The Definition of a State. In its form of governmental organization the American State represents a very complex political type. For this reason, in order to determine satisfactorily its exact legal character it will be necessary first to consider the essential attributes of a State in the abstract.

An aggregate of men living together in a single community, and united by mutual interests and relationships, we term a Society. When there is created a supreme authority to which all the individuals of this society yield a general obedience, a State is said to exist. The social body becomes, in other words, a body politic. The instrumentalities through which this superior authority formulates its will and secures its enforcement is termed a Government; the commands it issues are designated Laws; the persons that

1 In this chapter the author has drawn liberally from an earlier work entitled "The Nature of the State: A Study in Political Philosophy."

administer them, public officials, or, collectively, a Magistracy; the whole body of individuals, viewed as a political unit, is called a People; and, finally, the aggregate of rules or maxims, whether written or unwritten, that define the scope and fix the manner of exercise of the powers of the State, is known as the Constitution. The State itself, then, is neither the People, the Government, the Magistracy, nor the Constitution. Nor is it, indeed, the territory over which its authority extends. It is the given community of individuals viewed in a certain aspect-namely, as a political unity.

The one characteristic that is essential to the State,/. and serves to distinguish it in toto genere from all other human associations, is its possession of political sovereignty. By political sovereignty is meant, on the one hand, complete freedom from the legal control of any other power whatsoever, and, on the other hand, absolute and exclusive control over the legal rights and obligations of its citizens, individually considered or grouped into larger or smaller associations. The State is thus supreme not only as giving the ultimate validity to all laws, but as itself determining the scope of its own legal powers and the manner of their exercise.

In every politically organized community that is entitled to be termed a State, there must exist, then, an authority to which, from the legal standpoint, all interests are potentially subject. In the entire body of laws of a State are summed up the powers of that State as actually exercised. In the constitutional laws are declared the powers legally exercisable by

the ordinary governmental organs. Thus at any one time the domain of the legal and political liberties of the individual is simply that which neither public officials nor private persons may legally enter. From possible control by the State, however, through the enactment of new constitutional or statutory laws, these liberties are not and cannot be removed. Professor Burgess puts this very clearly when he says: "The individual is defended in this sphere against the government by the power that makes and maintains and can destroy the government; and by the same. power, through the government, against encroachments from any other quarter. Against that power itself, however, he has no defence."1

In the eyes of political theory the State is a legal person. It has its rights and duties and possesses a supreme will which it expresses through its law-making organs in authoritative commands. Sovereignty, as thus expressing the State's supreme will, is necessarily a unity and indivisible. That there cannot be in the same being two wills, each supreme, is obvious. But though the sovereign will of the State may not be divided, it may find expression through several legislative mouthpieces, and the execution of its commands may be delegated to a variety of governmental organs. Theoretically, indeed, the State may go to any extent in the delegation of exercise of its powers not only to governmental organs of its own creation, but even to those of other States. Thus given State may, in fact, retain under its own immediate direction only a most meager complement of activities, and 1"Political Science and Constitutional Law," I, 176.

yet preserve unimpaired its sovereignty; for in such a case the public bodies or States to which the exercise of the powers has been granted, act as the agents of the State in question, and this State still possesses the legal, if not the actual, power of again drawing to itself the exercise of the powers it has delegated. Thus mother-countries may concede to colonies the most complete autonomy of government, and reserve to themselves a control of so slight and negative a character as to make its exercise a rare occurrence; yet, so long as such control exists, the sovereignty of the mother-country is not released, and such colony is therefore to be considered as possessing no independent political powers. Again, as we shall later see, in the so-called Confederate State, the member Commonwealths may yield to the Central Government the exercise of their most important powers and yet retain their sovereignty; and, on the other hand, a national Federal State may, without destroying its sovereignty, yield to particular territorial authorities. an extent of power sufficient to endow them, apparently, with almost all the characteristics of independent bodies politic.

A State cannot be Created by an Agreement between States. A State owes its existence to the fact that, in the individuals over whom its authority extends, there is a sentiment of unity sufficiently strong to lead them to surrender themselves to the control of a single political power for the sake of realizing the desires to which such a sentiment gives rise. In other words, this subjective condition first comes into being, and,

when sufficiently powerful, finds objective manifestation in the creation of a political organization.

This being the manner in which a State comes into being, it follows that it is improper, in any instance, to ascribe to it a juristic or conventional origin. A State is not created by the formal adoption of a written Constitution. The acceptance by a People of such an instrument is necessarily the political act of a community already transformed into a body politic, and its provisions derive their force as law from that fact. In fine, the Constitution is but the law which definitely determines the organs through which the State, already in existence, is henceforth to exercise its powers. That the adoption of a formal instrument of government is not a politically creative act is shown. by the fact that such a Constitution is by no means essential to the existence of a State. Written Constitutions are, indeed, of comparatively recent origin, and their raison d'être goes no deeper than political expediency.

Another conclusion following from the fact that a formal or juristic origin cannot be ascribed a State, is that no State can obtain its sovereignty by a simple transfer of authority from other States. A new State can take its origin only after the entire withdrawal of a People from the civic bonds in which they have before been living. Not until the old State (or States) has (or have) been destroyed, peaceably or by force, can the new State take its rise, for a People cannot live under two sovereign powers at the same time. In other words, however peaceably the transition may be effected, the erection of a new sovereignty over a