was the constituent entity and the constitution was the people's will as to how the functions of state life were to be divided for exercise between two organizations and distributed among the various departments of each. A Bundesstaat, then, was a state in which the sovereign people had a dual rather than a single governmental organization, and assigned to each branch a part, not of sovereignty, but of the powers to be exercised for the good of the state by the government.

This explanation of the Bundesstaat had few supporters in Germany. It smacked too much of democracy and dangerous radicalism. There was indeed endless iteration of the cry that the Frankfort assembly was the constitution-making organ of the German people, and that the fundamental law there forinulated was the people's will. Yet conscientious philosophers, even of advanced liberal views, were slow to take this doctrine seriously; for the German princes were in theory distinctly set off from the German people, and in practice it was clearly the princes rather than the people that determined the fate of the Frankfort movement.

In America the conception of the Bundesstaat outlined above became after the middle of the nineteenth century predominant among reflecting men.' The idea that sovereignty was divisible lost its hold through the powerful logic of Calhoun, and the growing might of triumphant democracy nourished the dogma that in the people must be found sovereignty, not only in the sense of the power to say the last word in matters of governmental practice, but in that more comprehensive sense for which Blackstone furnished the formula-the power that is "supreme, irresistible, absolute, uncontrolled." With sovereignty and the making of governments and constitutions an indefeasible attribute of the people, the federal system could be neatly fitted into the theory of the state. Not that it revealed a new species of state. With the distinction between state and government duly regarded, there was no such thing conceivable as a "federal state," but only a unitary state with a federal government.

1 Cf. the interesting discussion in Merriam, History of the Theory of Sovereignty Since Rousseau, chap. ix.

But the clearing-up of theory by American facts and ideas did not serve to solve all the problems that were inherent in the conditions. To make it clear that sovereignty was in the people did not save the United States from a barbarous civil war, in which the location of sovereignty was a leading issue. The old question recurred with appalling consequences: who constitute the people in whom sovereignty inheres? Is the partition of powers between the two governments determined by the collective inhabitants of each individual state, or by the total population of all the states? There was no more decisive answer to this question in the American system than there was to the issue between princes and people in the German.

Waitz said in discussing the league of states (Staatenbund) that the only significance of this form of union in history was that it commonly was a step in the transition from a group of states to a single state. The Bundesstaat he considered to have in it more of the element of permanence-to be in fact a distinct and valuable addition to the forms of political life. There is rather more indication in the history of this species of union down to the present time that it is as unstable and transitional as the Staatenbund. Its rôle has clearly been, in America and Germany, to prepare the way for the advent of a national unitary state with a federal government.

7. Conclusion

The foregoing paragraphs have called attention to the distinctive features of constitutional theory on the continent till well past the middle of the nineteenth century. The written constitution became the almost universal form of fundamental law. As to the character and content of it, theory on the legalistic side dealt particularly, as we have seen, with the doctrine of sovereignty, the function of the monarch, and the nature of the union-state.

On all these subjects the prevailing thought in the theories we have noticed was to ignore in a large measure the concept state and concentrate attention on government. Sovereignty, in the sense of authority that was "supreme, irresistible, absolute, uncontrolled," was excluded from consideration, or alto

gether from recognition as a rational idea. No "determinate human superior" such as the English Austin insisted on was thought of as essential to government that was truly constitutional. The French liberals and doctrinaires would hear of nothing but reason and justice, applied to the prescriptions of a nicely balanced system of checks among the departments, as the supreme directing power in political life. The supporters of the monarchic principle claimed for the prince only an indispensable, not an absolute authority; monarch, people and representative bodies each had a part in the government as determined by the constitution. The expounders of the unionstate showed a dual government, each branch of which was restricted to a sphere, whose limits the constitution must be depended on to make clear.

