If party disputes had not introduced confusion, this sovereignty of the State might conveniently be called sovereignty of the people, if we understand by 'people' not a mere multitude of separate individuals, but the politically organised whole, in which the head occupies the highest position, and every member has its suitable place. In this sense French publicists have spoken of la souveraineté de la nation, in accordance with the usage of the French language, which, as we have explained, is the opposite of the German (Bk. II. ch. ii). To avoid misunderstandings, however, we have preferred the unambiguous expression, 'Sovereignty of the State.'

This sovereignty of the State may be looked at from without and from within: from without, as the independence of a particular State in relation to others, so far also in relation to the Church from within, as the legislative power of the body politic.

In this sense sovereignty is ascribed in England to the Parliament, at whose head stands the King', and which represents the whole nation 5. This is not a peculiarity of the English constitution, but a fundamental principle of modern

Stüve, Sendschreiben of 1848: 'No one will deny the sovereignty of the people, i. e. the nation, if by nation is understood the whole nation in its constitutional form, including both prince and people. If a part of the whole claims sovereignty, and says 'I am the State,' it matters little whether that part is king, parliament or multitude; the principle is false, and a false principle has always dangerous consequences.' Sismondi (Études, i. p. 88) makes an equally sharp distinction between 'souveraineté du people,' which he rejects, and souveraineté de la nation,' which he admits.

[The English Parliament does not include the king. It is composed of three estates, lords spiritual, lords temporal, and commons. The king has the right of accepting or rejecting bills, but this is wholly distinct and separate from the procedure of Parliament. Bluntschli falls into an old error, which has been frequently corrected.]

This idea is expressed in a speech of King Henry VIII of England in Parliament: Likewise the judges have informed us that we at no time stand so high in our estate royal as in the time of Parliament, when we as head and you as members are conjoined and knit together into one body politic; so that whatsoever is done or offered against the meanest member of the House is judged as done against our own person and the whole court of Parliament.' (Quoted by Lord John Russell, The English Government and Constitution, chap. iii. p. 19, edit. 1865.)

7. Sovereignty of the Ruler.

representative institutions. The prince is regarded as the head, but, on that very account, as also a member of the nation; but the highest sovereign power, that of legislation, is entrusted not to the head alone, but to the head along with the representative body, that is to say, to the whole body of the State. The patrimonial view, which regards the State as a property of the prince, and therefore ascribes sovereignty to the prince alone, and the absolutist doctrine, which identifies the State with the prince, both fail to recognise that all the power of the prince is essentially only the concentrated power of the nation, and that though princes and dynasties fall the nation and the State retain their legal existence (als Rechtswesen bleibt)®.

Besides this sovereignty of the entire nation, there is another within the State, the sovereignty of the highest member, the chief, the rulers, or, since it is most clearly seen in monarchy, the sovereignty of the prince. The head of the nation has the highest power and position compared with all

6

Zöpfl (Grundsätze des gemeinen deutschen Statsrechts, §§ 54–56) rejects this 'sovereignty of the State'—and that not merely as applied to the German States-maintaining that monarchies recognise only the sovereignty of the prince, and republics only the sovereignty of the people. But how, then, are we to explain the Public Law of Rome, which proclaimed the majestas populi Romani under the Empire as well as under the Republic, and always regarded lex as voluntas populi Romani; while, on the other hand, under the Republic, a regium imperium was ascribed to the Consuls, and the Senate possessed the supreme administrative power and the right of taxation (which is certainly an attribute of governmental sovereignty)? How, too, are we to explain the English Public Law, which harmonises the sovereignty of Parliament and of the nation with the sovereignty of the king? As a matter of International Law, even the German States-apart from their princes-count as sovereign persons; but if they are persons in relation to other States, must they not also be persons in relation to their own individual members and to their princes? The laws in Germany are the laws of the State: and the national or state-debts are distinguished from the debts of the princes, that is to say, in spite of all survivals of the patrimonial or absolute power of the prince, the Public Law of Germany recognises, along with that of almost all civilised countries, that the nation is something other and higher than the sum total of subjects, and that the State has an existence, a majesty and a power which is not exhausted by the majesty and power of the princes. I concede to Zöpfl, that the exclusive admission of the sovereignty of the prince does not logically imply that his sovereignty is unlimited; but recent history has incontestibly shown that this exclusive principle has, in Germany as well as in the Latin countries, been a dangerous support of absolutism and contempt of national rights.

the other members of the political organism, and with the individual citizens. Thus in English Public Law the king is called 'sovereign' in a particular sense, and thus in every monarchical State sovereignty is ascribed to the monarch.

