The state, though itself the source of all law, can only operate through law. That is to say, an expression of its sovereign will can validly proceed only from those legislative mouthpieces that, by already existing law, have been granted the right to voice its commands, and these commands may be legally enforced only according to laws already established. Be cause of its legal omnipotence the state may at any time alter these rules according to the methods provided for the amendment or repeal of laws, but as they exist at any time the laws control. Any action not sanctioned by their provisions, however much approved by those in political authority, cannot, strictly speaking, be termed an action of the state.
Itself the creator of all law, the state is not itself a product of law. Constitutions create governments, not states. They are the crea tions of states already existent. The cre ative force, in the birth of states, is that feel ing of unity interests and desires that leads a society of human beings to assume a corporate form and create the political organs necessary for the attainment of all those interests that are connected with or arise out of their existence as a *national unit. This being so, it follows that sovereignty cannot arise out of any formal; legal or conventional act. In other words, a state cannot be created by formal agreement between individuals, as postulated by the social compact theory, nor brought into being by a compact between sovereign individuals By a sur render of private rights, ndividuals cannot create a public right; by a treaty agreement, there cannot be created a political power with a legal authority superior to that of the parties establishing it. From this last fact it ir resistibly follows that any so-called composite or federal state that has for its basis a treaty or compact between states is not in truth a state at all, but a mere league of states, and this, notwithstanding the fact that very extensive powers may have been granted to the central governing power. Envisaged as a legal person, the sovereignty of a state represents the supremacy of its will. As thus representing a supreme will, sovereignty is necessarily an in divisible unity. A divided or double sovereignty is an impossibility. A given body-politic there fore either possesses sovereignty and is for that reason a state, or it has not sovereignty, and, as a result, is not a state but simply an administrative division of the state that pos sesses sovereignty over it. In all strictness then, it is a misuse of words to speak of a federal state, if by that term is meant a state formed by a federation of states; for if, in such a federation, sovereignty is held to rest in the central body, that body is a state, and its constituent commonwealth members are ipso facto reduced to a non-sovereign condition, and therefore to the status of administrative dis tricts. If, however, the federating units each
retain their sovereignty, they remain states, and no central sovereignty or state can be helt to be created. In the one case, there exists but one state with a government composed of one set of central or federal organs and as many sets of local governmental organs as there are mem bers of the union. In the other case, there exist as many states as there are confederated units, an equal number of state governments, and a central government that acts as the com mon agent of the several states; but no central state.
The line of distinction between a single na tional state composed of non-sovereign bodies politic enjoying extended powers of self-govern ment, and a confederation of states with a central government exercising many of the most important sovereign powers, is not always easy to draw. The distinguishing criterion is not the amount of powers actually vested in the central government as compared with those retained by the individual commonwealths, nor whether the operation of federal law is upon the individual states themselves or directly upon their citizens, nor, necessarily, upon the manner in which the articles of union may be amended. The one absolute test is as to the power or lack of power of the members of the union themselves to determine, in the last resort, not only the extent of the obligations imposed upon them by the articles of union, but their constitutional right to withdraw from the union when they see fit.
Bearing in mind the distinction between the possession of the sovereignty itself and the mere exercise of certain of its powers, it is seen that a state may, without in any wise impairing its sovereignty, delegate the execution of its commands not only to governmental agencies of its own creation, but to those of other states; for, so long as such other states, or their ernments, act but as the agents of the first state, i it is the sovereign will of that state that is ex ecuted. And, furthermore, whatever may be its actual power, the state in question has the legal right itself to assume again the actual ex ercise of the powers it has granted. Such a withdrawal of delegated powers may be in violation of existing treaties, and, therefore, j constitute a just ground for complaint, hut it is not an illegal act, for treaties do not create law in the strict positive sense. Instances of the delegation by states to other states of the exercise of important powers is seen in the many so-called protectorates that exist at the present day. Confederacies, real and personal unions, and colonies are not similar examples, for in them the exercise of powers is granted to government organs created by the sovereign parties themselves.