be an imperium in imperio; that the State is permanent; and finally, that it is sovereign. This sovereignty he defines as "original, absolute, unlimited universal power over the individuals subject and over all associations of subjects."

In the foregoing definition and description of the State, we find little to criticize, unless, indeed, it is to observe that the possession of sovereignty by the State necessarily implies the other features which he has particularized as distinct characteristics. But when we turn to the paragraphs in which he distinguishes between the "State" and "Government" we find, in fact, the terms State no longer used in the sense in which he has thus formally defined it. The term Government, he nowhere defines, but from his use of the term it is apparent that by it he understands the machinery or organization of the State with the exception of that organ or portion of it which possesses constituent functions, i.e., which has to do with the creation or the amendment of existing constitutional law. Thus, when the same organs and the same processes are used for the creation of ordinary statute law and for constitutional amendment, as, for example, in England, he speaks of the State as being organized in the Government. When, on the other hand, a different organ, as, for example, in the United States and in France, or a different process, as, for example, in the German Empire, is provided for constitutive acts from that used or followed in ordinary legislative measures, he describes the State as being organized outside of the Government. Thus, in distinguishing between "immediate" and "representative" Government, he says: "Immediate government is that form in which the State exercises directly the functions of government . . . Representative government is that form in which the State vests the power of

government in an organization or in organizations more or less distinct from its own organization.” 4

In the chapter entitled "The Forms of State," speaking of their transformations, he says: "A close scrutiny of this process will disclose the following significant facts, viz., that in the transition from one form of State to another, the point of sovereignty moves from one body to another, and the old sovereign body, i.e., the old State, becomes in the new system only the Government, or a part of the Government. Take the example of English history after 1066 to make this clearer. First, the King was the State as well as the Government. Then the nobles became the State, and the King became the government only. Then the commons became the State, and both King and lords became but part of the government."

From the foregoing, taken in connection with the author's earlier definition of State, it is impossible to trace a clear and consistent theory. The State has been defined as "a particular portion of mankind viewed as a political unit," and sovereignty predicated of it as its most important and essential characteristic; yet in the sentences which have just been quoted, the State appears not as the political person or entity which possesses this absolute, supreme authority, but as identical with that organ which exercises constitutive functions. This plainly appears when the King of England is spoken of as having been at one time the State as well as the government, and at another time the nobles as having been the State and the King the government only. How can the King or the nobles have been the State and yet the State be defined as "a particular portion of mankind viewed as a political unit?" Again, Professor Burgess speaks of the State as being in some instances organized outside of the

'Political Science and Comparative Constitutional Law, vol. II, pp. 1, 2.

government. If this be so, the government must be considered as not a part of the organization of the State, that is, of the political entity which possesses the sovereignty. But if this be so, what is the status of the government? Of what is it the organization? Whence does it derive its powers? Whose will does it execute? When defining Representative Government, he describes it, as we have seen, as one in which the State vests the power of government in an organization, or in organizations more or less distinct from its own organization. But if it is the State which creates the representative government and endows it with powers, how can that government be anything but a part of the State's Organization? 5

It will have been observed that the distinction which Professor Burgess makes between State and Government depends upon the distinction between constitutional and ordinary law. But this distinction, as will later be made clear, is one which cannot be so easily made as Professor Burgess seems to imagine.

The alternative to Professor Burgess's use of the terms "State" and "Government" is that which has been earlier referred to; namely, according to which the word "State" is applied to that entity, that abstract political person, which possesses the sovereignty and is thus the ultimate source of all legitimate control over the individuals subject to its authority; and the word "Government" employed to designate the machinery through which the will of this sovereign political person is expressed and executed. As thus used the Government of a State includes the constitutive as well as the ordinary legislative, executive, and judicial organs.

Professor Burgess's reasoning becomes still more confused when he attempts to apply his theories and definitions to an interpretation of the historical events preceding and attending the drafting and adoption of the present Constitution of the United States. As to this see post, pp. 227ff.

CHAPTER VI

THE TERMS NATION AND PEOPLE DEFINED

IT has been seen that the term State, when employed by the jurist, is an abstract one, and indicates that a given group of individuals is viewed as an entity or person endowed with certain specific juristic attributes. This same group of persons, when viewed concretely, constitutes the body-politic of the State, and is then spoken of, sometimes as a People and sometimes as a Nation. These two terms are, unfortunately, also used to designate groups of individuals which, whether politically united or not, are drawn together by the bonds of race, language, culture, common historical experiences, common economic interests, or similar institutions. It would, of course, increase the precision of political terminology if the publicists and political scientists of the world could agree that one of these two terms should be reserved exclusively to designate the citizen body or body-politic of a State, and the other employed exclusively with reference to aggregates of individuals, which, whether under a common political rule or not, may be viewed as constituting distinct units because of the homogeneity of their race, history, institutions, culture or economic interests. However, so inveterate and widespread is the confusion of the two terms, as well as of the adjectives drawn from them, that it is not possible for the writer to do more than indicate his own usage of them, a usage to which he himself is unable, without pedantry, absolutely to conform.

In general, then, in this volume, the term People will

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THE FUNDAMENTAL CONCEPTS OF PUBLIC LAW

be employed to denote the body-politic, or aggregate of citizens or subjects of a given State; and the term Nation will be used to designate a group of individuals which may be regarded as unified by race, language, culture or common interests or aspirations, but which may or may not be so politically united as to constitute a People. In other words, when the word People is employed the factor of political unity is implied. When the term Nation is used, the unifying sentimental or psychological factor is implied. When it has not been feasible to adhere strictly to this usage care is taken to have the thought shown by the context. However it may be well at once to point out two important respects in which it has been necessary frankly to abandon the usage of the terms that have been indicated.

In International Relations, the terms State and Nation are used synonymously to designate the entities or persons which possess the rights and rest under the obligations which International Law creates; and, in both Constitutional and International Law, there is a growing tendency to employ the term "Nationals" to include not only those who are deemed citizens in a narrow constitutional sense of the word, but also those who, though not so recognized, are deemed to owe their primary allegiance to the State in question, and, as such, entitled to its protection in international matters. Thus, in the United States, Indians and the natives of unincorporated Territories have been held not to be citizens of the United States within a narrow constitutional sense of the term, but are, nevertheless, held to be its "Nationals."

Nation Defined. Returning now to the non-juristic concept of Nation, it is to be pointed out that when it is said that the influences of race, custom, language and history create a Nation, it is meant that from these sources springs the feeling or sentiment that binds to