SUMMARY.
| The administration of justice by the state a permanent necessity. | ||
| The origin of the administration of justice. | ||
| Justice | Criminal—The punishment of wrongs. | |
| Civil—The enforcement of rights. | ||
| Crimes not necessarily public wrongs. | ||
| Purposes of punishment:— | ||
| 1. Deterrent. | ||
| 2. Preventive. | ||
| 3. Reformative. | ||
| 4. Retributive. | ||
| Civil Justice | Enforcement of primary rights—Specific enforcement. | |
| Enforcement of sanctioning rights—Sanctional enforcement. | ||
| Sanctional enforcement | Compensation | Restitution. |
| Penal redress. | ||
| Penalty | ||
| Justice | Remedial—independent of the idea of punishment—always civil. | |
| Penal—involving the idea of punishment—civil or criminal. | ||
| Subsidiary functions of courts of justice:— | ||
| 1. Petitions of right. | ||
| 2. Declarations of right. | ||
| 3. Administration of property. | ||
| 4. Creation, transfer, and extinction of rights. | ||
CHAPTER V.
THE STATE.
§ 36. The Nature and Essential Functions of the State.
A complete analysis of the nature of law involves an inquiry into the nature of the state, for it is in and through the state alone that law exists. Jurisprudence is concerned, however, only with the elements and first principles of this matter. An exhaustive theory of political government pertains not to jurisprudence, but to the allied science of politics. From the lawyer nothing more is required than such an understanding of the essential nature of the state, as is sufficient and necessary for the establishment of sound juridical theory.
A state or political society is an association of human beings established for the attainment of certain ends by certain means. It is the most important of all the various kinds of society in which men unite, being indeed the necessary basis and condition of peace, order, and civilisation. What then is the essential difference between this and other forms of association? In what does the state essentially differ from such other societies as a church, a university, a joint-stock company, or a trade union? The difference is clearly one of function. The state must be defined by reference to such of its activities and purposes as are essential and characteristic.
But the modern state does many things, and different things at different times and places. It is a common carrier of letters and parcels, it builds ships, it owns and manages railways, it conducts savings banks, it teaches children, and feeds the poor. All these cannot be of its essence. It is possible, however, to distinguish, among the multitudinous operations of government, two which are set apart as primary and essential. These two are war and the administration of justice. The fundamental purpose and end of political society is defence against external enemies, and the maintenance of peaceable and orderly relations within the community itself. It would be easy to show by a long succession of authorities that these two have always been recognised as the essential duties of governments. The Israelites demanded a king, that he “may judge us, and go out before us, and fight our battles;”[[94]] and this conception of the primary end and aim of sovereignty obtains recognition still as true and adequate. Leviathan, as Hobbes[[95]] tells us, carries two swords, the sword of war and that of justice. This is the irreducible minimum of governmental action. Every society which performs these two functions is a political society or state, and none is such which does not perform them. How much activity in other directions may be profitably combined with them is a question with which we are not here concerned. We are dealing with the definition, and therefore with the essence, not with the accidents of political society.[[96]]
It is not difficult to show that war and the administration of justice, however diverse in appearance, are merely two different species of a single genus. The essential purpose of each is the same, though the methods are different. Each consists in the exercise of the organised physical force of the community, and in each case this force is made use of to the same end, namely, the maintenance of the just rights of the community and its members. We have already seen that in administering justice the state uses its physical power to enforce rights and to suppress and punish wrongs. Its purpose in waging war—that is to say, just war, which is the only kind which can be regarded as an essential form of state activity—is the same. These two primary functions are simply the two different ways in which a political society uses its power in the defence of itself and its members against external and internal enemies. They are the two methods in which a state fulfils its appointed purpose of establishing right and justice by physical force.
