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in its Suzerain Power or on the other becoming itself free and independent of all control at its hands. It may be assumed that the rights (irrespective of certain conditions specially engendered by the particular mutual relationship) possessed by the Suzerain and the Vassal, one or the other, or both in some proportion, as the case may be, are the rights which, if exercised by a single sovereign State, are called the Rights of sovereignty. By this expression is meant all the rights which a sovereignty possesses, not those alone which can only be exercised by a Sovereign power. Now these Rights of sovereignty are fairly agreed upon by the authorities on International law, though their classification of them may somewhat vary; if then it can be determined in the particular case, which State, suzerain or vassal, exercises them, or in what proportion each exercises them, the more difficult part of the question under consideration will be answered.
The distinguishing attributes of sovereignty may be said to be Independence* and Equality ; † and, consequent on the possession of these fundamental attributes, sovereign States are privileged to exercise certain rights which may be divided into two classes, internal, sometimes termed constitutional, and external, or international, rights.
The international rights are the right to determine and
* Vattel, Law of Nations Prelim., secs. 15 and 21. Klüber, Droit des Gens Moderne de l'Europe, M. Ott, ch. I., secs, 22, 37, 45. Twiss Law of Nations, Peace, sec. 9. Woolsey, International Law, sec. 37. Heffter, Le Droit International Public, sec. 26. Phillimore, International Law, vol. I., art. cxliv. Théodore Ortolan, Règles Internationales et Diplomatie de la Mer, ch. III., p. 56. Bluntschli, Das Moderne Völkerrecht, art. 64. Manning, Law of Nations, p. 92.
Halleck, International Law, I., ch. iv., sec, i, Calvo, sec. 104, and others.
† Vattel, Prelim., secs. 18 and 21. Lib. ii., sec. 36. Klüber, sec, 89, Woolsey, secs. 37, 51. Twiss, sec. 12. Heffter, sec. 27. Phillimore, vol. I., art. cxliv. Th. Ortolan, ch. III., p. 57. Bluntscbli, art. 81. Halleck, I., ch. v., - sec. I. Calvo, secs, 296-343, and others.
organise the Constitution ; * the right to maintain order, sometimes called the right of police; † the right of property or domain, so far, at all events, as it relates to the possession of territory (jura possessionis); † the right of legislation ;$ of plenary and criminal jurisdiction, || in which may be included the right of remission and pardon; s the right of appointing magistrates ; ** of coining money ; levying taxes; regulating ranks, and such like.
The international rights are the rights of legation or embassy ; ti the right to negotiate and conclude treaties and alliances; ff the right of war, neutrality, and peace; $$ and the right of domain--that is, of acquiring (jus possidendi), and alienating property ; |||| all, in fact, which concern relations with other States.
* Vattel I., secs. 31-33. Klüber, ch. I., sec, 22. Bluntschli, art. 68. Philli. more, vol. I., art. cxlv., cxlviii. Manning, p. 93. Halleck, II., ch. iv, sec. 2. Calvo, sec, 105, &c. † Vattel 1., sec, 174.
Vattel I., sec. 203. Twiss, sec. 139. Heffter, sec. 29. Phillimore, Vol. I., Art. cxlv., cl., &c. Manning, p. 93. Calvo, Livre IV.
Loyseau, Traité des Seigneuries III., 4. Réal, La Science du Gouverne ment, IV., p. 121. Twiss, sec. 150. Bluntschli, art. 68. Halleck, I., ch. iv., sec, 14. Calvo, sec. 734. Loyseau, indeed, considers ihat the right to make law comprehends “tous les autres cas de souveraineté,” III., 9.
Loyseau, III., 4, 28. Réal, IV., p. 121. Twiss, sec, 150, Phillimore, vol. I., art. cccxvii. Manning. p. 93. Halleck, I., ch. iv., sec. 15. Calvo, II., 227. Loyseau, III., 4. Vattel, I., sec. 173.
Qui sont les loys vives et parlantes." Loyseau, III., 17. tt De Wicquefort, The Embassador and his Functions, Digby's translation, p. 6. Bynhershoek, Quæstionum Juris Publici, lib. II., c. 3. Vatiel, II., sec. 154; IV., sec. 57. Twiss, sec. 184. Bluntschli, art. 68. Philli:nore, vol. II., art. cxv., cxvi. Halleck, I., ch, viii., sec. I. Calvo, sec. 400.
II Vattel, II., sec. 154. Klüber, secs. 36, 141-230. Phillimore, vol. I., art, cxlvii. ; vol. II., xliv. Halleck, I., ch. viii., sec, 1, &c. Calvo, sec. 680.
$$ Loyseau, III., 4, 25, 27. Réal, IV., 121. Vattel, III., sec. 4. Klüber secs. 36, 231-329. Twiss, Law of Nations, War, secs. 1-3.
Creasy, First Platform of Law, p. 95.
|| || Vattel, I., sec, 203. Klüber, secs, 123-140, Twiss, sec, 105, &c. Phillimore, vol. 1., art, cxlv., ccxxii., &c. Manning, p. 93. Calvo, Tume I., Livre IV.