The sovereignty of the State and the sovereignty of the prince are not in contradiction. There does not result a division of sovereignty, as if the one half belonged to the people and the other to the prince: there are not two jealous powers striving for supremacy. Both imply unity and plenitude of power; but it is clear that the whole, including the head, is superior to the head alone. The whole nation or State makes the law, but within legal limits the head moves with complete freedom in the exercise of the supreme power assigned to him. The sovereignty of the State is especially that of the law; of the prince, that of the government or administration. The latter operates where the former is inoperative. A conflict between them is rare in fact and impossible in principle; for it would imply a conflict of the head alone with the head in combination with the rest of the State, and thus a conflict of the same person with himself.

There can be no true peace between the democratic sovereignty of the people and the sovereignty of the prince; but between the sovereignty of the State and the sovereignty of the prince there is the same harmony as between the whole man and his head.

[A similar question was involved in the trial of Strafford. By the Statute of Edward III treason was defined as certain offences against the 'King.' Strafford had undoubtedly acted with the approval of the king, and the lawyers were compelled to develope the theory that the King' was an expression for the State,' and that offences against the latter were consequently treason.]

Note. The phrase 'sovereignty of the people' is sometimes used to express, not the supremacy of the majority, but only the idea that a form of State or a manner of government, which is incompatible with the existence and welfare of the majority of the people, cannot be maintained, or, that the form of the State and the government are there for the people-an idea which is true, but badly expressed.

Again, if by sovereignty of the people' it is meant that the authority of the State is derived originally from the will of the majority, we must indeed

admit that many democratic constitutions, and even some monarchical (e.g. the Roman Empire, the French Empire), are based, in theory or principle at least, on the voluntary act of the majority of the people. In the same way the constitutions of several Swiss Cantons declare, not that the people (Volk) is sovereign, but that the sovereignty resides in the people as a whole (auf der Gesammtheit des Volks beruhe), and is exercised by the Great Council,' (e.g. the Zürich Constitution of 1831, § 1). But even this principle would not be applicable to all States, and the term 'sovereignty,' which expresses a permanent right, is inappropriate when applied to particular and transitory acts. Finally, if the phrase 'sovereignty of the people' be understood, as has often happened in practice, to imply that the people, as distinct from the government, or even any powerful and excited multitude, is justified in arbitrarily overthrowing the government or destroying the constitution, this is an idea which is altogether to be condemned, and which is irreconcileable even with democratic principles.

[In England, the question of sovereignty has in recent times been chiefly discussed in connection with the famous definition of Austin, Jurisprudence, Lect. vi: If a determinate human superior, not in a habit of obedience to a like superior, receive habitual obedience from the bulk of a given society, that determinate superior is Sovereign in that society, and the society, including the superior, is a society political and independent.' This abstract analysis of the conception of sovereignty, which is quite unhistorical and difficult to apply in practice, is criticised by Maine, Early Hist. of Institutions, Lect. xii, xiii. See also F. Harrison on The English School of Jurisprudence, in Fortnightly Review, vol. 30 (1878): Clark's Practical Jurisprudence, a Comment on Austin, Part i. ch. xiv: Holland's Jurisprudence, ch. iv.]

CHAPTER III.

I. ANALYSIS OF THE SOVEREIGNTY OF THE STATE.

THER

HE organised nation has a right to have its dignity 1. Majesty. and greatness, or, as the Romans called it, its majesty1, recognised and respected. At Rome, every serious injury to the honour, power, even to the order of the State, was considered as a crimen laesae majestatis.

The independence of the State from foreign States. If a 2. IndeState is compelled to recognise the political superiority of pendence. another, it loses its sovereignty, and becomes subjected to the sovereignty of the latter 2.

Not every subjection of a State destroys its sovereignty completely, since the dependence may not be absolute. In composite States, Confederations (Statenbünde), Federal States (Bundesstaten), and Federal Empires (Bundesreiche), the particular States, although in certain respects subordinated to the whole, have yet a relative sovereignty limited in extent but not in content. Thus in Switzerland, cantonal sovereignty is

1 Cicero, de Oratore, ii. 39: 'Si majestas est amplitudo ac dignitas civitatis, is eam minuit, qui exercitum hostibus populi Romani tradidit.' Partit. orat., c. 30: Minuit is, qui per vim multitudinis rem ad seditionem vocavit.' Auctor ad Herennium, ii. 12: 'Minuit qui ea tollit ex quibus civitatis amplitudo constat, qui amplitudinem civitatis detrimento adficit.' Comp. Heineccius, Antiquit. rom. iv. xviii. 3, 46.

2 In treaties of peace with conquered states, the Romans used the formula 'Majestatem populi Romani comiter conservato,' or 'imperium majestatemque populi Romani conservato sine dolo malo' (Cic. pro Balbo, c. 16; Liv. xxxviii. 11).