For theoretical as well as practical completeness there was required in each of these systems of doctrine some entity on which the various elements of authority could rest. The nice balance among the various departments of the government, even when the royal power was added to the older elements as a regulator, could not be rationally explained as existing and functioning of itself and for itself in France. Prince and representative body were in almost every state of central Europe in strife as to the scope of their respective powers; neither would concede the right of the other to partition the disputed field; an authority with competence to determine competence was inevitably suggested. In the dual government of the Bundesstaat the situation was very much the same; delimitation of the respective spheres of the central and the state governments became promptly a problem in both theory and practice. And finally, monarchy and union-state alike presented always the fundamental question: for whom and by whom, in last analysis, is the complex organization of authority created and maintained?

To say, as was in fact said, that a sufficient answer to these questions must be found in the constitution, was but to carry the issue one step further back and raise the controversy as to the source and end of the constitution. To evade the long familiar debate over the constituent power, was more or less

unconsciously always in the minds of the moderate men who led in the political debate between 1815 and 1848. They feared to ascribe to either people or prince so unrestricted a power as that to create a constitution. They would shut their eyes to the very human motives and passions that entered into the formulation of a constitution by either prince or assembly of representatives, and would assume the concrete result to be the expression of impersonal reason and righteousness.

This attitude had been the normal one among the expositors and eulogists of the unwritten constitution. England, the example par excellence of this species, was assumed to have developed its nearly perfect political system through the operation of institutions and forces unrecognized and uncontrolled by the conscious intelligence of men. The English nation was the real creator of the system. In like manner, it was felt, the written constitutions that came forth so numerously in the nineteenth century expressed the spirit and will, not of the delegates or the princes who formulated them, but of the historic and ethnic aggregates of which these constitution-writers were the unconscious organs. real and ultimate source and law. Neither the constitution nor any of the organs defined and authorized by it was the last element in the political series. Behind all the definite and personal elements lay in every case that supra-human and impersonal factor that was variously called "people" (collective and abstract, not distributive and concrete), "state" and "nation."

Here, then, was to be found the interpreter of the fundamental

The last of these terms became in the first half of the nineteenth century the most characteristic of the theory which we are indicating. Side by side with the development of constitutionalism in political philosophy the conception and influence of nationality received elaborate investigation and assumed the utmost prominence. The course and character of the theorizing on this subject assumed a somber significance through their relation to the cataclysm of 1914.

WILLIAM A. DUNNING.

COLUMBIA UNIVERSITY.

THE INTELLECTUAL PRE-EMINENCE OF JEWS IN MODERN EUROPE

A

MONG all the clamorous projects of national selfdetermination which surround the return of peace the proposal of the Zionists is notable for sobriety, good will and a poise of self-assurance. More confidently and perspicuously than all the others, the Zionists propose a rehabilitation of their national integrity under a régime of live and let live, "with charity for all, with malice toward none." Yet it is always a project for withdrawal upon themselves, a scheme of national demarkation between Jew and gentile; indeed, it is a scheme of territorial demarkation and national frontiers of the conventional sort, within which Jews and Jewish traits, traditions and aspirations are to find scope and breathing space for a home-bred culture and a free unfolding of all that is best and most characteristic in the endowment of the race. There runs through it all a dominant bias of isolation and inbreeding, and a confident persuasion that this isolation and in-breeding will bring great and good results for all concerned. The Zionists aspire to bring to full fruition all that massive endowment of spiritual and intellectual capacities of which their people have given evidence throughout their troubled history, and not least during these concluding centuries of their exile.

The whole project has an idyllic and engaging air. And any disinterested bystander will be greatly moved to wish them godspeed. Yet there comes in a regret that this experiment in isolation and in-breeding could not have been put to the test at an earlier date, before the new order of large-scale industry and universal intercourse had made any conclusive degree of such national isolation impracticable, before this same new order had so shaped the run of things that any nation or community drawn on this small scale would necessarily be dependent on and subsidiary to the run of things at large. It is now, unhappily, true that any "nation" of the size and geo