duties." But even before Gneist, Lieber, although in a somewhat different sense, had stoutly maintained that duty is a necessary factor in civil society. To Gneist duty appears to be a necessary quality, a characteristic of civil right; and, in so far, duty is legal obligation (Rechtspflicht). But, according to Lieber, duty is different from right; the former is moral obligation, not legal obligation. For this reason, duty transcends the limits of the legal order, although it is efficacious even within those limits. Duty has a broader basis in the nature of man, which is not governed entirely by law or legally regulated in all lines of its activity. Conscience still urges to the exercise of duty when the laws are silent, and even in political conduct we continue to distinguish between good and evil after the law has ceased to discriminate. For example, an executive officer or a leader in party politics may make a bad use of a legal right which is allowed him by the constitution; and a patriotic citizen may render his country a greater service than the law requires of him.

Lieber, in his Manual of Political Ethics, has laid especial stress upon the immeasurable importance of the moral element in civil life, and he has written a code of civil ethics which is of service at once to science and to morals: to science because he has filled a gap in the branch of politics, to morals because he has encouraged every noble aspiration and every political virtue while manfully combating baseness, even though it vaunt itself in the high places and be masked as holy authority.

Lieber knew that the civil order rests upon the broader and deeper foundation of the moral order, and that the former must sink in ruins if this foundation be destroyed. While showing the connection between the two, he follows the natural inclination of the German to consider, from an ethical stand-point, the world and its progress and to point out their moral worth. The German is fond of moralizing, but it is difficult for him to view things from a political stand-point. Lieber brought to America from over the ocean this German fondness for moralizing, but he also acquired a political cast of thought and developed the same in America. For these

reasons, his writings possess a great value for Germans as well as for Americans. Our author represents both nationalities, supplies for both their peculiar wants and defects of education, and enriches each with the peculiar wealth of the other.

Lieber does not always distinguish sharply between law and morals, in the narrow sense. Sometimes a moral right or an ethical demand appears to him like a law. For example, when he is discussing the great and essentially moral force which expresses itself, in political life, as public opinion, he represents the latter as an expression of sovereignty, that is, as public law, which is certainly not the case. True it is, that no one, not even a legitimate king, can permanently withstand the might of public opinion, and true it is, that the latter, if it holds constantly and firmly to a certain course, will finally bring about changes in the constitution itself. And just as the overwhelming power of victory in a war between states decides the fate of nations, so the peaceful but ever-growing moral power of public opinion works on until at last it becomes irresistible. When the mind and heart of the people are fully changed, then becomes inevitable a transformation of the state itself, which is simply a body for the soul of the people to dwell in. But these cases are no operations of sovereignty, no expressions of the supremacy of state, but rather are they radical changes in the conditions and relations upon which the state is founded, or in the situation of its people. We can appreciate the moral worth of public opinion and we should not fail to regard it politically, but we ought never to stamp it as law.

Lieber's work on Civil Liberty is quite in accordance with English and American ideas. And on this account, perhaps, the work was translated into German by Franz Mittermaier, and has become better known in Germany than the Political

The latest and best discussion of the subject of Public Opinion is to be found in the article by Holtzendorff (also a friend of Lieber), which was published by the faculty of law at Munich, on the occasion of my doctor's jubilee, August, 1879.

Ethics. Representative government and self-government are the great works of the English and American peoples. The English have produced representative monarchy with parliamentary legislation and parliamentary government; the Americans have produced the representative republic. We Europeans upon the continent, recognized in our turn that in representative government alone lies the hoped-for union between civil order and popular liberty. We found ourselves obliged, therefore, to become students of English and American institutions, although we gradually came to the conviction that mere imitation would be unsuitable and unworthy, an exact reproduction, utterly impossible. All the more welcome, therefore, were the results which Lieber gave us, of his own experience and personal observations with regard to the workings of representative government. In his studies concerning the nature of liberty, Lieber again, by a sort of preference, discusses the safeguards which Anglo-American common and statute law have set up and established for the defence of individual freedom against abuse of power.

The Instructions for the Government of Armies of the United States in the Field were drawn up by Lieber at the instance of President Lincoln, and formed the first codification of International Articles of War (Kriegsvölkerrecht). This was a deed of great moment in the history of international law and of civilization. Throughout this work also we see the stamp of Lieber's peculiar genius. His legal injunctions rest upon the foundation of moral precepts. The former are not always sharply distinguished from moral injunctions, but nevertheless, through a union with the same, are ennobled and exalted. Everywhere reigns in this body of law the spirit of humanity, which spirit recognizes as fellow-beings, with lawful rights, our very enemies, and which forbids our visiting upon them unnecessary injury, cruelty, or destruction. But at the same time, our legislator remains fully aware that, in time of war, it is absolutely necessary to provide for the safety of armies and for the successful conduct of a campaign; that, to those engaged in it, the harshest measures and most

reckless exactions cannot be denied; and that tender-hearted sentimentality is here all the more out of place, because the greater the energy employed in carrying on the war, the sooner will it be brought to an end, and the normal condition of peace restored.

These instructions prepared by Lieber, prompted me to draw up, after his model, first, the laws of war, and then, in general, the law of nations, in the form of a code, or law book, which should express the present state of the legal consciousness of civilized peoples. Lieber, in his correspondence with me, had strongly urged that I should do this, and he lent me continual encouragement.

The intimate, personal connection in which I stood with Lieber in his declining years, although, indeed, through interchange of letters and not through meetings face to face, was for me a constant stimulus and source of satisfaction. This relation with Lieber was animated and strengthened by great and world-historic events: first of all, the war for the American Union, from 1861 to 1865; then the war between Austria and Prussia, in 1866; and finally, the Franco-Prussian war. From 1860 to 1870, Francis Lieber, in New York, Edward Laboulaye, in Paris, and I in Heidelberg, formed what Lieber used to call a "scientific clover-leaf," in which three men, devoting themselves especially to political science, and at the same time uniting the historical and philosophical methods, combining theory with practical politics, and belonging to three different nationalities, to three states, and to three peoples, found themselves growing together by ties of common sympathy, and thus, figuratively speaking, representing also the community of Anglo-American, French, and German culture and science. The personal tie, indeed, is now, alas, broken. Lieber is dead. Laboulaye had already virtually separated from us, for he could not overcome the bitterness caused by his feelings and experience during the FrancoPrussian war. But that community of thought, science, and endeavor, which we represented for three peoples and for three civilizations, is not broken up, but will broaden and deepen

and become more fruitful, as surely as the peculiar spirit and individual forms of nationality, existing of their own right, find their true harmony and highest end in the development of humanity.

Lieber had great influence, I may add, in founding the Institut de Droit International, which was started in Ghent, in 1873, and forms a permanent alliance of leading international jurists from all civilized nations, for the purpose of working harmoniously together, and thus serving as an organ for the legal consciousness of the civilized world. Lieber was the first to propose and to encourage the idea of professional jurists of all nations thus coming together for consultation, and seeking to establish a common understanding. From this impulse proceeded Rolin-Jaequemyns' circular letter, drawn up in Ghent, calling together a number of men eminent for their learning. This latter proposal to found a permanent academy for International Law met with general acceptance, but this was merely a further development of the original idea of Lieber, which was at the bottom of the whole scheme. His notion was now approved and the efficiency of the association was thus assured for the future.