What, then, is the essential difference between these two functions? It lies apparently in this, that the administration of justice is the judicial, while war is the extrajudicial use of the force of the state in the maintenance of right. Force is judicial, when it is applied by or through a tribunal, whose business it is to judge or arbitrate between the parties who are at issue. It is extrajudicial when it is applied by the state directly, without the aid or intervention of any such judge or arbitrator. Judicial force involves trial and adjudication, as a condition precedent to its application; extrajudicial force does not. Judicial force does not move to the maintenance of rights or the suppression of wrongs, until these rights and wrongs have been authoritatively declared and ascertained by the formal judgment of a court. The primary purpose of judicial force is to execute judgment against those who will not voluntarily yield obedience to it. Only indirectly, and through such judgment, does it enforce rights and punish wrongs. But extrajudicial force strikes directly at the offender. It recognises no trial or adjudication as a condition of its exercise. It requires no authoritative judicial declaration of the rights protected or of the wrongs punished by it. When a rebellion or a riot is suppressed by troops, this is the extrajudicial use of force; but when, after its suppression, the rebels or rioters are tried, sentenced, and punished by the criminal courts, the force so used is judicial. To shoot a man on the field of battle or at a barricade is war; to shoot him after capture and condemnation by a court martial is the administration of justice.[[97]]
In addition to the essential difference which we have just noticed, there are several minor and unessential differences, which are commonly, though not invariably present. The chief of these are the following:
1. Judicial force is regulated by law, while the force of arms is usually exempt from such control. Justice is according to law; war is according to the good pleasure of those by whom it is carried on. Inter arma leges silent is a maxim which is substantially, though not wholly, true. The civil law has little to say as to the exercise by the state of its military functions. As between the state and its external enemies, it is absolutely silent; and even as to the use of extrajudicial force within the body politic itself, as in the suppression of riots, insurrections, or forcible crimes, the law lays down no principle save this, that such force is allowable when, and only when, it is necessary. Necessitas non habet legem. Within the community the law insists that all force shall be judicial if possible. This protection against extrajudicial force—this freedom from all constraint save that which operates through the courts of law and justice—is one of the chief privileges of the members of the body politic. We accept it now as a matter of course, but in older and more turbulent days it was recognised as a benefit to be striven for and maintained with anxious vigilance.[[98]]
2. In the second place judicial force is commonly exercised against private persons, extrajudicial force against states. It is clear, however, that this is not necessarily or invariably the case. It is not impossible that one state should administer justice between two others, or between another state and itself. And on the other hand, it may wage war with its own subjects, or with pirates or other persons who do not constitute a political society.
3. Thirdly, the administration of justice is generally the internal, while war is generally the external exercise of the power of the state. In other words, the state commonly proceeds against internal enemies by way of judicial, and against external enemies by way of extrajudicial force. The administration of justice is the right and privilege of the members of the body politic itself. Those who stand outside the community—whether they are individuals or states—have no claim to the impartial arbitrament of judicial tribunals, and may be struck at directly by the armed and heavy hand of the state. Yet this also is merely a general, and not an invariable rule.
4. Fourthly and lastly, in the administration of justice the element of force is commonly latent or dormant, whereas in war it is seen in actual exercise. Those persons against whom the state administers justice are commonly so completely within its power, that they have no choice save voluntary submission and obedience. It is enough that the state possesses irresistible force and threatens to use it; its actual use is seldom called for. In war, on the other hand, there is commonly no such overwhelming disparity of power, and a state which in this fashion seeks to impose its will on others must usually go beyond threats to their actual execution. Hence it is, that in the administration of justice the element of trial and adjudication is in appearance far more predominant and important than that of force. Viewed externally and superficially, this function of the state looks like the elimination of force as a method of the settlement of controversies, and the substitution of peaceful arbitration. But it is not so. Force is the essence of the administration of justice, no less than of war; but for the most part it lies latent and concealed. The establishment of courts of justice marks not the substitution of arbitration for force, but the substitution of one kind of force for another—of public force for private, of judicial force for extrajudicial, of latent and threatened force for that which is actually exercised. As states increase in power, this difference between their two essential functions is intensified. In feeble, turbulent, and ill-governed states the element of force in the administration of justice tends to come to the surface. The will of the state no longer receives implicit obedience from those that are subject to its jurisdiction. It may be necessary to execute the judgments of the courts by military force, and there may be little difference of external aspect between the use of judicial force in the execution of a judgment, and the use of extrajudicial force in the suppression of riot, rebellion, or civil war.[[99]]
§ 37. Secondary Functions of the State.
