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Title: Liberty in the modern state
Author: Harold J. Laski
Release date: March 11, 2026 [eBook #78171]
Language: English
Original publication: New York: Harper & Brothers, 1930
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*** START OF THE PROJECT GUTENBERG EBOOK LIBERTY IN THE MODERN STATE ***
LIBERTY
IN THE
MODERN STATE
_By
HAROLD J. LASKI_
_Professor of Political Science
in the University of London_
1930
PUBLISHERS
_HARPER & BROTHERS_
NEW YORK AND LONDON
LIBERTY
IN THE
MODERN
STATE
_Copyright, 1930,
by Harold J. Laski.
Printed in the
United States._
FIRST EDITION
TO
FRIDA
AND
DIANA
_CONTENTS_
I. THE NATURE OF LIBERTY 1
II. FREEDOM OF THE MIND 80
III. LIBERTY AND SOCIAL POWER 195
IV. THE OUTLOOK FOR LIBERTY 279
LIBERTY IN THE MODERN STATE
CHAPTER I
THE NATURE OF LIBERTY
I
I mean by liberty the absence of restraint upon the existence of those
social conditions which, in modern civilization, are the necessary
guarantees of individual happiness. I seek to inquire into the terms
upon which it is attainable in the Western world, and, more especially,
to find those rules of conduct to which political authority must
conform if its subjects are, in a genuine sense, to be free.
Already, therefore, I am maintaining a thesis. I am arguing, first,
that liberty is essentially an absence of restraint. It implies power
to expand, the choice by the individual of his own way of life without
imposed prohibitions from without. Men cannot, as Rousseau claimed,
be forced into freedom. They do not, as Hegel insisted, find their
liberty in obedience to the law. They are free when the rules under
which they live leave them without a sense of frustration in realms
they deem significant. They are unfree whenever the rules to which they
have to conform compel them to conduct which they dislike and resent. I
do not deny that there are types of conduct against which prohibitions
are desirable: I ought, for instance, to be compelled, even against
my wish, to educate my children. But I am arguing that any rule which
demands from me something I would not otherwise give is a diminution of
my freedom.
A second implication is important. My thesis involves the view that if
in any state there is a body of men who possess unlimited political
power, those over whom they rule can never be free. For the one assured
result of historical investigation is the lesson that uncontrolled
power is invariably poisonous to those who possess it. They are
always tempted to impose their canon of good upon others, and, in the
end, they assume that the good of the community depends upon the
continuance of their power. Liberty always demands a limitation of
political authority, and it is never attained unless the rulers of a
state can, where necessary, be called to account. That is why Pericles
insisted that the secret of liberty is courage.
By making liberty the absence of restraint, I make it, of course, a
purely negative condition. I do not thereby mean to assume that a man
will be the happier the more completely restraints are absent from the
society to which he belongs. In a community like our own, the pressure
of numbers and the diversity of desires, make necessary both rules and
compulsions. Each of these is a limitation upon freedom. Some of them
are essential to happiness, but that does not make them for a moment
less emphatically limitations. Our business is to secure such a balance
between the liberty we need and the authority that is essential as to
leave the average man with the clear sense that he has elbow-room for
the continuous expression of his personality.
Nor must we confound liberty with certain other goods without which
it has no meaning. There may be absence of restraint in the economic
sphere, for example, in the sense that a man may be free to enter any
vocation he may choose. Yet if he is deprived of security in employment
he becomes the prey of a mental and physical servitude incompatible
with the very essence of liberty. Nevertheless, economic security is
not liberty though it is a condition without which liberty is never
effective. I do not mean that those who can take their ease in Zion are
thereby free men. Once and for all, let us agree that property alone
does not make a man free. But those who know the normal life of the
poor, its perpetual fear of the morrow, its haunting sense of impending
disaster, its fitful search for beauty which perpetually eludes, will
realize well enough that, without economic security, liberty is not
worth having. Men may well be free and yet remain unable to realize the
purposes of freedom.
Again, we live in a big world, about which, at our peril, we have
to find our way. There can, under these conditions, be no freedom
that is worth while unless the mind is trained to use its freedom. We
cannot, otherwise, make explicit our experience of life, and so report
the wants we build upon that experience to the centre of political
decision. The right of the modern man to education became fundamental
to his freedom once the mastery of Nature by science transformed the
sources of power. Deprive a man of knowledge, and the road to ever
greater knowledge, and you will make him, inevitably, the slave of
those more fortunate than himself. But deprivation of knowledge is
not a denial of liberty. It is a denial of the power to use liberty
for great ends. An ignorant man may be free even in his ignorance. In
our world he cannot employ his freedom so as to give him assurance of
happiness. A compulsory training of the mind is still compulsion. It is
a sacrifice of some liberty to a greater freedom when the compulsion
ceases.
Two other preliminary remarks are important to the thesis I am urging.
Everyone knows the danger to freedom which exists in any community
where there is either special privilege on the one hand or what is
termed the tyranny of the majority on the other. John Stuart Mill
long ago pointed out that in the early history of liberty it was
normally and naturally conceived as protection against the tyranny
of the political rulers. The latter disposed of a power to which its
subjects were compelled to conform; and it became vital in the interest
of freedom to limit that power either by the recognition of special
immunities or by the creation of constitutional guarantees. But even
in the modern state the underlying substance of the argument may not
be neglected. Power as such, when uncontrolled, is always the natural
enemy of freedom. It prevents the exercise of those capacities which
are released for activity by the absence of restraint. Wherever it is
possessed in excess, it tilts the balance of social action in favour
of its possessors. A franchise limited to the owners of property means
legislation in the interests of that class. The exclusion of a race
or creed from a share in citizenship is, invariably, their exclusion
also from the benefits of social action. In any state, therefore, where
liberty is to move to its appointed end, it is important that there
should be equality.
Now equality is not the same thing as liberty. I do not, indeed,
agree with Lord Acton’s famous dictum that the ‘passion for equality
makes vain the hope of freedom’;[1] liberty and equality are not so
much antithetic as complementary. Men might be broadly equal under
a despotism, and yet unfree. But it is, I think, historically true
that in the absence of certain equalities no freedom can ever hope
for realization. The acute mind of Aristotle long ago saw that the
craving for equality is one of the most profound roots of revolution.
The reason is clear enough. The absence of equality means special
privilege for some and not for others, a special privilege which is
not, so to say, in nature but in a deliberate contrivance of the
social environment. Men like Harrington and Madison and Marx all
insisted, and with truth, that whatever the forms of state, political
power will, in fact, belong to the owners of economic power. We need
not argue that our happiness depends upon the possession of political
power; we can argue that exclusion from it is likely to mean exclusion
from that which largely determines the contours of happiness. And it
follows that the more equal are the social rights of citizens, the more
likely they are to be able to utilize their freedom in realms worthy
of exploration. Certainly the history of the abolition of special
privilege has been, also, the history of the expansion of what in our
inheritance was open to the common man. The more equality there is in a
State, the more use, in general, we can make of our freedom.
Here, perhaps, it is worth while for a moment to dwell upon the meaning
of equality. Nothing is easier than to make it a notion utterly devoid
of all common sense.[2] It does not mean identity of treatment. The
ultimate fact of the variety of human nature, our differences of both
hereditary capacity and social nurture, these are inescapable. To
treat men so different as Newton and Byron, Cromwell and Rousseau,
in a precisely similar way is patently absurd. But equality does not
mean identity of treatment. It is an insistence that there is no
difference inherent in nature between the claims of men to happiness.
It is therefore an argument that society shall not construct barriers
against those claims which weigh more heavily upon some than upon
others. It shall not exclude men from the legal profession because they
are black or Wesleyans or freemasons. It shall not deny access to the
Courts to men of whose opinions society in general disapproves. The
idea of equality is obviously an idea of levelling. It is an attempt
to give each man as similar a chance as possible to utilize what
powers he may possess. It means that he is to count in the framing of
decisions where these affect him, that whatever legal rights inhere
in any other man as a citizen, shall inhere in him also; that where
differences of treatment are meted out by society to different persons,
those differences shall be capable of explanation in terms of the
common good. It means the recognition of urgent need in all--food,
for instance, and clothing, and shelter--before there is special
recognition of non-urgent claims in any.
Equality, so regarded, seems to me inescapably connected with freedom.
For equality, so regarded, seems, in the first place, to mean the
organization of opportunities; and, in the second place, it means
that no man’s opportunities are sacrificed, except on terms of social
principle, to the claims of another. In the view I am taking, no child
could be deprived of education that another might receive it; but in a
choice of men say for a post in the Treasury, one might be preferred to
another on the ground of ability or character or training. The idea
of equality, in a word, is such an organization of opportunity that no
man’s personality suffers frustration to the private benefit of others.
He is given his chance that he may use his freedom to experiment with
his powers. He knows that in his effort to attain happiness no barriers
impede him differently from their incidence upon others. He may not
win his objective, but, at least, he cannot claim that society has so
weighted the scale against him as to assure his defeat.
It is often argued that a theory of liberty which starts from the
effort of the individual to attain happiness must break down because
it fails to remember that society also has rights, and that these are
necessarily superior to those of its component parts. Any organization,
it is said, is more than the units of which it is composed. A
nation-state like America or England is not merely a body of Englishmen
or Americans, but something beyond them. It has a life and a reality,
needs and purposes, which are not exhausted by the sum of the needs
and purposes of its individual members. The liberty of each citizen
is born of, and must be subordinated to, the liberty of that greater
whole from which his whole meaning is derived. For the rights of each
of us depend upon the protective rampart of social organization. It is
because the State enforces our rights as obligations upon others that
we have the opportunity to enjoy them. We are free, it is said, not
for ourselves but for the society which gives us meaning. Where our
interests conflict with the obviously greater interest of the society,
we ourselves must give way.
It is, I think, true to say that an individual abstracted from society
and regarded as entitled to freedom outside its environment is devoid
of meaning. None of us is Crusoe or St. Simeon Stylites on his pillar.
We are born to live our lives in London or New York, Paris or Berlin
or Rome. Our liberty has to be realized in a welter of competing and
co-operating interests which only achieve rational co-ordination by
something not unlike a miracle. The need to give way to others, to
accept, that is, restraint upon our right to unfettered activity
is inherent in the nature of things. But the surrender we make is a
surrender not for the sake of the society regarded as something other
than its members, but exactly and precisely for men and women whose
totality is conveniently summarized in a collective and abstract
noun. I do not understand how England, for instance, can have an
end or purpose different from, or opposed to, the end or purpose of
its citizens. We strive to do our duty to England for the sake of
Englishmen; a duty to England separate from them, and in which they did
not share, is surely inconceivable.
Or, at least, would be inconceivable, were it not that perhaps the most
influential theory of the state in our own time has been built upon it.
What is termed the idealist theory of the state is broadly the argument
that individual freedom means obedience to the law of the society to
which I belong. My personality, it is said, is simply an expression of
the organized whole to which I belong. When I say that I am seeking
to realize myself, I mean in fact that I am seeking to be one with
the order of which I am a part. I am not independent of, or isolated
in, that order, but one with it and of it. As it realizes itself, so
am I also realized. The greater and more powerful it becomes, the
greater and more powerful do I become as a consequence. The more
fully, therefore, I serve it, the more fully do I express myself. True
liberty is thus so far from being an absence of restraint that it
is essentially subordination to a system of rational purposes which
receive their highest expression in the activity of the state. To be
one with that activity may well then be regarded as the highest freedom
a citizen can know.
In the whole history of political philosophy there is nothing more
subtle than the skill with which the idealist school has turned the
flank of the classic antithesis between liberty and authority. From
the Greeks to Rousseau it was always conceived that a man’s freedom is
born of a limitation upon what his rulers may exact from him; since
Rousseau, and, more particularly, since Hegel, it has been urged that
conformity to a code, and even compulsory obedience to it, is the
very essence of freedom. So startling a paradox needs, at the least,
explanation. Liberty, it argues, is not a mere negative thing like
absence of restraint. It is rather a positive self-determination of the
will which, in each of us, seeks the fulfilment of rational purpose
as this lies behind, and gives unified meaning to, the diversified
chaos of purposes in each of us. We desire freedom, that is to say,
in order that we may be ourselves at our best. The right object of
our wills, the thing which, did we know all the facts, we would truly
desire, this is clearly that for which we would seek freedom. This is
our real will, and the highest part of ourselves. This will, moreover,
is the same in each member of society; for, at bottom, the real will
is a common will which finds its highest embodiment in the state. In
this view, therefore, the state is the highest part of ourselves. For
it represents, in its will, what each of us would seek to be if the
temporary, the immediate and the irrational, were stripped from the
objects we desire. Its object is what alone we should aim at were we
free to will only our permanent good. It is, so to say, the long and
permanent end that, in the ultimate analysis, we come individually to
will after private experience of wrong direction and erroneous desire.
The more intimately, therefore, we make our will one with that of the
state, the more completely are we free. The nature of the social bond
makes service to its demands the very essence of freedom.
Before I seek to analyse this view, I would point out how simply this
argument enables us to resolve the very difficult problem of social
obligation. When I obey the state, I obey the best part of myself.
The more fully I discover its purposes the more fully, also, there is
revealed to me their identity with that at which, in the long view, I
aim. So that when I obey it, I am, in fact, obeying myself; in a real
sense its commands are my own. Its view is built upon the innumerable
intelligences from the interplay of which social organization derives
its ultimate form; obviously such a view is superior in its wisdom
to the result my own petty knowledge can attain. My true liberty is,
therefore, a kind of permanent tutelage to the state, a sacrifice of my
limited purpose to its larger end upon the ground that, as this larger
end is realized, so I, too, am given realization. I may, in fact, be
most fully free when I am most suffused with the sense of compulsion.
To me, at least, this view contradicts all the major facts of
experience. It seems to me to imply not only a paralysis of the will,
but a denial of that uniqueness of individuality, that sense that each
of us is ultimately different from our fellows, that is the ultimate
fact of human experience. For as I encounter the state, it is for me a
body of men issuing orders. Most of them I can obey either with active
good will or, at least, with indifference. But I may encounter some one
order, a demand, for instance, for military service, a compulsion to
abandon my religious faith, which seems to me in direct contradiction
to the whole scheme of values I have found in life. How I can be the
more free by subordinating my judgment of right to one which directly
changes that judgment to its opposite, I cannot understand. If the
individual is not to find the source of his decisions in the contact
between the outer world and himself, in the experience, that is, which
is the one unique thing that separates him from the rest of society, he
ceases to have meaning as an individual in any sense that is creative.
For the individual is real to himself not by reason of the contacts
he shares with others, but because he reaches those contacts through
a channel which he alone can know. His true self is the self that
is isolated from his fellows and contributes the fruit of isolated
meditation to the common good, which, collectively, they seek to bring
into being.
A true theory of liberty, I urge, is built upon a denial of each of
the assumptions of idealism. My true self is not a selected system
of rational purposes identical with those sought by every member of
society. We cannot split up the wholeness of personality in this way.
My true self is all that I am and do. It is the total impression
produced by the bewildering variety of my acts, good and bad and
indifferent. All of them go to the formation of my view of the
universe; all of them are my expression of my striving to fulfil my
personality. Each, while it is, is real, and each, as real, must give
way only in terms of a judgment I make, not of one made for me by some
other will, if I am to remain a purposive human being serving myself as
an end. This attempt, in a word, at the extraction of a partial self
from the whole of my being as alone truly myself not only denies that
my experience is real, but, also, makes me merely an instrument to the
purpose of others. Whatever that condition is, surely it cannot be
recognized as freedom.
But we can go further than this. I see no reason to suppose that this
assumed real will is identical in every member of society. The ultimate
and inescapable fact in politics is the final variety of human wills.
There is no continuum which makes all of them one. Experience suggests
common objects of desire, but each will that wills these common
objects is a different will in every sense not purely metaphorical. We
all have a will to international peace. But the unity these make is not
in the will but in the fusion of separate wills to the attainment of a
common purpose. And we must remember that in every society the objects
of wills cannot, in some mystic fashion, be fused into a higher unity
somehow compounded of them all. I see no meaning, for instance, in the
statement that the antithetic purposes of Jesuits and Freemasons are
somehow transcended in a higher purpose which resumes them both; that
is to say that a Jesuit or a Freemason is most truly himself when he
ceases to be himself, which, frankly, seems to me nonsense. A member of
the Praesidium of the Third International, whose will aims supremely
at the overthrow of capitalism, is not somehow at one with the will
of the President of the British Federation of Industries to whom all
the purposes of the Third International are anathema. Both, doubtless,
will the good; but the point is that each wills the good as he sees
it, and each would regard the fulfilment of the other’s ideal of good
as a definite destruction of his own. There is, therefore, no single
and common will in society, unless we mean thereby the vague concept,
entirely useless for political philosophy, that men desire the good.
Each of us desires the good as he sees it; and each of us sees a good
derived from an individual and separate experience into which no other
person can fully enter. Our connection with others is, at the best,
partial and interstitial. Our pooling of experiences to make a common
purpose somewhere is in no case other than fragmentary. We remain
ourselves even when we join with others to attain some common object
of desire. The ultimate isolation of the individual personality is the
basis from which any adequate theory of politics must start.
I reject, therefore, the idea of a real will, and, still more, the
idea that there is a common will in society. It is a logical inference
therefrom that I should reject also the doctrine that all state-action
is, at bottom, the exercise of the real will of society. For, first
of all, I see no reason to suppose that social life is ultimately the
product of a single and rational mind organizing its activities in
terms of a logical process. To speak of the “mind of society”, seems to
me merely a metaphorical way of describing a course of action which is
made valid by translation into fact. There are no governing principles
in social life deliberately emerging from the interplay of its myriad
constituent parts. Governing principles emerge; but they emerge through
the wills of individual minds. And the state is magnified to excess
when it is regarded as embodying a unified will. The state is a complex
of rulers and subjects territorially organized and seeking, by the
conference of power upon those rulers, effective co-ordination of
social activities. They exercise the right to use force, if necessary,
to that end. But no one, I think, can examine the course of history and
say that the experience of any state indicates a permanent embodiment
of the highest good we know in the purpose of the state. Our rulers,
doubtless, aim at the good as they see it. Yet what they see as good
may not be so recognizable to us, and may well provoke in us the sense
that life would not be worth living if their view was to prevail. The
unity of the state, in a word, is not inherently there. It is made by
civic acceptance of what its rulers propose. It is not necessarily
good because it is accepted; it is not necessarily right because it
is proposed. Obedience ought always to be a function of the substance
contained in the rules made by government; it is a permanent essay in
the conditional mood.[3]
Here, of course, the idealist retorts that he is dealing not with the
states of history, but with the state as such; he is concerned with
the “pure” instance and not with deviations from the ideal.[4] But it
is with actual states that we have to deal in everyday life as we know
it, with states the policy of which is directed by men who are human
like ourselves. The policy they announce must, obviously, be subject
to our scrutiny; and the result of our judgment is necessarily made
out of an experience not identical with, even though it be similar to,
theirs. I cannot believe that a theory fits the facts of history which
assumes that this policy is going to be right, whatever it is; and
that freedom will be found only in acceptance of it. I do not believe
that the Huguenot of 1685 was made the more free by accepting, against
his conscience, the Revocation; nor do I believe that Luther would
have been more free had he accepted the decrees of Rome and abandoned
his protest. Man is a one among many obstinately refusing reduction
to unity. His separateness, his isolation, are indefeasible; indeed,
they are so ultimate that they are the basis out of which his civic
obligations are builded. He cannot abandon the consequences of his
isolation which are, broadly speaking, that his experience is private
and the will built out of that experience personal to himself. If he
surrenders it to others, he surrenders his personality. If his will is
set by the will of others, he ceases to be master of himself. I cannot
believe that a man no longer master of himself is in any meaning sense
free.
II
If we reject a view which, like that just considered, seeks to dissolve
the reality of the individual into the society of which he is a part,
what are we left with as the pattern within which a man seeks freedom?
Let us try to draw a picture of the place of man in a community like
our own. He finds himself involved in a complex of relationships out
of which he must form such a pattern of conduct as will give him
happiness. There are his family, his friends, the church to which he
may belong, his voluntary association, trade union, or employers’
association or whatever it may be, and there is the state. All of
these, save the state, he may in greater or less degree avoid. A man
may cut himself off from family or friends; he may refuse membership of
a church or vocational body; he cannot refuse membership of the state.
Somewhere or other, he encounters it as a body of persons issuing
orders, and he is involved in the problem of deciding whether or no he
will obey those orders. Every order issued is, in a final analysis,
issued by a person or persons to another person or persons. When we
say that, in such a complex of relationships as this, that a man is
free, what do we mean? We know that if his Church issues an order to
him of which he disapproves, he can leave his church; so, too, with all
other bodies save the state. The latter can, if he seeks evasion of its
commands, use compulsion to secure obedience to its orders. It makes,
we say, the law, and a member of the state is legally compelled to obey
the law.
But he is not free merely because he obeys the law. His freedom, in
relation to the law, depends on the effect of any particular order
upon his experience. He is seeking happiness; some order seems to him
a wanton invasion of that happiness. He may be right or wrong in so
thinking; the point of fact is that he has no alternative but to go by
his own moral certainties. Now freedom exists in a state where a man
knows that the decisions made by the ultimate authority do not invade
his personality. The conditions of freedom are then those which assure
the absence of such invasion. The citizen who asks for freedom is
entitled to the conditions which, collectively, are the guarantees that
he will be able to go on the road to his happiness, as he conceives it,
unhindered. Neither conditions nor guarantees will ever be perfect; nor
will they ever cover all upon which happiness depends. The state, for
instance, may say that I may marry the woman I love; it cannot say that
she will marry me if I so desire. The freedom it secures to me is the
absence of a barrier in the way of marriage if I can win her consent.
From this angle, liberty may appropriately be resolved into a system
of liberties. There are realms of conduct within which, to be free,
I must be permitted to act as I please; to be denied self-expression
there, is to be denied freedom. What we need to know is, I suggest,
first what those realms of conduct are, and, second, what my duty as a
citizen is when I am, in any one of them, prohibited from acting as I
please. The difficulty here, of course, it is impossible to exaggerate.
It is the problem of knowing when a man ought deliberately to make up
his mind to break the law or to refuse obedience to it. In the idealist
theory, this problem does not arise; it is answered _a priori_ by the
definition of freedom as obedience to the law. But because we have
rejected this view, we have to admit that there will be occasional
disobedience, at the least, and that this may be justified. We have to
discover the principles of its justification.
Liberty may be resolved into a system of liberties; and from this angle
it may be said that it is the purpose of social organization to see to
it that this system is adequately safeguarded. How can the state, which
charges itself with the function of supreme co-ordination, properly
fulfil this task? How can it guarantee to me such an environment to my
activity that I do not suffer frustration in my search for happiness?
There have been many answers to this question, some of them of the
highest interest and importance. One or two I wish to consider partly
because of their significance in themselves, and partly because,
from that consideration, I wish to make the inference that no merely
mechanical arrangements will ever secure freedom in permanence to the
citizens of a state. While there are certain constitutional forms
which are, as I think, essential to freedom, their mere presence as
forms will not, of themselves, suffice to make men free. I shall seek,
further, to draw the conclusion that, whatever the forms of social
organization, liberty is essentially an expression of an impalpable
atmosphere among men. It is a sense that in the things we deem
significant there is the opportunity of continuous initiative, the
knowledge that we can, so to speak, experiment with ourselves, think
differently or act differently, from our neighbours without danger to
our happiness being involved therein. We are not free, that is, unless
we can form our plan of conduct to suit our own character without
social penalties. Freedom is in an important degree a matter of law;
but in a degree not less important it is a matter, also, of the _mores_
of the society outside the sphere within which law can operate.
