§ 44. “States.”

VARIOUS MEANINGS.—We will first consider the term “State” as popularly understood in English speaking communities, without reference to technical or external relations; secondly, “State” in its international significance; thirdly, “State” in its federal significance; and finally, “Nation” as contrasted with “State.”

Popular Significance—In a popular sense the word “State” is often employed to denote the governing political authority of a country as distinguished from the inhabitants thereof; the mechanism of government; the organism of government as opposed to the persons who have to submit to the rule of the government; the central government, in contradistinction to the local governing authorities and the local governing institutions. Sometimes it is specially used to contrast the secular and political with the ecclesiastical organization of a country. (Ency. of British Law, vol. XI., p. 710.)

International Significance.—“State” has a technical meaning known to international law, according to which it is an organized political entity, having certain recognizable predicates, such as population, territory, independence of other entities like itself, and an organized system of self-government enabling it to determine its own internal organization and development. (Sheldon Amos, The Science of Politics (1883), p. 64.) The modern notion of the State was not brought into clear consciousness till a number of parallel States presented themselves side by side, and each of them by enforcing its own claim against the others manifested to itself and to the world its own personality, independence and integral unity. (Id.) For the purpose of comparison other definitions of “State” are here appended.

“A State is a collective body composed of a multitude of individuals united for their safety and convenience and intended to act as one man. Such a body can be only produced by a political union, by the consent of all persons to submit their own private wills to the will of one man or of one or more assemblies of men to whom the supreme authority is entrusted, and this will of that one man or one or more assemblies of men is, in different States, according to their different constitutions understood to be law.” (Blackstone's Commentaries, I. 52.)

“This description of a State, it will be observed, omits all reference to territoriality and independence of other States; as such it is deficient. Further it is only applicable to States in which the supreme authority is entrusted to the will of one man, or one or more assemblies of men, and is not applicable to a federation in which the ultimate power is reserved to the people. (Judge Wilson's Comments on Blackstone's theory, 2 Dallas, 458.)

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“For all the purposes of international law, a State may be defined to be a people permanently occupying a fixed territory, bound together by common laws, habits, and customs into one body politic, exercising, through the medium of an organized Government, independent sovereignty and control over all persons and things within its boundaries, capable of making peace and war, and of entering into international relations with other communities.” (Phillimore's International Law, I, p 81.)

“By a sovereign State we mean a community, or number of persons permanently organized 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.” (Montague Bernard, Neutrality of Great Britain during the American Civil War.)

“The State is a particular portion of mankind viewed as an organized unit, and its characteristics are the comprehension of individuals within its territory, the exclusiveness of its powers, its permanence and its sovereignty, that is its absolute, unlimited, and universal power over individuals who are its subjects. These constitute the essence of a State.” (Burgess, Political Sc., I., p. 51–2.)

“The State is now the people in sovereign organization. This is an immense advance in the development of the State. It is the beginning of the modern political era. Under its educating influence the consciousness of the State spreads rapidly to the great mass of the population, and the idea of the State becomes completely secularized and popularized. The doctrine that the people, in ultimate sovereign organization, are the State, becomes a formulated principle of the schools, and of political science and literature. The jurists and publicists, and the moral philosophers, lead in the evolution of the idea. The warriors and the priests are assigned to the second place. The sovereign people turn their attention to the perfecting of their own organization. They lay hands upon the royal power. They strip it of its apparent sovereignty, and make it purely office. If it accommodates itself to the position, it is allowed to exist; if not, it is cast aside. At last the State knows itself, and is able to take care of itself. The fictions, the make-shifts, the temporary supports, have done their work, and done it successfully. They are now swept away. The structure stands upon its own foundation. The State, the realization of the universal in man, in sovereign organization over the particular, is at last established—the product of the progressive revelation of the human reason through history.” (Burgess, id., p. 66.)

“A colony is, at the outset, no State. It is local government, with perhaps more or less of local autonomy. It may grow to contain in itself the elements to form a State, and may become a State by revolution, or by peaceable severance from the motherland; but before this, there is one simple State, and after it, there are two simple States, but at no time is there a compound State. If the motherland should so extend its state organization as to include the colony as active participant in the same, the state organization would still be simple; it would only be widened. A larger proportion of the population of such a State would be thereby introduced into the sovereign body. The only change which could be effected in this manner, as to the form of State, would be possibly the advance from monarchy to aristocracy, from aristocracy to democracy. The sovereignty would not be divided between the motherland and the colony, for the sovereignty is and must be a unit. It must be wholly in the motherland or wholly in the motherland and colony, as one consolidated, not compounded, organization.” (Burgess, id., p. 77–8.)

