he could, at the very outset, find an intersecting pathway which would lead him far from the ultimate goal.

In this discussion, however, all of the terms are used in their broadest signification, and the subtle distinctions which can be drawn between the various uses of the terms do not form a part of the general subject-matter of this volume; the author has, however, expressed his own views and collated some of the views of authors and jurists in regard to these terms in the footnote to this section.1

NOTE BY THE AUTHOR ON DEFINITIONS OF TERMS USED. § 11.

1 The definition of the three terms used in the title of this chapter, to-wit: nationality, sovereignty and United States, are more within the domain of a work on political science than of one on the legal principles under consideration; the author does not intend, therefore, to enter into any elaborate dissertation upon the exact meaning of the terms, which are simply used in their generally accepted sense. It may not be out of place, however, to give in these notes the author's conceptions of those terms, as of course differences of opinion exist as to their meaning.

Nationality.-Nationality is used in the sense that the people of the United States constitute one nation, as stated in the decisions of Chief Justice Marshall in Cohens vs. Virginia, and Mr. Justice Gray in the Legal Tender and Chinese Exclusion cases, referred to hereafter, as distinguished from the federal element of citizenship; there is no nationality of New York, Pennsylvania or California, although those States in many respects are sovereign States; since the Civil War there is no doubt that, while there is an allegiance growing out of State citizenship, the allegiance owed by the people of the United States to the United States is paramount to every other tie of citizenship or allegiance. Nor is the word “nationality" used to distinguish the people of the United States as a people rather than as a race; the people of the United States forming, as they do, a nation, are necessarily composed of many races -Christian and Mohammedan-Anglo-Saxon, Teutonic and Latin-Jew and Gentile-all of these, as well as other racial elements, unite in forming one people as a nation; in this sense, therefore, "nationality" signifies as to the people, the element of homogeneity by which all these people are united, regardless of internal and sectional differences, into one great nation owing allegiance to a common government as against all of the other governments of the world; and that such government and the various departments composing it, is the only medium through which this great nation, and all of those elements composing it, can deal with any external government, influence or power.

Sovereignty. This is a word which has generally been discussed more

The

§ 12. The United States is a Nation.-It is impossible to appreciate the scope of the treaty-making power of the Govfrom the standpoint of political science than of legal application. various theories as to the existence of sovereignty, its nature, and how it is exercised and controlled, are numerous and diverse; some of them, in fact, are diametrically opposite to each other, although they are supported respectively by eminent authorities on the subjects of political science and jurisprudence; these theories, however, can be divided in two great classes, one of which, based on the divine right of kings, places sovereignty in the rulers and permits them to exercise over their subjects authority which they possess inherently, owing to the fact that they are rulers, and have so become, by the principles recognized in the country over which they rule; under this theory the great residuum of power or sovereignty remains in the ruler, and any limitations must be construed adversely to the people ruled over and favorably to the ruling power. The other class includes what may be called the AngloSaxon theory, which is that complete sovereignty originally exists in its entirety in the people, and that only such portion of sovereignty has been vested in the rulers as the people themselves have expressly delegated to the ruling power, the residuum remaining in the people.

There can be no doubt that the American principle is that complete sovereignty is vested in the people of a nation, and that the people of the United States possess sovereignty in its entirety. In adopting, as we have, a dual system of government, the sovereignty of the people has been partly delegated to the State governments, and partly to the Central Government, and the people retain only that portion of sovereignty which has not been vested in the ruling power of the States respectively, or of the United States in its national capacity. This sovereignty of the people is a part of the heritage of the Anglo-Saxon race; as such it naturally exists in all nations composed of Anglo-Saxons; it does not, however, necessarily exist naturally in people of other races; it may be that the sovereignty exercised by governmental powers of the nations of the Latin races over their people, and especially their colonies, has been, by long usage and prescription, recognized by those people and colonists as proceeding from the ruling class downward, instead of from the ruled classes upwards; in this way an apparent difficulty in handling our recently acquired possessions may be completely overcome. By the Treaty of Paris of 1898, the sovereignty over Spanish possessions was transferred to the United States; the United States succeeds to the sovereignty, as it was recognized by the subjects of Spain; it remains for the United States to clothe the people of the ceded possessions, as it has done in many respects as to the people of Porto Rico, with the same degree of autonomy as other portions of our people possess; although the change may be made gradually the people of the new possessions will finally succeed to all of the rights possessed by other people of the United States. There is no inconsistency with historical precedents in thus gradually admitting those people to privileges which they have never had before; a rule of international law which has been uni

[CH. I. ernment of the United States without taking into consideration the great cardinal fact that the UNITED STATES IS A

versally recognized is that the governmental conditions of inhabitants of ceded territory remain the same until altered by the new sovereignty, there are no legal difficulties, therefore, in recognizing that the sovereignty transferred by the former rulers may be of a different nature from the sovereignty existing in the new ruling power.

