place in a discussion of the American political system; for there was as yet no consensus in the United States as to the abode or even the attributes of this elusive entity; and the many constitutions, state and federal, with all their elaborate formulas, gave no conclusive demonstration that sovereignty belonged either to the states, individually or collectively, or to the people as a whole, or to the people segregated in the several state communities. Each of these views, as well as various others, was propounded from time to time by speculative minds, but the most common idea was that supreme power was divided between the United States and the individual states, each being sovereign in its sphere.

This was the dogma adopted by Tocqueville, without question as to the solution of the difficult problems of logic suggested by it. The theory served his purpose by exhibiting at the very base of the system an agency through which the perils of democracy were avoided. Since the constitution itself denied certain powers to the states and certain others to the general government, there could be no claim to absolute authority by either branch of the dual system. Moreover, there must be a natural tendency of the states to resist illegitimate extension of its powers by the general government and vice versa. Thus was revealed a new item in the list of checks and balances through which liberty was insured—an item excluded by the nature of the case from every unitary system.

Tocqueville was quite aware that this principle had been employed in a crude form in earlier confederations of states; but he detected and set forth with clearness the features of its application in America that gave a distinctive character to the United States. Its government, he thought, must be designated as incompletely national rather than strictly federal. It was at all events, he believed, a new type of political organization, for which a special name had not yet been devised.' Its appearance had been due to the special needs of the Americans

Tocqueville, op. cit., vol. i, p. 201. Tocqueville was of course unfamiliar with the German distinction between Staatenbund and Bundesstaat. It was in 1835 that Pfizer published his influential work on German public law in which he sought to show how the German Bund had in it the making of a Bundesstaat.

immediately after achieving their independence. Whether the new devices would be available for other peoples was far from certain; the late attempt of the Mexicans to use them had proved a dismal failure. In any case, however, it behooved the philosophical observer to note critically and dispassionately the new phenomenon in political science.

The chief feature that made the United States unique among federal systems was the assignment to the general government of the power to enforce its authority over citizens by direct action of its own officials rather than indirectly through the officials of the states. This afforded, Tocqueville thought, a necessary corrective to the anarchic tendency that commonly manifested itself in confederacies. It strengthened the central government as against the states. On the other side the integrity of the states was guaranteed by their possession of all residual authority outside of the limited field ascribed to the United States. Against both governments the rights of the individual were secured, not only by the constitutional restrictions familiar in Europe, but especially by two devices that aroused the liveliest curiosity and interest in the philosopher. These were, first the extreme decentralization of administration, and second, the exalted political function of the higher judiciary in its power to pass upon the constitutionality of legislative and executive acts. These two elements in the American system were first brought into prominence among European thinkers by the descriptions and eulogies framed by Tocqueville. From his time to the present day they have been continuously in the focus of historical, constitutional and juristic discussion.

The origin and influence of these two features of American political life are set forth with great accuracy and impartiality by Tocqueville. He finds in both of them an important part in the successful career of constitutional democracy. The ex

"The Constitution of the United States resembles those fine creations of human industry which insure wealth and renown to their inventors, but which are profitless in other hands. This truth is exemplified by the condition of Mexico at the present time." Ibid., p. 211.

2 Op. cit., i, chaps. v and vi.

clusion of a remote and unfamiliar authority from the management of local affairs has a wholesome effect upon the interest and activity of the community in its own business, and so by suggestion upon its concern in the wider sphere. Self-government in the towns and counties is the primary manifestation of the democratic spirit that is essential to the whole system. It furnishes also a most significant item in the list of reciprocal checks upon the undue extension of governmental activity. Where it prevails there is no opportunity for the development of the oppression that is likely to accompany a wide-reaching authority in the central administration.'