Federal Significance.—The term “State” has also a special meaning applied to a federal system. In federal nomenclature a State is one of a number of communities formerly autonomous and self-governing, such as the States of America, and the States of Germany, which have agreed to transfer a portion of their political power to a union of the States, in the governing operations of which they retain an active share. Internationally such communities have no status as States; they are States only in a titular sense. “The old States become parts of the government in the new State, and nothing more. It is no longer proper to call them States at all. It is in fact only a title of honour, without any corresponding substance.” (Burgess, Political Sc., I., p. 80.) They could, with equal convenience and propriety, be designated by other names, such as the Provinces of Canada, and the Cantons of Switzerland. Blackstone's definition, and all other standard definitions of a State would, of course, be quite inapplicable to those communities called “States” which are merely parts of a federal or national State, using those terms in the same sense previously discussed. A “State,” therefore, in the ordinary sense of a federal constitution, is said to be a political community of free

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citizens, occupying a territory of defined boundaries, and organized with other similar communities, under a government sanctioned and limited by a written constitution, and established by the consent of the governed. It is the union of such States, under a common constitution, that forms the distinct and greater political unit which the American constitution designates as the United States. (Texas v. White, 7 Wall., 721) A State such as one of the United States of America is a body of political co-equals, or units, commonly called “the people,” in whom, as electors, the sovereign and uncontrollable power originally resides, and whose will, as expressed and proclaimed by them in their written Constitution, is their sole organic law and bond of political existence. The United States are a community of such States, politically united only by a federal constitution and general government founded therein. (Bateman, Political and Constitutional Law, p. 21.)

“The States were not ‘sovereigns’ in the sense contended for by some. They did not possess the peculiar features of sovereignty—they could not make war, nor peace, nor alliances, nor treaties. Considering them as political beings, they were dumb, for they could not speak to any foreign sovereign whatever. They were deaf, for they could not hear any proposition from such sovereign. They had not even the organs or faculties of defence or offence, for they could not of themselves raise troops, or equip vessels, for war. On the other side, if the union of the States comprises the idea of a confederation, it comprises that also of consolidation. A union of the States is a union of the men composing them, from whence a national character results to the whole. Congress can act alone without the States, they can act (and their acts will be binding) against the instructions of the States. If they declare war, war is de jure declared; captures made in pursuance of it are lawful; no acts of the States can vary the situation, or prevent the judicial consequences. If the States, therefore, retained some portion of their sovereignty, they had certainly divested themselves of essential portions of it. If they formed a confederacy in some respects, they formed a nation in others. The Convention could clearly deliberate on and propose any alterations that Congress could have done under the Federal Articles. And could not Congress propose, by virtue of the last article, a change in any article whatever, and as well that relating to the equality of suffrage as any other? He made these remarks to obviate some scruples which had been expressed. He doubted much the practicability of annihilating the States; but thought that much of their power ought to be taken from them.” (Rufus King in the Federal Convention 1788; Elliott's Debates 2nd ed. V., pp. 212–213)

“Some contend that the States are sovereign, when in fact they are only political societies. The States never possessed the essential rights of sovereignty. They were always vested in Congress. Their voting as States in Congress is no evidence of their sovereignty. The State of Maryland voted by counties. Did this make the counties sovereign? The States, at present, are only great corporations, having the power of making by laws, and these are effectual only if they are not contradictory to the general confederation.” (Madison in the Federal Convention; Elliott's Debates 2nd ed. I., p. 461.)

A great controversy went on in America for many years as to whether the States, as integrated in the federal constitution, formed a union of independent commonwealths acting together for the limited purposes of general government, or whether they formed a single sovereign and independent political State composed of the whole mass of the American people. A few years before 1889, when Mr. Bryce published his book, the American Protestant-Episcopal Church at its annual Convention introduced, among the short sentence prayers, one suggested by an eminent New England divine, “O Lord, bless our nation.” Next day the prayer was brought up for reconsideration, when so many objections were raised by the laity to the word nation, as importing a recognition of national unity, that it was dropped, and instead were adopted the words, “O Lord, bless the United States.” Referring to this incident Mr. Bryce says:—

“But it is only the expression, on its sentimental side, of the most striking and pervading characteristic of the political system of the country, the existence of a double government, a double allegiance, a double patriotism. America is a Commonwealth of commonwealths, a Republic of republics, a State which, while one, is nevertheless composed of other States even more essential to its existence than it is to theirs.” (The American Commonwealth, I., p. 12.)