You will observe that I am still, from the angle of political
organization, thinking of liberty as a safeguard of the individual
against those who rule him. I do so for the best of reasons. Whoever
exerts power in a community is tempted to the abuse of power. Even in
a democracy, we must have ways and means of protecting the minority
against a majority which seeks to invade its freedom. Mankind has
suffered much from the assumption that, once the people had become
master in its own house, there was no limit to its power. You have
only to remember the history of racial minorities like the negroes,
of religious or national minorities like Jews and Czechs, to realize
that democracy, of itself, is no guarantee of freedom. This raises
the larger question of whether freedom in the modern state can ever
be satisfactorily secured by internal sanctions, and whether, in
fact, it is ever durably possible save in the terms of a strong and
stable international organization. For, clearly, we must not think of
freedom as involving only an individual set over against the community;
it involves also the freedom of groups, racial, ecclesiastical,
vocational, set over against the community and the state; it involves
also the relation of states to one another, as, for instance, in the
problem of annexation. No Englishman would think himself free if his
domestic life were defined for him by another state; and no German but
has had a bitter sense of unfreedom during the foreign occupation of
the Rhineland. Our generation, at least, is unlikely to under-estimate
the problem of what limits may be set to the demand for freedom by a
national group.
III
Everyone who considers the relation of liberty to the institutions of
a state will, I think, find it difficult to resist the conclusion that
without democracy there cannot be liberty. That is not an over-popular
thesis in our time. A reaction against democratic ideals is the
fashion, and the dictatorships which proliferate over half Europe
are earnest in maintaining their obsolescence. Yet consider, for a
moment, what democracy implies. It involves a frame of government in
which, first, men are given the chance of making the government under
which they live, in which, also, the laws that government promulgates
are binding equally upon all. I do not think the average man can be
made happy merely by living in a democracy: I do not see how he can
avoid a sense of continuous frustration unless he does. For if he does
not share in making the government, if he cannot, where his fellows
so choose, be himself made one of the rulers of the state, he is
excluded from that which secures him the certainty that his experience
counts. To read the history of England before the enfranchisement of
the wage-earner is to realize that however small is the value of the
franchise it still assures the attention of government to grievance.
The right, therefore, to the franchise is essential to liberty; and
a citizen excluded from it is unfree. Unfree for the simple reason
that the rulers of the state will not regard his will as entitled to
consideration in the making of policy. They will do things for him, but
not those things he himself regards as urgent; as Parliament a hundred
years ago met the grim problem of urban want by building more churches
to the glory of the Lord. Whatever is to be said against the democratic
form of state, it seems to me unquestionable that it has forced the
needs of humble men on the attention of government in a way impossible
under any other form.
To be free a people must be able to choose its rulers at stated
intervals simply because there is no other way in which their wants, as
they experience those wants, will receive attention. It is fundamental
to the conference of power that it should never be permanent. If it
is so, it ceases to give attention to the purposes for which it is
conferred and thinks only of the well-being of those who can exercise
it. That has been, notably, the history of monarchy and aristocracy,
and in general, of the practice of colonial dominion. Power that
is unaccountable makes instruments of men who should be ends in
themselves. Responsible government in a democracy lives always in the
shadow of coming defeat; and this makes it eager to satisfy those with
whose destinies it is charged.
That is a general principle which, stated as baldly as this, does not
adequately illustrate the substance it implies. The history of the
struggle for popular freedom has given us knowledge of certain rules
in the organization of a state the presence of which is fundamental
to freedom. It can, I think, be shown that no citizen is secure in
liberty unless certain rights are guaranteed to him, rights which the
government of the state cannot hope to overthrow; and unless, to secure
the maintenance of those rights, there is a separation of the judicial
from the executive power.
The citizens of a state choose men to make the laws under which they
are to live. It is urgent that they should be binding upon all without
fear or favour; that I, for instance, should be able to live secure
in the knowledge that they will not apply to me differently from
their incidence upon others. Clearly enough, in the modern state, the
application of law to life demands a vast body of civil servants to
administer it. Not the least important problem of our time is that
which arises when the legality of their administration is in question.
In Anglo-Saxon communities it has been regarded as elementary that
the interpretation of law should be entrusted to an independent body
of officials--the judges--who can arbitrate impartially between
government and citizens. That view I take to be of the first importance
to freedom; and its acceptance involves considerations which we must
examine in some detail.
The business of a judiciary, broadly speaking, is the impartial
interpretation of the law as between government and citizen, or between
classes of citizens who dispute with one another. The government, for
instance, charges a man with treason; obviously he is deprived of
something essential to his freedom if the law is strained so as to make
of treason something it in fact is not in order to cover the acts which
the government seeks to have accepted as treason. Here, obviously, the
judge must be assured that his independence may be maintained with
safety to himself. He must not suffer in his person or position because
of the view he takes. It must not be within the power either of the
government or other persons to deprive him of his authority because, as
best he may, he applies the law. This, as I think, makes it essential
that all judicial appointments should be held during good behaviour.
There may be an age-limit of service, of course; but, this apart,
nothing should permit the removal of a judge from the bench except
corruption or physical unfitness. I do not, therefore, believe that a
judicial system founded upon popular election is a satisfactory way of
choosing judges, the more so if submission to re-election is involved;
and the system, abandoned in England in 1701, of making judicial
appointment dependent upon the pleasure of government is equally
indefensible. Once a man has been appointed to judicial office nothing
must stand in the way of his complete independence of mind. Election,
re-election, a power in the government to dismiss, are all of them
incompatible with the function the judge is to perform. They will not,
as a general rule, either give us the men we want, or enable us to keep
them when we have found them.
But we must, I think, go further than this. Judicial independence is
not merely a matter of mechanical technique; it is also psychological
in character. The judge whose promotion is dependent upon the will of
the executive, even more, the judge who may look to a political career
as a source of future distinction, neither of these is adequately
protected in that independence of mind which is the pivot of his
function. No less a person than Mr Chief Justice Taft has told us
that he appointed a predecessor to that eminent position at least
partly because he approved of one of his decisions.[5] No one could,
I think, have confidence in the Bench if it were known that decisions
pleasing to a given political party might lead either to promotion or
to choice as either a presidential candidate or as Lord Chancellor.
It seems to me, therefore, that we must so organize the method of
judicial promotion as to prevent the executive from choosing men of its
own outlook, and, further, see to it that appointment to the Bench is
definitely taken as the end of a political career. These are problems
of detailed technique into which I cannot now enter;[6] here I am only
concerned to point out that the problem of independence which they
raise is one that it is necessary to meet with frankness.
But the judge’s authority as a safeguard of our freedom is in the
modern state threatened in another way. Modern legislation is so
huge both in volume and extent that the average assembly has neither
time nor energy to scrutinize its details. The modern habit is,
therefore, to pass Acts which confer a general power, and to leave the
filling in of details to the discretion of the department concerned.
To this, I think, no one can really take exception. The state must
do its work; and it must develop the agencies necessary to that end.
But I think we have grave reason for fear when the growth of this
delegated legislative authority is accompanied with, or followed by,
the conference of powers upon government departments themselves to
determine the question of whether the powers they take are legal or
no. I regard the growth of delegated legislation as both necessary and
desirable; but if it is not gravely to impair our freedom, it should, I
think, be developed only under the amplest safeguards.
Decisions, for instance, like that on the _Fu Toy_ case[7] in the
United States, and in _Arlidge_ v. _Local Government Board_[8] in
England, are clearly a real menace to the liberty of the subject. They
suggest a type of executive justice for which the methods of the Star
Chamber are the nearest analogy. No body of civil servants, however
liberal-minded they may be, ought to be free both to make the law and
to devise the procedure by which its legality may be tested; and that,
be it remembered, without a power of appeal from their decision. It
may be taken for granted that the modern state needs an administrative
law; in matters, for instance, like rate-fixing in public utilities,
in workmen’s compensation cases, in matters concerning public health,
the views of a body of experts in a public department are generally
at least as valid as that of the judicial body. But one wants to be
certain that in arriving at his decision the expert has been compelled
to take account of all the relevant evidence; that the parties to his
decision have had their day in court. This seems to me to involve the
organization of a procedure for all administrative tribunals which
takes account of the lessons we have learned both from the procedure
of ordinary courts and from the history of the law of evidence; and it
involves an appeal from administrative tribunals to the ordinary courts
on all questions where denial of proper procedure is held to involve a
denial of proper consideration. Something of this, if I understand the
matter aright, has been granted to the American citizen by the Supreme
Court in _McCall_ &c. v. _New York_;[9] and I should feel happier about
the future of administrative law if I were certain that the principles
of that decision applied to all governmental activities of the kind.
Another safeguard is not less essential. We agree, for the most part,
in ordinary legal matters that the opinion of a single judge, even
when reinforced by the verdict of a jury, ought not to be final in
either criminal or civil cases. I should like to see that agreement
extended to the sphere of administrative law. Where, that is to say,
a departmental tribunal has rendered its decision I should like an
appeal to lie to a higher administrative tribunal composed not only of
officials, but, also, of laymen of experience in the matters involved
who could be trusted to bring an independent mind to the settlement
of the matter in dispute. English experience of tribunals like the
civil service division of the Industrial Court, and the Commissioners
of Income Tax, convinces me that the common sense of a good lay mind
is, in this realm, an immense safeguard against departmental error. And
we must remember that, however great be the good will of the public
services, what, to them, may seem a simple matter of administrative
routine, may be to the citizens involved a denial of the very substance
of freedom. Certainly a case like _ex parte O’Brien_[10] makes one
see how real would be the threat to public liberty if departmental
legislation grew without proper judicial scrutiny at every stage of its
development.
The problem, however, does not merely end here. There are two other
sides of administrative action in which the uncontrolled power of the
state is an implicit threat to civic freedom. Of the first, I would
say here only a word, since I have treated it fully elsewhere.[11] The
modern state is a sovereign state and, as such, there are large realms
of its conduct where wrong on its part cannot imply the invocation by
the citizen of penalty. The right to sue the state in tort seems to me
quite fundamental to freedom. The modern state is in essence a public
service corporation. Like any other body, it acts through servants who
take decisions in its name. I can see no reason in the world why, like
any other body serving the public, it should not be responsible for
the torts of its agents. If I am run over by the negligent driver of a
railway truck, I can secure damages: I do not see why I am not equally
entitled to damages if the truck is the property of, and is driven for,
the Postmaster-General of His Majesty.[12]
But, still in the context of administration, the needs of liberty
go yet further. There has accreted today about the departments of
state a type of discretionary power which seems to me full of danger
unless it is exercised under proper safeguards. Examples of it
are the power of the Postmaster-General in the United States over
the mails and of the Home Secretary in England over requests from
aliens for naturalization. An alien applies to the Home Secretary
for naturalization. He answers innumerable questions, and presents
certificates of good character from citizens who testify on oath to his
standing. He has resided in the country for at least five years and he
will not, of course, normally venture to apply unless his record is
adequate. A request is published in the press for any information about
him and, after a due interval, the Home Secretary makes a decision
about his case. He has, of course, pursued his own inquiries, and he
has, presumably, received information about the applicant upon which
his action is based. Now the point that disturbs me is the fact that
where a certificate of naturalization is refused, the grounds for
rejection are never, even privately to the applicant, made known. He
is refused privileges which may be vital to him and his family in
the background of accusations which may, doubtless, be true, but may
also be completely without foundation and capable, were opportunity
afforded, of being immediately and decisively refuted. And so great is
the discretionary power of the Minister that he may even substitute his
own will for that of the legislature: the Act, for instance, demands a
five-year period of residence. The late Home Secretary, Lord Brentford,
announced that while he was in office he would grant no certificate
unless the applicant had resided in England continuously for a period
of thirteen years. It seems to me that this power to deny admission
to citizenship, as it is exercised, is a complete denial of natural
justice. No person ought to be condemned by accusations he is not given
the opportunity to refute. Anyone who wishes to give testimony in a
case of this kind ought surely to prove his _bona fides_ by submitting
to cross-examination by the applicant or his representative. I should
like, therefore, to see the possibility of an appeal from the decision
of the Home Secretary to a judge in chambers where the latter would, on
a case stated by the Department, hear such evidence as the applicant
chose to bring for its refutation and then only make a final decision.
Anything less than this seems to me a wanton abuse of freedom; and,
_mutatis mutandis_, this type of safeguard seems to me urgent wherever
a Minister is given a discretionary power which affects the liberty of
the subject.
I accept, therefore, the traditional notion that the separation of
the judicial from the executive power, the right of the former to
determine the legality of executive decision, is the basis of freedom.
I do not, however, believe that the separation of the executive from
the legislature is either necessary or desirable. The origin of
the idea, as you know, is in the historic misinterpretation of the
British Constitution by Montesquieu;[13] and this, in its turn, was
due to his misapplication of certain classic dicta of Locke.[14] The
fact is that a separation in this realm results in a complete and
undesirable erosion of responsibility. The British system, in which the
executive, as a committee of the legislative, formulates its plans for
acceptance or rejection, has, I think, the clear advantage of showing
the electorate exactly where responsibility for action must lie. Where
mistakes are made, where there is corruption, or dishonesty, or abuse,
it can be brought home forthwith to its authors. In the American
system, that is not the case. The President is neither the master nor
the servant of the legislature. The latter can make its own schemes;
where its views, more, where its party complexion, are different from
his, there is a constant tendency to paralysis of administration. Each
can blame the other for failure. No clear policy emerges upon which
the electorate can form a straightforward judgment. Independence makes
for antagonism and antagonism, in its turn, makes for confusion. Such
a separation means, almost invariably, the construction of a separate
quasi-executive in the legislature, which has an interest of its own
distinct from, and often hostile to, that of the President.[15] I can
see no necessary safeguard of liberty in this. On the contrary, the
British system, where the executive may be at any moment destroyed by
the legislature as a penalty for error or wrong, where, also, there
lies always the prospect of an immediate and direct appeal to the
people as the ultimate and only arbiter of difference, seems to me far
more satisfactory.
IV
Another institutional mechanism for the safeguarding of freedom is that
of a Bill of Rights. Certain principles, freedom of speech, protection
from arbitrary arrest, and the like, are regarded as especially sacred.
They are enshrined in a document which cannot, constitutionally, be
invaded either by the legislature or the executive, save by a special
procedure to which access is difficult. The first Amendment to the
American Constitution, for example, lays it down that Congress shall
pass no law abridging freedom of speech; and any Act of Congress which
touches upon the matter can be challenged for unconstitutionality
before the Supreme Court. The Amendment, moreover, cannot be attacked
save by the usual process of constitutional change in America; and
that means that, except in the event of an American Revolution, it is
unlikely ever to be directly attacked at all.
My own years of residence in the United States have convinced me that
there is a real value in Bills of Rights which it is both easy, and
mistaken, to under-estimate. Granted that the people are educated to
the appreciation of their purpose, they serve to draw attention, as
attention needs to be drawn, to the fact that vigilance is essential in
the realm of what Cromwell called fundamentals. Bills of Rights are,
quite undoubtedly, a check upon possible excess in the government of
the day. They warn us that certain popular powers have had to be fought
for, and may have to be fought for again. The solemnity they embody
serves to set the people on their guard. It acts as a rallying-point in
the state for all who care deeply for the ideals of freedom. I believe,
for instance, that the existence of the First Amendment has drawn
innumerable American citizens to defend freedom of speech who have no
atom of sympathy with the purposes for which it is used. A Bill of
Rights, so to say, canonizes the safeguards of freedom; and, thereby,
it persuades men to worship at the altar who might not otherwise note
its existence.
All this, I think, is true; but it does not for a moment imply that
a Bill of Rights is an automatic guarantee of liberty. For the
relationship of legislation to its substance has to be measured by the
judiciary. Its members, after all, are human beings, likely, as the
rest of us, to be swept off their feet by gusts of popular passion.
The first Amendment to the American Constitution guarantees freedom of
speech and peaceable assembly; the fourth Amendment legally secures to
the citizen that his house shall not be searched except upon a warrant
of probable cause; the eighth Amendment legally secures him against
excessive bail. Yet you will remember how, in one hysterical week in
1919, the action of the executive power rendered all these amendments
worthless;[16] and you will not forget that the fifteenth Amendment,
which sought political freedom for the coloured citizens of the South,
has never been effectively applied either by the executive or by the
Courts.
The fact is that any Bill of Rights depends for its efficacy on the
determination of the people that it shall be maintained. It is just
as strong, and no more, than the popular will to freedom. No one now
doubts that the Espionage Acts were strained so as to destroy almost
all that the first Amendment was intended to cover; that most of the
charges preferred under it were, on their face, ludicrous. Yet you
will remember that, in _Abrams_ v. _United States_,[17] two judges
stood alone in their insistence that the first Amendment really meant
something; the judgment of the others was caught in the meshes of war
hysteria. No principle is better established than the right of the
citizen, under proper circumstances, to a writ of _habeas corpus_;
that is, perhaps, the ark of the covenant in the Anglo-American
conception of freedom. But who can ever forget the noble and pathetic
words of Chief Justice Taney, in _ex parte Merryman_,[18] where he
insists that the applicant is entitled to the writ and that, in view
of President Lincoln’s suspension of it--a suspension entirely illegal
in character--he could not secure to Mr Merryman his due rights? And
let us remember, also, that even where the judge is prepared to do his
duty, he cannot, in a period of excitement, count upon public opinion.
Nothing is clearer than the fact that those who hanged Mr Gordon during
the Jamaica riots were guilty of murder. The opinion of Chief Justice
Cockburn could not have made the issue more clear; it is a landmark in
the judicial history of freedom. Yet the jury at once, in its despite,
acquitted the accused. There have been, further, many occasions when
breaches of fundamental principles of freedom, breaches which, on
any showing, have been quite indefensible, have been followed at
once by Acts of Indemnity. I know only of one case in England in the
last hundred years in which such an Act has been refused. Yet it
is, I think, obvious that unless such breaches are definitely and
deliberately punished, they will always occur on critical occasions.
At such times, it is impossible to trust those who are charged with
the exercise of power; and only the knowledge that swift and certain
punishment will follow its abuse will make our rulers attentive to the
needs of freedom.
I speak the language of severity; and I am anxious that you should
not think that the language of severity is that of the extremist.
I invite you, as the proof of what I say, to read, in the light of
cold reason a decade after the close of the war, the history of the
tribunals in England which were charged with examining conscientious
objectors to military service and on the military authorities to whom
some of those objectors were handed over.[19] No one can go through
the record without the sense that some of the tribunals deliberately
evaded the purposes of the exemption clause; and it is clear that in
the administration of punishment for refusal to obey orders, there was
wanton cruelty, a deliberate pleasure in the infliction of pain, for
which no words can be too strong. Nor is that all. The record shows
occasions when Ministers of the Crown, when responding to questions in
the House of Commons, used evasions of a kind which showed a complete
contempt of truth;[20] and they were supported in their attitude by
the majority of the members there. I note, also, at least one occasion
when a number of conscientious objectors were taken from England to
France for the purpose of execution by the military authorities; and it
was only the accident that Professor Gilbert Murray was able to appeal
on their behalf to the Prime Minister, which prevented the sentence
from being carried out.[21] These are worse than the methods of the
Inquisition; for, at least, the members of that tribunal believed that
they were rescuing their victims from eternal damnation. Those of whom
I speak had no excuse save ignorant prejudice and the blindness of
passion.
You will see, therefore, why I cannot believe that constitutional
expedients alone, however substantial, will prevent the invasion of
liberty. They will work just so long as people are determined they
shall work, and no longer. They are valuable because, since they have
been consecrated by tradition, their invasion tends to awaken, at
least in some of us, a prejudice to which we have become habituated.
But to keep them active and alive, requires a deliberate and purposive
effort it is by no means easy to make when the result of doing so
conflicts with some other object keenly desired. That is, I think,
capable of a simple demonstration. No class of men is so carefully
trained as the judiciary to the habit of a balanced mind. Yet if you
examine the observations of judges in cases where their passions are
deeply involved you will note how great is the effort they have to
make to show tolerance to antagonistic views. Nor do they always
succeed. In most of the classic English blasphemy cases, for example,
the judge has too often been, either consciously or unconsciously, an
additional counsel for the prosecution.[22] In many of the American
Espionage Acts cases what chiefly emerges from the summing up of the
judge is a desire, at all costs, to see that the prisoner does not
secure an acquittal.[23] Recent injunction cases in America show a
desire, no doubt unconscious, on the part of the Court, to lend aid and
countenance to a social philosophy of which it happens to approve.
I conclude, therefore, that in general we shall not allow, as a
society, the mechanisms of the state to serve the cause of freedom
unless we approve the objects at which freedom aims. In a time
of crisis, particularly, when the things we hold most dear are
threatened, we shall find the desire to throw overboard the habits of
tolerance, almost irresistible. For those habits are not in Nature,
which teaches us that opinions we deem evil are fraught with death.
They come from our social heritage, and are part of a process the value
of which we must relearn continuously if we are to preserve it. That is
the meaning of the famous maxim that eternal vigilance is the price of
liberty. It is why, also, it becomes necessary in each age to restate
the case for freedom, if it is to be maintained.
V
There is one other general part of this political aspect of liberty
that I wish to consider before I turn to a different portion of my
theme. I have argued that resistance to the encroachments of power is
essential to freedom because it is the habit of power continuously,
if it can, to enlarge the boundaries of its authority. Is there any
specific rule by which men can be trained to such resistance? Is there,
that is, a way in which the average citizen of the modern state can be
persuaded that it is in his interest to be vigilant against those who
would invade his rights? Can it, further, be shown that such a temper
in the citizen is likely, as it grows, to confer benefit upon the
community as a whole?
Broadly speaking, I think the answer to these questions is in the
affirmative. I hazard the generalization that the more widespread
the distribution of power in the state, the more decentralized its
character, the more likely men are to be zealous for freedom. That is,
of course, a large statement to make. It is the thesis that, in terms
of historic experience, good government is always, in the end, both
less valuable and less efficient than self-government. I mean that, in
general, rules imposed upon a society from above for its benefit are
less effective to the end that they seek than rules which have grown
naturally from below. I believe that to be true both of the individual
and the group in society. Its full realization is, of course, an
impossibility since it would make the uniformities we need in social
life unattainable. But the greater the degree in which we can realize
it, the better for the community to which we belong.
I do not mean to imply that there is any rigid principle which enables
us to mark off the lines of demarcation between what is individual and
what is social, between what belongs to the group and what belongs
to the state, between the sphere of central, and the sphere of local
government. The only possible approach to that problem is a pragmatic
one, as anyone can see who tries to make common sense out of John
Stuart Mill’s famous attempt, with its list of exceptions[24] by which
he reduced it to something like absurdity. Most of us, I think, could
draw up lists of governmental subjects in which central and local
topics could be demarcated without undue disagreement. We should fairly
universally say that foreign policy and defence, fiscal technique and
commercial regulation were naturally within the sphere of the central,
and playing fields, were within the sphere of the local, authority. We
should agree that crime is a matter for the state, and sin a matter for
the churches. We should admit that there must be uniform regulations
for marriage and divorce, but that individuals only could make up their
minds when, within the regulations, either to marry or divorce.
This, I think, is pretty straightforward. The points I wish to
emphasize are different. They are, first, that in the making of public
decisions, it is desirable that as many persons as possible who are
affected by the result should share in reaching it; and, secondly,
that whenever the decision to make some rule of conduct a matter of
governmental regulation arouses widespread and ardent dissent, the
probability is that the case against the decision is stronger than the
case in its favour.