As already pointed out, Vassal States are not alike entitled to the same rights and subject to the same duties. It is proposed therefore to divide them into two classes (which it will appear is a natural and not a mere arbitrary division), namely, those subject to vassalage not modified by express terms-or to borrow a phrase from Hertius (De Specialibus Rom. Germanici Imperii Rebus Publicis, II., sec. 33, note 10), “nude vassalage"—and those subject to a more onerous vassalage, and to show the relations which each of the classes of vassalages and their suzerainties bear to sovereignty.
First of all, then, can a State subject to nude vassalage be and is entitled to all the rights of sovereignty-in other words, can it be and is it a purely sovereign State?
Grotius, Lib. I., ch. 3; XXIII., 2, writing “de nexu feudali,” says the obligation “nec regi aut populo jus demit summi imperii.”
De Wicquefort (Page 16) refers to some princes who “possess their fiess in full Sovereignty,” and who are
Sovereigns in effect,” and he quotes with approbation an answer of Hugh de Lionne to Pope Urban III., in which he referred to “ vassals who by virtue of their first investiture
received their fiefs with all the rights of Sovereignty.” (Page 25.)
Vattel (I. Sec. 8) speaks of sovereignties being given in fee and sovereigns voluntarily rendering themselves feudatories of others, limiting the circumstances in which sovereignty continues to exist in these words : “ When the homage leaves independency and sovereign authority in the administration of the State, and only means certain duties to the lord of the fee; or even a mere honorary acknowledgment, it does not prevent the State or the feudatory prince being strictly sovereign.”
Klüber (Sec. 22) says the simple relations of fiefs held of
a foreign government, “ne préjudicient point à sa Souverainete."
"Halleck (Ch. iii Sec. 7) considers that States subject to feudal dependence or Vassalage are still considered as sovereign unless their Sovereignty is destroyed by their relation to other States."
Heffter (Sec. 22, iii) writes“ Une puissance ayant donné une Souveraineté en fief,” homage “ne porte aucun préjudice aux droits territoriaux du vassal, ni a ses rapports avec les souverains étrangers ;” and Wheaton quotes this passage with approval. (Commentaire sur les éléments du Droit International, Part I., ch. ii., iv.)
Creasy (First Platform of Int. Law, p. 95) is of opinion that “a State may profess feudal Vassalage to a foreigner” and yet not be “out of the pale of International Law."
Phillimore (Vol. I, xcviii) considers that “ States that stand in a feudal relation towards other States are nevertheless sometimes considered as independent sovereignties."
Calvo (Sec. 43) also says “La Souveraineté d'un état dans ses relations internationales n'est pas modifiée d'advantage. par une dépendance féodale,” which he there describes as “nominale," and which would appear to refer to what is here described as unmodified vassalage. Bluntschli (Art. 76) says—“Wenn die Souveränität eines States abgeleitet erscheint von der Souveränität eines andern Hauptstates und in Anerkennung und in Folge dieser Ableitung eine theilweise Unterordnung jenes States unter diesen fortdauert, so wird der eine Vasallenstat und der andere lehensherrlicher oder oberherrlicher Stat genannt. Die volkerrechtliche Selbstandigkeit des erstern wird durch die nothwendige Rüchsicht auf den letztern beschränkt.” He therefore grants something in the nature of sovereignty to a vassal State, but defining it as one of which the sovereignty is derived from that of another
State, he appears to deduce therefrom that it must there. fore be subordinate and its independence restrained on the ground of international right. This general statement would, having regard to the attributes of sovereignty, Independence, and Equality, apparently mean that a vassal State could not be sovereign. If, however, the opinion of one recognised as so sound an international lawyer may be criticised, it may be suggested that though his definition
correct his deduction does. not necessarily follow. It can hardly be maintained, for instance, that England when held by King John as a vassal fief of the Roman See* was, from an international point of view, subordinate and dependent, and not a Power exercising full sovereign rights, at all events in its relations with all Powers other than the Papal See, although in this instance the sovereignty was certainly re-granted by the suzerain Power.f
A class of writers has hitherto intentionally not been quoted on this point; those of French nationality, who, dating from the sixteenth to the eighteenth centuries, write not so much on general International Law as on the science of government, and particularly treat of the feudal system of tenure. These writers, perhaps, might not be considered of so much authority if it were not that feudalism was of distinctly Frank growth, f and specially
* Bodin, in his Les Six Livres de la Republique, Livre Premier, ch, IX., p. 165, asserts that he had seen the Bull of Pope Innocent III. constituting England and Ireland fiefs of the Papal See, and that by the terms therein laid down they were held in faith and homage at the charge of paying a tax and rent, annual and perpetual, a thousand marks sterling on St. Michael's Day, besides the St. Peter's Pence.
+ Immediately preceding the act of investiture John resigned his kingdoms into the hands of the Pope's Legate and received them back from him to hold as a fief of the Church. Vattel I., 154, citing Matthew Paris.
Stubbs. Const. History of England, Vol. I., p. 251. Hertius, De Feudis Oblatis, sec, 2. Réal, IV., p. 140, says it was the Franks, when they estaba lished themselves in Gaul, who invented the usage of fiefs.