“The acceptance of the Constitution of 1789 made the American people a nation. It turned what had been a League of States into a Federal State, by giving it a National Government, with direct authority over all citizens. But as this national government

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was not to supersede the governments of the States, the problem which the Constitution-makers had to solve was two-fold. They had to create a central government. They had also to determine the relations of this central government to the States as well as to the individual citizen. An exposition of the Constitution and criticism of its working must therefore deal with it in these two aspects; as a system of national government built up of executive powers and legislative bodies, like the monarchy of England or the republic of France, and as a Federal system linking together and regulating the relations of a number of commonwealths which are for certain purposes, but for certain purposes only, subordinated to it.” (Id., p. 29.)

“The government of the United States is federal government. By this I do not mean that the central government alone is a federal government. It is true that this term is generally applied to it, but I think this arises from the mistaken assumption that it is the government of a federal State. I think I have shown that there is no such thing as a federal State; that, in what is usually called the federal system, one State employs two separate and largely independent governmental organizations in the work of government. What I mean, therefore, in the proposition that the government of the United States is federal government, is that the whole governmental system is federal and that the central government is one of two governmental organizations employed by the State.” (Burgess, Political Sc. II., p. 18.)

A CONFEDERACY.—A confederacy is not a State. The members of the confederacy remain separate States. The confederacy has no sovereignty; it is merely a system of government founded on inter-state treaty dissolvable at will.

COMMONWEALTH AND STATES.—As we have already seen, Dr. Burgess contends that there is no such thing as a federal State. A federation, he says, is merely a dual system of government under a common sovereignty. (Political Sc., I., p. 79.) This definition is partly in conflict with that of Professor Dicey, who recognizes the possibility of a federal State, which he defines as a political contrivance intended to reconcile national unity and power with the maintenance of State rights. (Law of the Constitution, p. 131.) It does not agree with that of Mr. Bryce, who in the foregoing passage describes the United States as a Federal State. (American Comm., p. 12.)

From this conflict of literary authority we turn to the Imperial Act constituting the Commonwealth, where we find it described as a Federal Commonwealth, and we may assume that the expression is there used by the framers in either the first or the second of the four meanings already analysed (see Note, § No. 27, “Federal,” supra), viz., as (1) descriptive of a union of States, linked together as co-equal societies, forming one political system, regulated and co-ordinated in their relations to one another by a common Constitution; or (2) as descriptive of the new community formed by such union. In this Act the term “States” is used as descriptive of those co-equal societies.

The Commonwealth, in almost every feature, answers the German expression Bundesstaat or composite State. In this sense it may be described as a single State which is administered by a dual system of government—one set of ruling organs dealing with those matters common to the whole State and another dealing with those relating to the several communities, considered as separate entities. (R. R. Garran, The Coming Commonwealth, p. 17.)

NATION.—As an abstract definition, a Nation may be described as a population of ethnic unity inhabiting a territory of geographic unity. By ethnic unity is meant a population having a common language, a common literature, common traditions and history, common customs, and a common consciousness of rights and wrongs. By geographic unity is meant a territory separated from other territory by natural physical boundaries. The nation, as thus defined, is the nation in perfect and complete existence, and this is hardly as yet anywhere to be found. (Burgess, Political Science, I., p. 2.) Where geographic and ethnic unities coincide, or very nearly coincide, the nation is almost sure to become a State. The nation must pass through many preliminary stages in its development before it reaches the maturity of a political State. (Id. p. 3.)

“Not all nations, however, are endowed with political capacity or great political impulse. Frequently the national genius expends itself in the production of language, art, or religion; frequently it shows itself too feeble to bring even these to any degree of perfection. The highest talent for political organization has been exhibited by the Aryan

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nations and by these unequally. Those of them remaining in the Asiatic home have created no real States; and the European branches manifest great differences of capacity in this respect. The Celt, for instance, has shown almost none; the Greek but little, while the Teuton really dominates the world by his superior political genius. It is therefore not to be assumed that every nation must become a State. The political subjection or attachment of the unpolitical nations to those possessing political endowment appears, if we may judge from history, to be as truly a part of the course of the world's civilization as is the national organization of States. I do not think that Asia and Africa can ever receive political organization in any other way. Of course, in such a state of things, the dominant nation should spare, as far as possible, the language, literature, art, religion and innocent customs of the subject nation; but in law and politics it is referred wholly to its own consciousness of justice and expedience. Lastly, a nation may be divided into two or more States on account of territorial separation — as for example, the English and the North American, the Spanish-Portuguese and the South American — and one of the results of this division will be the development of new and distinct national traits. From these reflections, I trust that it will be manifest to the mind of every reader how very important it is to distinguish clearly the nation, both in word and idea, from the State; preserving to the former its ethnic signification, and using the latter exclusively as a term of law and politics. (Burgess, Political Sc., I., pp. 3–4.)