The secondary functions of the state may be divided into two classes. The first consists of those which serve to secure the efficient fulfilment of the primary functions, and the chief of these are two in number, namely legislation and taxation. Legislation is the formulation of the principles in accordance with which the state intends to fulfil its function of administering justice. Taxation is the instrument by which the state obtains that revenue which is the essential condition of all its activities. The remaining class of secondary functions comprises all other forms of activity which are for any reason deemed specially fit to be undertaken by the state. This special fitness may proceed from various sources. It is derived partly from the fact that the state represents the whole population of an extensive territory; partly from the fact that it possesses, through the organised physical force at its command, powers of coercion which are non-existent elsewhere; and partly from the fact that its financial resources (due to the exercise of its coercive powers by way of taxation) are immensely beyond those of all other persons and societies. Considerations such as these have, especially in modern times, induced the state to assume a great number of secondary and unessential functions which, in a peaceful and law-abiding community, tend even to overshadow and conceal from view those primary functions in which the essential nature of the state is to be found.
§ 38. The Territory of the State.
The territory of a state is that portion of the earth’s surface which is in its exclusive possession and control. It is that region throughout which the state makes its will permanently supreme, and from which it permanently excludes all alien interference. This exclusive possession of a defined territory is a characteristic feature of all civilised and normal states. It is found to be a necessary condition of the efficient exercise of governmental functions. But we cannot say that it is essential to the existence of a state. A state without a fixed territory—a nomadic tribe for example—is perfectly possible. A non-territorial society may be organised for the fulfilment of the essential functions of government, and if so, it will be a true state. Such a position of things is, however, so rare and unimportant, that it is permissible to disregard it as abnormal. It is with the territorial state that we are alone concerned, and with reference to it we may accordingly define a state as a society of men established for the maintenance of peace and justice within a determined territory by way of force.
§ 39. The Membership of the State.
Who then are the members of this society, and by what title do men obtain entrance into it? In all civilised communities the title of state-membership is twofold, and the members of the body politic are of two classes accordingly. These two titles are citizenship and residence. The former is a personal, the latter merely a territorial bond between the state and the individual. The former is a title of permanent, the latter one of temporary membership of the political community. The state, therefore, consists, in the first place, of all those who by virtue of this personal and permanent relationship are its citizens or subjects, and in the second place, of all those who for the time being reside within its territory, and so possess a temporary and territorial title to state-membership. Both classes are equally members of the body politic, so long as their title lasts; for both have claims to the protection of the laws and government of the state, and to such laws and government both alike owe obedience and fidelity. They are alike subject to the dominion of the state, and it is in the interests of both that the state exists and fulfils its functions.
These two titles of state-membership are to a great extent united in the same persons. Most British subjects inhabit British territory, and most inhabitants of that territory are British subjects. Yet the coincidence is far from complete, for many men belong to the state by one title only. They are British subjects, but not resident within the dominions of the Crown; or they are resident within those dominions, but are not British subjects. In other words, they are either non-resident subjects or resident aliens. Non-resident aliens, on the other hand, possess no title of membership, and stand altogether outside the body politic. They are not within the power and jurisdiction of the state; they owe no obedience to the laws, nor fidelity to the government; it is not for them or in their interests that the state exists.[[100]]
The practical importance of the distinction between the two forms of state-membership lies chiefly in the superior privileges possessed by citizens or subjects. Citizenship is a title to rights which are not available for aliens. Citizens are members optimo jure, while aliens stand on a lower level in the scale of legal right. Thus British subjects alone possess political as opposed to merely civil rights;[[101]] until a few years ago they alone were capable of inheriting or holding land in England; to this day they alone can own a British ship or any share in one; they alone are entitled when abroad to the protection of their government against other states, or to the protection of English courts of law against illegal acts of the English executive; they alone can enter British territory as of right; they alone are entitled to the benefit of certain statutes from the operation of which aliens are expressly or by implication excluded. It is true, indeed, that we must set off against these special privileges certain corresponding burdens and liabilities. Subjects alone remain within the power and jurisdiction of the Crown, even when they are outside its dominions. Wheresoever they are, they owe fidelity and obedience to the laws and government of their own state, while an alien may release himself at will from all such ties of subjection. Nevertheless the status of a subject is a privilege and not a disability, a benefit and not a burden. Citizenship is the superior, residence the inferior title of state-membership.