My first point I may perhaps best make by the statement that all
creative authority is essentially federal in character. The purpose for
which authority is exercised is the maximum satisfaction of desire. To
achieve that end, it is in the long run vital to take account of the
wills of those who will be affected by the decision. For, otherwise,
their desires are unexplored, and there is substituted for the full
experience that should be available, the partial experience, perhaps
suffused with a sinister interest, which is able to influence the
legal source of decision. Maximum satisfaction, in other words, is a
function of maximum consultation; and the greater the degree in which
the citizen shares in making the rules under which he lives, the more
likely is his allegiance to those rules to be free and unfettered. Nor
is this all. The process of being consulted gives him a sense of being
significant in the state. It makes him feel that he is more than the
mete recipient of orders. He realizes that the state exists for his
ends and not for its own. He comes to see that his needs will be met
only as he contributes his instructed judgment to the experience out
of which decisions are compounded. He gains the expectation of being
consulted, the sense that he must form an opinion on public affairs.
He learns to dislike orders which are issued without regard being paid
to his will. He comes to have a sense of frustration when decisions are
made arbitrarily, and without an attempt to build them from the consent
of those affected. He learns vigilance about the ways of power. Those
who are trained to that vigilance become the conscious guardians of
liberty.
For they will protest against what they regard as the invasion of
their rights, and tribute will have to be paid to their protest. In
any community, fortunately for ourselves, power is always upon the
defensive; and when men are vigilant to expose its encroachments it
is urgent to seek their good opinion. Those active-minded enough to
fight for their rights will, doubtless, be always in a minority; but
they prick the indifferent multitude into thought and they thus act as
the gadflies of liberty. The handful of American lawyers who protested
against the methods of the Department of Justice in 1920 forced its
officials to a change of their ways. The little group of men who, in
season and out of season, have protested that the white man’s burden
ought not, in justice, to be borne by the black, have the Mandates’
system of the League of Nations to their credit: what E. D. Morel did
for the Congo, what H. W. Nevinson did for Portuguese Angola, these
are lessons in the service of citizenship to liberty. And it is the
peculiar value of this habit of mind that it grows by what it feeds on.
To accustom the average man to regard himself as a person who must be
consulted is, in the long run, to assure him, through consultation, of
satisfaction. For the holders of power are always desirous of finding
the convenient routine; and if they are driven by pressure to give the
people freedom, they will discover that this is the object they have
set before themselves.
Into the institutional pattern which such a federalization of
authority requires I cannot here enter.[25] It must suffice to say
that it makes totally inadequate the traditional forms even of the
democratic state. For the notion that, when the citizen has chosen his
representatives for Parliament or his local authority, he can sit back
in the comfortable knowledge that his wants are known, his interests
safeguarded, has not one jot of evidence to support it. We need, of a
certainty, a much more complex scheme. We have not only to provide for
more adequate relationships between Parliament and the administrative
process; we have also to integrate the latter with the public it serves
on a much ampler scale than any we have hitherto imagined. I have
elsewhere tried to show how vital in this context is the device of the
advisory committee. Its value both as a check upon bureaucracy, and
as a means of making decision genuinely representative in character,
becomes the more clear the wider our experience of its functioning.
But even this is not enough. There will never be liberty in any state
where there is an excessive concentration of power at the centre. The
need for a wide conference of authority away from that centre becomes
more obvious with the growth of our experience. If the decisions to
be made are to embody the needs of those affected by them, the latter
must have major responsibility for their making. All of our problems
are not central problems; and to leave to the central government the
decision of questions which affect only a portion of the community is
to destroy in that portion the sense of responsibility and the habit of
inventiveness. The inhabitants of any given area have a consciousness
of common purposes, a sense of the needs of their neighbourhood,
which only they can fully know. They find that the power to satisfy
them of themselves gives to them a quality of vigour far greater in
the happiness it produces than would be the case if satisfaction were
always provided by, or controlled from, without. For administration
from without always lacks the vitalizing ability to be responsive to
local opinion; it misses shades and expressions of thought and want
which are urgent to successful government. It lacks the genius of
place. It does not elicit creative support from those over whom it
rules. It makes for mechanical uniformity, an effort to apply similar
rules to unsimilar things. It is too distant from the thing to be done
to awaken interest from those concerned in the process of doing it.
Centralized government in local matters may be more efficient than a
decentralized system; but that superior efficiency will never, as Mill
long ago pointed out, compensate for an inferior interest in the result.
I believe, therefore, that, with all its difficulties and dangers, the
area of local government should be as little circumscribed as possible.
The German system, of laying down what a local authority may not do,
and leaving it free to experiment outside that realm of prohibition,
seems to me superior both in principle and result to its Anglo-American
antithesis. Thereby we gain not only the knowledge which comes
from varied social experiment, but the freedom born of citizenship
trained in the widest degree to think for itself and to solve its own
problems. Most imposed solutions of a uniform character only succeed
where their material is genuinely uniform. That is rarely the case
in these matters. And even the impatient reformer ought sometimes to
think whether, say, forcing a child-labour law on Georgia by federal
amendment will lead to a genuine and whole-hearted application of its
terms; whether, in fact, it will not persuade to hatred of the law,
even contempt for the law, by encouraging evasion of it. Successful
legislation is almost always legislation for which the minds of men are
anxious; the channels of assent to it can rarely be dug too deep.
All, moreover, that I am saying of territorial locality, seems to me
to apply, with no less emphasis, to what may be termed functional
areas also. Everyone acquainted with the history of churches realizes
the necessity of leaving them free to develop their own internal
life. On matters like ecclesiastical government, dogma, ceremonial,
interference by the state is almost invariably disastrous in its
results. What is true of churches is true also, _mutatis mutandis_,
of other associations. Bodies like the legal and medical professions
are much better able to direct their own internal life than to have it
directed for them by the state. It is necessary, of course, to prevent
them from developing into monopolies; and to that end it is essential
to devise a framework of principle within which they must work, to
retain, also, the right to its revision from without from time to time.
But that said, few would, I think, deny that what we call professional
standards, the jealousy for the honour of the profession, the sense
of _esprit de corps_, the realization that its members owe to the
community something more than the qualities for which payment can be
exacted, these things are born of the large degree of freedom to define
their own life the professions enjoy.
It is, I think, important to extend that notion of self-government
beyond the professions. We ought to learn to think of industries like
cotton and coal as entities not less real than Lancashire or New
York, as capable, therefore, of being organized for the purpose of
government. Most of the plans as current today for national economic
councils are not, in my judgment, of great value; the satisfactory
weighting of the different elements is really insoluble, and any
problem that concerns industry as a whole seems to me at once civic
in its nature and, therefore, the proper province of the legislative
assembly of the state.[26] But these considerations do not apply to
industries taken individually, or linked together at special points
of intimate contact. It does not seem to me inconceivable that we
should create a Parliament for the mining industry, in which capital,
management, labour and the consumer, should each have their due
representation, and to which should be confided the determination of
industrial standards on the model of professional self-government.
I should give to this Parliament a power of delegated legislation
which would enable it to frame rules of conduct binding upon all the
members of the industry. Thus, while Georgia might refuse to pass a
child-labour law, a particular industry in Georgia might refuse to
allow its members to engage child labour in field or factory. There
might be developed in this way a body of industrial legislation and
jurisprudence growing naturally out of the experience of those who
participate in the operation of the industry, and imposed with a real
sense of freedom because it has been developed from within and is not
the outcome of an external control. The help this system would give
to the creative-minded employer, on the one hand, and the adventurous
trade-union, on the other, needs no emphasis from me. Something of what
it might effect, if planned in a wholesale way, the experiments of the
Amalgamated Clothing Workers and the Baltimore and Ohio Railroad have
amply demonstrated. They show clearly, I venture to suggest, that an
authority born of consent is always definitely superior to an authority
born of coercion. And the reason is the simple but vital one that
creative energy is liberated only in the atmosphere of freedom.
VI
In all that I have so far said there is implied a theory of the nature
of law upon which, perhaps, I ought to say a word. The view I am
taking suggests that law is not simply a body of commands justifiable
by virtue of their origin. Laws are rules seeking to satisfy human
desires. They are the more certain of acceptance the more fully they
seek to inquire what desires it is urgent to satisfy, and the best
way of inquiry is to associate men with each stage of the process of
law-making. For men, in fact, will not obey law which goes counter to
what they regard as fundamental. Their notion of what is fundamental
may be wrong, or unwise, or limited; but it is their notion, and they
do not feel free unless they can act by their own moral certainties. It
is useless to tell them that an assumption on their part that they are
entitled to forgo obedience will result in anarchy. Every generation
contains examples of men who, in the context of ultimate experience,
deliberately decide that an anarchy in which they seek to maintain
some principle is preferable to an order in which that principle must
be surrendered. The South in 1861, Ulster in 1914, the Communist in the
context of a capitalist society, these are but variations on the great
theme of Luther’s classic _Ich Kann nicht anders_. They illustrate the
inescapable truth that law must make its way to acceptance through the
channel of consenting minds.
Let me put this in a different way. Law is not merely a command; it
is also an appeal. It is a search for the embodiment of my experience
in the rule it imposes. The best way, therefore, to make that search
creative is to consult me who can alone fully report what my experience
is. There can be no guarantee that law will be accepted save in the
degree that this is done. Legal right is so made as the individual
recipient of a command invests it with right; he gives it his sanction
by relating it successfully to his own experience. When that relation
cannot be made, the authority of law is always in doubt. And it is in
doubt because, by contradicting the experience of those whom it seeks
to control, it seems to them a frustration of their personality. To
accept the control would be to become unfree.
An extreme way of putting this view would be to say that law is made by
the individual’s acceptance of it, that the essence of the law-making
process, is the consent of interested minds. At points of marginal
significance, that is, I think, true; and the consequences of the
truth are obviously important. Authority, if my view is right, is
always acting at its peril. It lives not by its power to command but
by its power to convince. And conviction is born of consent for the
simple reason that the real field of social action is in the individual
mind. Somewhere, inevitably, the power to coerce that mind to ways of
thoughts of which it does not approve, breaks down; man, as Tyrrell
said, is driven on “to follow the dominant influence of his life even
if it should break the heart of all the world”. That is the stark fact
which conditions the loyalty any authority seeks to secure. At some
point, it cannot be imposed but must be won from us. And the greater
the degree in which it springs from that persuasion, the greater, also,
is the success of authority in imposing its solutions. No power can
ever hope for successful permanence, no power, either, is entitled to
it, which does not make its way, in vital matters, through the channels
of consent.
From this two conclusions seem to me to flow. Ours is not a universe
in which the principles of a unified experience are unfolded. It is
a multiverse embodying an ultimate variety of experiences, never
identical, and always differently interpreted. There is enough
similarity of view to enable us, if we have patience and goodwill, to
make enough of unity to achieve order and peace. But that similarity
is not identity. It does not entitle us to affirm that one man’s
experience can be taken as the representation of another’s. It does not
justify the inference that I shall find what I most truly desire in
the desire of another. I am not a part of some great symphony in which
I realize myself only as an incident in the _motif_ of the whole. I
am unique, I am separate, I am myself; out of these qualities I must
build my own principles of action. These are mine only, and cannot
be made for me, at least creatively, by others. For their authority
as principles comes from the fact that I recognize them as mine.
Into them, as principles, I pour my personality, and life, for me,
derives its meaning from their unique texture. To accept the forcible
imposition of other principles upon me, which I do not recognize as
the expression of my experience, is to make of me who might be free,
a slave. I become an instrument of alien purposes, devoted to an end
which denies my self-hood. Law, therefore, as coercion is always
an invasion of personality, an abridgement of the moral stature of
those whom it invades. To be true to its purpose, it must reduce the
imperative element to a minimum if it is to release creativeness and
not destroy it.
The individual, therefore, is entitled to act upon the judgment of
his conscience in public affairs. He is entitled to assume that he
will not find the rules of the conduct he ought to pursue objectified
in any institution or set of institutions. I agree that, for most of
us, conscience is a poor guide. It is perverse, it is foolish, the
little knowledge it has is small alongside the worth of the social
tradition. But perverse, foolish, ignorant, it is the only guide we
have. Perverse, foolish, ignorant, it is at least ours; and our freedom
comes from acting upon its demands. We ought, doubtless, to convince
ourselves that the path it indicates is one we have no alternative but
to follow. We ought to seek the best possible means for its instruction
and enlightenment. We should remember that civilization is, at best,
a fragile thing, and that to embark upon a challenge to order is to
threaten what little security it has. It may even be wise, as T. H.
Greene once put it, to assume that we should approach the state in fear
and trembling, remembering constantly the high mission with which it is
charged.
All this may be true, and yet it seems to me to leave the individual no
option but to follow conscience as the guide to civic action. To do
otherwise is to betray freedom. Those who accept commands they know to
be wrong, make it easier for wrong commands to be accepted. Those who
are silent in the presence of injustice are in fact part-authors of it.
It is to be remembered that even a decision to acquiesce is a decision,
that what shapes the substance of authority is what it encounters. If
it meets always with obedience, sooner or later it will assume its own
infallibility. When that moment comes, whatever its declared purpose,
the good it will seek will be its own good and not that of those
involved in its operations. Liberty means being faithful to oneself,
and it is maintained by the courage to resist. This, and this only,
gives life to the safeguards of liberty; and this only is the clue to
the preservation of genuine integrity in the individual life.
If it is objected that this is a doctrine of contingent anarchy,
that it admits the right of men to rebellion, my answer is that the
accusation is true. But is its truth important? Order, surely, is
not the supreme wrong. Power is not conferred upon men for the sake
of power, but to enable them to achieve ends which win happiness for
each of us. If what they do is a denial of the purpose they serve;
if, as we meet their acts, there appears in them an absence of
goodwill, a blindness to experience alien from their own, an incapacity
imaginatively to meet the wants of others, what alternatives have we
save a challenge to power or a sacrifice of the end of our life? We
do not condemn Washington because there came a moment in his career
when he was compelled to recognize that the time for compromise with
England had passed. We do not, even more notably, condemn those early
Christians who refused to offer incense to the Gods. We have to act
by the dictates of our conscience knowing, as Washington knew, as
the early Christians recognized, that the penalties of failure are
terrible. But we can so act, also, knowing that there is a sense in
which no man who serves his conscience ever fails.
For by that service he becomes a free man, and his freedom is a
condition of other men’s freedom. There is immense significance in the
fact that those who fought for religious liberty were the unconscious
progenitors of civil liberty also. When they demanded the right to
worship the God they knew, in their own mind they were insisting that
in one sphere, at least, of human experience, their own perception must
count as ultimate. They consecrated freedom to the service of God. But
that, after all, is only one aspect of freedom. Its consecration to
the service of man is, for some of us, not less vital and pervasive.
To fight for the assurance that a man may do his duty as he conceives
it is not only to fight for freedom, but for all the ends which the
emancipation of mankind seeks to attain. I do not know whether liberty
is the highest objective we can serve. I do assert that no other great
purpose is possible of achievement save in the terms of fellowship with
freedom.
CHAPTER II
FREEDOM OF THE MIND
I
I have sought, so far, to show that, however important be the
political mechanisms on which liberty depends, they will not work of
themselves. They depend for their creativeness upon the presence in
any given society of a determination to make them work. The knowledge
that an invasion of liberty will always meet with resistance from men
determined upon its repulsion, this, in the last analysis, is the only
true safeguard that we have. It means, I have admitted, that a certain
penumbra of contingent anarchy always confronts the state; but I have
argued that this is entirely desirable since the secret of liberty is
always, in the end, the courage to resist.
The most important aspect of this atmosphere is undoubtedly freedom of
the mind. The citizen seeks for happiness, and the state, for him, is
an institution which exists to make his happiness possible. He judges
it, I have urged, by its capacity to respond to the needs he infers
from the experience he encounters. That experience, I have insisted, is
private to himself. Its predominant quality is its uniqueness. Either
it is his own, or it is nothing. The substitution for it of someone
else’s experience, however much wider or wiser than his, is, where it
is based upon constraint, a denial of freedom. What the citizen, quite
rightly, expects from the state is to have his experience counted
in the making of policy, and to have it counted as he, and he only,
expresses its import.
Obviously enough, if his experience is to count, a man must be able to
state it freely. The right to speak it, to print it, to seek in concert
with others its translation into the event, is fundamental to liberty.
If he is driven, in this realm, to silence and inactivity, he becomes
a dumb and inarticulate creature, whose personality is neglected in
the making of policy. Without freedom of the mind and of association
a man has no means of self-protection in our social order. He may
speak wrongly or foolishly; he may associate with others for purposes
that are abhorrent to the majority of men. Yet a denial of his right
to do these things is a denial of his happiness. Thereby, he becomes
an instrument of other peoples ends, not himself an end. That is the
essential condition of the perversion of power. Once we inhibit freedom
of speech, we inhibit criticism of social institutions. The only
opinions of which account is then taken are the opinions which coincide
with the will of those in authority. Silence is taken for consent;
and the decisions that are registered as law reflect, not the total
needs of the society, but the powerful needs which have been able to
make themselves felt at the source of power. Historically, the road to
tyranny has always lain through a denial of freedom in this realm.
I desire here to maintain a twofold thesis. I shall seek to show,
first, that liberty of thought and association--the two things are
inextricably intertwined--is good in itself, and second, that
its denial is always a means to the preservation of some special
and, usually, sinister interest which cannot maintain itself in an
atmosphere of freedom. I shall then discuss what restrictions, if any,
must be placed upon this right, and the conditions it demands for
its maximum realization. I shall, in particular, maintain that all
restrictions upon freedom of expression upon the ground that they are
seditious or blasphemous are contrary to the well-being of society.
The case for the view that freedom of thought and speech is a good
in itself is fairly easy to make. If it is the business of those who
exercise authority in the state to satisfy the wants of those over whom
they rule, it is plain that they should be informed of those wants;
and, obviously, they cannot be truly informed about them unless the
mass of men is free to report their experience. No state, for instance,
could rightly legislate about the hours of labour if only business men
were free to offer their opinion upon industrial conditions. We could
not develop an adequate law of divorce if only those happily married
were entitled to express an opinion upon its terms. Law must take
account of the totality of experience and this can only be known to it
as that experience is unfettered in its opportunity of expression.
Most people are prepared to agree with this view when it is made
as a general statement; most people, also, recoil from it when its
implications are made fully known. For it implies not only the right
to beatify the present social order, but the right, also, to condemn
it with vigour and completeness. A man may say that England or America
will never be genuinely democratic unless equality of income is
established there; that equality of income may never be established
except by force; that, accordingly, the way to a genuine democracy lies
through a bloody revolution. Or he may argue that eternal truth is the
sole possession of the Roman Catholic Church; that men can only be
persuaded to understand this by the methods of the Inquisition; that,
therefore, the re-establishment of the Inquisition is in the highest
interest of society. To most of us, these views will seem utterly
abhorrent. Yet they represent the generalizations of an experience that
some one has felt. They point to needs which are seeking satisfaction,
and the society gains nothing by prohibiting their expression.
For no one really ceases to be a revolutionary Communist or a
passionate Roman Catholic by being forbidden to be either of these. His
conviction that society is rotten at its base is only the more ardently
held, his search for alternative ways of expressing his conviction
becomes only the more feverish as a result of suppression. Terror does
not alter opinion. On the one hand it reinforces it, on the other
it makes the substance of opinion a matter of interest to many who
would, otherwise, have had no interest whatever in it. When the United
States Customs Department suppressed _Candide_ on the ground that it
was an obscene book, they merely stimulated the perverse curiosity
of thousands to whom _Candide_ would have remained less than a name.
When the British Government prosecuted the Communists for sedition
in 1925 the daily reports of the trial, the editorial discussion of
its result, made the principles of Communism known to innumerable
readers who would never, under other circumstances, have troubled to
acquaint themselves with its nature. No state can suppress the human
impulse of curiosity, and there is always a special delight, a kind
of psychological scarcity-value, in knowledge of the forbidden. No
technique of suppression has so far been discovered which does not have
the effect of giving wider currency to the thing suppressed than can be
attained in any other fashion.
But this is only the beginning of the case for freedom of speech.
The heresies we may suppress today are the orthodoxies of tomorrow.
New truth begins always in a minority of one; it must be someone’s
perception before it becomes a general perception. The world gains
nothing from a refusal to entertain the possibility that a new idea
may be true. Nor can we pick and choose among our suppressions with
any prospect of success. It would, indeed, be hardly beyond the mark
to affirm that a list of the opinions condemned as wrong or dangerous
would be a list of the commonplaces of our time. Most people can see
that Nero and Diocletian accomplished nothing by their persecution of
Christianity. But every argument against their attitude is an argument
also against a similar attitude in other persons. Upon what grounds
can we infer prospective gain from persecution of opinion? If the
view held is untrue, experience shows that conviction of its untruth
is invariably a matter of time; it does not come because authority
announces that it is untrue. If the view is true in part only, the
separation of truth and falsehood is accomplished most successfully in
a free intellectual competition, a process of dissociation by rational
criticism, in which those who hold the false opinion are driven to
defend their position on rational grounds. If, again, the view held is
wholly true, nothing whatever is gained by preventing its expression.
Whether it relates to property, or marriage, to religion or the form
of the state, by being true it demands a corresponding change in
individual outlook and social organization. For untrue opinions do not
permanently work. They impede discovery and they diminish happiness.
They enable, of course, those to whom they are profitable, to benefit
by their maintenance, but it is at the cost of society as a whole.
There is the further question, moreover, of the persons to whom the
task of selecting what should be suppressed to be confided. What
qualifications are they to possess for their task? What tests are they
to apply from which the desirability of suppression is to be inferred?
A mere zeal for the well-being of society is an utterly inadequate
qualification; for most persons who have played the part of censor have
possessed this and have yet been utterly unfit for their task. The
self-appointed person, Mr Comstock, for instance, merely identifies his
private view of moral right with the ultimate principles of ethics;
and only the intellectually blind would ask that the citizen be fitted
to his vicious bed of Procrustes. The official censor, a man like the
famous Pobedonostev, normally assumes that any thorough criticism of
the existing social order is dangerous and destructive; and, thereby,
he transforms what might be creative demand into secret attack which
is ten times more dangerous in its attack. If you take almost any
of those who are appointed to work of this kind, you discover that
association with it seems necessarily to unfit them for their task. For
it turns them into men who see undesirability in work which the average
man reads without even a suspicion that it is not the embodiment of
experience with which he ought to be acquainted. Anyone who looks
through the list of prohibited publications enforced by the Dominion of
Canada will, I think, get a sense that the office of censorship is the
avenue to folly.[27] No one with whom I am acquainted seems wise enough
or good enough to control the intellectual nutrition of the human mind.
What tests, further, are they to apply? Broadly speaking, we suppress
publications on the ground that they are obscene or dangerous. But no
one has ever arrived at a working definition of obscenity, even for
legal purposes. Take, for instance, two books suppressed by the English
magistrates for obscenity in 1929. One, Miss Radclyffe Hall’s _Well of
Loneliness_, seemed to men like Mr Arnold Bennett and Mr Bernard Shaw a
work which treated of a theme of high importance to society in a sober
and high-minded way. They saw no reason to suppose that the treatment
of its difficult subject--sexual perversion--could be regarded by any
normal person as offensive. The magistrate, Sir Chartres Biron, took a
different view. I, certainly, am not prepared, on _a priori_ grounds,
to say that a lawyer, however well-trained in the law, has a better
sense of what is likely to produce moral depravity than Mr Bennett or
Mr Shaw; and a reading of Miss Hall’s dull and sincere pamphlet only
reinforces that impression. Another book was distributed privately and
secretly--Mr D. H. Lawrence’s _Lady Chatterly’s Lover_--in a limited
and expensive special edition. I gather that its public sale would
have been definitely prohibited. Yet I observe that some of the most
eminent American critics have praised it as the finest example of a
novel seeking the truth about the sexual relations of men and women
that an Englishman has published in the twentieth century. That may
be--I am not competent to say--excessive praise. My point is that in a
choice, say, between the average police magistrate and Mr Robert Morss
Lovett, I am not prepared to accept the former’s opinion of what I may
be safely left to read.
