John Macdonell

“ It was not pleasing to many jurists to be told that a few lectures on the laws of the Persians and Chinese would do more to awaken a true judicial sense than minute disquisitions on the Roman law of intestacy observations the full effect of which Thibaut himself did not perhaps conceive. The essay was as much a condemnation of the entire state of jurisprudence as an argument for codification; it was a challenge to civilians to justify their very existence. ”

“ The following are some of the chief stages in the history of sovereignty: While society is in a rude state or only tribally organized there is no distinct sovereignty, no power which all persons habitually obey. ”

“ The language of the statute receives precision only if it means that the traffic shall be charged what it can bear that the rates shall be such as to be consistent with ordinary profits to carrier and customer. Two evils are possible with railways owned by private companies: they may artificially diminish the amount of trafiic by rates so high a to raise prices and lessen demand; they may diminish the profits of their customers below the usual rate--I will not say below the rate of profits earned by the railway companies, but below that earned by other traders. ”

“ The existence of great states is always in a sense unnatural; it implies a warm life only at one point, a constant repression of individuals for a common object, and no real unity between the rulers and the subjects. In a land of small states, on the other hand, the peculiarity of each has full play; there is development of variety, and the unity of princes and people is deeper and more living." The only unity practicable and needful in Thibaut's judgment was one of law; and for such all the German Governments should labour. His review of the state of jurisprudence in Germany is severe ”

“ The record of Austin's life is, in many respects, one of failure and disappointment. 'I was born out of time and place,' he himself said. 'I ought to have been a schoolman of the twelfth century or a German professor.' Asked why he did not do more for his brother, the brilliant and successful Charles Austin said: 'John is much cleverer than I, but he is always knocking his head against principles.' He found for his teaching no appreciative public. When first published his 'Province of Jurisprudence' was little noticed. ”

“ Strictly speaking, a protectorate cannot exist over a domain uninhabited or ruled by no organized state; in such cases the elements of the true protectorates are wanting. But the distinction is not adhered to. The difficulty of defining the relations between the protected and the protecting states is greater, because a protectorate may imply a condition of transition: a contractual or limited relation of state to state, more or less rapidly changing into true union.
It has been the policy of the British government in India to establish on the frontiers, as elsewhere, protectorates. ”

“ There is a second danger; short distance traffic may be, and sometimes has in fact been, made to pay unduly for long distance traffic. I do not refer to the numerous cases in which a company earns a much larger profit on one part of its system than on another--to the instances in which a company, rather than lose its traffic altogether, conveys it at rates just sufficient to pay a little more than the working expenses, but totally inadequate 'to pay a dividend on the whole system. Most producers on a large scale obtain different rates from different branches of their business. ”

“ A further proposition often stated with respect to sovereignty is that it is unlimited: a proposition which is not true of the legal or political sovereign. In all states are limits, more or less definite, to such powers, according to the character of the subjects and the relations of the state to foreign powers. ”

“ What seems true of both taxes or rates is that a small reduction, such as would not in the most favourable circumstances affect, except to a small extent, the price of the quantity or amount purchased by the average consumer, does not in ordinary circumstances affect it at all. The producer or middleman is benefited; the consumer rarely. Is it to be supposed that if the price of conveying fish from Great Grimshy to London were reduced by 3s. a ton the householder would buy a couple of soles any cheaper? ”

“ The majority of the objections to Austin's method and conclusions come to little more than a contention that jurisprudence may with advantage be studied historically as well as analytically, and that a large class of facts excluded by his definition from that science must always have especial interest for the jurist. ”

“ On the whole, usage seems to favour this distinction: while a protectorate flows from, or is a reduction of, the sovereignty of the protected state, suzerainty is conceived as derived from, and a reduction of, the sovereignty of the dominant state.
As to the power of making treaties, a vassal state cannot, as a rule, conclude them; such power does not exist unless it is specially given. ”

