It must be recognized that the word "state" from its derivation carries the idea of fixity of abode; but there should be a careful distinction made in the use of the word in its application to persons and to territory. In the consideration of sovereignty, the state as an organized community of individuals is of importance. In fact, the qualification of occupation of territory is for the purpose of these notes non-essential; and its omission from the definition avoids controversy as to the correctness of the limitation which its adoption would impose.
The same objection applies to the requirement as to numbers. When it is said that a community in order to be a state must be composed of
"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
s 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.)
to be found in Hobbes v. Henning on the doctrine of continous voyages and the tendency of the court's observations is not unfavorable to it.83
In the subsequent case Seymour v. Insurance Company, the doctrine is clearly recognized and approved.
The reasonableness of the doctrine of continuous voyages as applied to modern conditions has thus led to its general acceptance by maritime states and by writers of high authority, such as Bluntschli, Gessner, Kleen, Fiore, Calvo, Bonfils, Westlake, Oppenheim, and others. At the session at Weisbaden in 1882, the Institute of International Law condemned the decision in the case of the Springbok in unsparing terms, 85 but this representative body of jurists of all nations finally adopted the American doctrine. At the meeting in Venice in 1896 the following rule was approved:
A destination for the enemy is presumed when the carriage of the goods is directed toward one of his ports or toward a neutral port which by evident proofs arising from incontestable facts is only a stage in a carriage to the enemy as the final object of the same commercial transaction.86
This phase of the controversy may be considered as closed.
There are some serious objections to the doctrine as applied to the law of blockade. In the case of contraband the guilt attaches to the goods but in blockade running the ship is the vehicle of offense and the goods merely follow its fate. When the ship is in good faith bound to a neutral port and it is intended to there transship the goods and carry them to the blockaded ports in another vessel, the theory seems to break down and the doctrine of continuous voyages or of continuous transport can be applied only if we modify the old theory. 87
83 Phillimore, Int. Law, vol. iii, p. 397; Westlake, Law Quar. Rev., vol. xv,p. 28. 84 41 L. J. N. S. C. P. affm. in Exchequer Chamber, 42 L. J. N. S. C. P. 111 note.
86 Rev. de Droit Int., tom. xiv, p. 328 (1882). The conclusions of the committee are printed in Rivier, Principes du droit des gens, tom. 2, p. 433, in Moore, Int. Law Dig., vol. vii, p. 731.
$0 La destination pour l'ennemi est présumée lorsque le transport va à l'un des ses ports, ou bien à un port neutre qui d'après des preuvés évidentes et des fait incontestables n'est qu'un étape pour l'ennemi comme but final de la même opération commerciale.” (Annuaire de l'Institute de Droit Int., tom. xv, p. 231.)
87 Two Centuries of American Law, p. 551, International Law, by Prof. T. S. Woolsey.
Otherwise the application of the doctrine is entirely consistent with the general principles of the law of blockade as understood and applied by Great Britain and the United States and approved by Prussia and Denmark, but inconsistent with the theory and practice of France, Italy, Spain and Sweden. The British and American practice subjects the ship to capture and condemnation from the time it sails for a port, the blockade of which has been diplomatically notified unless the port from which the vessel sails is so distant from the seat of war as to justify her master in starting with a destination known to be blockaded, on the chance of finding that the blockade has been removed and should that not prove to be the case with the intention of changing her destination.88
Under the French practice a ship has the right to proceed to the entrance of the blockaded port and there learn whether the blockade then exists. Special notice to each vessel duly endorsed on the ship’s papers is necessary in addition to any public proclamation which may have been issued by the government. The doctrine is, of course,
89 inapplicable to the law of blockade if this rule is to be accepted, but it is consistent with the British and American rule under which the neutral trader subjects his property to confiscation immediately upon sailing with a clear destination for a blockaded port. As the test of criminality is found in the intention, the entire proceedings from the time of sailing are open to investigation. The right to capture the ship at any time after it sails for the blockaded port presupposes the existence of a legal blockade and the necessity for this legal blockade is in nowise affected by the interposition of a neutral port for the
88 Holland, Prize Law, $133; United States Naval Code, Art. 42; Taylor, Int. Law, p. 769; Oppenheim, Int. Law, vol. ii, p. 413; Bulmerincq, Revue de Droit Int., tom. x, p. 240; the Betsy, 1 C. Rob. 34.
80 Calvo, Le Droit Int., tom. v, $2846, et seq; Pistoye & Duverdy, Traité des Prises Maritimes, tom. i, p. 370.
9o Bonfils, Manuel de droit Int. public (4 ed.), $1665; De Boeck, De la Propriété Privée, $175; Geffcken, Heffter, Le droit Int. (4th ed. French), p. 379, note 9; Depuis, Le Droit de la Guerre Maritime, $194–5; Pillet, Les Lois Actuelles de la Guerre, $216.
Taylor, Int. Law, p. 680. The ship cannot be admitted to even approach the blockaded port for the purpose of inquiry. The Irene, 5 C. Rob. 390. For an extreme application of this principle, see the Adula, 176 U. S. 361, and the comments of the defeated counsel thereon in report of the Universal Congress of Lawyers and Jurists, 1904, pp. 248–250.