Let me remind you, moreover, of what cannot too often be pointed out,
that the rigorous application of the legal tests of obscenity would
prohibit the circulation of a very considerable part of the great
literature of the world. The Bible, Shakespeare, Rabelais, Plato,
Horace, Catullus, to take names at random, would all come under the
ban. It is worth while pointing out that those most concerned with the
suppression of “obscene” books are religious people. On their tests
of obscenity the Bible certainly could not hope to escape; yet they
believe, in general, that the Bible is the inspired word of God, a
position which, I venture to suggest, should at the least give them
pause. I do not know, indeed, how we are to create a healthy social
attitude to the problems of sex, if all that deals with it from a
new point of view, and with a frankness that admits the experimental
nature of our contemporary solutions, is to be dismissed as “obscene”.
Questions like those of birth control, extra-marital love, companionate
marriage, sexual perversion, cannot really be faced in a scientific
fashion by applying to them the standards of a nomadic Eastern people
which drew up its rules more than two thousand years ago. Virtuous
people who shrink from frank discussion in this realm seem to me
responsible for probably more gratuitous suffering than any other group
of human beings. The thing they call “innocence” I believe to be quite
wanton ignorance, and, by its abridgment of freedom, it imprisons human
personality in a fashion that is quite unpardonable.
The same seems to me to be the case in the realm that is called
blasphemy. I have no sort of sympathy with that attitude of mind which
finds satisfaction in wanton insult to the religious convictions of
others. But I am not prepared for its suppression. For I note that,
historically, there are no limits to the ideas which religious persons
will denounce as blasphemous; and, especially, that in an age of
comparative religious indifference, the hand of persecution almost
invariably chooses to fall only on humble men.[28] It attacks Mr G.
W. Foote, but it leaves Lord Morley free to do infinitely more damage
than any for which Mr Foote can ever have been responsible. I cannot,
moreover, forget that what is blasphemy in Tennessee is common sense
in New York, that the works of Wollaston and Toland and Chubb, which
seemed entirely blasphemous to their generation, seem commonplace
to ourselves. Every religious body really means by blasphemy an
attack upon its fundamental principles. Such attacks are, of course,
necessarily circulated to bring them into contempt. We who read Paine’s
_Age of Reason_ with admiration for its cogency of argument, its
trenchant style, its fearless appetite for truth, can hardly avoid a
sense of dismay when we remember the days when it was secretly passed
from hand to hand as an outrageous production, the possession of which
was itself an indication of social indecency.
And here let me remind you of certain facts on the other side. We
denominate as blasphemous works calculated to bring the principles of
Christianity into hatred, ridicule, or contempt. As I have said, I
entirely dislike the type of work which finds pleasure in offensiveness
to Christians. But if we are to suppress works, and punish their
authors, because they cause grief to certain of our fellow-citizens,
exactly how far are we to carry the principle? A very large part of
propagandist religious literature is highly offensive to sincere
and serious-minded persons who are unable, in their conscience, to
subscribe to any particular creed. When you remember the descriptions
applied by Mr William Sunday to those who do not accept Christianity,
you cannot, I think, avoid a sense that there is a religious blasphemy
for which, at least from the angle of good manners, nothing whatever
can be said. Mr Sunday is only one of the worse offenders in a whole
tribe of preachers and writers to whom belief, however sincere, that
is alien from their own, is normally and naturally described in the
language it is a euphemism to call Billingsgate; and charges of
immorality are brought against unbelievers by them for which not an
atom of proof exists. Are we to suppress all such publications also?
And if we are to continue this campaign of prohibition to its appointed
and logical end, shall we have time for any other social adventure?
Nor is this all. In the world of education we are continually
presented with the problem of text-books which are offensive to a
particular denomination. We are asked, for instance, to prohibit
their use in schools. I sit as an appointed member of the Education
Committee of the London County Council. I have been presented there
with a requisitory, drawn up by a Catholic body, against the use of
certain books on the ground that they contain untrue statements about
questions like the Reformation, in which Catholics are particularly
interested. But I have not observed in the same Catholic body a
desire only to use those text-books in their own denominational
schools which Protestants are prepared to accept as a true picture
of the Reformation. Nor is this problem of school text-books merely
religious in character. Americans of our own generation have seen
passionate controversy over the view of the War of Independence, of the
Constitution, of the motives and responsibility in the war of 1914,
which are to be presented not merely to school children, but also to
university students; there is a heresy-hunt in the fields of politics
and economics, a desire to have only “true” opinions taught to the
immature mind. But “true” opinions, on examination, usually turn out to
be the opinions which suit the proponents of some particular cause.
In London we think that a “true” theory of value is best obtained from
the works of Professor Cannan; in Cambridge they pin their faith to
Marshall and Pigou; in the Labour Colleges ultimate wisdom is embodied
in the writings of Marx, and Cannan, Marshall and Pigou are all
dismissed as the pathetic servants of bourgeois capitalism. Is anything
gained for anyone by insisting that truth resides on one side only of
a particular Pyrenees? Is it not wisdom to begin by an admission of
its many-sidedness? And does not that admission involve an unlimited
freedom of expression in the interpretation of facts? For facts, as
William James said, are not born free and equal. They have to be
interpreted in the light of our experience; and to suppress someone’s
experience is to suppress someone’s personality, to impose upon him
our view of what his life implies to the forcible exclusion of that in
which alone he can find meaning. I see neither wisdom nor virtue in
action of this kind.
So far, I have restricted my discussion to the non-political field,
and before I enter this area, I want, for a moment, both to summarize
the position we have reached and to admit the one limitation on
freedom of expression I am prepared to concede. I have denied that
prohibitions arising from blasphemy or obscenity, or historical or
social unfairness, have any justification. They seem to me unworkable.
They are bad because they prevent necessary social ventilation. They
are bad because they exclude the general public from access to facts
and ideas which are often of vital importance. They are bad because
no one is wise or virtuous enough to stand in judgment upon what
another man is to think or say or write. They are bad because they are
incapable of commonsense application; there is never any possibility
of a wise discrimination in their application. They give excessive
protection to old traditions; they make excessively difficult the
entrance of new. They confer power in a realm where qualifications
for the exercise of power, and tests for its application, are, almost
necessarily, non-existent. For the decision of every question of this
kind is a matter of opinion in which there is no prospect of certainty.
Suppression here means not the prohibition of the untrue or the unjust
or the immoral, but of opinions unpleasing to those who exercise the
censorship. Historically, no evidence exists to suggest that it has
ever been exercised for other ends.
I do not see any rational alternative to this view. But here I should
emphasize my own belief that, broadly speaking, such freedom of
expression as I have discussed means freedom to express one’s ideas
on general subjects, on themes of public importance, rather than on
the character of particular persons. I have not, I think, a right to
suggest that Jones beats his wife, or that Brown continually cheats his
employer, unless I can prove, first that the suggestions are true, and,
second, that they have a definite public import. I have not a right to
create scandal because I find pleasure or profit in speaking ill of
my neighbour. But if Brown, for instance, is a candidate for public
office, my view that he cheats his employer is directly relevant to
the question of his fitness to be elected; and if I can prove that my
view is true, it is in the public interest that I should make it known.
I cannot, that is to say, regard my freedom of expression as unlimited.
I ought not to be permitted to inflict unnecessary pain on any person
unless there is relevant social welfare in that infliction.
On the other hand, I would make one remark here that seems to me of
increasing importance in a society like our own. The public interest in
the habits of individuals is real, and we must be careful to give it
its proper protection. It is, I think, reasonable to doubt whether the
Anglo-American law of libel, in its present state, does not push too
far the right of the individual citizen to be protected from comment.
Outrageous damages, which bear no measurable relation to anything, are
often claimed and not seldom awarded. Where a political flavour enters
into a case, it is difficult, and sometimes impossible, to persuade a
jury to consider the issue on its merits. I have myself sat on a jury
in a political libel case of which I can only say that I was almost
persuaded to doubt the validity of the jury-system altogether by the
habits there displayed. I am tempted to suggest that, criminal libel
apart, it would be worth while considering the abolition of damages in
all political or quasi-political cases, and the concentration, as an
alternative, upon proper publicity for the form of apology where the
libel is held to be proved. We have, for instance, got into the bad
habit in England of thinking that the social position of the plaintiff
is a measure of the damages he should receive; and it is well known
that there are places where, for instance, a socialist could hardly
hope even for a verdict from any average jury. The case for careful
inquiry, at any rate, seems to me to be made out. As the law at present
stands and works, I do not think I could even say of a candidate for
the House of Commons that he was not likely to be more than a permanent
back-bencher without having to pay heavily for my opinion.
II
But I turn from these relatively simple matters to the political aspect
of freedom of expression which is, of course, the pith of the whole
problem. How far is a man entitled to go in an attack upon the social
order? What opinions, if any, are to be prohibited on the ground that
they incite to subversive conduct? Is there a distinction between the
printed word and the spoken word? Is there a distinction between speech
in one place, and speech in another? Is there a difference between
normal times and a time of crisis like, let us say, a war or a general
strike? At what point, if any, do words become acts of which authority
must take account to fulfil its primary duty of maintaining the peace?
It will, I think, be universally agreed that all criticism of social
institutions is a matter of degree. Let us take the problem first as
we meet it in normal times and let us view it from the angle of the
English law of sedition.[29] Here it may be said at once that were
that law enforced in its literal terms, political controversy in
England would be impossible. For the declared purpose of the law is to
prevent the established institutions of the state from being brought
into hatred or contempt, and every leader of the opposition is seeking
to do precisely that thing when he makes a political speech. Anyone
who reads, for instance, the utterances of Lord Carson at the time of
the Home Rule fight in 1914, or of Mr Ramsay MacDonald in the General
Election of 1929, cannot avoid the conclusion that, taken literally,
they were seditious. Yet all of us agree that it is not the purpose of
the law to prevent such speeches being made. When, therefore, if ever,
is that law to be brought into operation?
We must, I think, begin by a distinction between the written and the
spoken word. If an English Communist leader writes a book or pamphlet,
whatever its substance, and to whomever it is addressed, I do not think
the law ought to be used against him. For it is the history of these
matters that if governments once begin to prohibit men from seeking
to prove in writing that violent revolution is desirable, they will,
sooner or later, prohibit them from saying that the social order they
represent is not divine. In Italy, at the moment, for example, papers
are actually suppressed not for anything positive that they say, but
because there is absent from their pages frequent and emphatic eulogy
of the present régime; there have even been calls for suppression
because particular papers, while saying no word against Mussolini,
have been too insistently eulogistic of the Papacy. I yield to no one
in my dissent from, say, Lenin’s analysis of the nature of the modern
state. But I think it urgent that his criticism should be available
to society. For it represents the impress made upon him by experience
of political life, and a government which remains unaware of that
criticism has lost its chance of seeking to satisfy the critic. If it
begins by assuming that the exposition of Revolutionary Communism is
undesirable, it will end, as the record shows, that language classes
to teach English to Russians are a form of Communist propaganda.
There is never any such certitude in matters of social constitution
as to justify us in saying that any exposition of principles must be
suppressed. No authority has ever a capacity for wise discrimination in
these matters; and, even if it had, I do not see why it is justified in
the exercise of discrimination.
For suppression, in the first place, never convinces. What it does is
to drive a small body of men to desperation and to reduce the masses to
complete apathy in political matters. Most men who are prohibited from
thinking as their experience teaches them soon cease to think at all.
Men who cease to think cease also in any genuine sense to be citizens.
They become the mere inert recipients of orders which they obey
without scrutiny of any kind. And their inertia surrounds the acts of
authority with that false glamour of confidence which mistakes silence
for consent. The government which is not criticized at its base never
truly knows the sentiments to which its activity gives rise among its
subjects. It ultimately must fail to satisfy them because it does not
know what desires it has to satisfy. Political thought, after all,
however unwise or mistaken, is never born in a vacuum. Lenin’s view of
capitalist society is just as relevant to its habits as the view of the
Duke of Northumberland or of Judge Gary; each is born of contact with
it, and each, as it is expressed, has lessons to teach from which, as
these are scrutinized, a wise policy can be born.
Here, I think, it is relevant to say a word upon one special aspect of
freedom of expression for printed matter. I have argued that no limit
of any kind is to be placed upon it, at any rate in normal times. The
book, the pamphlet, the newspaper, ought to circulate with unimpeded
freedom in whatever direction they can move. Many people who sympathize
with this view will, however, except from this freedom printed
material which is addressed to the armed forces of the state; and most
governments, of course, have special legislation, with specially severe
penalties, against any attempt at interference with their loyalty. I
cannot myself see that this exception is justified. The armed forces
of the state consist of citizens. The government has quite exceptional
opportunities to retain their allegiance. If a printed document is able
to sow disaffection amongst them, there must be something very wrong
with the government. And, in fact, whenever agitation has produced
military or naval disloyalty that has been the outcome not of affection
for the principles upon which the agitators lay emphasis, but of
grievances which have made either soldiers or sailors responsive to a
plea for their disloyalty. That was the case with the Spithead mutinies
of 1797; with the French troops in 1789; with the Russian troops in
1917. If the army or the navy is prepared to turn upon the government,
the likelihood is great that the government is unfit to retain power.
For anyone who can disturb the allegiance of a mind as trained to
obedience as that of the soldier or the sailor has, I believe, an _a
priori_ case for insisting that his particular philosophy corresponds
to an urgent human need.
It is said that ideas are explosive and dangerous. To allow them
unfettered freedom is, in fact, to invite disorder. But, to this
position, there are at least two final answers. It is impossible to
draw a line round dangerous ideas, and any attempt at their definition
involves monstrous folly. If views, moreover, which imply disorder
are able to disturb the foundations of the state, there is something
supremely wrong with the governance of that state. For disorder is not
a habit of mankind. We cling so eagerly to our accustomed ways that,
as even Burke insisted, popular violence is always the outcome of a
deep popular sense of wrong. The common man can only be persuaded to
outbreak, granted his general habits, when the government of the taste
has lost its hold upon his affections; and that loss is always the
reflection of a profound moral cause. We may, indeed, go further and
argue that the best index to the quality of a state is the degree in
which it is able to permit free criticism of itself. For that implies
an alertness to public opinion, a desire to remedy grievance, which
enables the state to gain ground in the allegiance of its citizens.
Almost always freedom of speech results in a mitigation which renders
disorder unnecessary; almost always, also, prohibition of that freedom
merely makes the agitation more dangerous because it drives it
underground. Rousseau was infinitely more dangerous as a persecuted
wanderer, because infinitely more interesting and, therefore,
infinitely more persuasive, than he would have been when unfettered in
Paris. Lenin did far more harm to Russia as an exile in Switzerland
than he could ever have accomplished as an opposition leader in the
Duma. The right freely to publish the written word is, in fact, the
supreme Katharsis of discontent. Governments that are wise can always
learn more from the criticism of their opponents than they can hope
to discover in the eulogies of their friends. When they stifle that
criticism, they prepare the way for their own destruction.
There is, I think, an undeniable difference between freedom of written
and freedom of spoken, expression. In the one case, a man attempts
conviction by individual persuasion; he seeks, by argument which he
believes to be rational, to move the mind of those who read what he
has written. To speak at a meeting raises different problems. No one
with experience of a great crowd under the sway of a skilled orator
can doubt his power deliberately to create disorder if he so desires.
A speaker at Trafalgar Square, for instance, who urged a vast meeting
of angry unemployed to march on Downing Street, could do so with a fair
assurance that they would obey his behest. I do not think a government
can be left to the not always tender mercies of an orator with a
grievance to exploit. The state, clearly, has the right to protection
against the kind of public utterance which is bound to result in
disorder.
But no government is entitled itself to assume that disorder is
imminent: the proof must be offered to an independent authority. And
the proof so offered must be evidence that the utterance to which it
takes exception was, at the time and in the circumstances in which it
was made, definitely calculated to result in a breach of the peace. Its
prohibitions must not be preventive prohibitions. It must not prohibit
a meeting before it is held on the ground that the speaker is likely to
preach sedition there. It must not seek conviction for sedition where
the utterance might, under other circumstances, have had the tendency
to result in a breach of the peace. To use my earlier illustration, I
think a government would be justified in prosecution of the Trafalgar
Square orator; but I do not think it would be entitled to prosecute the
same speaker if he made the same speech on Calton Hill in Edinburgh.
For we know that when men in Edinburgh are incited to march on London,
they have a habit of turning back at Derby. I conclude, therefore, that
the test adopted by Mr Justice Holmes, in his deservedly famous dissent
in _Abrams_ v. U.S.,[30] is the maximum prohibition a government can
be permitted. If it is in fact demonstrable that the speech made had
a direct tendency to incite immediate disorder, the punishment of the
accused is justified. I think such cases should always be tried before
a jury. Experience suggests that a random sample of popular opinion
is more likely to do justice in this type of case than is a judge. I
have myself been present at such trials before a magistrate where the
whole case for the prosecution quite obviously broke down and where,
nevertheless, a conviction was secured. I do not for a moment suggest
that we can be confident that a jury will act wisely; but my sense of
our experience is that there is less chance of its acting unwisely than
persons who occupy an official position of any kind. With the best will
in the world, their tendency is to be unduly responsive to executive
opinion.
You will see that my anxiety is to maximize the difficulties of any
government which desires to initiate prosecutions in this realm. My
reason for this view is the quite simple one that I do not trust the
executive power to act wisely in the presence of any threat, nor
assumed threat, to public order. Anyone who studies the treason trials
of 1794, or, even more striking, the cases under the Espionage Act in
America during 1917-20, will be convinced of the unwisdom of allowing
the executive an undue latitude. Every state contains innumerable and
stupid men who see in unconventional thought the imminent destruction
of social peace. They become Ministers; and they are quite capable of
thinking that a society of Tolstoyan anarchists is about to attempt
a new gunpowder plot. If you think of men like Lord Eldon, like Sir
William Joynson-Hicks, like Attorney-General Palmer, you will realize
how natural it is for them to believe that the proper place for Thoreau
or Tolstoy, for William Morris or Mr Bernard Shaw, is a prison. I am
unable to take that view; and I am therefore anxious that they should
not be able to make it prevail without finding that there are barriers
in their path.
III
Views such as I have put forward are often regarded with sympathy
when their validity is limited to normal times. In a crisis, it is
argued, different considerations prevail. When the safety of a state
is threatened it is bound to take, and is justified in taking, all
action to end the crisis. To suggest that it should be then bound by
principles which weaken its effective striking power, is, it is said,
to ask it to fight with one hand tied behind its back. The first
objective of any society must be organized security; it is only when
this has been obtained, that freedom of speech is within the pale of
discussion.
I am unable to share this view. We have really to examine two quite
different positions. There is, first, the question of the principles
to be applied in a period of internal violence; there is, next, the
quite special question of limitation upon utterance in a period of
war. I agree at once that it is entirely academic to demand freedom of
speech in a time of civil war, for the simple reason that no one will
pay the slightest attention to the demand; violence and freedom are,
_a priori_, contradictory terms. But I would point out two things. In
general, revolutions fail because those who make them deny freedom to
their opponents. Losing criticism, they do not know the limits within
which they can safely operate; they lose their power because they are
not told when they are abusing it. I can think of no revolutionary
period in history when a government has gained by stifling the opinion
of men who did not see eye to eye with it; and I suggest that the
revolutionary insistence that persuasion is futile finds little
creative evidence in its support.
But when once the question has been settled of who is to possess power
other questions of urgent delicacy arise in which, as I think, the
principles I have laid down possess an irresistible force. There is
the problem of how the rebel and the disaffected are to be treated; of
whether the resumption of order is to be followed by free discussion;
of the power to be exercised by the military authority over ordinary
citizens not engaged in armed hostility to the régime. Here I can
only express the view that the resumption of order ought always to
be followed forthwith by the normal principles of judicial control;
and that the military authorities ought not, save where it is quite
impossible for the civil courts to exercise their jurisdiction, to have
any powers over ordinary citizens.
These are rigorous views; and, perhaps, I may devote a little time
to their exposition. I know of no case where the state has exercised
extraordinary power outside the normal process of law, in which that
authority has not been grossly abused. It was abused in the Civil
War even under a mind so humane and generous as that of Lincoln; it
was emphatically and dangerously abused in the Amritsar rebellion
of 1919. Let me illustrate, from this latter example, some of the
things that were done. Two men were arrested in Amritsar prior to the
declaration of martial law and deported to an extreme and undisturbed
part of the province; on the declaration of martial law, they were
brought back to Lahore, which was in the martial law area, and tried
and sentenced by a martial law tribunal. A number of pleaders were
arrested in Gudaspur, where there was no disturbance, taken under
revolting conditions to Lahore, and confined there in the common jail
for a period lasting up to a month. They were then released, without
any charges being preferred against them; on the evidence, indeed, it
is difficult to know with what offence they could have been charged.
In the trial, again, of one Harkishan Lal, and others, for treason
and waging war against the King-Emperor, the accused were not allowed
to have a lawyer of their own choosing; a full record of the case
was not taken, and the private notes of counsel for the defence had
to be surrendered by him to the Court at the end of each day. Under
such conditions it is difficult to see how any adequate defence was
possible. A punitive detachment, again, under a Colonel Jacob, tried by
drumhead court-martial and flogged, a man who refused, it appears with
some truculence, to say who had destroyed some telegraph wires; later
it appeared that the man, as he had asserted, had in fact no knowledge
of who had destroyed them. In Lahore--to take a final instance--the
military officer in command prohibited more than a few persons to
congregate in the streets; a few persons did so congregate and they
were flogged. On investigation, after the flogging, it was found that
the group was a wedding-party whose purpose was not more dangerous than
that of any other persons engaged in a similar function.[31]
I do not, of course, suggest that there is anything especially cruel
or remarkable in these instances. Whether you study repression in
Ireland or Russia, Bavaria or Hungary or India, its history is
always the same. The fact always emerges that once the operation of
justice is transferred from the ordinary courts to some branch of the
executive, abuses always occur. The proper protection of the individual
is deliberately neglected in the belief that a reign of terror will
minimize disaffection. There is no evidence that it does. If it could,
there would have been no Russian Revolution; and there would be no
movement for Indian self-government today. The error inherent in any
invasion of individuality, such as a system of special courts implies,
is that it blinds the eyes of government to the facts not only by
suppressing illegitimate expression of opinion, but by persuading it
that most opinion which finds expression is illegitimate if it is
not in the nature of eulogy. Even Lincoln supported his generals in
completely indefensible attacks on civilian rights. Executive justice,
in fact, is simply an euphemism for the denial of justice; and the
restoration of order at this cost involves dangers of which the price
is costly indeed.
The problem of war is, in a sense, a special case of the problem of
disorder; but, in fact, it raises quite different considerations.
Let me first of all make the point that if you are a citizen in a
besieged town, you cannot expect a normal freedom of speech; to be
within the area of actual military operations means that you must not
hope to be regarded as an individual. You become, from the nature of
things, a unit of attack or defence whose personality is immaterial
and insignificant. The position here is extraordinary; and principles
have little or no relation to the problems that arise. The case,
as elsewhere, merely affords proof that liberty and violence are
antithetic terms.