“ The problem which Parliament imposed upon the Board of Trade and the Duke of Richmond's Committee, is, in truth, incapable of exact solution. It is difficult, as every inquiry before the Railway Commissioners with respect to undue preference shows, to calculate the present, to say nothing of the future, cost of the conveyance of traffic. Human foresight cannot foretell twelve months ahead, far less for all time, what will be a fair remunerative charge for conveyance of merchandise in all the changing conditions off railway traffic. ”

“ Now the state or government comes at a certain stage of organization: small groups are drawn together; powerful corporations fall into line; a national feeling develops; eventually the state as we know it is formed. Sovereignty is a resultant of many forces. ”

“ Austin was at this time under the spell of German scholarship, and he wrote with fervour of his obligation to a land in which he and his wife had so long lived. 'Germany is one of the countries which we respect the most, and to which we are the most attracted, having found in the works of her philosophers, her historians, and her scholars, exhaustless mines of knowledge and instruction, and exhaustless power of pleasure or consolation. Above all we admire the spirit of comprehensive humanity which generally comes through the writings of her classical authors ”

“ The consumer is indeed interested in rates being so low that they enable goods to be carried rapidly great distances; the very rates, by the way, to which traders near the chief centres of consumption take exception. He does not join in the outcry against the London and North-Western Railway and Great Western Companies for carrying American meat from Liverpool or Birkenhead to London for 25s. a ton, while the charge for shorter distances is greater. ”

“ Sometimes a treaty defining spheres of influence declares that such and such territory shall be neutral.
In the treaty of delimitation between France and Germany of the 15th of March 1894, the line of demarcation of the zones of influence of the two states in the region of Lake Chad is drawn, and they agree to exercise no political influence in such spheres. Each of the states agrees (art. 2) to acquire no territory, to conclude no treaties, to accept no rights of sovereignty, or protectorate, and not “gêner ou de contester l’influence de l’autre Puissance dans la zone qui lui est reservée.” ”

“ He confined the domain of positive law to 'law set by a sovereign body of persons, to a member of the independent political society wherein that person or body is sovereign or supreme.' Having regard to Austin's definitions of sovereign and political society, it is often objected that he would exclude from jurisprudence law as known in all barbarous and semi-barbarous and not a few civilised societies. ”

“ To contend, as some of the witnesses called by the railways did in the recent inquiry, that the effect of maximum rates is in all circumstances absolutely nil is an exaggeration. In districts in which no competition exists, a company may choose to earn its revenue by carrying a small quantity at a high rate; before the Railway Commissioners have been proved instances of charges in excess of maximum rates. ”

“ The creation of a protectorate is convenient for the superior and the inferior; it relieves the former from the full responsibilities incident to annexation; it spares to some extent the feelings of the latter.
Certain protectorates originate in treaties; others have been imposed by force. Some are accompanied by occupation, in which case it is difficult to distinguish them from annexation. Thus the treaty of May 1881, art. 2, between France and Tunis, provides for the occupation of strategical points by the protecting state (A. Devaulx, Les Protectorats de la France, p. 21) . ”

“ J. S. Mill's article in the 'Edinburgh Review' of October 1868 was the first intimation to the majority even of English lawyers that they had lost a great jurist. In 1861 his widow edited a new edition of the 'Province of Jurisprudence,' and added to it a preface, in which she told the chief facts of her husband's life with much pathos. Two years afterwards she published two volumes of his lectures, or such remains of them as she, with remarkable sagacity and zeal, could discover. ”

“ In the many controversies about the defects of railway management here is a proneness to forget its merits. Foreigners do not; they admire and envy its elasticity, efficiency, celerity, and the ease with which it has adapted itself to the requirements of modern industry. The peril of the hour appears to be that from exaggerated solicitude about giving certain traders larger profits we may by excessive interference impair these virtues. ”

“ The king of Great Britain had the right of declaring peace and war. “Such a right is inseparable from protection.” But the Ionian states did not become necessarily enemies of the state with which Great Britain was at war. According to one view, the protected state is implicated in the wars to which the protecting state is a party only when the latter has acquired a right of military occupation over the territory of the former. ”