Viewing the matter historically, we may say that citizenship is a legal conception the importance of which is continuously diminishing. The consistent tendency of legal development is to minimise the peculiar rights and liabilities of subjects, and to make residence rather than citizenship the essential and sufficient title of state-membership. The acquisition and loss of citizenship are being gradually made easier, while the legal effects of its acquisition and loss are being gradually made less. The present state of things is, indeed, a compromise between two fundamentally different ideas as to the constitution of a political society. Citizenship and its remaining privileges are the outcome of the primitive conception of the state as a personal and permanent union of determinate individuals, for whose exclusive benefit the laws and government of the state exist. Residence, regarded as a title of membership and protection, is the product of the more modern conception of the state, as consisting merely of the inhabitants for the time being of a certain territory. The personal idea is gradually giving place to the territorial, and the present twofold title of membership is the outcome of a compromise between these two coexistent and competing principles. It is not suggested, indeed, that the final issue of legal development will be the total disappearance of personal in favour of territorial membership. A compromise between the two extreme principles, in some such form as that which has now been attained to, may well prove permanent. In the present condition of international relations it is clearly necessary.
We have seen that citizens are those members of a state, whose relation to it is personal and permanent, and who by virtue of this relation receive from the state special rights, powers, and privileges. If we ask further, what is the title of citizenship, or how this special bond of union is constituted, no general answer is possible. This is a matter of law, varying in different systems, and from time to time in the same system. English law claims as subjects all who are born within the dominions of the Crown, regardless of their descent; while French law, on the contrary, attaches French citizenship to French blood and descent, regardless in general of the place of birth.[[102]] Viewed, however, in respect of its historical origin and primitive form, we may say that citizenship has its source in nationality. Fellow citizens are those who belong not merely to the same state but also to the same nation.
It is quite common to use the term citizenship and nationality as synonymous, and this usage, though incorrect, is significant of a very real connexion between the two ideas. Nationality is membership of a nation; citizenship is one kind of membership of a state. A nation is a society of men united by common blood and descent, and by the various subsidiary bonds incidental thereto, such as common speech, religion, and manners. A state, on the other hand, is a society of men united under one government. These two forms of society are not necessarily coincident. A single nation may be divided into several states, and conversely a single state may comprise several nations or parts of nations. The Hellenes were of one blood, but formed many states, while the Roman empire included many nations, but was one state. Nevertheless nations and states tend mutually to coincidence. The ethnic and the political unity tend to coalesce. In every nation there is an impulse, more or less powerful, to develop into a state—to add to the subsisting community of descent a corresponding community of government and political existence. Conversely every state tends to become a nation; that is to say, the unity of political organisation eliminates in course of time the national diversities within its borders, infusing throughout all its population a new and common nationality, to the exclusion of all remembered relationship with those beyond the limits of the state.
The historical origin of the conception of citizenship is to be found in the fact that the state has grown out of the nation. Speaking generally we may say that the state is in its origin the nation politically organised. It is the nation incorporated for the purposes of government and self-defence. The citizens are the members of a nation which has thus developed into a state. Citizenship is nationality that has become political. Men become united as fellow-citizens, because they are, or are deemed to be, already united by the bond of common kinship. It is for their benefit and protection that the body politic has been established, and they are its only members. Their citizenship is simply a legal and artificial bond of union superimposed upon the pre-existing bond of a common nationality. With aliens this national state has no concern. It was not created on their behalf, and they have no part or lot in it, for its law and government are the exclusive birthright of its citizens. Only by slow degrees does the notion of territorial membership arise and make good its claim to legal recognition. Gradually the government and the laws cease to be exclusively national and personal, and become in part territorial also. The new principle makes its way, that the state exists for the benefit and protection of the whole population of a certain territory, and not merely on behalf of a certain nationality. The law becomes more and more that of a country, rather than that of a people. State-membership becomes twofold, residence standing side by side with citizenship. It becomes possible to belong to the Roman state without being a Roman. The citizens consent to share their rights with outsiders, but the two classes never reach equality, and the personal union stands permanently on a higher level than the territorial. The special privileges retained by citizens at the present day are the scanty relics of the once exclusive claims of the nation to the protection and activities of the state.[[103]]
The relation between a state and its members is one of reciprocal obligation. The state owes protection to its members, while they in turn owe obedience and fidelity to it. Men belong to a state in order that they may be defended by it against each other and against external enemies. But this defence is not a privilege to be had for nothing, and in return for its protection the state exacts from its members services and sacrifices to which outsiders are not constrained. From its members it collects its revenue; from them it requires the performance of public duties; from them it demands an habitual submission to its will, as the price of the benefits of its guardianship. Its members, therefore, are not merely in a special manner under the protection of the state, but are also in a special manner under its coercion.
