International Law

by

Henry Maine

LECTURE III.
STATE SOVEREIGNTY

I now propose to occupy you with a group of questions arising out of a subject of much interest and magnitude -- the Sovereignty of states over land and water. I will first quote a definition of Sovereignty which would fairly, I think, satisfy the jurists of the present day. It is taken from an excellent book by the late Mr. Montague Bernard, of which the title is, 'The Neutrality of Great Britain during the American Civil War.' The definition is primarily a definition of a Sovereign State. 'By a Sovereign State,' says Mr. Bernard, 'we mean a Community or number of persons permanently organised under a Sovereign Government of their own, and by a Sovereign Government we mean a Government, however constituted, which exercises the power of making and enforcing law within a Community, and is not itself subject to any superior Government. These two factors, the one positive, the other negative, the exercise of power and the absence of superior control, compose the notion of Sovereignty and are essential to it.'

It is necessary to observe that the conception of Sovereignty went through several changes before it became capable of this description. The view of Sovereignty taken by the earliest international jurists in the sixteenth and seventeenth centuries appears tome to be taken from Roman Law. It is at bottom dominium dominion, ownership. We should not be far wrong in saying that these writers regard the civilised world as a space of soil divided between a number of Roman proprietors; much of their language is taken directly from Roman Law; and, as usual, it is taken particularly from those rules of the Roman system which the Romans themselves believed to be identical with the rules of the Law of Nature. Many fundamental principles are explained by this view. Thus all States, in International Law, are regarded as equal. As a writer of the last century said, Russia is regarded as is Geneva; and in the same way so would a set of Roman owners be regarded as equal before the law. Again, International Law pays regard to Sovereigns only, it does not regard any other part of the community any more than a Roman tribunal would regard the slaves and freedmen of a Roman estate. I think too that these jurists, on the whole, regard the Sovereign as an individual man. It is true that so many of them belonged to the few republics then existing, and specially to the United Provinces of the Netherlands, that they were of course aware of the necessity of occasionally contemplating the Sovereign as a corporation; but on the whole the view which is at the basis of their conception is that the Sovereign is an individual; and sovereigns are regarded by these lawyers as absolute and not merely paramount owners of the states which they govern. They do not fool; below the existing Prince or Ruler, who had been originally a man exercising despotic power. Further, Sovereignty is at this date always associated with a definite portion of the earth's surface.

But Sovereignty, or what corresponded in ancient time most nearly to it, was not primitively associated with all these ideas; they took the place of other ideas of older date. Thus Sovereignty was not always territorial; it was not always associated with a definite portion of the earth's surface. I have pointed out, in the work from which I have several times quoted, that the older ideas are reflected in the titles of the earliest Monarchs in Western Europe. These were Rex Anglorum, Rex Francorum, Rex Scotorum -- King of the English, King of the Franks, King of the Scots. And one of the most pathetic figures in history is still always known to us as the 'Queen of Scots.' Evidently the fundamental conception was that the territory belonged to the Tribe, and that the Sovereign was Sovereign of the Tribe. The fact is that the feudalisation of Europe had to be completed before it was possible that Sovereignty could be associated with a definite portion of soil. The investigation of the process which we call feudalisation does not belong to this branch of Historical Jurisprudence: but there is no doubt that in the long run Sovereignty came always to be associated with the last stage of this process. The lawyers on the whole regard Sovereignty as the Sovereignty exercised by individuals, and the result was extremely important to International Law, for the assumed individuality of sovereigns enabled its founders to regard states as moral beings bound by moral rules. If the units of the International system had continued to be what they apparently were at first, tribes or collections of men, it is doubtful whether that system could have been constructed, and at all events, whether it could have taken its actual present form.

Some of the words in Mr. Bernard's definition reflect a much later influence upon law -- e.g. that of Mr. John Austin. He gives to the position that a sovereign Government cannot be controlled by another, an importance which can hardly be said to belong to it in International Law. The position is, in fact, indispensable in Austin's system. There is, in his view, an all-powerful portion of every community which can do what it pleases as regards the rest, and this all-powerful portion or Sovereign is the author of law. No objection can be taken to it from the view of Austin's theory; but it should be always carefully remembered in our branch of jurisprudence that Mr. John Austin's definition of Sovereignty is not that of International Law, though in almost all the very modern treatises which have dealt with this subject solve confusion between the two is observable. It is necessary to the Austinian theory that the all-powerful portion of the community which make laws should not be divisible, that it should not share its power with anybody else, and Austin himself speaks with some contempt of the semi-sovereign or demi-sovereign states which are recognised by the classical writers on International Law. But this indivisibility of Sovereignty, though it belongs to Austin's system, does not belong to International Law. The powers of sovereigns are a bundle or collection of powers, and they may be separated one from another. Thus a ruler may administer civil and criminal justice, may make laws for his subjects and for his territory, may exercise power over life and death, and may levy taxes and dues, but nevertheless he may be debarred from making war and peace, and from having foreign relations with any authority outside his territory. This in point of fact is the exact condition of the native princes of India; and states of this kind are at the present moment rising in all the more barbarous portions of the world. In the protectorates which Germany, France, Italy, and Spain have established in the Australasian seas and on the coast of Africa, there is no attempt made to annex the land or to found a colony in the old sense of the word, but the local tribes are forbidden all foreign relations except those permitted by the protecting state. As was the declared intention of the most powerful founder of protectorates of this kind, Prince Bismarck, if they were to resemble anything they were to resemble India under the government of the East India Company.

