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.