suffice to maintain its existence. Each must have its logical and independent place in any constitution that may be formulated for the state.

As to the powers that are indispensable to the kingship in a constitutional monarchy, there was also much difference of opinion among the philosophers. All agreed that the king must be more than a mere executive, that his headship of the state must mean real directing power, not the passivity of a symbol or figurehead. The concrete functions essential to this character ranged in theory as in practice through the whole gamut of possibilities. At one extreme the royal sphere was held to include the sole initiative and an absolute veto in legislation, and an ordinance power with no limit save the explicit terms of the law. At the other extreme the royal part in legislation was restricted in substance by the assignment of concurrent initiative to the chambers, and in operation by the imposition of more or less extensive responsibilities upon the ministers, while the ordinance power and the whole complex of authorities inherent in the idea of "governing" (Regierung) were subjected to narrow definition by the constitution itself. In this matter of the monarchic principle German theory made a little advance in scientific formulation, but practically none in substance, beyond what had been involved in the French constitutional debates from 1789 on. Where German theory brought novelty into the European discussion was at the point where the unification of Germany became the dominant practical issue.

The movement for German unity in 1848 took practical form in the famous constitutional assembly at Frankfort.2 This body framed a constitution, which failed, however, to go into

1 This is substantially the doctrine of Waitz, in his essay on “Das Königthum und die verfassungsmässige Ordnung," in his Grundzüge der Politik, p. 128. For other shades of doctrine in this matter in the fifties, when the excited debates of the revolution time were giving way to calmer reflection, consult Stahl, Rechts- und Staatslehre, Buch ii, Kap. 12, Abschnitt iii, "Das monarchische Princip." Also, Bluntschli, Allgemeine Staatslehre, Buch 6, Kap. xiv-xvi.

"Brief notice in Hazen, Europe Since 1815, chap. viii; fuller in Müller, Political History of Recent Times, sec. 17. Summary of Proceedings in Mollat, Reden und Redner des ersten deutschen Parlaments.

actual operation. The failure was due to facts that were quite apart from the theories expressed in the document. The work of the Frankfort assembly and the whole movement that centered in this work had their chief source in the feeling of national unity among the German peoples. This sentiment of nationality was a conspicuous feature of European psychology by the middle of the nineteenth century, but its philosophical aspects cannot now engage our attention. Here we have to consider the peculiar doctrines involved in the framing of a written constitution that should satisfy the aspirations of the peoples.

From 1815 to 1848 Germany was politically a league of states (Staatenbund), whose sole organ of union was a Diet (Bundestag) consisting of delegates appointed and controlled by the governments of the various states. These governments were in all but a very few cases monarchic; hence the full sovereignty of every one of the princes was, in accordance with the prevailing ideas of the time, presumed without debate. To the rising liberal and nationalistic sentiment the need of the situation was that Germany as a whole should in some way be made to figure as a state. There was no desire save among a few visionaries to abolish the individual states. The feeling, however, that they should be united in some such manner as to make Germany superior in power and dignity to any of its component parts, and equal to France or Great Britain, was passionate and widespread. Germany, the demand was, must be no longer a confederacy, but in the full sense a state.

History furnished many instances of confederation through which groups of states effected certain common purposes by means of powers delegated more or less permanently to a common government. Not till the most recent times, however, had there appeared a form of organization in which the elements and attributes of the common government made the union as a whole as truly a state as was each of its constituent members. Switzerland and the United States of America were known by 1848 to have assumed this character. The constitution of

1 In Switzerland a long series of bitter political controversies culminated in 1847 in

these two unions therefore had a great influence in shaping the projects and theories of those who were promoting German unity. Especially stimulating was the system of the American republic, after Tocqueville's penetrating analysis had brought to the attention of Europe the peculiar principles embodied in it. The constitution of the United States furnished the Frankfort constituent assembly with much that was most significant in the ill-fated project that resulted from its deliberations. Likewise after the futility of this particular written constitution was proved, German theorists about political science continued to perfect on the lines of American debate the logical concept of the Bundesstaat.

That republican government was the universal form in the United States while practically all the German states were monarchic was held by many to render the theory of the American system wholly inapplicable in central Europe. There was, indeed, no room for doubt that the tenacity with which the monarchic principle was maintained had much to do with the failure of the Frankfort project. Yet those were on firm logical ground who held that the essential principle of the Bundesstaat was in no way affected by the special form of government in either central power or member state, and that the Germans at Frankfort in 1848 gave the first expression in history to the monarchic type of this new form of union, as the Americans at Philadelphia in 1787 gave the first expression to the republican type.'