This special duty of assistance, fidelity, and obedience, is called allegiance, and is of two kinds, corresponding to the two classes of members from whom it is required. Subjects owe permanent allegiance to the state, just as they are entitled to its permanent protection. Resident aliens owe temporary allegiance during the period of their residence, just as their title to state protection is similarly limited. An alien, when in England, must be faithful to the state, must submit to its will, and obey its laws, even as an Englishman; but when he leaves English shores, he leaves behind him his obligation of allegiance, together with his title to protection. A British subject, on the other hand, takes both of these things with him on his travels. The hand of the state is still upon him for good and evil. If he commits treason abroad he will answer for it in England. The courts of justice will grant him redress even against the agents of the Crown itself; while the executive will see that no harm befalls him at the hands of foreign governments.[[104]]
§ 40. The Constitution of the State.
In the definition of a state as a society with a special end and function, there is implied a permanent and definite organisation—a determinate and systematic form, structure, and operation. A body politic is not constituted by a temporary and casual union of individuals, for the purpose of repelling an external enemy, or of executing judgment on some domestic evildoer. The transition from natural to political society is effected only when the union of individuals has assumed a certain measure of permanence and organisation, and when their combined operations in pursuit of their common end have become in a certain degree systematic and definite. It is only when a society has acquired such an organisation, whether by way of agreement, custom, forcible imposition, or otherwise, that it takes on the nature of a body politic or state. It is only then, that there comes into existence the organ which is essential to the performance of those functions which constitute political government.
The organisation of a modern state is of extraordinary complexity, and it is usual to regard it as divisible into two distinct parts. The first consists of its fundamental or essential elements; the second consists of its secondary elements—the details of state structure and state action. The first, essential, and basal portion is known as the constitution of the state. The second has no generic title.
Constitutional law is, as its name implies, the body of those legal rules which determine the constitution of the state. It is not possible to draw any hard and fast line between the constitution and the remaining portions of the state’s organisation; neither, therefore, is it possible to draw any such line between constitutional law and other branches of the legal system. The distinction is one of degree, rather than one of kind, and is drawn for purposes of practical convenience, rather than in obedience to any logical requirement. The more important, fundamental, and far-reaching any principle or practice is, the more likely it is to be classed as constitutional. Conversely, the more special, detailed, and limited in its application, the less likely it is to find a place in any exposition of the law and practice of the constitution. The structure of the supreme legislature and the methods of its action pertain to constitutional law; the structure and operations of subordinate legislatures, such as those possessed by the colonies, are justly entitled to the same position; but those of such subordinate legislatures as a borough council would by general consent be treated as not sufficiently important and fundamental to be deemed part of the constitution. So the organisation and powers of the Supreme Court of Judicature, treated in outline and not in detail, pertain to constitutional law; while it is otherwise with courts of inferior jurisdiction, and with the detailed structure and practice of the Supreme Court itself.
In some states, though not in England, the distinction between constitutional law and the remaining portions of the legal system is accentuated and made definite by the embodiment of the former in a special and distinct enactment, the terms of which cannot be altered by the ordinary forms of legislation. Such constitutions are said to be rigid, as opposed to those which are flexible. That of the United States of America, for example, is set forth in a document agreed upon by the founders of the Commonwealth as containing all those principles of state structure and action sufficiently important to be deemed fundamental and therefore constitutional. The provisions of this document cannot be altered without the consent of three-fourths of the legislatures of the different states. The English constitution on the other hand is flexible; it is defined and set apart in no distinct document, and is not distinguishable from the residue of the law in respect of the methods of its alteration.
