§ 45. “Parts of the Commonwealth.”
TERRITORIALITY OF THE COMMONWEALTH.—The territorial basis of the Commonwealth has been already briefly referred to. The above words so clearly and emphatically establish this principle, that special attention should be drawn to them at this stage. Grotius, in his celebrated treatise, wrote: “There are commonly two things which are subject to sovereignty (Imperium); first, persons, which alone sometimes suffice, as an army of men, women and children seeking new plantations; secondly, lands, which are called territory.” (De Jure Belli et Pace II, pp. 3 and 4.) The case contemplated by Grotius as presenting the possible condition of a non-territorial sovereignty could scarcely occur in our time. It would be difficult to recognize the existence of a State without its undisputed possession of a defined territory; the only approach to such a phenomenon that might temporarily arise would be a rebel army wandering from place to place and recognized as a belligerent, which is tantamount to being recognized as a State. (Encyc. of the Law of England, Vol. xi. p. 710.) This, however, would be a feeble example of a State. It would have, at best, a precarious existence; its occupation of territory would be shifting, uncertain, and undefined; it would lack that continuity, cohesion, and recognition which are the essential attributes of a State. On the whole, therefore, the dictum of this distinguished jurist, whatever possible application it might have had in his time (1583–1645), may be regarded as untenable in the present age, in which territorial occupation is looked upon as one of the most important factors of the constitution of a true State. The inevitable tendency towards the establishment of territorial sovereignty, as an advance on personal and tribal sovereignty, is an historical fact of great significance. It is thus referred to by Sir Henry Maine:—
“From the moment when a tribal community settles down finally upon a definite space of land, the Land begins to be the basis of society in place of Kinship. The constitution of the Family through actual blood-relationship is of course an observable fact, but, for all groups of men larger than the Family, the Land on which they live tends to become the bond of union between them at the expense of Kinship, ever more and more vaguely conceived. We can trace the development of idea both in the large and now extremely miscellaneous aggregations of men combined in States or Political Communities, and also in the smaller aggregations collected in Village-Communities and Manors, among whom landed property took rise. The barbarian invaders of the Western Roman Empire, though not uninfluenced by former settlements in older homes, brought back to Western Europe a mass of tribal ideas which the Roman dominion had banished from it; but, from the moment of their final occupation of definite territories, a transformation of these ideas began. Some years ago I pointed out (Ancient Law, pp. 103 et seq.) the evidence furnished by the history of International Law that the notion of territorial sovereignty, which is the basis of the International system, and which is inseparably connected with dominion over a definite area of land, very slowly substituted
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itself for the notion of tribal sovereignty. Clear traces of the change are to be seen in the official style of kings Of our own kings, King John was the first who always called himself King of England. (Freeman, ‘Norman Conquest,’ 1, 82, 84.) His predecessors commonly or always called themselves Kings of the English. The style of the king reflected the older tribal sovereignty for a much longer time in France. The title of King of France may no doubt have come into use in the vernacular soon after the accession of the dynasty of Capet, but it is an impressive fact that, even at the time of the Massacre of St Bartholomew, the Kings of France were still in Latin Reges Francorum, and Henry the Fourth only abandoned the designation because it could not be got to fit in conveniently on his coins with the title of King of Navarre, the purely feudal and territorial principality of the Bourbons. (Freeman, loc. cit.) We may bring home to ourselves the transformation of idea in another way. England was once the country which Englishmen inhabited. Englishmen are now the people who inhabit England. The descendants of our forefathers keep up the tradition of kinship by calling themselves men of English race, but they tend steadily to become Americans and Australians. I do not say that the notion of consanguinity is absolutely lost, but it is extremely diluted, and quite subordinated to the newer view of the territorial constitution of nations. The blended ideas are reflected in such an expression as ‘Fatherland,’ which is itself an index to the fact that our thoughts cannot separate national kinship from common country. No doubt it is true that in our day the older conception of national union through consanguinity has seemed to be revived by theories which are sometimes called generally theories of Nationality, and of which particular forms are known to us as Pan-Sclavism and Pan-Teutonism. Such theories are in truth a product of modern philology, and have grown out of the assumption that linguistic affinities prove community of blood. But wherever the political theory of Nationality is distinctly conceived, it amounts to a claim that men of the same race shall be included, not in the same tribal, but in the same territorial sovereignty. We can perceive, from the records of the Hellenic and Latin city-communities, that there, and probably over a great part of the world, the substitution of common territory for common race, as the basis of national union, was slow, and not accomplished without very violent struggles.” (Maine's Early History of Institutions, 72–75.)