COPYRIGHT, 1899

BY

G. P. PUTNAM'S SONS

OMIA OL

AIMZOLIAD

The Knickerbocker Press, New York

JC 223

·47

TO THE RIGHT HONOURABLE

WILLIAM HARTPOLE LECKY, M.P.

DEAR MR. LECKY,

When your treatise on Democracy and Liberty was given to the world, I had the pleasure of receiving a copy from the author. In expressing my thanks for the gift, I told you that I was engaged upon a work dealing, to some extent, with the same topic; and that I should deny myself the gratification of perusing your volumes, until I had finished the task to which I had set myself. I was anxious to guard against the risk of unconsciously appropriating any of your thoughts.

yours.

Three years have passed away since then. At last, I have completed my book and have read And I rejoice to find that, although I write from another standpoint, and pursue a different method, there is much in the conclusions reached by me for which I may claim the sanction of your authority. It is, therefore, with a special satisfaction that I avail myself of your kind permission to inscribe these pages with your name; a name which, as I have said elsewhere-and I prefer to repeat the

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words, because they were not written ad hoc-may well stand as the symbol of all that is best in the historic literature of our age: impartial accuracy, magisterial serenity, sustained self-command, skill in truly discerning and in logically marshalling facts, power of ratiocination, severity of taste, and purity of style.

But it is not merely in conclusions that I have the happiness of finding myself largely in accord with you. As I venture to believe, we agree in what is the cardinal doctrine of this work-the most fundamental of the First Principles upon which it insists. And my warrant for so thinking is a passage long familiar to me in your History of European Moralsa book which, as I well remember, came into my hands when I was an undergraduate at Cambridge, and took me captive by the charm of its diction and the cogency of its dialectic. You there rank yourself among "those moralists who assert that we possess a natural power of distinguishing between the higher and lower parts of our nature"; and you proceed to illustrate this point by a very striking comparison: "Man is like a plant which requires a favourable soil for the full expansion of its natural or innate powers: yet those powers, both rational and moral, are there: and, when quickened into action, each will discharge its appointed functions." Here we come to the very root of the difference be tween the two schools of thought which at present

divide the intellect of the world. I hold, with you, that reason is the characteristic endowment of man; that it is separated by a whole universe from instinct; and that what you admirably term "progressive energy" is a note of it. The capacity for ethical development is possessed by the human race alone. And the root of the capacity lies in this: that man—and man alone-is animal rationale.

Hence it is that I believe in the doctrine of Natural Right. And I think one chief cause of the wide-spread disbelief in that doctrine is what you term, with just severity, "a very mischievous equivocation in the word 'natural.'" The notion is common that if we assert a Law of Nature, we imply belief in a state of nature such as Rousseau, and the philosophes of the last century, vainly imagined. I suppose the late Sir Henry Maine did more than any one else to popularise this misconception, by lending to it the authority of his great name. It appears to me the chief blemish upon his valuable writings, which have done so much to advance among us the scientific study of jurisprudence, and to which as I gladly testify-my own personal obligations are considerable. But, assuredly, we must account as utterly unhistoric the remarks in his Ancient Law: "The belief gradually prevailed among Roman lawyers that the old jus gentium was, in fact, the long-lost code of Nature"; and "the inference from this belief was immediate: that it was

revive, as far as might Nature had governed The Law of Nature,

be, the institutions by which man in the primitive state." as understood by the great Roman jurisprudents, following the teaching of the philosophers of the Porch, means an objective law of Righteousness, embodied in, and learnt from, the highest part of nature-Reason. And they identified this jus naturale with the jus gentium, because it is found in all countries, and is applicable to all men, on whose hearts and consciences it is written. Its dictates are the body of rights, "the obligatoriness of which," to quote the words of Kant, "can be recognised by the rational faculty a priori." "No nation," as the Roman orator finely said, "can overthrow or annul it: neither can a senate nor a whole people relieve us from its injunctions." It is a law of absolute and unconditioned authority, ruling throughout the universe, in all spheres of rational existence. It is the ideal type to which positive law should ever more and more approximate, though it can never be wholly realised in human enactments.

It appears to me that if we once lose the conception of this law, we empty life of its true value, which is ethical: we reduce right and wrong-I do not mean in their applications, but in their essence— to a mere question of latitude and longitude, climate and environment, temperament and cuisine. Hooker's indignant language, when he reprobates