The expressions of some of the leading authorities on international law in regard to the term sovereignty are appended to this note.

BLUNTSCHLI'S VIEWS.

Bluntschli, in his Theory of State which has been translated and published in English, devotes the whole of chapters I. to IV., pages 463-481, to the discussion of the word sovereignty. On pages 464-5 he states that Sovereignty implies:

"1. Independence of the authority of any other State. Yet this independence must be understood as only relative. International law, which binds all States together, no more contradicts the Sovereignty of States than constitutional law, which limits the exercise of public authority within. Even the separate States (Länderstaten) in a composite State may be regarded as sovereign, although dependent in essential matters, e. g., foreign policy and control of the army.

"2. Supreme public dignity--what the Romans called majestas. "3. Plenitude of public power, as opposed to mere particular powers. Sovereignty is not a sum of particular isolated rights, but is a general or common right: it is a central conception,' and is as important in Public as that of property is in Private Law.

"4. Further, it is the highest in the State. Thus there can be no political power above it. The French Seigneurs of the middle ages ceased to be sovereign when they were compelled to submit in all essential matters to the king as their feudal lord. The German Electors were able to maintain sovereignty in their own dominions from the fourteenth century, because they exercised supreme authority in them as their proper right.

"5. Unity, a necessary condition in every organism. The division of sovereignty paralyses and dissolves a State, and is therefore incompatible with its healthy existence." The Theory of the State, by Bluntschli, pp. 464–465.

Chapter II., page 467, is devoted to answering the question to whom sovereignty belongs. He refers to the difference between the sovereignty in the people and the sovereignty in the State, and in a note, page 473, he discusses what the sovereignty of the people means as follows:

"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,

NATION; that as to all matters connected with foreign relations it is not federal in its character, but national, and that

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 Zurich Constitution of 1831, sec. 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 irreconcilable 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 History 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.)" The Theory of the State, by Bluntschli, pp. 473–474.

JUDGE COOLEY'S VIEWS.

"A state is a body politic, or society of men, united together for the purpose of promoting their mutual safety and advantage by the joint efforts of their combined strength. The terms nation and State are frequently employed, not only in the law of nations, but in common parlance, as importing the same thing, but the term nation is more strictly synonymous with people, and while a single State may embrace different nations or peoples, a single nation will sometimes be so divided politically as to constitute several States.

"In American constitutional law the word State is applied to the several members of the American Union, while the word nation is applied

as such it possesses, and exercises, every function exercisable by any other sovereign government in the world.

to the whole body of the people embraced within the jurisdiction of the federal government.

"Sovereignty, as applied to States, imports the supreme, absolute, uncontrollable power by which any State is governed. A State is called a sovereign State when this supreme power resides within itself, whether resting in a single individual, or in a number of individuals, or in the whole body of the people. In the view of international law, all sovereign States are and must be equal in rights, because from the very definition of sovereign State, it is impossible that there should be, in respect to it, any political superior.

"The sovereignty of a State commonly extends to all the subjects of government within the territorial limits occupied by the associated people who compose it; and, except upon the high seas, which belong equally to all men, like the air, and no part of which can rightfully be appropriated by any nation, the dividing line between sovereignties is usually a territorial line. In American constitutional law, however, there is a division of the powers of sovereignty between the national and State governments by subjects; the former being possessed of supreme, absolute, and uncontrollable power over certain subjects throughout all the States and Territories, while the States have the like complete power, within their respective territorial limits, over other subjects. In regard to certain other subjects, the States possess powers of regulation which are not sovereign powers, inasmuch as they are liable to be controlled, or for the time being to become altogether dormant, by the exercise of a superior power vested in the general government in respect to the same subjects." Cooley's Constitutional Limitations, 6th edition pp. 3-4, and also see cases cited in footnotes.

GEORGE TICK NOR CURTIS' DEFINITION.

"Lest, however, the controversy may degenerate into a dispute about the meaning of a word, it may be well to define here what I mean by 'sovereignty,' and what Mr. Tyler appears to mean. He says (Tyler I., 285): 'Sovereignty is the will of the sovereign people, and government which is a mere servant or trustee can never be sovereign, for it wields delegated powers only. The people might have a hundred governments, each a specific power, without surrendering an atom of sovereignty. Sovereignty being the will of the people, is spiritual and indivisible. It may grant powers for the common good, but the invocation of those powers is of the essence of free will. Accordingly, all that talk of the Jackson-Webster-Madison school of sovereignty, part delegated to the Federal Government and part to the State Government, is the merest clap-trap ever devised.' He adds in a note, 'The error lies in confusing powers, which are capable of division, with sovereignty, which is not.' "Sovereignty' as I use the term, as it is used by other American publicists, means simply the right to govern. Undoubtedly, sovereignty is the will of the sovereign people; and in our American sense all gov