James Madison:

It is difficult to argue intelligibly concerning the compound system of government in the United States without admitting the divisibility of sovereignty.

Nathaniel Chipman :- The opinion formerly entertained that the sovereignty of a state was a sort of indivisible essence, a power absolute, uncontrolled and uncontrollable, has been corrected in modern times. Experience has shown it capable of division.

99. Delegation of sovereignty. The exercise of extensive powers may be delegated to various governmental organs without affecting the location of sovereignty.

Having then established that the sovereign body, as such, is independent of law, and that the sovereign body lays down, as positive law, the rules which are to regulate the conduct of the political society which it governs, the inquiry into the relation of rulers and their subjects would, for legal purposes, seem to be complete. It would be a simple relation of governors and governed.

But, in fact, this simple state of things is nowhere known to exist. Not only does the sovereign body find it necessary to employ others to execute its commands, by enforcing obedience whenever particular individuals evince a disinclination to obey the law; but in almost every country authority is delegated by the sovereign body to some person or body of persons subordinate to itself, who are thereby empowered, not merely to carry out the sovereign commands in particular cases, but to exercise the sovereign power itself, in a far more general manner; sometimes extending even to the making of rules, which are law in the strictest sense of the term.

When the sovereign body thus substitutes for its own will the will of another person, or body of persons, it is said to delegate its sovereignty. There is scarcely any authority, even to execute a specific command, which is conferred by the sovereign body in terms so precise as not to leave something to the discretion of the person on whom it is conferred. On the other hand, there is scarcely any delegation of sovereignty which is so general and extensive as to leave the exercise of it, at any time, completely uncontrolled. And it would be easy to construct out of the powers usually delegated to others by the sovereign body, a continuous series, advancing by insensible degrees, from the most precise order, where the discretion is scarcely perceptible, up to a viceregal authority, which is very nearly absolute. Any attempt, therefore, to divide these powers accurately into groups by a division founded on the extent of the authority conferred must necessarily fail.

III. MODERN CONCEPTS OF SOVEREIGNTY

100. Present theory of sovereignty. Recent tendencies concerning the theory of the indivisibility and absoluteness of sovereignty are thus given by Merriam :

In regard to the nature of sovereignty, there are two points which have been particularly emphasized during the recent period. In the first place the indivisibility of sovereignty has been, with the exception of a short time. in America and Germany, generally recognized. The writers during the reaction against the Revolutionary theory were inclined to emphasize the unity of the sovereignty as much as Rousseau had done. The conflict between king and people ended, not by a division of powers between them, but by a recognition of the essential unity of the ultimate power in the hands of people, nation or State. Modern constitutionalism has rated highly the utility of a division of governmental powers, but it has not tended to show that the sovereignty itself is capable of such a division. The legislative, administrative and judicial functions are not regarded as militating against the essential and ultimate unity of the principle from which they emanate. Not even in the haziness that has obscured the Federal State has the principle of a divided sovereignty been able to maintain the ground it won, but it has been driven out and replaced by the conception of the one and indivisible sovereignty resident in the State. In the United States the logic of Calhoun, in Germany that of Seydel—both particularists — so damaged the idea of divided sovereignty that it has not since recovered its lost prestige.

Again, as to the absoluteness of sovereignty. In this direction there has been a general tendency to admit the impossibility of placing limitations on the sovereign power, formally at least. There have been found various restrictions in the nature of the State, in the general principles of righteousness, in considerations of a utilitarian nature; but none of these can be regarded as political limitations. It is generally agreed that there is no other political power capable of limiting the sovereign, else by hypothesis that limiting power must itself be sovereign. And here again neither Constitutionalism nor Federalism has operated against the strength of the idea. The king is no longer absolute, the ordinary Government is no longer unrestrained, but, nevertheless, the power that organizes the constitution, that can add to or subtract from it, is as unlimited and irresistible as ever. And this fact has been generally recognized in political theory. Also in relation to the Federal State, the drift of opinion has been toward the denial of the

possibility of a relative or limited sovereignty. Despite the temptation to the recognition of a mere diminution of sovereign power on the entrance of a State into a Federal Union, the opposite principle has clearly triumphed. The State is "legally despotic."

101. Criticism of the theory of sovereignty. Leacock, in his recent book, states briefly the main objections urged against the theory of sovereignty of the analytic jurists. 1

The objections raised against it are directed to show that it is only of a formal and abstract nature, that it is inadequate in that it does not really indicate the ultimate source of political authority, and that it presents an erroneous conception of the nature of law.