Of somewhat similar significance is the position assumed in the American system by the judiciary. In the mere fact that the courts have a decisive voice in interpreting the constitution and in passing upon the validity of statutes, Tocqueville sees a check upon both legislature and executive that is wholly unknown in Europe. It restores to something like an equal place in Montesquieu's triad of separated powers that one which had been reduced to practical nullity, and thus strengthens again the guarantees against tyranny. Nor is the manner less praiseworthy than the fact of this exaltation of the judiciary by the Americans. To set the court up in open political conflict with the legislature would be, Tocqueville sees, disastrous; but when the invalidity of a statute is determined as a mere incident of a private lawsuit, "in an obscure debate on some particular case," the danger of trouble is reduced to the minimum.2

The treatment of these two capital items in the American system well illustrates Tocqueville's general purpose. He aims to show that the democracy which for the first time in history appears successful in a large population and territory rests essentially, not on the prescriptions of the written constitutions (though these documents are so numerous and so skilfully framed in the United States), but on the history and character, the environment, manners and morals of the people. Neither

'Tocqueville's reflections upon the nature and effects of centralization in govern. ment and in administration, the two being carefully distinguished, constitute one of the most famous and influential passages in his work. See op. cit., vol. i, p. 107 et seq. Op. cit., vol. i, p. 128.

decentralization nor the power of the courts to nullify legislation is formally embodied in the written constitutions, but both have become vital elements in American polity. It is not to be inferred, therefore, that the deliberate incorporation of these institutions in the fundamental law of another nation would at all insure the benefits that flow from them in the United States. Thus Tocqueville guards against undue stress on the volitional and conscious forces in political life, and teaches that democracy, though certain to prevail ultimately throughout the civilized world, will not come by the making of constitutions, however ingenious, but gradually, by the unnoticed transformation of social conditions and ideals.'

The evil of democracy that Tocqueville finds inevitable and most dangerous is the tyranny of the majority. Universal suffrage (that is, manhood suffrage) he regards as of the essence of democracy, and universal suffrage means the ultimate control of all legislation by the mass of the people. Constitutions, as well as ordinary statutes, will be made to conform to the majority will. Nor will there be any relief in an appeal to public opinion against injustice that is confirmed by law; for the same majority that makes the law makes public opinion. With whatever mitigations American practice has imbued this hard rule, its sway is manifest on all sides. One who holds ideas outside the circle drawn by the belief of the majority can have no political career or desirable social relations. In this is a tyranny more odious and more deadly than that of any monarch.

Tocqueville's despairing insistence on this point of menace to democratic institutions is remarkable and betrays the influence of some cause that blurs his usually acute perceptions of the realities of things. For he seems to think of a majority as a definite, unchanging aggregate, whose will and purpose are beyond the influence of external conditions, instead of a casual

1 An interesting light on Tocqueville's insight into practical and contemporary tendencies in France, whose special problems were always in his mind, is thrown by his relations to the revolution of 1848, whose approach he predicted. From the advertisement to the twelfth edition of the Democracy in America, published in 1850, it appears that he did not divine the near approach of the empire.

group, ceaselessly changing in physical constituents and psychological character.

In general, however, his estimate of the forces and tendencies inherent in the American system and in democracy in general is amazingly acute and judicious. His great work had an instantaneous and continuing effect on political theory on both sides of the Atlantic, and served in particular to counteract in a marked degree the exaggerated confidence of liberals in the efficiency of the written law."

6. German Constitutional Theory: The Bundesstaat Tocqueville's exposition of the American federal system did not fail to enter substantially into the speculations of contemporary German politics. The agitation throughout the German states that culminated in 1848 was focused chiefly at two points: first, the constitutional position of the monarch in the various states; and second, the union of these states and of the whole German people into a strong and efficient federation.

As has already been indicated, the monarchic principle generally prevailed over republicanism in constitutional practice, and received a well-developed theoretical support. The king was conceived as a wholly self-dependent political entity, possessing far-reaching powers in the government. Whence these powers were derived, was variously answered. Some said, with the voice of the antiquated obscurantist, "from God; others said, "from nature;" others, "from history; " others still, "from the nation or the state." What no defender of the monarchic principle would say was, "from the people." It was axiomatic with this school of thought that the people no more made the king than the king made the people. The kingship, historically considered, took form and developed pari passu with the people (das Volk), and the two, king and people, constituted the state. Neither without the other would

'Of all the many judgments on Tocqueville's work, that of Bryce, published just before the appearance of his own great study of the United States, has for many reasons the most interest and value for students of political theory at the present day. See his essay, "The Predictions of Hamilton and Tocqueville," in the Johns Hopkins Studies in Historical and Political Science, series v, no. ix.