But let us rather take the position of a citizen whose country is
involved in war as, say, England in 1914, or America in 1917. What are
his rights and duties then? I would begin by making the point that the
fact of belligerency does not suspend his citizenship; he owes as much,
perhaps more than ever, the contribution his instructed judgment can
make, to the public good. The scale of operations cannot, I think, make
any difference to that duty. It is as real, and as compelling, when
they are big, as in the war of 1914, as when, as in the Boer War, or
the Spanish-American War, they are relatively small. If I think the war
a just one, it is my duty to support it, and if I think it unjust there
is no alternative open to me except opposition to it. I believe, for
instance, that the opposition of Mr Ramsay MacDonald and Mr Snowden to
the war of 1914 was a fulfilment, on their part, of the highest civil
obligation. No citizen can assume that his duty in wartime is so to
abdicate the exercise of his judgment that the executive has a blank
cheque to act as it pleases. No government, therefore, is entitled to
penalize opinion at a time when it is more than ever urgent to perform
the task of citizenship. If a man sincerely thinks, like James Russell
Lowell, that war is merely an alias for murder, it is his duty to say
so even if his pronouncement is inconvenient to the government of the
day.
I cannot, indeed, believe that there is any case on the other side
worthy of serious consideration. In the war of 1914, it was said that
hostile opinion must be controlled because it hinders the successful
prosecution of the war. But behind the facade of prejudice contained
in the imputation of a term like hostility, there are several issues
each one of which requires analysis. For what does “hostile opinion”
mean? Does it imply hostility to the inception of a war, to the methods
of its prosecution, to the end at which it aims, to the terms on which
its conclusion is proposed? In the war of 1914, the critics were
divided into camps on each of these views. There were men, like Mr
MacDonald, who thought the war unjustified in its inception and bad
in its conclusion. There were others who criticized the manner, both
diplomatic and technical, of its prosecution. Was it, for instance,
hostility to the prosecution of the late war to criticize Lord
Jellicoe’s conduct at the Battle of Jutland, or Sir Ian Hamilton’s
handling of the operations at the Dardanelles? Was it, again, hostility
on the part of _The Times_ to attack the Asquith Government on the
ground, rightly or wrongly, that it showed a lack of energy in building
up a munitions supply? If a statesman not in office, Mr Roosevelt,
for example, thinks the diplomatic policy of the executive likely
to be attended by fatal results, must he confine himself to private
representations, lest public utterance hinder the national unity? If an
Englishman like Lord Lansdowne believed, as President Wilson believed
in 1916, that peace by negotiation is preferable to peace by victory in
the field, because of the human cost that victory entails, has he no
obligation to his fellow-citizens who are paying that cost with their
lives?
It is evident from our experience that to limit the expression of
opinion in wartime to opinion which does not hinder its prosecution
is, in fact, to give the executive an entirely free hand, whatever
its policy, and to assume that, while the armies are in the field,
an absolute moral moratorium is imperative. That is, surely, a quite
impossible position. No one who has watched at all carefully the
process of governance in time of war can doubt that criticism was never
more necessary. Its limitation is, in fact, an assurance that the unity
of outlook is a guarantee that mistakes will be made and wrong done.
For once the right to criticize is withdrawn, the executive commits
all the natural follies of dictatorship. It assumes a semi-divine
character for its acts. It deprives the people of information essential
to a proper judgment of its policy. It misrepresents the situation it
confronts by that art of propaganda which, as Mr Cornford has happily
said, enables it to deceive its friends without deceiving its enemies.
A people in wartime is always blind to the facts of its position and
anxious to believe only agreeable news; the government takes care to
provide it only with news that is pleasant. If no such news is at
hand it will be manufactured. Petty successes will be magnified into
resounding victories; defeats will be minimized, wherever possible. The
agony of the troops will be obscured by the clouds of censorship. A
wartime government is always obtuse to suggestion, angry when inquiry
is suggested, careless of truth. It can, in fact, only be moralized
to the degree to which it is subject to critical examination in every
aspect of its policy. And to penalize, therefore, the critic is not
only to poison the moral foundations of the state, but to make it
extremely difficult, when peace comes, for both government and the mass
of citizens to resume the habits of normal decency.
Freedom of speech, therefore, in wartime seems to me broadly to involve
the same rights as freedom of speech in peace. It involves them,
indeed, more fully because a period of national trial is one when,
above all, it is the duty of citizens to hear their witness. I do not,
of course, mean that a citizen in wartime should be free to communicate
secret military plans to the enemy; I do mean that if a man feels,
like Sir Henry Campbell-Bannerman, that British policy in South Africa
is “methods of barbarism,” it is his right, as well as his duty, to
say so. Obviously critical activity of this kind will be unpopular,
and a government which helps in the making of its unpopularity will
find the task of suppression easy. But it will pay a heavy price for
suppression. The winged words of criticism scatter, only too often,
the seeds of peace. Sir Henry Campbell-Bannerman’s attack on the
Balfour Government persuaded General Botha that trust in Great Britain
might not be misplaced; President Wilson’s speeches, especially his
Fourteen Points, were, impliedly, a criticism of Allied policy, and
that which, also, awakened liberal opinion in Germany to a sense of
its responsibilities. Wartime unity of outlook, in a word, is never
worth the cost of prohibitions. If the policy of a state which decides
upon war does not command the general assent of citizens, it has no
right to make war. If the number of those hostile is considerable, the
policy is, at the least, a dubious one. If the number is small, there
is no need to attempt suppression in the interest of success. The only
way, in fact, to attain the right is by free discussion; and a period
of crisis, when the perception of right is difficult, only makes the
emphasis upon freedom more fundamental.
Let me illustrate my view with reference to one or two of the decisive
factors in the Peace of Versailles. No one now believes the wartime lie
that Germany was solely responsible for the war; her responsibility may
be greater than that of some others, but it is agreed that the burden
of Russia is at least as heavy and that war, in any case, was rooted
in the nature of the European system. But, in the interest of national
unity, it was regarded as essential to represent Germany as the sole
conspirator against European peace. She was painted as a malefactor
whose sins were incapable of exaggeration. Her virtues were denied, her
achievements belittled, until what Mr Lippmann terms a “stereotype” of
her was built up for public use which made her appear to the average
man a criminal who could not be too severely punished. The statesmen
who constructed this stereotype knew that it was untrue; but they
hoped, doubtless, to escape its consequences, when the victory had been
won. They found that they could not do so. They had so successfully
repressed all effort at reasonable delineation, that the atmosphere
of hate was unconquerable. They had no alternative to a Carthaginian
peace because that seemed, to the masses they had deceived, the
only possible course for justice to take. They knew, as the famous
memorandum, for instance, of Mr. Lloyd George makes manifest,[32] that
a Carthaginian peace was disastrous for Europe; but it was too late to
destroy the legend they had created. Like those whom Dante describes in
the Inferno, they were punished by the realization of their announced
desires.
The world, in this context, has paid the price for the suppression of
truth; and another phase of the suppression should also be remembered.
It is usually agreed that some of the worst elements in the Peace
of Versailles were the result of the Secret Treaties by which the
Allies, exclusive of America, bound themselves to each other before
the entrance of America into the war. Nowhere among the associated
powers was the desire for a just peace more widespread than in America;
nowhere, also, was the discussion of war-aims more rigorously curtailed
as a hindrance to the full prosecution of the war. Had discussion of
the peace been full and effective in those critical years, the liberal
instincts of President Wilson might, when reinforced by the weight of
informed opinion, have compelled at least a considerable mitigation
of the secret treaties. They had been published in the American Press
after their issue by the Bolsheviks in 1917; full discussion would have
revealed their inadequacies, and enabled the President to counteract
what there was of evil in their substance. But the destruction of free
opinion acted as a smoke-screen to conceal them, and Mr Wilson did
not seriously give his mind to them until he reached Paris. It was
then too late to undo their consequences. Here, in fact, as elsewhere,
uncontrolled power acted like a miasma to blot out the only atmosphere
in which truth could be made manifest. No government was compelled to
do its duty, because the means were wanting to inform it of what its
duty was. The powers had forgotten, or had chosen to forget, that they
could not hope for a just peace save by freeing the minds of men and
women who cared for justice.
IV
So far, I have considered freedom in the political sphere as though it
concerned only a single individual placed over against society and the
state. I have sought to discuss what his freedom means in the complex
relationships in which he is involved. But, obviously, this is an undue
simplification of the problem. The individual, in fact, does not stand
alone; he joins hands with others of like mind to persuade, sometimes
to compel, society to the adoption of the view they share. It is
unnecessary for me to emphasize the vital part played by associations
in the modern community.[33] Granted that they have their dangers, they
are not only a vital expression of human personality, but an expression
as natural as the state itself. That a man must be free to combine with
his fellows for joint-action in some realm in which they have a kindred
interest is, I take it, of the essence of liberty. The point it is
important to examine is the degree of control, if any, that the state
is entitled to exercise over voluntary associations.
Let me say at once that I know no question more difficult in the whole
range of political science. I am quite certain that, from the angle
of individual freedom, the less interference the state attempts, the
better for everyone concerned; but, equally, I am clear that to some
interference the state is fully entitled. I should deny, for instance,
the right of any voluntary association to inflict physical punishment
or imprisonment upon its members; and I should argue that any state
was justified in immediate and drastic interference to this end. But
the real problems we encounter are not so simple as this. Joseph Smith
announces his reception of a message from Heaven ordaining the duty of
men to practise polygamy in a community where the law only recognizes
monogamy; what rights of interference has the state when a body of men
and women join him and begin to give effect to his teaching? What are
the rights of the state when a congress of trade unionists declares
a general strike? Are those rights different when the purpose of the
strike is industrial from what they are if it is political? How are
we to distinguish between the two? What are the rights of combination
among men employed in industries the nature of which makes the service
they perform fundamental to the community? What should be the attitude
of the state to a society of men engaged in propaganda for a revolution
by the use of physical force? Is there a difference between such a
society when it merely preaches the desirability of such a revolution
and when it acts to that end? Does action, in the latter case, mean
embarkation upon rebellion, for example, the purchase of machine-guns,
or does it extend, say, to the stirring-up of industrial strife in the
hope that a resort to political rebellion may be its outcome?
You will see that these are not merely academic questions; every one
of them has been in the forefront of political discussion this last
half-century, and all save the first have been vital themes of decision
in the years since the war. Take first the case of an association
which, like the Mormon Church, desires to practise modes of conduct
different from those pursued by the society as a whole. We have to
assume that the members of the association have joined it voluntarily,
and continue voluntarily in its membership. We have to assume, further,
that they do not desire to force their particular way of life upon
others; for some single realm of conduct, like the realm of marriage,
they desire that they shall be left free from interference by the
organized power of society. I cannot see that we are entitled to
interfere with them. We may think them unwise, foolish, muddle-headed,
immoral. We know perfectly well that we cannot hope, by the external
constraint of law, to abolish all conduct that comes within those
terms. I happen to think that it is a gross superstition to leave
money to the Roman Catholic Church that masses may be said for the
testator’s soul; but I should think it an unwarrantable interference
with the relations between that Church and its members if such bequests
were forbidden. I see no evidence to suggest that the practice of
polygamy is worse, in its nature, than a hundred other practices which
organized society either directly permits, or wisely leaves alone,
because it knows that rigorous control would be utterly futile. The
only way to deal with the ideals of the Mormon Church is to prove
their undesirability to their members. On the evidence of history,
persecution will not be acceptable as proof; and it is not improbable
that the only legal effect of prohibition has been to make furtive and
dishonest what was, at first, open and avowed. _Mutatis mutandis_,
this seems to me the case with all similar problems of association. If
a society of women, enthusiastic for the independence of their sex,
formed themselves into an association to propagate and practise the
(to them) ideal of children outside the tie of marriage, I should not
think the state entitled to interfere with its work. So, too, I should
argue, with a principle like birth-control. The state is not entitled
to prohibit diffusion of such knowledge, or the practice of it. When it
does, it makes the family nothing more than an instrument of fecundity,
and destroys the whole character of that right to privacy which is the
foundation of harmonious sexual relationship.
I argue, therefore, that voluntary bodies are entitled outside the
realm where their ideas and conduct are intended directly to alter the
law, or to arrest the continuity of general social habits, to believe
what they please and to practise what they please. This would not
permit a body of burglars to take over from Proudhon the principle that
property is theft and assume their right to restore it to themselves;
but it would justify, to take the case of principles I personally
abhor, a society of Mormons practising polygamy in a society like that
of the United States. Let me turn from this to the political field. I
take first the question of the right of the state to control freedom
of association in the industrial sphere. Practically speaking, the
question reduces itself to one of whether the state is justified in
limiting the power of a trade union, or of a combination of trade
unions to call out its members on strike. I want to put on one side the
technical juristic questions involved and to discover, if I can, the
justice of the general principles which underlie the problem.
These are, I think, broadly four in number. It is argued that the state
has a right to prohibit a general strike on the ground that this is
an attempt to coerce the government either directly, by making it
introduce legislation which it would not otherwise do, or indirectly,
by inflicting such hardship on the community that public opinion forces
the government to act. It is said, secondly, that the state is entitled
to prohibit those whom it directly employs, for example postmen, from
either going on strike, or affiliating themselves with any organization
the nature of which may compromise the neutrality of the government.
It is said, thirdly, that certain industries, railways, for example,
or electricity supply, are so vital to the community that continuity
of service in them is the law of their being, and that, therefore,
the right to strike can be legitimately denied to those engaged in
them. It is argued, fourthly, that a limitation upon the purposes of
trade unions, so that they are confined within their proper industrial
sphere, is also justified.
I want to analyse each of these principles separately, but certain
preliminary observations are important. In any industrial society, as
Mr Justice Holmes has insisted,[34] liberty of contract always begins
where equality of bargaining power begins. Granted, therefore, the
normal conditions of modern enterprise, only the existence of strong
trade unions will ensure to the average worker just terms in his
contract of service. If he stands alone, he has neither the knowledge
nor the power to secure for himself proper protection. Nor is this
all. Strong trade unionism always means that public opinion can be
made effective in an industrial dispute. One has only to compare
the situation in the British textile industries, where the power of
the unions necessarily involves a search by the state, if there is
a dispute, for the terms of a just settlement, with that in America
where, from the weakness of the unions, the state seems hardly to
know when a dispute has occurred, where, also, the police-power is
almost invariably exerted on the side of the employer, to realize
the meaning of strong trade unionism. It is, in fact, the condition
of industrial justice. No limitation upon freedom to associate is,
I urge, permissible unless it can be demonstrated that clear and
decisive advantage to the community, including, be it remembered, trade
unionists themselves, is likely to result.
In this background, let us examine the first of the four principles I
have enumerated. No coercion of the government, direct or indirect, is
legitimate. If men want to obtain from government a solution other than
government is willing to attempt, the way to that end is not by the use
of industrial power, but through the ballot-box at a general election.
Or, from the angle of indirect coercion, the first interest of the
state is in the general well-being of the community; a general strike
necessarily aims at that well-being and may therefore be prohibited.
The general strike, even a large sympathetic strike, is in fact a
revolutionary weapon. As such, it is a threat to the Constitution and
illegal as well as unjustifiable.
I do not think the problem is so straightforward as the delusive
simplicity of this argument would seem to make it. If it is said that
the Trades Union Congress of Great Britain would not be justified in
calling a general strike to compel the government to make Great Britain
a federation, I should agree at once. But I point out that no one
supposes it would take such action and that therefore a prohibition
of it is unnecessary. But I should not agree that a general strike is
unjustified to secure the eight-hour day, or to protect the payment of
unemployment relief, or to continue the Trade Board system in sweated
industries. Whether a general strike for these, or similar ends, would
be wise is another matter. That it cannot in any circumstances be
justified I am not prepared to say until I know the circumstances of
some given case. I am not willing, for instance, to condemn the General
Strike of 1926; on a careful analysis of its history, I believe that
the blame for its inception lies wholly at the door of the Baldwin
Government. No one acquainted with the character of the trade union
movement but knows that a weapon so tremendous as the general strike
will only be called into play on the supreme occasion. To lay it down
as law that, whatever the occasion, the weapon shall not be used, seems
to me an unjustifiable interference with freedom.
I am not greatly moved by the argument that it involves coercion of the
government. There are occasions when that coercion is necessary, and
even essential. I believe that was the case in Great Britain in 1926.
The trade unions would never have called the strike had they seen in
the policy of the government even the fragment of a genuine search for
justice. But the fact was that Mr Baldwin and his colleagues simply
acted as the mouthpiece of the coalowners. To illegalize a general
strike in that background is to say that the trade unions should have
acquiesced in the defeat of the miners without an attempt to prove
their solidarity with them. It would be to announce to government that
the ultimate weapon of Labour is one the use of which it need never
fear. There is no danger that the general strike will ever be other
than a weapon of last resort; the occasions when it can be successfully
used will be of the utmost rarity. But they may occur. I cannot accept
the position that government is always entitled to count on industrial
peace, whatever its policy. Nor do I see why it is unconstitutional for
Labour, as in 1926, to withdraw from work in an orderly and coherent
way.
I do not deny, of course, that both a general strike, and others of far
less amplitude, inflict grave injury and hardship upon the community.
But when trade unions seek for what they regard as justice, one of
their most powerful sources of strength is the awakening of the slow
and inert public to a sense of the position. Effectively to do this,
in a real world, it must inconvenience the public; that awkward giant
has no sense of its obligations until it is made uncomfortable. When it
is aroused, if, for instance, trains do not run, or coal is not mined,
the public begins to have interest in the position, to call for action.
Without some alternative which attempts to secure attention for a just
result--I know of no such alternative--the infliction of hardship on
the community seems to me the sole way, even if an unfortunate way, to
the end the trade unions have in view. To limit the right to strike is
a form of industrial servitude. It means, ultimately, that the worker
must labour on the employer’s terms lest the public be inconvenienced.
I can see no justice in such a denial of freedom.
Two further points it is worth while to make. It is sometimes agreed
that while the state ought not to restrict freedom of association for
industrial ends, it is justified in doing so when the strike-weapon is
used for some political purpose. This, indeed, was one of the objects
of the Baldwin Government in enacting the Trades Disputes Act of 1927.
But I know of no formula whereby such a division of purposes can be
successfully made. There is no hard and fast line between industrial
action and political action. There is no hard and fast line which
enables us to say, for instance, that pressure for a Factory Act is
industrial action, but pressure for the ratification of the Washington
Hours Convention political. Extreme cases are easy to define; but there
is a vast middle ground with which the trade unions must concern
themselves and this escapes definition of a kind that will not hamper
the trade union in legitimate activity vital to its purpose. And there
are certain types of political action by trade unions--a strike against
war, for example--which I do not think they ought in the interest
of the community itself, to abandon. Quite frankly, I should have
liked to see a general strike proclaimed against the outbreak of war
in 1914; and I conceive the power to act in that way as a necessary
and wise protection of a people against a government which proposes
such adventures. You cannot compartmentalize life; and where grave
emergencies arise, the weapons to be utilized must be fitted to meet
them. A government which knew that its declaration of war was, where it
intended aggressive action, likely to involve a general strike, would
be far less likely to think in belligerent terms. I do not see why such
a weapon should be struck from the community’s hand. I do not forget
that the German Republic was saved from the Kapp Putsch by a general
strike.
Nor must we forget the limits within which effective legal action is
possible. _Jus est quod jussum est_ is a maxim the validity of which
is singularly unimpressive. When the issue in dispute seems to the
trade unions so vital that only by a general strike can they defend
their position adequately, they will, in those circumstances, defend
their position whatever the law may be. Legal prohibition will merely
exacerbate the dispute. It will transfer the discussion of legality
which serves merely to conceal it. A legal command is, after all,
a mere static form of words; what gives it appropriateness is its
relevance as just to the situation to which it is applied. And its
relevance as just is made not by those who announce that it is to
be applied, but by those who receive its application. The secret of
avoiding general strikes does not lie in their prohibition but in the
achievement of the conditions which render them unnecessary.
Nor is the denial of the right to declare a general strike a necessary
protection of the total interest of the community. Right and wrong
in these matters are matters to be defined in each particular case.
A government which meets the threat of a general strike is not
entitled to public support merely because it meets the threat. It
is no more possible to take that view than it is to say that all
governments deserve support when they confront a rebellion of their
subjects. Everything depends on what the general strike is for,
just as everything depends on the purpose of the rebellion; and the
individual trade unionist must make up his mind about the one, just as
the individual citizen must make up his mind about the other. Law in
this realm is, in fact, largely futile. It could not prevent a general
strike by men who saw no alternative open to them; and, in that event,
it would merely intensify its rigours when it came. The limitation
of liberty in this realm seems to me, therefore, neither just in its
purpose nor beneficent in its results.
I do not, of course, deny that freedom of action in this field is
capable of being abused. That is the nature of liberty. Any body of
persons who exercise power may abuse it. It is an abuse of power
when an employer dismisses his workmen because he does not like
their political opinions. It is an abuse of power when the owners of
halls in Boston refuse to hire them to the promoters of a meeting in
memory of Sacco and Vanzetti. It was an abuse of power when British
naval officers connived at the attempted internment of the Belgian
socialist, M. Camille Huysmans, in England. It was, I think, an abuse
of power when the Universities of Oxford and Cambridge refused to admit
Nonconformists as students, or Parliament to seat Mr Bradlaugh because
he was an infidel. But the trade unions are no more likely, on the
historic record, to abuse their power than is Parliament itself. The
latter, if it wished, has the legal competence to abolish the trade
unions, to disenfranchise the working classes, to confine membership
of the House of Commons to persons with an independent income. We
know that Parliament is unlikely to do any of these things because
omnicompetence, when gravely abused, ceases to be omnicompetent. And
the same truth holds, as it seems to me, of the liberty to proclaim a
general strike.
A much more difficult problem arises where the second of my four
principles is concerned. A government is, I think, entitled generally
to the loyal and continuous service of its employees. It is therefore
entitled to make regulations which restrain their liberty of action.
The army and navy and the police, in particular, occupy a special
position in the state; if they were free, like ordinary citizens, to
withdraw their labour as they pleased, the executive power would be in
an impossible position. The government, therefore, may make suitable
regulations for their control. But it is important, in the framing of
these regulations, that the conditions of service should be just. To be
just, two principles are, I suggest, of primary importance. They should
be made and administered in conjunction with those who are affected by
them; and in their application or change executive action should not be
the final court of appeal. The principles which, in England, we call
Whitleyism are the _quid pro quo_ which government servants of this
type are entitled to expect in return for the surrender of the right
to strike; and Whitleyism must include the right of those servants to
appeal from an executive decision to such a body as the Civil Service
Division of the Industrial Court. To leave the executive sole master
of the field is to invite the kind of purblind folly which resulted,
in 1919, in the police strikes of Boston and London. Here, certainly,
the fact that the governments concerned were the judges in their own
cause made it impossible for the police to get either attention or
justice without drastic action. And I draw your attention to the fact
that although in each case the original strikers were defeated, their
successors obtained the terms, and even more than the terms, for which
they fought.
The defence forces of the state constitute a special case. When we turn
to the ordinary public services, central and local, quite different
considerations emerge. If you analyse Whitehall, for instance, you
will find a very small body of men and women who may be regarded as
concerned with the making of policy; below them is another body,
perhaps two or three times as large, engaged in assembling the material
out of which policy is made, and applying it in minor cases; while
below these once more is a vast army of clerks engaged in routine work
of a more or less mechanical kind. To this last class, it cannot, I
think, be said that government emerges as an employer different in
kind from what they would encounter in the ordinary labour market.
General economic conditions govern their pay; in France and America,
indeed, it is below, rather than above, the level obtaining elsewhere
for their kind of work. All their interests go along with those engaged
in similar employment outside the sphere of government activity. Their
union, therefore, with persons in private firms seems to me justified
in order to raise their general economic level; and I do not see the
justice of prohibiting it as was done by the Baldwin Government in the
Trades Disputes Act of 1927. I think, further, that they are entitled
to strike, if there is no other way in which they can, as they think,
secure the enforcement of their demands; though I think, also, that
the executive would be justified in compelling them to exhaust the
resources of a comprehensive scheme of conciliation before they went
so far. The history, indeed, of most modern civil services. France
being a notable exception[35] shows clearly that there is no danger of
officials abusing the right to strike. But it shows also the unwisdom
of leaving the government free to determine the substance of the
contract of service. It is just as likely as any private employer to
extract the most it can get for the least it needs to give; and it is
no more fit than any other employer to be left uncontrolled in this
field. The more labour conditions in government service are determined
finally by an independent authority, the more reasonable they are
likely to be. We must not be led away by false claims to a special
majesty born of its sovereign character to regard the state as entitled
to a peculiar and uncontrolled power over its servants. History
shows that it is just as likely as anyone else to abuse an unlimited
authority.