The first of these objections to the Austinian theory is especially urged in the criticism offered by the English jurist Sir Henry Maine in his Oxford lectures on the "Early History of Institutions." From his seven years' experience as legal member of the council for India, Maine was brought in contact with a civilization of an essentially different character from the environment of English legal institutions which had been the basis of Austin's work. In Eastern countries immemorial custom reigns supreme. The idea of deliberate statutory enactment is alien to the oriental mind, and the most ruthless of Eastern despots finds his power controlled by the barriers of ancient usage and religious awe. Maine was, therefore, led to question whether there is "in every independent political community some single person or combination of persons which has the power of compelling the other members of the community to do exactly as it pleases." The inevitable conclusion

seems to be that the conceptions of sovereignty, state, and law adopted in the Austinian jurisprudence are inapplicable to communities of this description. But it is not only in regard to oriental society that Maine. finds Austin's analysis inadequate. Even in the world of Western civilization it is only true as the result of a process of abstraction which "throws aside all the characteristics and attributes of government and society except one," namely, the possession of force; this explanation of political power by reference solely to a single attribute disregards at the same time" the entire history of the community, . . . the mass of its historic antecedents, which in each community determines how the sovereign shall exercise, or forbear from exercising, his irresistible coercive power."

The nature of this objection had, indeed, been in some measure anticipated by Austin himself. In order to cover all those cases of 1 By permission of Houghton Mifflin Company.

usage in which not the direct command of the sovereign but dictates of customary procedure obtained sway, he laid down the maxim, "What the sovereign permits he commands." The application of this doctrine may be best seen in the case of the English common (or customary) law. This is a body of regulations never expressed in the form of statutes issued by the sovereign Parliament, but existing from ancient times, and constantly modified and expanded by the interpretation of the courts. It would be quite wrong, Austin argues, to hold that the existence and continuance of this body of law is any indication of a limitation of the sovereign power of Parliament. For since the latter is admittedly competent to alter or abrogate the common law as it sees fit, the continued existence thereof is to be viewed as virtually by command of Parliament. . . .

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It may perhaps reasonably be held that Austin's analysis is applicable to modern civilized states, but inapplicable to half-organized or primitive communities. Even in the case of civilized states, it is true that the theory is in a certain sense an abstraction. "It is true," says Sir James Stephen, in speaking of the theory of sovereignty, like the propositions of mathematics or political economy, in the abstract only. That is to say, the propositions which it states are propositions which are suggested to the imagination by facts, though no facts completely embody and exemplify them. As there is in nature no such thing as a perfect circle, . . so there is in nature no such thing as an absolute sovereign."

102. International law and sovereignty. The necessity of modifying the conception of absolute sovereignty when considering international relations is brought out in the following:

By some writers it has been held that there are in reality two distinct sides to the problem of sovereignty, namely, the international or external and the purely internal. External sovereignty relates to the position of the State among other States: internal to the relation between the State and all other persons or associations within its territory. The essence of the external or international sovereignty is consequently independence in relation to sovereigns, while that of internal sovereignty is supremacy in relation to subjects. . . . From the standpoint of international law, the distinguishing characteristic of sovereignty is found in the independence of the will of other States, while the internal aspects of the case are almost wholly ignored. The two sides of the State's existence are distinguished, and its external and internal relations regarded as separable. Hence it may follow that a community may be sovereign internally, that

is, supreme over all persons and associations on its territory, but nonsovereign or semi-sovereign in relation to other political societies. Or on the other hand, a State may be sovereign externally and yet lack the internal sovereignty, as in the case of a confederacy. . . . Thus the State from one point of view is sovereign, and from another subordinate. Where independence in relation to other States is lost, there may remain control over internal affairs; or where complete control over internal affairs is wanting, there may be independence internationally. A complete sovereignty would, of course, include both the external and the internal sovereignty; but the absence of one does not necessarily work the destruction of the other, and the State may still live on, relatively or half-sovereign.

In international law, then, sovereignty is primarily the independence of a State among States. This independence is indicated by the possession of certain rights which afford a criterion of the existence or nonexistence of sovereign power. Sovereignty being equivalent to a sum of powers, the loss of a part of these does not destroy its existence, and there is consequently room for the recognition of a semi-sovereign State. The great authorities on international law have not failed to find in this division of sovereignty a logical contradiction, even an apparent absurdity, but in view of the perplexing conditions to be interpreted and construed, no other way of escape seems open. The half-sovereign State may be "almost a contradiction in terms," an anomaly, a passing phenomenon, even a bastard political society "; but it persists in its troublesome existence. International relations, it is reasoned, must when presented be accounted for and explained; and in these nicely graded forms of transition from sovereignty to subjection, the doctrine of the half-sovereign State is of invaluable practical service.

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103. Sovereignty in constitutional and international law. An attempt to reconcile the difficulty of applying the strict legal conception of absolute internal sovereignty to the apparently limited sovereignty found in international relations, is made in a recent monograph. Crane considers internal sovereignty as supreme will and external sovereignty as a collection of powers.

In regard to the term "sovereignty," in particular, there is a dispute so hardily sustained that no definition is even tolerably acceptable to over one half the students of politics. In fact, the absence of accord upon this fundamental question produces a schism in political philosophy so deep as to cleave it almost asunder, since it is as one of the immediate results of this dissension that the question of the divisibility or indivisibility of sovereignty has apparently separated political thinkers into two