We have defined constitutional law as the body of those legal principles which determine the constitution of a state—which determine, that is to say, the essential and fundamental portions of the state’s organisation. We have here to face an apparent difficulty and a possible objection. How, it may be asked, can the constitution of a state be determined by law at all? There can be no law unless there is already a state whose law it is, and there can be no state without a constitution. The state and its constitution are therefore necessarily prior to the law. How then does the law determine the constitution? Is constitutional law in reality law at all? Is not the constitution a pure matter of fact, with which the law has no concern? The answer is, that the constitution is both a matter of fact and a matter of law. The constitution as it exists de facto underlies of necessity the constitution as it exists de jure. Constitutional law involves concurrent constitutional practice. It is merely the reflection, within courts of law, of the external objective reality of the de facto organisation of the state. It is the theory of the constitution, as received by courts of justice. It is the constitution, not as it is in itself, but as it appears when looked at through the eye of the law.
The constitution as a matter of fact is logically prior to the constitution as a matter of law. In other words constitutional practice is logically prior to constitutional law. There may be a state and a constitution without any law, but there can be no law without a state and a constitution. No constitution, therefore, can have its source and basis in the law. It has of necessity an extra-legal origin, for there can be no talk of law, until some form of constitution has already obtained de facto establishment by way of actual usage and operation. When it is once established, but not before, the law can and will take notice of it. Constitutional facts will be reflected with more or less accuracy in courts of justice as constitutional law. The law will develop for itself a theory of the constitution, as it develops a theory of most other things which may come in question in the administration of justice.
As an illustration of the proposition that every constitution has an extra-legal origin, we may take the United States of America. The original constituent states achieved their independence by way of rebellion against the lawful authority of the English Crown. Each of these communities thereupon established a constitution for itself, by way of popular consent expressed directly or through representatives. By virtue of what legal power or authority was this done? Before these constitutions were actually established, there was no law in these colonies save that of England, and it was not by the authority of this law, but in open and forcible defiance of it, that these colonial communities set up new states and new constitutions. Their origin was not merely extra-legal; it was illegal. Yet so soon as these constitutions succeeded in obtaining de facto establishment in the rebellious colonies, they received recognition as legally valid from the courts of those colonies. Constitutional law followed hard upon the heels of constitutional fact. Courts, legislatures, and law had alike their origin in the constitution, therefore the constitution could not derive its origin from them. So also with every constitution that is altered by way of illegal revolution. By what legal authority was the Bill of Rights passed, and by what legal title did William III. assume the Crown? Yet the Bill of Rights is now good law, and the successors of King William have held the Crown by valid titles. Quod fieri non debet, factum valet.
Constitutional law, therefore, is the judicial theory, reflection, or image of the constitution de facto, that is to say, of constitutional practice. Here, as elsewhere, law and fact may be more or less discordant. The constitution as seen by the eye of the law may not agree in all points with the objective reality. Much constitutional doctrine may be true in law but not in fact, or true in fact but not in law. Power may exist de jure but not de facto, or de facto but not de jure. In law, for example, the consent of the Crown is no less necessary to legislation, than is that of the two houses of Parliament. Yet in fact the Crown has no longer any power of refusing its consent. Conversely, the whole system of cabinet government, together with the control exercised by the House of Commons over the executive, is as unknown in law as it is well established in fact. Even in respect of the boundaries of the state’s territories the law and the fact may not agree. A rebellious province may have achieved its de facto independence, that is to say, it may have ceased to be in the de facto possession and control of the state, long before this fact receives de jure recognition.
Nowhere is this discordance between the constitution in fact and in law more serious and obvious than in England. A statement of the strict legal theory of the British constitution would differ curiously from a statement of the actual facts. Similar discrepancies exist, however, in most other states. A complete account of a constitution, therefore, involves a statement of constitutional custom as well as of constitutional law. It involves an account of the organised state as it exists in practice and in fact, as well as of the reflected image of this organisation as it appears in legal theory.