The civil servant is not merely an employee of government; he is also a
citizen. In our own day, especially, delicate questions have arisen as
to the right of the civil servant, or of a person engaged in the armed
forces of the state, to enjoy all the normal political privileges of a
person in private employ. Is a civil servant, for instance, entitled to
enter on a political career with the chance, if it is interrupted, to
return to his department? Most modern states, England, for instance,
Canada, South Africa, regard political activities as beyond the area
within which a civil servant may engage; France, on the other hand,
hardly limits its officials in this way, while Germany expressly allows
its officials to engage in politics, and some fifty civil servants are
now in the Reichstag, with the power to return to their departments if
they are defeated. Certainly there are few rights for which the rank
and file of officials press so strongly as for this; and they regard
the limitation of their political opportunities as an invasion of
civic liberty at once unnecessary and unjustifiable.
I do not think the problem is a simple one; and I think any solution
of it must therefore be complex in character. If a high official of
the Foreign Office in England could be elected to Parliament, spend
a term there in bitter criticism of the Foreign Secretary and then,
on defeat, return to work with the minister whom he had sought to
destroy, the latter’s position would, I think, be intolerable. There
is, that is to say, a class of civil service work the very nature and
associations of which involves exclusion from political life; and if
those engaged therein desire a political career, they must terminate
their connexion with the civil service. We can, of course, draw a line.
I see no reason why all the industrial employees of the government,
postmen, for instance, or shipwrights in a national dockyard, should
not enjoy all ordinary civil rights. I see no reason, either, to
expect any deleterious consequence if civil servants below what we
call in England the executive class are allowed ordinary political
rights, so long as a decent discretion in their exercise is observed.
Those engaged in the making of policy must, in my judgment, accept a
self-denying ordinance in this regard. Unless government can be assured
that its chief officials are aloof from political ties, it cannot trust
them; and all the considerations which create a “spoils system” will
then come into play. Since experience makes it evident that a spoils
system is incompatible with either honest or efficient administration,
a restriction upon the liberty of public officials is, I would argue,
justified. It is an inevitable part of their contract of service from
the point of view of the end that service is intended to secure.
I believe, further, that this restriction applies with special force
to the Army and Navy and to the police. The state is justified, in the
interest of the community, in placing an absolute embargo upon the
political activities of all their members. For unless this liberty is
restrained, their allegiance becomes the possession of a party and
they cannot give that neutral service which is the basic principle
of their existence. Anyone who remembers the attempted use of the
Army in 1913-14 for Ulster, the habits of the French Army during the
Dreyfus period, the peculiar relations between the German Army and
the Monarchy, will easily see how vital is this abstinence. There
are American cities where the relations between big business and the
police mean that the authority of the latter is certain to be abused in
an industrial dispute. Nothing, perhaps, illustrates more nicely the
delicacy of this problem than the activities of Sir Henry Wilson[36]
during the years from 1912. He was, it appears, prepared to go from a
meeting of the Committee of Imperial Defence to a discussion of its
plans with the leaders of the Conservative opposition; and to advise
with them upon the best way of rendering some of those plans nugatory.
Even during the Great War he did not cease from the cultivation of
political intimacies of this kind. Nor must we forget that Sir John
French, at the time the Commander-in-Chief of the British Armies
in France, was ready to go behind the back of the Government he
served to offer secret information to the military correspondent of a
Conservative newspaper; and the result of that betrayal of confidence
was the breakdown of the first Asquith Government in 1915. The proper
conduct of political life is clearly impossible, if the armed forces
of the state are free to take a definite part in its formation. No
one would endorse the Russian principle that a soldier’s quality is a
function of his agreement with the political faith of the government;
yet once relations are established between the politician and the Army
a movement towards this principle is inevitable. Sooner or later, in
this condition, the Army, like the Praetorian guard, determines the
personality of the state. When that occurs, no one can hope for the
enjoyment of political freedom.
I turn, in the third place, to the view that industries which have a
vital impact on social life can restrain the right to strike in those
engaged in them. That is a peculiarly favoured doctrine at the present
time; some writers even use the analogy of the Army and Navy, and argue
that the principles applicable to these have a legitimate extension to
this field. Others, the eminent French jurist M. Duguit, for example,
take a similar view, but upon other grounds. They argue that vital
public service, transport, for instance, or electricity supply, derive
their whole meaning from continuity; to allow an interruption of them
is, therefore, to destroy the whole law of their being.
I am as willing, I hope, as anyone to agree that an interruption of a
vital public service is undesirable, and that every possible step to
minimize the possibility of its occurrence should be taken. But I do
not think the denial of the right to strike obtains this end in any
of them; and I do not believe that the same considerations apply to
every sort of vital public service. It must, I think, make a difference
whether the industry is primarily operated for private profit or no;
for only in the latter case is its quality as both vital and public
fully recognized. No one, surely, can examine the record of the coal
industry either in England or in America and say that the motives
which underlie its ownership by private interest are compatible with
the view that an uninterrupted service to the community has been the
first object of the owners. There are several reasons of primary
importance for retaining the right to strike so long as private
ownership continues in this sphere. If, for instance, a steamship
company proposes to send out its ship under the conditions in which the
_Vestris_ of ill-fated memory sailed in the spring of 1929, I think the
crew would be justified in striking in the public interest. So, also, I
should argue that the Seamen’s Union would be justified in striking, to
see to it, if it could, that every vessel putting to sea carries with
it wireless equipment. Again, a body of miners might, in my judgment,
justifiably strike if they believed that some part of a pit to which
they were to be sent was in fact too dangerous for coal to be hewed
there without an alteration of the physical conditions of mining in
that particular place. I should, further, urge that a strike to secure
a national agreement for uniform conditions in a particular industry as
against a variety of local agreements was a justifiable enterprise if
that end could not be attained in any other way.
My view, broadly, reduces itself to this. Where the vital industry is
in public hands, the conditions which should operate are those which
relate to government service in general where it is in private hands;
the state is, I think, justified in seeing to it that the danger of
dislocation is reduced to a minimum; but it is not justified in saying
that, in the event of a disagreement, the men shall always abide by the
results of compulsory arbitration. For, first of all, the men will not
always do so; their refusal, doubtless, will be exceptional, but there
will be instances in which it will occur. The famous munitions strikes
on the Clyde, and the South Wales Miners’ strike, during the war show
that this is the case. It is, I suggest, obvious folly to attempt
legislation which cannot be enforced at the critical point of urgency.
The business of the state, therefore, is not to prohibit, but to find
how best to make the use of the strike the final and not the first
instrument in conflict.
This, I suggest, can be accomplished in two ways. It can be done,
first, by limiting the profits private ownership can make in any
industry of vital importance, either absolutely so that the owners
are debenture-holders merely, and not the residuary legatees of any
profit made, or relatively, as in a scheme like that laid down for the
gas companies of London. The state is then, I suggest, legitimately
entitled to argue that a curb on the liberty of the employer to
make what profit he can justifies a curb on the right to strike by
postulating the conditions under which alone it can become operative.
Those conditions are, I think, met by some such instrument as the
Canadian Industrial Disputes Investigation Act. Under its terms, we
should then have, at least, enforced public inquiry into the dispute,
and the consideration by both sides, as well as by the general
opinion of the community, of a reasoned attempt at a solution of the
difficulty. We respect freedom of association by leaving it at liberty
to insist that the proposed solution is unjust, while we protect the
public interest in continuity of service by insisting that the right to
strike shall not operate until the resources of conciliation have been
exhausted.
I reject, therefore, M. Duguit’s notion that public interest in
continuity of service is a paramount consideration which should
overrule all others; and I see no reason to apply his vituperative
adjectives[37] to those who take a different view. It seems to me quite
definitely a denial of liberty for which no justification can be found
to say that men shall work on terms they think utterly unjust; and the
argument that, if they do not like those terms, they can find other
work, is, increasingly, without force in a community like our own.
The number of those in any society who have a genuine choice, at any
given time, of alternative occupations is notably small. An electrician
cannot suddenly become a barrister, as the latter can suddenly become
a journalist; and if it is a matter of hundreds, or even thousands of
men, the compulsion upon them to continue in the vocation for which
they have been trained is obvious. The community never gains, in the
long run, from work performed by men who labour under a sense of
injustice. That psychological feeling of frustration is poisonous to a
harmonious personality. As such, it is incompatible with that search
for freedom which I have urged is a condition of happiness. I cannot,
therefore, agree that the community is entitled, on any terms, to put
its convenience first, and the workers’ freedom afterwards.
A final problem in this same realm remains. The trade union, it
is said, must obviously concern itself with all that touches the
industrial conditions of its members. But it is not entitled to a
general licence to roam all over the field of public activity. We
should resent it if a football club passed resolutions upon the foreign
policy of a government; and it is in the same way illegitimate for
a trade union to deal with matters outside its sphere. The state,
therefore, is entitled to define that sphere and to limit the
activities of trade unions to matters that come within it.
But I have already sought to show that such a definition of spheres is,
in fact, impossible of achievement. Take, for instance, foreign policy.
You cannot say that trade unions ought not to concern themselves
with foreign policy since this is intimately bound up with economic
policy which, in turn, is the chief factor in the determination of the
conditions of employment. You cannot exclude any part of the economic
realm from the trade union sphere. I should agree that a trade union
ought not to concern itself, let us say, with the question of whether
the Pope was justified in making the Immaculate Conception a dogma of
the Roman Church; but the likelihood of a trade union acting in this
way is as small as that of a football club concerning itself with
foreign policy. We cannot legislate for the exceptional instance. Law
can only deal with normal habits susceptible of logical reduction to
well-established categories. When it goes further, it merely reveals
its own impotence. A trade union, moreover, is a living body; and
no law has ever been successful in coping with the growth of living
things by legal promulgations upon the fact of growth. Many matters are
regarded today as normally and naturally within the sphere of the trade
unions which a generation ago, even a decade ago, most men would have
insisted were in nowise their concern. In the American garment trade,
the union concerns itself, as a vital part of its function, with the
efficiency of the employers for whom its members work. A generation
ago, this would have been dismissed as “an insolent interference with
the rights of management”; today it is obvious that upon no other
terms can the function of the trade union be fulfilled. In 1914 the
unions would never have deemed it their business to concern themselves
with the bank rate and credit policy; today they realize that these
matters lie at the heart of their problems. Any such Procrustes’ bed of
definition as this principle suggests seems to me, therefore, a quite
wanton and foolish interference with freedom.
V
Such a discussion of the relation of trade unionism to the state,
illustrates, I think, the general problem of the approach to freedom
of association in the political sphere. I have denied the right of
the state to control the internal life of such bodies; and I have
sought to show the limits of liberty where that life has ramifications
outside their membership. It is, I think, a good general rule that the
state should not interfere in this realm unless it must. Whenever, for
example, it has interfered with the claims of churches to lead their
own life, conflict has been the inevitable outcome. For in any meeting
of church and state, the latter will assert its paramountcy; and a
church has no alternative but to deny that assertion. For this reason
I believe that any attempt at partnership between them is bound to
result in injury to freedom somewhere. If, as in England, the Church
is formally established by the state, its dependency becomes obvious
as soon as it develops ideas of which the state does not approve; in
matters like marriage and divorce and education, the church has had
to surrender positions held for centuries to preserve the privileges
of establishment. It now appears that where there is disagreement in
an established church, the minority, on defeat, will not hesitate to
go beyond the organs which formally record the voice of the church,
in order to maintain doctrine or ritual which the church itself seeks
to change; and a legislative assembly most members of which are
either alien from the church, or without competence in its technical
problems, will find themselves defining its most sacred principles.
Such a church, quite obviously, is the mere creature of the state; it
sacrifices its spiritual birthright for a material mess of pottage.
Or, as in the concordat between Italy and the Papacy, there may be a
looser alliance of which the result is to deprive all non-Catholics of
their right to a secular state treating all religions equally, in the
realm of marriage and education. I cannot avoid the conclusion that in
this historic realm only the American principle of complete separation
and non-interference can produce freedom. Unless state and church
pursue an independent path, liberty is sacrificed; for either fusion or
partnership will, in fact, involve a conflict for supremacy.
The remaining question I wish to discuss in this context is the right
of the state over associations the purpose of which is the overthrow
of the existing social order. What powers here ought the state to
possess? At what point can it interfere? Has it what may be termed a
preventive capacity, a right to prevent the development of associations
the natural tendency of which will be an attempt at such overthrow?
Or should its jurisdiction be limited to punishment for overt acts?
Obviously the quality of liberty depends very largely upon the powers
we give the state in this realm. I take it as elementary that the
state has a right to protect itself from attack. It must, as a state,
assume that its life is worth preserving. It must demand that changes
in its organization be the outcome of peaceful persuasion and not the
consequence of violent assault. A state must, therefore, assume that
its duty to maintain peace and security lies at the very root of its
existence. The liberty which associations enjoy must therefore be set
in the context that they cannot have a liberty to overthrow the state.
To that extent, any denial of freedom to them is justified.
But what are the limits within which that denial must work. The world
today is littered with organizations that are denied a legal existence
and suppressed at any opportunity. The existence of a Communist party
is denied by Lithuanian law; the Peasants’ Party in Jugoslavia was
formally dissolved; Russian principle seems to be the imprisonment
or exile of members of any organization which can be suspected of
counter-revolutionary tendencies. We must, I think, begin with the
principle that a government is not entitled to suppress associations
the beliefs of which alone are subversive of the established order.
For, otherwise, persecution will be built, not on fact, but on
suspicion that facts may one day emerge, not on overt acts, but on
principles of faith which are in truth only dangerous when they are
expressed in practice. A society might be formed, for instance, to
discuss and propagate the principles of Tolstoyan anarchy; I do not
think any government has legitimate ground for interference with it.
The time for that interference comes only when, outside the specific
categories of peaceful persuasion, men have moved to action which
cannot logically be interpreted as other than a determination to
overthrow the social order.
I agree, for instance, that a society of Communists which began to
teach its members military drill could legitimately be regarded as a
direct threat to peace. So, also, when a political party, the Ulster
Volunteers, for instance, or their opponents, the Nationalists, begin
to purchase munitions of war, interference by government is justified.
But I cannot see that a government is entitled to prevent a society
of Communists from preaching their doctrines either by speech or by
publication of the printed word. It is, I think, essential that, as
with the English law of treason, the government should be compelled
to prove the commission of some overt act which directly tends to
imminent rebellion in a court of law, and to bring two witnesses
at least to bear testimony to its commission. It ought not to be
sufficient for a government to say that since a particular party has
beliefs which include the right to violence and has elsewhere practised
violence, that its suppression is legitimate. Recently, again, Mr
Ghandi announced that if the British Government did not grant Dominion
Home Rule to India by the end of 1929, he and his followers would
practise civil disobedience such as a refusal to pay taxes. We do not
think that announcement would have justified the British Government in
imprisoning Mr Ghandi before the end of 1929 in order that he might be
prevented from accomplishing his threat at a later time. Or, once more,
Mr Arthur Ponsonby’s organization of men pledged to refuse military
service in the event of Great Britain going again to war ought not to
be suppressed because, if Great Britain did go to war, some hundred
thousand individuals would refuse to obey any military service Act
that would then be enacted.
I am anxious, as you will see, to make it difficult for the government
of a state to attack an organization the views of which it happens
to dislike. In the light of the evidence, we can rest assured that,
unless we compel proof, in an ordinary court of law, that overt acts
have been committed, such attacks will be made. One has only to
remember the Treason Trials of 1794, where there was not a scintilla
of evidence against any one of the accused, or the follies enacted by
governments during the Great War, to see that this is the case. In
August of 1929, an Italian official actually drew public attention to
the undue circulation, as he deemed, of books by Chekov, Turgenev and
Tolstoy;[38] we can be sure that if a Society for the study of Russian
literature had then existed in Italy, the attention of the government
to its suppression would have been called. In the opening stages of
the Communist trial in Meerut, the counsel for the prosecution drew
attention not merely to the alleged offences of the accused, but
also to the actions of the Russian Communist leaders from 1917-20,
though it is difficult to see how either Indian or English Communists
could have been held responsible for them. The logic, indeed, of
habitual government suppression seems to be that abnormal opinion
is always dangerous because, if it is acted upon, the supremacy of
the law will be endangered. That is, of course, perfectly true. If
the Communist Party in England sought to initiate a rebellion, there
would be a threat to the supremacy of the law. But no one of common
sense believes today in a Communist menace in England, least of all,
perhaps, the Communists themselves. What can possibly be gained by an
attempt to suppress that philosophy by an imprisonment of its members
is quite beyond my understanding. I see no evidence to suggest that the
slightest good has been accomplished in America by all the legislation
against criminal syndicalism. Nor can I see that anything would have
been gained by the kind of prohibitions which the Lusk Committee, of
dubious memory, sought to put upon the statute-book.
My point is that men are always entitled to form voluntary associations
for the expression of grievance, and for the propagation of ideas
which, as they think, will remedy what they believe to be wrong. They
are not entitled to move to the commission of acts which bring them
into conflict with the state. By acts I mean things like the planning
of Mussolini’s march on Rome, or the training of civilians as soldiers
by the Ulster Defence Council. Things like these the government may
legitimately attack because they have a clear and direct relation to
immediate violence, actual or prospective. But governments would do
well to remember, what they are too prone to forget, that they do not
remove grievance, however ill-conceived, by suppressing it. And if they
are allowed to associate violent opinion with actual violence, there
are few follies upon which they cannot be persuaded to embark. The
persecution of opinion grows by what it feeds on. Every social order
is ardently upheld by fanatics who are eager to make dissent from
their view a crime. The last thing that is desirable is to give them an
opportunity for the exercise of their fanaticism.
It is, further, of great importance that all trials relating to these
offences should be held in the ordinary courts under the ordinary forms
of law. Experience makes it painfully clear that special tribunals are
simply special methods for securing a conviction. For the mere creation
of a special tribunal persuades the ordinary man that there is an _a
priori_ case against the accused, that the burden of proof lies upon
him rather than upon the government. Whatever we can do to safeguard
these trials from the introduction of passion is an obligation we owe
to liberty. However wrong or unwise we may think the actions of men so
accused, we have to remember that they represent, as a general rule,
the expression of a deep-felt resentment against social injustice. We
have to protect ourselves from protest which seeks deliberately to
dissolve the bonds of order. But it is our duty, too, to respect that
protest when it is sincerely made. And we cannot, therefore, permit
attack upon it because it represents ideas or experience alien from our
own. _De nobis fabula narretur_ is a maxim which every citizen should
recognize as the real lesson of political punishment.
Implied in all this is a view of the place of voluntary associations
in the community the significance of which I do not wish to minimize.
I am, in fact, denying that they owe their existence to the state, or
that the latter is entitled, by means of its agents, to prescribe the
terms upon which they can live. The special place of the state in the
great society does not, in my judgment, give it an unlimited right
to effect that co-ordination which is its function on any terms it
pleases. The principles of a legitimate co-ordination bind the state
as much as they bind any other body of men. Each of us finds himself
part of a vast organization in the midst of which we must seek the
realization of desire. We cannot attain it alone. We have to find
others with kindred desires who will join hands with us to proclaim the
urgency of their realization. There is no other way to the attainment
of that end; and an attitude, therefore, like that of Rousseau, who
denied the legitimacy of any voluntary associations, fails altogether
to take account of the elementary facts of social life. Such bodies,
indeed, must run in the leading-strings of principle, but the question
of what that principle must be is not one the state alone is entitled
to make. For the latter is not justified in preventing the expression
of desire; it is justified only in preventing the realization of desire
by violent means. It must tolerate the expression of experience it
hates because it is there, as a state, to satisfy even the experience
it cannot understand. We must not, in fact, allow ourselves to fall
into the error of believing that opinion which is antagonistic to the
state-purpose is unworthy to survive. The state-purpose, like any
other, is expressed through the agency of men. They may misinterpret
it; they may, consciously or unconsciously, pervert it to their own
ends. To leave them free to settle the limits of free association would
be to leave them free to settle what criticism of their work they were
prepared to permit. That is a power which could not safely be entrusted
to any body of men who have ever operated as a government.
For consider, once more, the historic record. The Roman suppression of
Christianity was built upon the belief that unity of religious belief
is the necessary condition of citizenship; later experience shows that
view to be without any substance. What in fact emerges from the history
of religious persecution is the lesson that the unity made by the
suppression of Nonconformity is the unity of stagnation. That was the
history of France under the repeal of the Edict of Nantes; it has been
the history of Spain ever since the sixteenth century; it is, indeed,
the history of any community, however rich and powerful, the rulers
of which assume that they know what constitute truth and right, what
opinions, therefore, they are entitled to prescribe. Any government
which attacks a body organized to promote some set of opinions which
may become dangerous to its safety may fairly be presumed to have
something to conceal. It is co-ordinating social life not to the end of
its greater fullness, but simply for the sake of co-ordination.
But law, as I have insisted earlier, does not exist for the sake of
law. It is not entitled to obedience because it is legal, because,
that is, it proceeds from a source of reference formally competent to
enact it. Law exists for what it does; and its rightness is made by the
attitude adopted to it by those whose lives it proposes to shape. Since
bodies like the Communist Party are in fact an announcement that some
lives at least are shaped inadequately by the laws of a régime like
our own, suppression seems to me an indefensible way of meeting that
announcement. Force is never a reply to argument; and until argument
itself seeks force as the expression of its principle, it is only by
argument that it can justifiably be countered.
VI
I turn to a very different phase of the subject. In every society
there are modes of conduct which, though not in themselves harmful,
offer an easy prospect of becoming so. It is therefore assumed by
many that it is the business of the state actively to discourage
such conduct, even to the point, if necessary, of making its most
innocuous expression illegal. No one is harmed, for instance, by a
moderate indulgence in alcoholic liquor; but since drunkenness is
harmful both to the individual and society, the state, it is said, is
justified in prohibiting the manufacture or sale of alcoholic liquor.
The same principle is urged of noxious drugs, of the use of tobacco,
of gambling. Sometimes, indeed, the principle is carried to an extreme
point and it is said that the state may prohibit any form of conduct,
Sunday games, for example, which a majority of the society finds
obnoxious. The claim to freedom, it is urged, may be denied in the
interest of a social view of good.
I do not find it easy to accept any single principle that is obvious
and straightforward as applicable to the very complex problems we
encounter in this realm. Neither the fact that a mode of conduct may
be harmful in excess, nor the fact that, whether harmful or no, society
dislikes it, seems to me in itself a just ground for its suppression by
the law. The first case seems to me one for safeguards against excess;
care, for instance, may be taken to see to it that it is manufactured
at a limited strength, is sold only under careful restrictions, and
so on. The second case I find it impossible to decide as a general
principle, and apart from particular cases each of which is judged upon
its own merits. I am prepared, for example, to make it illegal to keep
a gaming-house; but I am not prepared to legislate against a social
game of bridge played for money in a private house. Conduct must be
punished or prohibited when it is harmful in itself or in the excess in
which it touches society before we ought to seek access to the clumsy
machinery of the law.
For we cannot suppress all modes of conduct in which excess does harm.