As a matter of fact nearly all the modern writers on International Law do divide the rights flowing from the Sovereignty of states into groups. Their distribution of those rights is not uniform, and some of their divisions are more defensible than others. Grotius divided the law of which he wrote, as is known from the title of his book, into law of war and law of peace; and writers of our day, following this distribution, but falling into an error into which Grotius did not fall, classify all the rights of states as rights of war and rights of peace. Some modern publicists make a more general division into two classes; first, primary rights or absolute rights, and in the second place conditional or hypothetical rights; the first being the rights to which a state is entitled as an independent moral body, or in other words that to which it is entitled during peace; the conditional rights being those to which it is entitled when placed in special circumstances, the special circumstances contemplated being war. The subject of rights and duties, arising in a condition of war, will be taken up at a different point of this course, and to-day we will confine ourselves to the absolute or primary rights, those which a state possesses during peace. I observe in modern writers a tendency so to state this part of the law, and so to argue, as to suggest that these absolute rights are nothing more than those which may be logically inferred from the mere fact that a state has existence. This is very simply put in the account of the same class of rights which is given by the author of a valuable work on International Law, Mr. Hall. He says: 'Under the conditions of state life the right to continue and develop existence gives to a stare other classes of rights. These are: first, to organise itself in such manner as it may choose; secondly, to do within its dominions whatever acts it may think calculated to render it prosperous and strong; thirdly, to occupy unappropriated territory and to incorporate new provinces with the free consent of the inhabitants, provided that the rights of another state over any such province are not violated by its incorporation. Thus with regard to the first power or right which is alleged to reside, by the nature of the case, in a sovereign state, the power of organising itself in such a manner as it may choose, it follows that such a state may place itself under any form of government that it wishes, and may frame its social institutions upon any model. To foreign states, the political or social doctrines which may be exemplified in it, or which may spread from it, are legally immaterial.'

This is correct law, and in our day I do not doubt that to most minds it would seem plain that, the condition of Sovereignty being taken for granted, these rights so stated follow. But, as a matter of fact, confining ourselves to this branch of state powers, none have been more violently denied or disputed; and if they were preserved it is far less owing to their logical connection with the definition of state Sovereignty, than from the fact that, from the very first, the position that they exist has been plainly stated by the international lawyers. And the fact that these rights have been preserved is a signal tribute to the importance of International Law. It happens that the long peace which extended from 1815 to 1854 was, both at its beginning and at its end, all but broken up by the denial of these simple rights of which I have been speaking. The pacification of the Continent, after the overthrow of the French Empire, was succeeded by a series of movements instituted by communities for the purpose of obtaining Constitutions; that is, for guarding against being remitted to the same condition of despotic rule in which the French Revolution had found them. All these Constitutions had for their object the limitation of the powers of the King. Perhaps the most democratic of them was the one known as the Spanish Constitution of 1812. When in fact the Spanish Cortes at Cadiz framed this Constitution, Ferdinand, the King of Spain, was in the hands of the French; and therefore the Spanish Constitution-makers had to contemplate a Constitution suitable to a country from which the King would be, perhaps, permanently absent. Naturally, therefore, the powers of the King were in this Constitution reduced to very little. The King of Spain, on his return from imprisonment, denounced this Constitution, but it obtained great favour in certain parts of Europe, and in 1820 the Neapolitans, after a revolution, compelled their King to grant a Constitution which was a copy of it. Much dismay was caused to the Continental Powers which retained their despotisms, and the Congresses of Laybach and Troppau assembled to consider the danger of the spread of what were then known as 'French principles' from Naples to the rest of Europe. It was finally determined that the Neapolitan Constitution should be modified, and that compulsion should be put on the not very reluctant King by the arms of Austria. Great Britain, however, protested against the decision. Soon afterwards the Constitution of 1812 was adopted after a military rising in Spain itself. This led to the assemblage of the Congress of Verona and to the restoration of the Spanish despotism, the compulsion on this occasion being put upon Spain by France.

Before, however, the European peace finally broke up, the current had turned in the other direction; and Great Britain, whose foreign affairs were now directed by Lord Palmerston, employed its influence to assist states which desired to obtain Constitutions. In addition to the desire for popular government the spirit of nationality had now come into play; and the ultimate result was the intervention of Napoleon III in Italy and the destruction of the Italian despotisms. Therefore all the Powers in Europe, during the peace, did in turn act upon principles from which the inference might be drawn that they denied the right of a state under certain circumstances to adopt what political Constitution it pleases; nevertheless this rule of law in the long run prevailed; nor can there be the slightest question that it is of the greatest value. Of all rules of public law it is the one which does most to prevent the whole of the civilised world being brought under an iron-bound theory of government. It enables theories of government to be tested by experiment in several states, and prevents any one of them from overwhelming the rest whether in the name of order or in the name of freedom.