Although the constitution de jure and the constitution de facto are not necessarily the same, they nevertheless tend towards coincidence. Constitutional law and practice react upon each other, each striving to assimilate the other to itself. The objective facts of state organisation tend to mould legal theory into conformity with themselves. They seek expression and recognition through legislation, or through the law-creating functions of the courts. Conversely, the accepted legal theory endeavours to realise itself in the facts. The law, although it necessarily involves a pre-existing constitution, may nevertheless react upon and influence the constitution from which it springs. It cannot create a constitution ex nihilo, but it may modify to any extent one which already exists. Constitutional practice may alter, while constitutional law remains the same, and vice versa, but the most familiar and effective way of altering the practice is to alter the law. The will of the body politic, as expressed through the legislature and the courts, will commonly realise itself in constitutional fact no less than in constitutional theory.
§ 41. The Government of the State.
Political or civil power is the power vested in any person or body of persons of exercising any function of the state. It is the capacity of evoking and directing the activities of the body politic. It is the ability to make one’s will effective in any department of governmental action. The aggregate of all the persons or groups of persons who possess any share of this civil power constitutes the Government of the state. They are the agents through whom the state, as a corporate unity, acts and moves and fulfils its end.
Legislative, judicial, and executive power.—In respect of its subject-matter, civil power is of three kinds, distinguished as legislative, judicial, and executive; and the government is similarly divisible into three great departments, namely, the legislature, the judicature, and the executive. The functions which pertain to the first and second of these departments have been already sufficiently explained. The executive is simply the residue of the government, after deducting the legislature and the judicature.
Sovereign and subordinate power.—In respect of its extent civil power, whether legislative, judicial, or executive, is of two kinds, being either sovereign or subordinate. Sovereign or supreme power is that which is absolute and uncontrolled within its own sphere. Within its appointed limits, if any, its exercise and effective operation are not dependent on or subject to the power of any other person. An act of sovereign power is one which cannot be prevented or annulled by any other power recognised by the constitution of the state. Subordinate power, on the other hand, is that which, even in its own sphere of operation, is in some degree subject to external control. There exists some other constitutional power which is superior to it, and which can prevent, restrict, or direct its exercise, or annul its operation.[[105]]
§ 42. Independent and Dependent States.
States may be classified in two different ways: (1) with respect to their external relations to other states and (2) with respect to their internal composition. The former mode has regard to their international, the latter to their constitutional position and structure. Classified internationally or externally, all states are of two kinds, being either independent or dependent. Classified constitutionally or internally, they are also of two kinds, being either unitary or composite.
An independent or sovereign state is one which possesses a separate existence, being complete in itself, and not merely a part of a larger whole to whose government it is subject. A dependent or non-sovereign state, on the other hand, is one which is not thus complete and self-existent, but is merely a constituent portion of a greater state which includes both it and others, and to whose government it is subject. The British Empire, the United States of America, and the Kingdom of Italy are independent states. But the Commonwealth of Australia, the Dominion of Canada, and the States of California and New York are dependent, for they are not self-existent, but merely parts of the British Empire and of the United States of America respectively, and subject to their control and government.
It is maintained by some writers that a dependent state is not, properly speaking, a state at all—that the constituent and dependent parts of an independent state may be termed colonies, provinces, territories, and so on, but have no valid claim to the name of state. This objection, however, seems unfounded. It is contrary to the received usage of speech, and that usage seems capable of logical justification. Whether a part of a thing is entitled to the same name as the whole depends on whether the whole and the part possess the same essential nature. A part of a rope is itself a rope, if long enough to serve the ordinary purposes of one; but part of a shilling is not itself a shilling. Whether, therefore, any territorial division of a state is to be classed as itself a state depends on whether, in itself and in isolation, it possesses and fulfils the essential functions of one. This in its turn depends on the extent of the autonomy or independent activity which is permitted to it by the constitution. Speaking generally, we may say that any such division which possesses a separate legislature, judicature, and executive, and is thus separately organised for the maintenance of peace and justice, is entitled to be regarded as itself a state. The Commonwealth of Australia is a true state, though merely a part of the larger state of the British Empire, for it conforms to the definition of a state, as a society established and organised for the administration of justice and for external defence. Were it to become independent, it could, without altering its constitution, or taking upon itself any further function than those which it now possesses, stand alone as a distinct and self-sufficient political community. But a municipal corporation or a district council has not in itself the nature of a political society, for it does not in itself fulfil the essential ends of one.