In most cases, we have to leave the individual free to judge at what
point excess is a fact. Over-eating does great harm, but no one would
propose legislation against over-eating. Many motorists sacrifice their
lives to their motor-car, especially in America; but no one would
propose legislation against an undue indulgence in motoring. False
social standards result from our excessive adulation of film-stars and
athletes; but we should obviously be merely foolish if we legislated
against the publicity which makes for that excessive adulation. We
have always, I think, to study any proposed social prohibition in
terms of the object to which it is applied. We have to remember that
it always runs the risk of undermining character by a limitation
of responsibility. Men are made not by being safeguarded against
temptation but by being able to triumph over it. It would be impossible
to forbid the use of cheques because some people succumb to the habit
of embezzlement. There is a clear case for forbidding the sale of
noxious drugs like heroin or cocaine except under severe restrictions,
because it is clear that in themselves their consumption is bound to
harm the recipient. There is a clear case for insisting that persons,
even if they be passionate Christian Scientists, who are suffering from
an infectious disease like small-pox, shall be isolated until they are
cured; for anyone who goes about with small-pox inflicts direct and
measurable injury on other persons. But unless we can show that the
particular mode of conduct it is proposed to repress must necessarily
destroy the will-power of those who practise it, as is true of noxious
drugs, or directly and unquestionably injures the rest of society in
a measurable way, I think the method of prohibition an unwarranted
interference with freedom.
I take this view on three grounds. I believe, first, that it is
socially most important to leave the individual as uninhibited as
possible in forming his own way of life, granted, of course, that he
is adult and mature. To shelter him at every point from experience
which, if carried to excess, may harm him is not only impossible,
but also dangerous. It makes him pass his life under the aegis of a
system of fear-sanctions which, for the most part, he will be quite
unable to sublimate, and the result will be that sense of continuous
frustration which is fatal to freedom. I must, in general, learn my
own limitations by experimentation with myself. I cannot pass my life
adjusting my conduct to standards and habits which represent the
experiments of other people. For the reasons which make the results of
particular experiments seem to them convincing, I may in my own case
regard as completely unsuccessful. To insist that their rule of life
is to be mine is, normally, to destroy my personality. It is to compel
me to live at the behest of others even where I can discover no ground
for the behest. Most people would agree that a statute compelling an
atheist to go to church was utterly foolish. His absence does not
affect the salvation of any other person. His presence there does him
no good because his mood is inevitably one of gnawing indignation at
being compelled to participate in ceremonies that have no meaning for
him. Either he will invent excuses which enable him to stay away, or
he will adopt an aggressive disbelief which makes him a source of
offence to the faithful. He loses, that is, the habit of truth, on
the one hand, or the capacity to give and take which makes for decent
citizenship, on the other. Both forms of behaviour do real injury to
him; neither produces an attitude of conviction. From the angle of
character, the only rules of conduct in this realm that work, are those
that are self-imposed. And these, so far as I know, are the invariable
outcome of experiment made by oneself with one’s own personality.
My second reason is not less important. The power of law to define
modes of social conduct depends very largely upon its ability to
command a sentiment of general approval. What it seeks to do must
broadly commend itself, on rational grounds, to those over whose lives
its principles are to preside. Legislation which does not fulfil
this condition is always unsuccessful, and always has the result of
bringing the idea of law itself into contempt. For where a particular
statute is regarded as foolish or obnoxious by a considerable body of
persons, they will rejoice in breaking it. Illegal conduct becomes a
matter even of pride. It becomes a principle of conduct which gives
rise to special pleasure and peculiarly satisfies human vanity. No
one in London, so far as I know, regards the average policeman as an
unwarrantable attack on liberty; but it seems to be the case that
thousands of people in New York regard the prohibition agent in that
way. They wear a breach of the law as a badge of courage, like the
revolutionary in Czarist Russia or the suffragette in pre-war England;
and the imposition of penalties upon them arouses in them and their
friends a sense of angry injustice. Now I think it is an elementary
principle of penal psychology that you cannot make a crime of conduct
which people do not _a priori_ regard as criminal. Popular sentiment
approves a law against murder, and you can enforce that law. But
popular sentiment, in England at least, would not, in my judgment,
approve a law forbidding the manufacture and sale of alcoholic liquor;
and its chief result would be to direct the minds of thousands to the
problem of ways and means of evading the law. That is a habit which
grows upon those who indulge in it. It loosens all the principles of
conduct which make for social peace by making us think of the rules
under which we live as unjustifiable and oppressive. It forces social
effort quite unduly and unwisely in one direction. It persuades it to
think out mean and petty expedients for the enforcement of the law
in the same way as its subjects think out mean and petty expedients
for its evasion. The spectacle, for instance, of the Supreme Court
deciding that the American government is entitled to tap telephone
wires in order to obtain evidence of infraction of the Volstead Act is
not an encouraging one.[39] That way lies corruption and blackmail,
the kind of habits which, in England, we associate with names like
that of Oliver the spy,[40] in Russia with that of agents-provocateurs
like Azeff. Few things are more detrimental than this to the moral
equilibrium of a social order.
Nor must we forget two other effects of attempted enforcement, both of
which are, I think, entirely evil. A government which is continually
flouted in its attempt at administration is bound to attempt even
greater severity. There will be an extension not only of the area
of offence, but also of the methods of coping with offence, and the
punishment to be inflicted where it occurs. The classic instance of
this result is the government of Geneva from the period of Calvin’s
dispensation. It does not result in the satisfactory enforcement of
the law, but in its wider evasion. Severity on one side is met by
brutality upon another; one might as well be hung for a sheep as
a lamb. And the disproportion between crime and punishment which
emerges draws the sympathy of the general population away from the
government to the offender. This is, I suggest, wholly bad for any
society. It makes the habits of government generally suspect to the
multitude. It creates martyrs unduly and unwisely. And this has,
of course, the consequence that it becomes ever more impossible to
enforce the law. Its irrationalism is advertised to the multitude.
It becomes inacceptable to an ever-increasing circle who, while they
may sympathize with its principle, are not prepared to acquiesce in
the price that has to be paid for its application. Not only, sooner or
later, does such legislation perish, but the habits to which it gives
rise persist, and are frequently carried over into realms where they
are still more undesirable. And the severity which a government is
tempted to practise makes it blind to wrong through becoming inured to
its consequences. When the British Government first met the weapon of
the hunger-strike it was baffled; later, it turned that weapon against
those who employed it by what was called the Cat and Mouse Act. Much of
this proceeding, where the suffragettes were concerned, had a comic, as
well as a tragic side. But the whole procedure had the serious result
of making the public expect that any hunger-strike would be a dramatic
battle between the government and its prisoner, in which the cause of
the imprisonment was lost sight of in the gamble of the procedure.
The public, accordingly, was not greatly moved by the hunger-striking
which took place during the Irish Revolution; and when Mr Lloyd George
left the Lord Mayor of Cork to die, people were more interested in
the circumstance of his death than in the vital question of whether
he should have been allowed to die. In all this realm, the denial of
liberty seems to result in the slow maximization of unhappiness.
The second effect is also wholly bad. Whenever government interferes
to suppress some service which a considerable body of persons think
they require, when, also, the suppression is disapproved by a large
number of citizens, an industry to supply that service will come into
existence. Its ways will be devious, its charges will be high. It will
attract to its ranks many of the most undesirable elements in society.
It will form an army of lawbreakers whose habits are only too often
condoned by a large section of public opinion. That has been the case
with bootleggers in America and with night-clubs in London. And the
risks being great, the profits are high, the interests, consequently,
to be protected are correspondingly great. The history of these
adventures in England and America is one of organized immorality and
corruption. Condemnation by the law seems to have little or no effect
in dispelling its influence. Men and women attain power through its
means who normally would be shunned by most decent-minded persons. The
degree to which the police are corrupted by these influences is very
difficult to exaggerate. There is hardly a bribe too high for them to
pay. They are organizing, too, an adventure which stimulates every
sort of dubious instinct in perfectly ordinary people. Mr Babbitt
approaches his bootlegger, you will remember, in something like a
religious frame of mind. The night-club _habitué_ finds nothing quite
so exciting as the prospect of a raid; and he leaves his meretricious
surroundings with the sense that he knows the glory of danger and has
escaped the humdrum pettiness of suburbia. I think it bad for society
to make illegal conduct heroic. I think it still worse to make the
central figures in the drama of illegality powerful in the lives of
those to whom they purvey their service; men and women whose methods
of obtaining a living it does not occur to their clients to condemn.
Nor is it an answer to say that when the law does act, those clients
immediately desert the arrested offender which is proof that they
really disapprove. An enforcement which induces cowardice at the
critical moment in those who are _participes criminis_ does not seem to
me anything of which to be proud.
My third reason is rather different in character. Every state contains
fussy and pedantic moralists who seek to use its machinery to insist
that these habits shall become the official standard of conduct in
the population. They are interested in prohibition and uniformity for
their own sake, and every success that they win only spurs them to
greater efforts. If they stop the sale of alcohol, they become ardent
for the limitation of the right to tobacco. They are anxious to control
the publication of books, the production of plays, women’s dress, the
laws governing sexual life, the use of leisure. They are terrified by
what they call immorality, by which they mean behaviour of which they
do not happen to approve. They are scandalized by the unconventional.
They luxuriate in its denunciation. They form committees and leagues
to prove the degeneracy of our times. They rush to the legislature
to compel action every time they discover some exceptional incident
of dubious conduct. To themselves, of course, they appear as little
Calvins saving the modern Geneva from the insidious invasion of
the Devil. No one, I suppose, can seriously doubt that men like Mr
Comstock regard themselves as the saviours of society. They have an
unlimited sense of a divinely appointed mission, and the whole of
their life is set in its perspective. They are the men who find in
_Candide_ the means of corrupting the mind of the community. They are
horrified by the nude in art. They think the performance of _Mrs.
Warren’s Profession_ the public profanation of the ideal. They regard
Darwin as an “infidel” whose works were an outrage upon God; and the
circumstances of Maxim Gorky’s married life seem to them to demand his
public excoriation.
I know nothing more incompatible with the climate of mental freedom
than the inference of such people. They lack altogether a respect for
the dignity of human personality. They are utterly unable to see that
people who live differently think differently and that in so various
a civilization as ours absolute standards in these matters are out
of place. It is difficult to overestimate the price we pay for their
successes. Certainly no great art and no literature great in anything
save indignation can be produced where they have sway. It is not for
nothing that from the time of Calvin not a single work of ultimate
literary significance was produced by a resident of Geneva. It is
easy to understand why the grim excesses of Puritanism produced the
luxuriant license of the Restoration. These would be, if they could,
modern Inquisitors, without tolerance and without pity, thinking no
means unjustified if only their end can be attained. They are the kind
of people who drove Byron and Shelley into exile, and they remain
unable to see upon whom that exile reflects. Their pride is inordinate;
and human instincts are its chief victim. They are often ignorant,
usually dangerous, and invariably active. Since the friends of liberty
too often sleep, their unceasing vigilance not seldom meets with its
reward. To me, at least, they commit the ultimate blasphemy since they
seek to fashion man in their own image.
I do sincerely plead that, especially in a democratic society, these
are grave dangers to freedom, against which we cannot too stringently
be upon our guard. Especially, I say, in a democratic society. For
there, the proportion of men zealous in the service of freedom, is
likely to be small unless great and dramatic issues are at stake.
Tyranny flows easily from the accumulation of petty restrictions. It
is important that each should have to prove its undeniable social
necessity before it is admitted within the fabric of the law. No
conduct should be inhibited unless it can be definitely shown that its
practice in a reasonable way can have no other result than to stunt
the development of personality. No opportunity should be offered for
the exercise of power unless by its application men are released from
trammels of which it is the necessary price of purchase. We ought
not to accept the easy gospel that liberty must prove that it is not
license. We ought rather to be critical of every proposal that asks
for a surrender of liberty. Its enemies, we must remember, never admit
that they are concerned to attack it; they always base their defence of
their purpose upon other grounds. But I could not, for myself, serve
principles which claimed to be just if their result was to make the
temple of freedom a prison for the impulses of men.
CHAPTER III
LIBERTY AND SOCIAL POWER
I
In these pages, I have taken the view that liberty means that there is
no restraint upon those conditions which, in modern civilization, are
the necessary guarantees of individual happiness. There is no liberty
without freedom of speech. There is no liberty if special privilege
restricts the franchise to a portion of the community. There is no
liberty if a dominant opinion can control the social habits of the
rest without persuading the latter that there are reasonable grounds
for the control. For, as I have argued, since each man’s experience
is ultimately unique, he alone can fully appreciate its significance
himself; he can never be free save as he is able to act upon his own
private sense of that interpretation. Unfreedom means to him a denial
of his experience, a refusal on the part of organized society to
satisfy what he cannot help taking to be the lesson of his life.
But no man, of course, stands alone. He lives with others and in
others. His liberty, therefore, is never absolute, since the conflict
of experience means the imposition of certain ways of behaviour upon
all of us lest conflict destroy peace. That imposition, broadly
speaking, is essential to liberty since it makes for peace; and peace
is the condition of continuity of liberty. The prohibitions, therefore,
that are imposed are an attempt to extract from the experience of
society certain principles of action by which, in their own interest,
men ought to be bound. We cannot, indeed, say that all the principles
a given government imposes are those it ought to impose. We can only
say that some principles, by being imposed, are bound up with the very
heart of freedom.
That is the paradox of self-government. Certain restraints upon freedom
add to a man’s happiness. Partly, they save him from the difficulty of
going back to first principles for every step he has to take; they
summarize for him the past experience of the community. Partly, also,
they prevent every opposition of desire from resulting in conflict;
they thus assure him of security. In a sense, he is like a traveller
who reaches a sign-post pointing in many directions. Law helps him
by telling him where one, at least, will lead; and it invites him to
assume that its direction is also, or should be, his destination.
Clearly this will not always be the case. For it to be so, the end of
the law must be his as well, its experience must not contradict his
own. For that contradiction, as a rule, means punishment for him since,
at the end of the road he takes, if it is not the path of the law, he
will find a policeman waiting for him. We must, that is to say, find
ways of maximizing our agreement with the law.
I sought earlier to show that this maximization can only take place
when the substance of law is continuously woven from the fabric of
a wide consent. Here I propose to inquire into certain essential
conditions which determine whether that consent can be obtained.
I propose to inquire, in other words, into that weird complex of
prejudice, judgment, interest, which we call public opinion and to seek
the terms of its adequate relationship to liberty. For if my argument
be valid that a man’s citizenship is the contribution of his instructed
judgment to the public good, and that right action, for him, is action
upon the basis of that judgment, clearly, the factor of instruction
is of decisive importance. Instructed judgment is considered and not
impulsive, ultimate and not immediate. It is a conclusion arrived at
after an attempt to penetrate behind the superficial appearance to
what is truth-seeming. It is a decision made after evidence has been
collected and weighed, distortion allowed for, prejudice discounted.
If, for instance, I am to oppose the State in a matter like military
service, I ought not to do so until I have rigorously examined the
facts upon which I build my principles. And, _mutatis mutandis_, that
is true of every aspect of social activity. The first urgency is
assurance that the facts upon which I base my action are valid.
Now the world of facts which impinge upon each of us is difficult
and complex and enormous. None of us can know all of that world. A
large part of it, it may be in some context a fundamental part, we
have to take on trust from other persons. Obviously, it is of primary
importance that the things we take on trust should correspond with the
reality on which alone a right judgment can be made. My view of the
proper peace-terms that should be made with Germany will be one thing
if I believe that Germans, when at leisure, crucify innocent Belgian
citizens, rape their women, and cut off the breasts of their young
girls; and quite another thing if I believe that the Germans are rather
like other people, decent, kindly, respectable, wanting much the same
things in life as I do myself. My attitude to the nationalization of
the mines will obviously profoundly depend upon, first, the facts in
the mining industry itself, and, second, the facts about the operation
of nationalization in other fields. I cannot, in the vast majority of
the problems I have to decide, make my own inquiries into the facts.
Somewhere, sometime, I have to halt and say, “This man’s report, or
this paper’s account, is a thing I can trust.”
It is because opinion is so vitally dependent upon the truthfulness of
facts that observers have come more and more to insist on the connexion
between liberty and the news.[41] For a judging public is unfree if
it has to judge not between competing theories of what an agreed set
of facts mean, but between competing distortions of what is, at the
outset, unedifying and invented mythology. Things like the incident
of the _Maine_, the Pekin Massacre which never occurred, the Zenoviev
letter, make an enormous difference to what Mr Lippmann has happily
termed my “stereotype” of the environment about which I have to make up
my mind. I bring already to its interpretation a mass of preconceptions
which tend to distort it. If there is prepared for me “evidence”
which has been distilled through the filter of a special interest
the distortion may become so complete as to make a rational judgment
impossible. The English journalist who invented the word “dole” has
built into the minds of innumerable people of the comfortable classes
a picture of the unemployed in England as a mass of work-shy persons,
comfortably lazy and anxious at all costs to live parasitically upon
the taxpayer; the proven fact that less than a fraction of one per cent
really avoids the effort to work is unable to penetrate the miasma of
that stereotype. The newspapers which belong to the Power Trust in
America, the subsidized press in Paris, the journals which must satisfy
Mussolini or suffer suppression, the government newspapers of Communist
Russia, these are all efforts to dictate an environment to the citizen
in order that the stereotype he forms may serve some interest their
owners, or controllers, are anxious to promote. Men may actually go out
to die for purposes in which they profoundly believe, though the cause
which, as they judge, embodies those purposes has not, in fact, the
remotest connexion with it.
We have, in short, the difficulty that the control of news by special
interests may make prisoners of men who believe themselves to be free.
The Englishman who has to form an opinion about a miners’ strike is
not likely to be “free” in any sense to which meaning can be attached
if the facts which he encounters have been specially doctored in order
to make it as certain as possible that he conclude in favour of the
mine owners. A Chinaman who hears that the “Liberal” party in Rumania
has won a victory at the polls, an American who is informed that
London is governed by Municipal “Reformers”, approaches the discovery
of the facts with a body of preconceptions, derived from quite alien
experience, which will make a true judgment of those facts a very
complex matter. In the Conference of The Hague upon reparations in
August 1929, the Italian newspapers continued to paint Mr Snowden as
the Shylock withholding from Italy its due share, while the English
Press was equally unanimous in painting him as the protagonist against
a continental effort to make Great Britain the milch-cow of Europe.
The Italian, or the Englishman, who wished to obtain a just view of
the issues really at stake there, would have had to engage in arduous
researches into technical material about which he might lack competence
and for which he would certainly not easily find leisure.
Let us remember, too, that our stereotype of the contemporary
environment is only the last phase, so to speak, of the problem. The
psychologists are unanimous in telling us how important for our future
are the impressions we gather in our early years. Clearly, from that
angle, the things we are taught, the mental habits of those who teach
us, are of quite primary urgency. It may make all the difference to the
intellectual climate of a people whether, for instance, the history
learned by children in schools is wide and generous, or parochial and
narrow, whether its teachers cultivate the sceptical mind, or the
positive mind. People who are imprisoned in dogmas in childhood will
have an agonizing struggle to escape from its stereotypes, and they
may well have been so taught that they either, after effort, succumb,
or do not even know that it is necessary to struggle at all. I do not
know how to emphasize sufficiently the quite inescapable importance to
freedom of the content of the educational process.
Teach a child year in and year out that the American Constitution is
the ultimate embodiment of political wisdom and you increase tenfold
the difficulty of rational and necessary amendment by the generation
to which that child belongs. Set him under teachers like those of whom
Professor Harper tells us that seventy-seven per cent “contended that
one should never allow his own experience and reason to lead him in
ways that he knows are contrary to the teaching of the Bible”, and
fifty-one per cent that “our laws should forbid much of the radical
criticism that we often hear and read concerning the injustice of our
country and government”, and the openness of mind upon which reason
depends for its victories will be well-nigh unattainable.[42] Those
only who realize the importance of education will understand how a
Southern audience could go wild with anger over an account, in large
outline untrue, of German atrocities, and yet listen with indifference
to the description of a lynching in their own community so revolting in
its detail as to be unfit almost for transcription. And we must add to
the school influence in childhood, that of the home, the church, the
streets, in the terrible certainty that there are few impressions which
do not leave their trace.
It is necessary, if I may so phrase it, to urge men to live
dangerously. To the degree that their happiness depends upon making
their decisions conform to the facts, they cannot avoid danger. It is
dangerous to leave a child in the hands of teachers who believe that
all experience and reason must be abandoned which does not square with
that recorded in the partly mythical annals of a primitive Semitic
tribe several thousand years ago, or who equate patriotism with
a fervid acceptance of the present political system. The adult is
endangering his happiness if he believes that truth is what Karl Marx
said, or Mussolini tells him, or the inferences of Mr Baldwin which the
latter has in turn drawn from material prepared for him by the Research
Department of the Conservative Central Office. Happiness depends upon
being able to approach with an open mind facts which have been prepared
by independent persons who have no interest in seeing that their
incidence is bent in some particular way. Anything else imprisons the
mind in dogmas which only work so long as that mind does not travel
beyond the narrow confines within which the dogmas work. Once it goes
beyond, unhappiness is the inevitable outcome.
How are we to get independent fact-finding and the open mind? The
answer, of course, is the tragic one that there is no high-road to it.
Partly, it lies in the development of particular techniques, but, most
largely, it lies in the kind of educational methods we use, and this,
in its turn, in the purposes for which those methods are employed.
I entirely agree that a multiplication of independent fact-finding
agencies, as disinterested and impartial about wages and other social
conditions as a medical man in the making of a diagnosis, will take
us some distance.[43] Not, I think, very far; for between the finding
of facts by independent agencies and the driving of them home to the
public are interpolated just those factors of special interest which
are the enemies we confront. I agree, too, that freedom is partly
better served than when a great public organ falls into the hands of
one who, like C. P. Scott with his _Manchester Guardian_, determines
to make news and truth coincide. But men like Mr Scott are rare
enough to make reliance upon their emergence a very dubious ground of
hope. Nor need we deny that the growth of a professional spirit among
journalists, their organization into a profession with standards of
entrance and performance, will add greatly to the chances of solving
the problem. So, also, will the development of specialized journals
of opinion, and new inventions like the wireless. To some extent--not,
I think, a great extent--competitive fact-finding makes for truth.
Outrageous propaganda kills itself; men do not believe the “papers”
because they have found them lying at some point where the facts forced
themselves upon attention.
And so, too, with a training for the open mind in schools. People may
come to see that where the quality of intelligence is concerned, the
second-rate, the dull, the incurious, the routineer, simply will not
do. They may be prepared to make education a profession sufficiently
well paid to attract the highest ability, and sufficiently honourable
to satisfy the keenest ambition. Even now we cannot over estimate
the influence exerted in his generation by a great teacher. Do what
we will, let him teach what he please, the minds with which he is in
contact will go along with his mind, they will learn his enthusiasms,
share his zest in inquiry. It may be Huxley in London, William James
in Harvard, Alain in Paris. Students who have lived with such men
are their spiritual children not less than those who have learned the
habits of a gentleman at Eton or a proper respect for the Emperor of
Japan in Tokio. And, equally, we may learn that a narrow patriotism
in history and politics has social results less admirable than a
quick scepticism built from the sense that our country has not always
been right, our institutional standards not invariably perfect. Our
governors may be willing to admit that one inference from the rebellion
of Washington is the possible legitimacy of rebellion, one inference
even from the new theology of Jesus, that we are sometimes justified in
the making of new theologies. It is even possible that the value of the
power to think may become so much more widely recognized, that we shall
not ask that those who are able creatively to teach this supreme art,
be dismissed because we dislike either what they teach or the opinions
they profess outside the practice of their profession. We may come to
insist upon security of tenure for the teacher even when his principles
of faith do not coincide with those for which we desire the triumph.