I pass now to the second of the rules which I have quoted from Mr. Hall. Every sovereign state is entitled to do, within its dominions, whatever acts it may think calculated to render it prosperous and strong. Two consequences follow from this position. A state may take what measures it pleases for its own defence; and a state may adopt whatever commercial sytstem it thinks most likely to promote its prosperity. That a state has these powers is not now denied, and would not, I think, be disputed; but nevertheless if the existence of these rights had not now for two centuries been affirmed by International Law, I think they would have turned out to be full of pretexts for war. Even at this moment the patience of states is hardly tried by the way in which their neighbours act upon the principle. Take France and Germany. Rarely in the history of the world have there been such achievements of military engineering as are exemplified in the fortresses which line the long border of the two countries. Every one of those fortresses is just as available for attack as for defence; and knowing what men are, it is really wonderful that no complaint has at present been made of the mere fact of their construction. Take again two dependencies of European countries, which are really great countries standing on a footing of their own British India and Asiatic Russia. These are not countries in which fortresses are, or are likely to be, constructed in any large number. The conditions of climate and other difficulties render them defences of no great value; but either Power is engaged at vast outlay in creating a system of railways within its own countries; and we can see even now that any fresh railway constructed within the border of the one country gives rise at least for criticism and private complaint on the part of the other. I do not think we can doubt that if International Law had not been perfectly clear and precise on the subject of these rights, alleged to flow from the Sovereignty of states, they would conduce to every variety of complaint followed by every variety of war. What really enables states to exercise their Sovereignty in this way is nothing but the legal rule itself.

So also with regard to commercial systems. They differ enormously in contiguous communities. There is no question that of old the English Navigation Laws were bitterly disliked by a great part of Europe; and now there is a standing difference between a number of communities on the subject of Free Trade and Protection, and but for the rule affirming the unrestricted right to adopt such commercial system as a country pleases, this difference of economical opinion would undoubtedly be most dangerous. As the law stands, a state may directly and deliberately legislate against the particular industries of another; and so far as we are concerned we have so fully acquiesced in this principle that we allow our colonies to exercise the privileges once grudgingly conceded to independent states, and to exclude our manufactures by prohibitory fiscal provisions.

The third of Mr. Hall's rules states theta sovereign state has an unlimited power to occupy unappropriated territory. Here is a very great question, which was the fertile source of quarrel in the seventeenth and eighteenth centuries, and which perhaps may assume a new importance in the twentieth. The discovery of the American continent and the growth of maritime adventure gave fresh interest to a subject; which had been left in neglected obscurity, and the rising international system was not at first ready with rules to meet it. The first tendency of International Law was to attribute an exaggerated importance to priority of discovery. It was thought by the earlier jurists to be the same thing in principle as the Roman Inventio, the form of occupation by which under the Law of Nature property was acquired in a valuable object, such as a jewel, belonging to nobody. But in our days prior discovery, though still held in considerable respect, is not universally held to give an exclusive title. The United States indeed have not unreservedly agreed to the degradation of first discovery from its old consideration. In 1843 that Government protested against the ground taken by the British Foreign Office that a discovery made by a private individual, in the prosecution of a private enterprise, gives no international right. But the American Secretary of State in the same despatch admitted it to be a point not yet settled by the usage of nations, hoer far discovery of a territory which is either unsettled or settled only by savages gives a right to it. (Wharton, i. 5.) But this inconvenience of resting rights upon mere discovery has caused more distinct forms of occupation or annexation to be preferred to it. Nearly all titles of discovery are of old date, and many of these are matters of historical dispute; while at the same time the world is so well known that new titles of discovery are rare. On the whole, some kind of formal annexation of new territory is now regarded as the best source of title. It is still allowed that prior discovery, if established, may give legal importance to acts and signs otherwise ambiguous or without validity. A cairn of stones, a Flagstaff or the remains of one, may mean little or nothing if found on a desolate coast; but if it can be shown to have been put up by the first discoverers, it may obtain great significance and importance. All discovery is now disregarded, unless it be followed by acts showing an intention to hold the country as your own, the most conclusive of these acts being the planting upon it some civil or military settlement.

A great distinction is now drawn between appropriators of new territory who are furnished with a general or special authority to effect the annexation, and appropriators who have no such authority. If the state to which the commissioned appropriator belongs should afterwards ratify the appropriation, a good international title would be acquired by it, and so also if authority to appropriate on behalf of the state had been originally given. In the case of an uncommissioned navigator, something more than a mere formal assumption of possession is required. For example, if a body of adventurers establish themselves in a previously unappropriated country, declaring it at the same time to belong to the state of which they are subjects, this state may ratify their act and declaration, and the title is made complete; but if an uncommissioned navigator takes possession of a new country in the name of his Sovereign, and then sails away without forming a settlement, the modern doctrine is that this originally imperfect title cannot afterwards be completed by ratification, and is liable meanwhile to be set aside by the independent acts of other sovereigns.