“ In 1847, the year of the railway mania, his income was enormous—the computations of it vary from 40,000l. to 100,000l. There is a story that, when he left his chambers one morning in the year of the great gold discoveries, some one wrote on the door 'Gone to California;' and there is another of his having been seen riding in the park during the height of the parliamentary session, and of his saying to one who asked how he came to be there, that he was doing equal justice to all his clients. ”

“ The consignor of goods does not know what he will be asked to pay; he does not know what he ought to pay; there is the uncertain element of terminal charges, and, perhaps, of special services; and the actual rate, though well under the maximum, may be illegal as being an undue preference or unreasonable. ”

“ Sometimes sovereignty is defined as the organized or general will of the community (Combothecra, Conception juridique de l'etat, p. 96) . “Sovereignty is the organized will of an organized independent community. . . . The kings and parliaments who serve, as its vehicles.“ ”Sovereignty resides in the community” (Woodrow Wilson, p. 1448) . The same theory is often expressed by saying that the majority in a community, or a particular group, in fact, rules (Guizot, Representative Government, i. 167) . ”

“ It is a form of empire or state building which appears when a powerful, expanding state comes in contact with feebler political organizations, or when a state falls into decay, and disintegration sets in. ”

“ That such rates are of the nature of undue preference may be a grievance to certain producers; to the consumer it is a matter of indifference. For his own goods the trader wishes low rates; but if he lives nearer the market or the port of shipment than his competitors he will insist upon a mileage rate or an approximation thereto. If he be charged for conveyance 50 miles as much as others are charged for 100 miles he will complain that he is deprived of 'the advantages of natural position;' he will ask that his rates be lowered or those of his rivals raised. ”

“ It is sometimes said that a protected state, unlike a vassal state, has the right of sending representatives to foreign states. But such distinctions are of doubtful value: the facts of each case must be considered (Ullmann, § 26) .
There is one practical difference between the two relations: while the protecting and protected states tend to draw nearer, the reverse is true of the suzerain and vassal states; a protectorate is generally the preliminary to incorporation, suzerainty to separation. ”

“ Assuming that he gave the customer the whole benefit of the reduction, 10 shillings a ton, when reduced to the price in yards, represents, as Mr. Acworth observes, ' an amount too fractional to be represented in English currency.'
There is the same difficulty in determining the ultimate incidence of cost of transport as in ascertaining the incidence of taxation on commodities. A priori speculations on the subject are apt to be fruitless and delusive. A minute study of the economic conditions at the time when a tax is levied or the rate is charged is necessary. ”

“ Many writers adhere to the doctrine that there is no impairment of sovereignty of the weaker state by the establishment of a protectorate. They also allege that it is res inter allies acta, an arrangement which concerns only parties to it. But the trend of recent policy and purport of much recent legislation are against this view. The distinct tendency, especially as to protectorates over uncivilized countries, is to treat, for purposes of international law, the territory of a protectorate as if it belonged to the protecting state. ”

“ Courtenay Boyle, and before the Joint Committee—with the discussions which preceded the passing of the McKinley Tariff Act, as reported in The Congressional Globe and other official records, one must be struck with the similarity; the same pushing of the interests of particular trades and localities, the same higgling for better terms by particular classes of manufacturers, each interest with advocates fully heard, each interest not so represented in danger of being lost sight of, the community of consumers most of all neglected. ”

“ In his view the distinctive mark of the state is not so much sovereignty (7. 4) as self-sufficiency; a state is not a mere aggregate of persons; it is a union of them sufficient for the purposes of life (7. 8) ; sufficiency being “to have all things and to want nothing” (7. 5. 1) . The Roman jurists say little, and only incidentally, as to sovereignty. ”

“ If the cost of conveying to market be the same, the one port will flourish, the other will be ruined. On a strict application of the law of undue preference, perhaps the rates to the more prosperous town would be lowest, the traffic being larger and continuous. ”

“ Comte, Spencer, Bagehot, Durkheim and Giddings, for example, refer to it, if at all, only briefly and incidentally; they conceive society as an organism, or at all events as a growing whole, no one part or force being the cause of all others, and all interacting; society is not the product of any agreement or of force alone, but of a vast variety of interests, desires and needs. ”