There was no disposition to deny to the Americans priority in detecting the basic feature of the Bundesstaat. And what

civil war, the war of the Sonderbund. Certain of the cantons sought to reject the authority of the general government. After the secessionists had been suppressed by force a new constitution, in 1848, made secure for the future the permanence of the union and the authority of the general government.

1

1 Cf. Waitz, Grundzüge der Politik, pp. 209-210. But Waitz apparently believed that the Bundesstaat existed among the Greeks.

'Treitschke, in his Historische und Politische Aufsätze, ii, 113, declares that the fundamental principle of the Bundesstaat was first clearly developed by Alexander Hamilton in the Continentalist and the Federalist. The principle was, that when a political organ is endowed with a right, the power necessary to the exercise of the right must be presumed to go with it. From this it followed that in a union of states

was this feature? Merely what Tocqueville had laid such stress on, a general government so complete in organization and so endowed with power as to be able to perform its functions and enforce its authority without recourse to the governments of the member states. Where such a general government existed, there was implied a people seeking to realize the ends of political life, some through this organization and others through the state governments. But the organization of a people to attain the ends of political life is, as Waitz laid down,' the definition of the state. Where the organization takes the form of a single government exercising all the necessary powers in every field, there is a unitary state (Einheitsstaat); where the powers are divided between two governments, each independently exercising its own, there is a union-state (Bundesstaat). Sovereignty, as designating independent and final authority, may properly, in the judgment of Waitz and others, be ascribed alike to the union-state and to the individual state, each in its proper sphere. For sovereignty is conceived as meaning authority that is supreme and unquestionable, but not authority that extends over all conceivable subject-matter.

On this point of the divisibility of sovereignty, as on pretty much every other phase of the general question, there were sharp differences of opinion among the Germans. The course and substance of their controversies involved little that had not been exhibited in the legal and political arena of the United States. The dogma of sovereignty according to spheres had been propounded by all the leading American publicists. The "Union" that Daniel Webster had become immortal in defend

the central government must have power to enforce its laws upon the individual citizens. This bahnbrechende idea was discussed by the Americans solely with respect to their peculiar practical problems. Waitz was the first, Treitschke says, to treat the idea systematically and "with the profound earnestness of German science."

1. . . die Organisation eines Volks zur Erfüllung seiner höheren Lebensaufgaben...." Grundzüge der Politik, p. 163.

'It has been commonly assumed that the proper English equivalent of Bundesstaat is “federal state." But many acute reasoners, like Professor J. W. Burgess, insist that while government may be federal, state may not, and the expression "federal state" is meaningless. "Union-state" as the rendering of Bundesstaat would seem to be immune to this particular objection.

ing was the obvious prototype of the Frankfort Bundesstaat. John C. Calhoun's trenchant attack on the doctrine of divided sovereignty, though apparently not yet well known across the Atlantic, was not exceeded in effect by the parallel criticism of like-thinking Germans, and his dogma of state-sovereignty was destined to furnish, when made readily accessible,' valuable aid and comfort to the partisans of Particularismus in the empire that Bismarck brought into being.

Neither the German nor the American theorists were successful in so defining the Bundesstaat as to insure to it general recognition as a new species of the genus state. The Germans were embarrassed by their monarchic principle. This, taken in connection with their doctrine that sovereignty was divisible, made every reigning prince the absolute possessor of some, if not all, of the governmental powers in his dominions. To superimpose on these "sovereigns" a monarchic government whose chief must be recognized as endowed with powers and dignity as exalted and indefeasible as theirs, was possible in theory; but the resulting system would inevitably involve such diffusion of power and uncertainty of its tenure as to suggest confederacy or anarchy rather than the definiteness of a state."

A more coherent and admissible concept of the Bundesstaat as a real state was developed by those who relegated the monarch to the position of a mere executive, and regarded a people as the essential and self-sufficient basis of whatever was entitled to the name of state. In the people was to be found, according to this view, the source of all the powers vested in both state and federal governments, and the final authority in deciding where ran the line of partition between them. The people

The works in which Calhoun most systematically developed his doctrine were published only in 1851, the year after his death.

The Frankfort assembly, after completing its constitution for Germany, offered to Frederick William IV of Prussia the headship of the new government, with the title 64 Emperor of the Germans." The dignity was declined partly because the offer came, not from the princes of the German states, but from the representatives of the people, and partly because acceptance clearly would be followed by a difficult and uncertain war to enforce the new system upon Austria and many other states. All the circumstances showed that the particular Bundesstaat formed at Frankfort lacked the essential elements of order and progress.