International law takes account only of independent or sovereign states, for it consists of the rules which regulate the relations of such states to one another. A dependent state is not an international unit, and possesses no international personality. Internationally regarded, its existence is simply a detail of the internal constitution of the larger and independent state of which it forms a part. This internal structure pertains exclusively to the constitutional law of the state itself, and the law of nations is not concerned with it. The existence of the Dominion of Canada or of the State of Victoria is a constitutional, not an international fact, for in the eye of the law of nations the whole British Empire is a single undivided unit.[[106]]
Independent states are themselves of two kinds, distinguished as fully sovereign and semi-sovereign. A fully sovereign state is, as its name imports, one whose sovereignty is in no way derogated from by any control exercised over it by another state. It is possessed of absolute and complete autonomy. A semi-sovereign state, on the other hand, is one which is to a greater or less extent subordinate to some other, its sovereignty or autonomy being imperfect by reason of external control. The authority so exercised over it is termed a protectorate or sometimes suzerainty. Most independent states are fully sovereign, the others being few in number and anomalous in character. An example is Zanzibar, which stands in this relation to the British Empire.
It is carefully to be noticed that semi-sovereign states are independent, in the sense already explained. They are self-existent, international units, and not merely parts of the state under whose control they are. Zanzibar is not part of the British Empire. These are two distinct states, bearing towards each other a relation which is international and external, and not merely constitutional and internal. In order that a state should be dependent or non-sovereign, it is not enough that it should be under the control of another state; it must also be a constituent part of the state under whose control it is. The mere exercise of a partial dominion by one state over another does not of necessity incorporate the two into a higher unity. The establishment of a protectorate is not equivalent to annexation. The acts of the one state are not imputed to the other; the property and territory of the one are not those of the other also; the subjects of the one are not those of the other; one may be at peace while the other is at war. The Ionian Islands were formerly a protected state under the control of Great Britain; but during the Crimean War they remained neutral and at peace.
A semi-sovereign state is in a position of unstable equilibrium. It is the outcome of a compromise between dependence and independence, which, save in exceptional circumstances, is not likely to be permanent. The control exercised by one independent state over another is in most cases destined either to disappear altogether, so that the semi-sovereign state becomes fully sovereign, or to develop until the separate international existence of the inferior is merged in that of the superior, the semi-sovereign state descending to the lower level of dependency, and becoming merely a constitutional subdivision of the state to which it is subordinate.
§ 43. Unitary and Composite States.
Classified constitutionally, in respect of their internal structure, instead of internationally, in respect of their external relations, states are of two kinds, being either unitary or composite. A unitary or simple state is one which is not made up of territorial divisions which are states themselves. A composite state on the other hand is one which is itself an aggregate or group of constituent states. The British Empire is composite, because many of its territorial divisions are possessed of such autonomy as to be states themselves. Some of these constituent states are also composite in their turn, Australia and Canada, for example, being composed of unitary states such as Queensland and Quebec.
Composite states (whether dependent or independent) are of two kinds, which may be distinguished as imperial and federal. The difference is to be found in the nature of that common government which is the essential bond of union between the constituent states. In an imperial state the government of one of the parts is at the same time the common government of the whole. In a federal state, on the contrary, the common government is not that of one of the parts, but a central government in which all the constituent states participate. The constitution of the British Empire is imperial; that of the United States of America is federal. In the former, one of the parts, namely, Great Britain and Ireland, is preferred before the others, as supplying the authority which binds all of them into a single whole. The government of the United Kingdom possesses a double capacity, local and imperial. In its local capacity it administers the affairs of England, Scotland, and Ireland, just as the government at Cape Town administers the affairs of Cape Colony. But in another capacity it is the government of the whole empire, and provides the bond of common authority which unites all the constituent states of the empire into a single body politic. In a federal, as contrasted with an imperial constitution, there is no such predominance of one of the constituent states. The government of the whole is one in which all the parts have their allotted shares. The unity of an imperial state is a relation of all the other parts to one of them; the unity of a federal state is a relation of all the parts to a central and common authority.[[107]]