“ Railway companies, on the other hand, desire to obtain the largest amount of net profit from their traffic, and this they may attain in two ways either by carrying a large amount at low rates, or a small amount at high rates, and with diminished traffic expenses. ”

“ In the middle ages the question was often mooted whether states subject to feudal superiors, or the states forming the empire, were sove- reign. According to one common definition they were not: a true sovereign state was universitas quae non superiorem recognoscit. “Celui est absolument souverain qui ne rien tient après Dieu que de l'espée. S'il tient d'autrui il n'est plus souverain.” The prevalent opinion, however, was that sovereignty was compatible with rights such as were possessed by the Reich over the princes of Germany; that there might be fiefs held in full sovereignty ”

“ Often it designates a relation which it is deemed politic to leave indefinite: a state desires to obtain the reality of conquest without the responsibilities attaching thereto. Protectorate may mean no more than what it says: “ One state agrees to protect or guarantee the safety of another.” The term is also employed to describe any relation of a political superior to an inferior state. ”

“ The tendency is for protecting states to assert jurisdiction over foreigners within the territories of the protected states (Westlake, 187; Ienkyns, p. 176; Ilbert, and ed., 393, 434) . Mr Hall remarks (International Law, 6th ed., p. 126 n.) that “all the states represented at the Berlin Conference of 1884–1885, with the exception of Great Britain, maintained that the normal jurisdiction of a protectorate includes the right of administering justice over the subjects of other civilized states.” ”

“ In point of fact, there are fields of action in which A is sovereign, others in which B is sovereign, and certain others in which A and B are jointly or alternately sovereign. To take the American constitution, for example, the states are sovereign as to some matters, the Federal government as to others. ”

“ States.are more or less under the influence of others. There are also states which have certain of the attributes of sovereignty, but are subject to servitudes or burthens imposed by treaty, usage,
or force. Feudalism had a phraseology to express the varieties of fiefs which existed under it; modern international law has no generally-accepted terminology for the still greater variety of states which now exist. These varieties tend to multiply, and it is difficult to reduce them all to a few types. The theory that states are equal, and possess all the attributes of sovereignty, was never true. ”

“ This doctrine is recognized in articles 34 and 35 of the General Act of Berlin, the former of which states that " any Power which henceforth takes possession of a tract of land on the coast of the African continent outside its possessions, or which being hitherto without such possessions shall acquire them, as well as the Power which assumes a protectorate, shall accompany the respective act with a notification thereof, addressed to the other Signatory Powers of the present act, in order to enable them, if need be, to make good any claim of their own." ”

“ The autonomy of these vassal states has been fully recognized by the Treaty of Berlin of 1878 (art. 1) . In the Interpretation Act, 1889, s. 18 (5) , " suzerainty " is used to describe the authority of the sovereign over native princes.
The word suzerain is used in the Pretoria convention of the 3rd of August 1881 between the British government and the late South African Republic. The convention (by its preamble) granted to the inhabitants complete self-government, " subject to the suzerainty of her Majesty," and this suzerainty was reaffirmed in the articles. ”

“ Thus there is no sovereignty among wandering groups of Australian savages: each family is isolated, each horde is a loose and unstable History. collection. When the horde has become a tribe there may exist no definite sovereign. Distinct in time of war, the power of the chief may be fluctuating and faint in time of peace; even in time of war it may be subject to the authority of a council. Tribes of the same ethnic stock may form a sort of federation, permanent or temporary. ”

“ When the power of the emperor was weakened, and the idea of a universal ruler was gone, a new test of sovereignty was applied—that of external independence; the true sovereign states were universitates superiorem non recognoscentes. There were times and countries in the middle ages in which the collective power of the community was small: many of the great corporations were virtually autonomous ”

“ Great Britain considers that it has been admitted in principle by all the parties to the act of Berlin that a claim of sovereignty in Africa can only be maintained by real occupation of the territory claimed ”