Yet these possibilities do not, in themselves, seem to me to confer a
right to optimism if they stand alone. If it pays to spread false news,
let us be sure that false news will be spread. If some special interest
gains by corrupting the facts, so far as it can, the facts will be
corrupted. If a poor educational system strengthens the existing
foundations of power, it will tend to remain poor; if its extension is
costly, those who are to bear the cost will find good reason either not
to extend it, or to proceed at such a snail’s pace that the new way
has no chance of affecting mankind except in terms of geological time.
Our difficulty is the twofold one that propaganda can produce immense
results in a brief space of time and that creative educational change
takes something like a generation before its results are manifest upon
a wide scale. The forces at work to prevent the emergence of truth, the
forces, also, which have every reason to dislike the development of the
mind which seeks for truth, are many and concentrated and powerful.
They do not want the general reporting of experience, but only of that
experience which favours themselves. They do not want the general
population so trained as to prize truth, but only so trained that they
believe whatever they read. In our own day it would not be an unfair
description of education to define it as the art which teaches men to
be deceived by the printed word. Those who profit by that deception
are, at the moment, the masters of society.
For we must remember that in these matters we have to concern ourselves
with short-term values and not long-term values. We do not legislate
for some conceivable Utopia to be born in some unimaginable time, but
for the kind of world we know ourselves, for lives like our own lives.
The freedom we ask we have to make. Every postponement we accept, every
failure before which we are dumb, only consolidates the forces that
are hostile to freedom. They themselves realize this well enough. They
have, in the past, fought every step on every road to freedom because
they have seen that the accumulation of small concessions will, in
the end, be their defeat. Everywhere they have been guilty of definite
error, or wrong, they have denied the error or wrong, lest it upset
faith in their own right to power. Not the least powerful to silence,
you will recollect, which persuaded even those who thought Sacco and
Vanzetti innocent was their fear that proof of that innocence might
disturb popular faith in the Massachusetts Courts. The same was true
in the Dreyfus case. The same, on a lesser plane, was true of Mr
Winston Churchill when he sought to deceive the House of Commons over
the treatment of Lady Constance Lytton in prison.[44] Those in power
will always deny freedom if, thereby, they can conceal wrong. And any
successful denial only makes its repetition easier. Had California
released Mooney in 1916, when the world knew he was innocent, it would
have been easier for Massachusetts to have acted justly ten years
later. The will to freedom, like the will to power, is a habit, and it
perishes of atrophy.
The inference I would draw is the quite basic one that in any society
men only have an equal interest in freedom when they have an equal
interest in its results. Where those results are already possessed by
some, they seldom have the imagination to see the consequence of their
denial to others. They will persuade themselves that those others are
contented with their lot, or made differently in nature, so that they
are unfit to enjoy what others possess. There is no myth we are not
capable of inventing to lull our conscience. We see the futility of
action on our part, because we are so unimportant. We see that it would
be dangerous in this particular case, because we have an influence
that, in other cases, might be exerted to useful purpose. We do not
think the time has come for action. We think that action here might
lead to other and quite unjustifiable demands. We would have associated
ourselves with the demand, but those who are making it, or the way in
which it is being made, unfortunately renders this impossible. Life is
so complex and tangled and full, that those who desire to abstain from
the battle for freedom can always find ample excuse. The workman may be
afraid for his job; Babbitt may shrink from being shunned by the group
whose fellowship is his life; it may be the handful of silver, the
riband for the coat, the love of power, the loathing of what freedom
may bring. Whatever the motive of abstention, let us remember that men
think differently who live differently, and that, as they think, so
they build principles of action to remedy what, in their lives, they
find bitter or unjust, to preserve what they find pleasant or right.
We cannot, of course, remedy all experience which makes for a sense
of bitterness or injustice. Things like the betrayal of friendship
are, only too often, beyond the power of organization to affect. But
the sense of bitterness or injustice that comes from bad housing, low
wages, or the denial of an adequate political status, these we are able
to remedy by social action. Or, rather, we are free to move to their
remedy, if we have an equal interest in doing so. If our interest is
unequal, our sense of a need to share with others in action will be
small. Other things will seem more significant or more urgent; and
the need itself will shrink as it obtrudes. The less we live in the
experience of our neighbours, the less shall we feel wrong in the
denial of their wants. Trade unionists appreciate a demand for higher
wages more keenly than employers: the wealthy rentier reads of a strike
in the cotton trade as a newspaper incident, of a railway dispute,
whatever its grounds, as a threat to the community. The sense of
solidarity comes only when the result of joint action impinges equally
on the common life.
We are in the difficulty that every step we take towards freedom is a
step towards the equalization of privileges now held unequally. Those
who hold them are not anxious to abandon what they entail; sometimes
they can even persuade themselves that the well-being of society
depends upon a refusal to surrender them. For them, therefore, the
honest publication of facts, the making of free minds, are simply
paths to disaster. Why should they surrender their weapons of defence?
Why, the more, when many of them do not even suspect that they fight
with poisoned weapons? To explain to a loyal Roman Catholic that he
should tell his children that there is grave reason to deny the truth
of all he believes is to invite him to shatter the foundation upon
which he has built his life. To suggest to the average citizen who
took part in the Great War that his school-books should abandon the
legend that his particular state entered it with the whole-souled
motive of serving justice would appear scandalous simply because he
is honestly unconscious of any other motive. To urge even upon the
public-spirited heir to a great estate the possible duty of acting upon
the principle of Mill’s argument about the laws of inheritance is, at
the best, an adventure in the lesser hope. There was good reason for
the unpopularity of the Socratic temper in Athens.
II
I conclude, therefore, that whatever our mechanisms and institutions,
liberty can hope to emerge and to be maintained in a society where
men are, broadly speaking, equally interested in its emergency and
its maintenance. I accept the insight Harrington had when he insisted
that the distribution of economic power in a state will control the
distribution of its political power. I think James Madison was right
when he argued that property is the only durable source of faction. I
think the perception of the early socialists entirely justified when
they urged that a society divided into a small number of rich, and
a large number of poor persons, will be a society of exploiters and
exploited. I cannot believe that, in such an atmosphere, liberty will
be a matter of serious concern to the possessors of power.
What will concern them is how they can best maintain their power. They
will permit anything save the laying of hands upon the ark of their
covenant. They will allow freedom in inessentials; but when the pith of
freedom is attack upon their monopoly they will define it as sedition
or blasphemy. For if the form of social organization is a pyramid,
men are bound to struggle towards its apex. In a society of economic
unequals, gross unequalities make conflict inherent in its foundations.
The possession of wealth means the possession of so much that makes for
a happy life, beautiful physical surroundings, leisure to read and to
think, safeguards against the insecurity of the morrow. It is, I think,
inevitable that those to whom these things are denied should envy those
who possess them. It is inevitable, also, that envy should be the nurse
of hate and faction. Those who are so denied struggle to attain, those
who possess struggle to preserve. Justice becomes the rule of the
stronger, liberty the law which the stronger allow. The freedom that
the poor desire in a society such as this is the freedom to enjoy the
things their rulers enjoy. The penumbra of freedom, its purpose and
its life, is the movement for equality.
And it is equality that is decried by those who rule. It means
parting with the exercise of power and all the pleasures that go with
its exercise. It means that their wants do not define the ends of
production, their standards do not set the objects of consideration,
their right to determine the equilibrium of social forces is no longer
recognized. Equality, in fact, is a denial of the philosophy of life
which is bred into their bones by their way of living. It does not
seem to me remarkable that they should fight against this denial.
Who of us, on these terms, but would find it difficult to accept as
valid experience which contradicts our experiences, a system of values
which attempts the transvaluation of our own? Who of us but would not
feel that a freedom which seeks radical alteration of the contours of
existence is perverse and dangerous and worthy only to be suppressed?
The Pagan felt that of the Christian, the Catholic of the Protestant,
the landowner of the merchant. The new power which seeks its place in
the sun is inevitably suspected by the old with whom it claims equal
rights.
The equality will be denied, and, with it, the freedom to claim
equality. Inevitably, also, the right to freedom will be maintained,
and the two powers will, sooner or later, mass their forces for battle.
I know no instance in history in which men in possession of power
have voluntarily abdicated its privileges. They say that reason and
justice prevail; but they mean their reason and their justice. They are
prepared to coerce in the hope of success, and they are prepared to die
fighting rather than to surrender. It is the result of such a way of
life that the ideal of freedom is inapplicable to matters upon which
there is urgent difference of opinion between the rulers and their
subjects. It is impossible for reason to prevail if men are prepared to
fight about the consequences of its victory. And if they are prepared
to fight there is no room in the society for freedom since this is
incompatible with habits of violence.
Any society, in fact, the fruits of whose economic operations are
unequally distributed will be compelled to deny freedom as the law
of its being; and the same will be true of any society in process
of forcible transition from one way of life to another. Cromwellian
England, Revolutionary France, Communist Russia, Fascist Italy, each
of these, of set purpose, made an end of the pretence that freedom was
a justifiable object of desire. In each, it was proposed to maintain
some particular form of social organization at any cost; to inquire
into the cost might result in doubt of the value of the effort; and
the value of that freedom which releases reason was therefore denied.
A revolutionary state, of course, makes the position peculiarly clear.
But it is not merely true of the revolutionary state.
In England, or France, or Germany, there is no freedom where the
fundamentals of the society are called into question, if their rulers
think that this may cause danger to those questions. The government
may decide that William Godwin is innocuous; but it will not hesitate
to convict Tom Paine--in truth far less drastic--of high treason. The
cause of this attitude is, I think, beyond discussion. If freedom seeks
to alter fundamentals, freedom must go; and freedom can hardly help
but concentrate on fundamentals in a society distinguished by economic
inequality. I do not need to point out to you the extraordinary
timidity of society before subversive discussion of property-rights,
nor to insist upon the complicated legal precautions that are taken
for its defence. You have only to examine the attitude in which Labour
combinations are approached by those who possess economic power, as
instanced, for example, by the use of the injunction by American
judges,[45] to realize that the main purpose of limitations on freedom
is to prevent undue encroachments upon the existing inequalities.
We announce that we are open to conviction in matters of social
arrangement. But we take the most careful steps to see that our
convictions are not likely to be overthrown.
For the chance that reason will prevail in an unequal society is
necessarily small. It is always at a disadvantage compared with
interest, for, to the latter, especially in property matters, passion
is harnessed, and in the presence of passion people become blind to
truth. They see what they want to see, and they select as truth that
which serves the purpose they desire to see prevail. The preparation
of news for the making of opinion is, indeed, extraordinarily like the
old religious controversy in which men hurled text and counter-text
at one another. The real problem was one of proportions; but the
protagonists altered the proportions that the material might the better
serve their cause. Some years ago, a Labour Delegation returned from
Russia with a statement about its character from Peter Kropotkin. A
leading capitalist newspaper in London printed all those parts of it
which attacked the Russian régime; and the leading Labour newspaper
printed those parts of it favourable to the Bolshevik experiment. The
readers of the first were, therefore, satisfied with the knowledge
that an eminent anarchist heartily disliked Bolshevism; and the
readers of the second were heartened by discovering that so eminent a
friend of freedom was nevertheless prepared to support a Dictatorship
as favourable to freedom. You will remember that Luther and Calvin were
always prepared to abide by the plain words of Scripture; but each was
careful, at critical points, to insist that his own interpretation
alone possessed validity. In that atmosphere, a solution which strikes
opposing controversialists as just is not, at least easily, to be found.
This, I suggest, is the kind of environment any plea for freedom
must meet in the modern state. Discussion of inessentials can be
ample and luxurious; discussion of essentials will always, where it
touches the heart of existing social arrangements, meet at least with
difficulty and probably with attack. It will find it extraordinarily
hard to organize supporters for its view, if this opposes the will of
those in authority. In wartime, any plea for reasonableness is at a
discount; and it was at a discount in England during the general
strike when the government sought at once for the conditions of a
belligerent atmosphere. Attack an interest, in a word, and you arouse
passion; arouse passion, especially where property is concerned, and
the technique of _raison d’état_ will sooner or later be invoked. But
liberty and _raison d’état_ are mutually incompatible for the simple
reason that _raison d’état_ is a principle which seeks, _a priori_, to
exclude rational discussion from the field. It seeks neither truth nor
justice, but surrender.
It is a technique, I think, which almost always comes into play when
dangerous opinion is challenged by the state. A good instance of this
is afforded by the trial of the British Communists in 1925. No one
could seriously claim that their effort constituted a serious menace
to the state, for they were a handful among millions, and there was
not even evidence that their propaganda met with any success. Yet
their condemnation was a foregone conclusion, granted the terms of the
indictment. And the habits of power were interestingly illustrated by
the judge who presided over the trial. He had conducted the case with
quite scrupulous fairness, and had shown no leaning to one side or the
other until the jury had rendered its verdict. He then made an offer
to the defendants that if they would abandon their belief in Communism
he would adjust the sentence in the light of that abandonment. He made
the offer, I do not doubt, in the utmost good faith and an entirely
sincere conviction that Communist opinions are morally wicked. But
that attitude was precisely similar to the Roman offer to the early
Christians: they could avoid the arena if they would offer but a
pinch of incense on the pagan altar. It was precisely similar to the
willingness of the Inquisitor to mitigate his sentence where there
is confession of heresy and repentance. Mr Justice Swift seemed to
have no realization at all that the defendants were Communists in the
light of an experience of social life which, for them, was as vivid
and compelling as the Christian revelation to its early adherents;
that the offer he made to them was mitigation of punishment in return
for the sacrifice of their sincerity; that the state, for him, was
Hobbes’ “moral God” at whose altar they must do reverence. His views,
of course, were the natural expression of his own experience of life,
and, without doubt, sincerely held; but they implied an inability
imaginatively to understand alien experience which is pathetic in the
limitation it involves. And perhaps the supreme irony in the situation
was the fact that to be tried as Communists was, for the defendants,
perhaps the supreme test of truth to which their faith could be
submitted.
When Plato, in the _Laws_, set out a revised version of his ideal
policy for application to the real world about him, he surrendered his
demand for the complete communism which had distinguished his Utopia.
But he was still emphatic enough about the need for equality to lay
it down that no member of his state should possess property more than
four times in amount of that owned by the poorest citizens. The ground
of that drastic conclusion was quite clear in his mind. Great economic
inequalities are, as he saw, incompatible with a unity of interest in
the community. There is no common basis upon which citizens can move to
the attainment of kindred ideals. The lives of the few are too remote
from the lives of the many for disagreement about social questions to
be possible in terms of peace, if the ultimate organization of the
society is not to be changed. The remoteness means that the few will
always fear the invasion of their privilege, and the many will envy
them its possession. It is not only, as I have said, that men think
differently who live differently; it is, essentially, that men think
antagonistically who live so differently. That antagonism is bound to
result in violence unless the domination of the many by the few is
almost complete, or is tempered by so continuous a flow of concession
as results, in the end, in the effective mitigation of the inequality.
There cannot, in a word, be democratic government without equality; and
without democratic government there cannot be freedom.
For the real meaning of democratic government is the equal weighing
of individual claims to happiness by social institutions. A society
built upon economic inequality cannot attempt that sort of measure.
Consciously or unconsciously, it starts from the assumption that there
is a greater right in some claims than in others. It cannot be said
that response to claims is made in terms of justice. The nature of
economic inequality is a compulsion to respond to effective demand,
and this pays no regard to science on the one hand, or to need upon
the other. It thinks only of the presence of purchasing power and not
of its connotation in terms of social purpose. The whole productive
scheme is thereby tilted to the favour of those who possess the power
to make their wants effective. There is cake for some before there is
bread for all. The palace neighbours the slum. And those who find that
their wants do not secure attention are, inevitably, tempted to an
examination of the moral foundations of such a society. Their interest
drives them to demand its reconstruction in terms of those wants.
Liberty means, in such a context, the power continuously to exercise
initiative in social reconstruction. The whole ethos which surrounds
their effort is that of equality. They search for freedom for no other
end but this.
I do not need to remind you that most observers who have sought
to estimate the significance of the democratic movement have seen
that equality is the key to its understanding. That was the case
with Tocqueville; it was the case with John Stuart Mill; and, in a
famous lecture which reads now as though it was the utterance of a
prophet,[46] it was the case, also, with Matthew Arnold. Broadly, their
insight converged towards a recognition of three important things. They
realized, first, that in any society where power is gravely unequal,
the character and intelligence of those at the base is unnaturally
depressed. The community loses by this in two ways. The energy and
capacity of which it might make use are not released for action; and
the concentration of effective power in a few hands means that the
wishes, opinions, needs, of the majority do not receive sufficient
consideration. An aristocracy, whether of birth, or creed, or wealth,
always suffers from self-sufficiency. It is inaccessible to ideals
which originate from without itself. It tends to think them unimportant
if they are urged tactfully, and dangerous if they are urged with
vigour. It is so accustomed to the idea of its own superiority, that it
is resentful of considerations which inquire into the validity of that
assumption. It may be generous, charitable, kind; but the surrounding
principle of those qualities is always their exercise as of grace and
not in justice. An aristocracy, in a word, is the prisoner of its own
power, and that the most completely when men begin to question its
authority. It does not know how to act wisely at the very moment when
it most requires wise action.
It is not only that any aristocracy becomes unduly absorbed in the
consideration of its own interests. Its depression of the people
has the dangerous effect of persuading the latter of its necessary
inferiority. It is unable to carry on its own affairs with order
and intelligence. It does not know how to represent its wants with
decision. It develops a sense of indignation because its interests
are neglected; but it does not know how to attach its indignation to
the right objects or, when so attached, how to remedy the ills from
which it suffers. An aristocracy, in a word, deprives its subjects of
character and responsibility; and as the revolutions of 1848 so clearly
demonstrated, while they can destroy, they have never been taught
how to create. The success of the Puritan Rebellion and the American
Revolution was built upon the fact that, in each case, the exercise
of power had been a habit of the general population; in the one case
in the management of Nonconformist Churches, in the other in the
governance of local legislatures and township meetings. In each case, a
blind government confronted men who knew how to formulate their wants,
and to organize their attainment. But, in general, aristocracies do
not provide their subjects with this opportunity. Their own effort is
substituted for popular effort, their own will for the popular will.
The development of the total resources at their disposal is postponed
to the preservation of their interest and convenience. They dwarf the
masses that they may the better contemplate the stateliness of their
own state. But that, in the end, always means that the vital power of
the people is absent at the moment when it is most required.
The third weakness of aristocracies is their inevitable impermanence.
There is no method known of confining character and energy and ability
to their own ranks. These, where they emerge in the people, will always
seek the means of their satisfaction. From this angle, few things are
so significant as the history of the British Labour Party. It rose
to power largely because there was no room in the leadership of the
historic parties for self-made men who had not sought success either as
lawyers or as business men. The result was that the knowledge at the
disposal of Liberals and Conservatives, the significant experience upon
which they could draw for the making of their policy, was always more
narrow than the area of the problems they had to meet. The lives of
the typical Labour leaders of the second generation, Keir Hardie, Mr
Ramsay MacDonald, Mr Arthur Henderson, invariably show a period where
the regretful decision has to be taken against further co-operation
with a party which cannot see the needs they see, which does not
desire service to the ideals they seek to serve.[47] And men such as
these make articulate in the minds of all who have a sense that their
interests are neglected not only the fact of negligence, the demand,
therefore, for satisfaction, but also the search for the principles
whereby satisfaction can be attained. Their insight into an emphasis
to which little attention has been paid grows by the volume of the
experience they encounter into a movement; and those who have permitted
the interest to be neglected find that the old battle-cries no longer
attract its allegiance even when they are given new form.
It is curious to note that not even the impact of defeat gives this
lesson its proper perspective to the defeated. English Liberalism has
suffered eclipse because, broadly speaking, it was unable to discover
an industrial philosophy suitable to the wants of the new electorate.
It served admirably the requirements of the manufacturer and the
shopkeeper who were enfranchised in 1832. It gave them freedom of
trade, liberty of contract and full religious toleration. But it never
understood either the fact of trade unionism or the philosophy of
trade unionism. Its attitude to citizenship was atomic in character.
It saw the community as a government on the one side, and a mass of
discrete individuals on the other. It assumed that each of these, given
liberation from the special privilege of the _ancien régime_, had the
full means of happiness at his disposal; it accepted, in a word, the
principles of Benthamite radicalism as absolute. But its error was not
to see that the community is not merely a mass of discrete individuals.
Jones is not merely Jones, but also a miner, a railwayman, a cotton
operative, an engineer. As one of these, he has interests to be jointly
promoted and jointly realized. A philosophy of politics that is to
work must find a full place in the state for organized workers to whom
freedom in the industrial sphere is, in its fullest implications,
as urgent and as imperative as freedom in the sphere of politics or
religion.
The Liberal Party did not see this until it was too late. Built largely
on the support of the Nonconformist business man, the interests it
understood were essentially his interests; and to recognize the
implications of trade unionism, as Keir Hardie and his colleagues
did, was to invade the interests upon which it was able to count for
allegiance. It was forced, obviously unwillingly, into concessions
like the Trades Disputes Act of 1906; but its policy, as the detailed
history of the process of social legislation from 1906 to 1914
makes clear was, so far as it could, to mitigate social inequality
by recognition of individual claims, and to build machinery for
their satisfaction which continued to neglect the fact of trade
unionism. When, after the war, the remarkable growth of the Labour
Party showed how vast was the decline of the Liberal hold upon the
working-classes, the Liberal leaders were driven, by the need of
self-preservation, to the invention of industrial principles likely to
prove attractive to trade unionists. But these wore the air of being
produced for the occasion; and they did not fit into the character
of Liberal Leadership. For the latter was quite unable to attract to
its ranks either working-men candidates or trade union support; and
the emphatic declaration of a Liberal politician that his party could
not join the ranks of Labour because the latter was built upon the
trade unions showed how unreal was the body of industrial principles
which Liberalism had developed.[48] It remained an atomic philosophy
applicable to a world in which employer and worker confronted each
other, as individuals, on equal terms. The assumption was unjustified;
and the way lay open for the consolidation by Labour of its growing
hold upon the workers. Liberalism remained a middle-class outlook,
admirable in its exposition of basic principle, but incapable of
adjusting principle to a medium with which its supporters were largely
unacquainted.
In an interesting passage[49] Lord Balfour has drawn attention to the
fact that the success of the British Constitution in the nineteenth
century--it is worth adding the general success of representative
government--was built upon an agreement between parties in the state
upon fundamental principles. There was, that is, a kindred outlook upon
large issues; and since fighting was confined to matters of comparative
detail, men were prepared to let reason have its sway in the realm of
conflict. For it is significant that in the one realm where depth of
feeling was passionate--Irish home rule--events moved rapidly to the
test of the sword; and the settlement made was effected by violence and
not by reason. That was the essence of the Russian problem. The effort
to transform a dull and corrupt autocracy into a quasi-constitutional
system came, like the efforts of Louis XVI at reform, too late to
affect men who had already passed beyond any possibility of compromise
with the idea of monarchical power. The concessions which the autocracy
was prepared to offer did not touch the fringe of what the opposition
regarded as nominal. Nor was that all. Post-war Russia illustrated
admirably the truth of Mill’s insistence that “a state which dwarfs its
men in order that they may be more docile instruments in its hands,
even for beneficial purposes, will find that with small men no great
thing can really be accomplished; and that the perfection of machinery
to which it has sacrificed everything, will in the end avail it
nothing, for want of the vital power which, in order that the machine
might work more smoothly, it has preferred to banish.”[50]
III
I conclude, therefore, that the factor of consent is not likely
effectively to operate in any society where there is a serious
unequality of economic condition; and I assume, further, that the
absence of such consent is, in the long run, fatal to social peace.
I do not deny that men will long postpone their protest against that
absence; there are few wrongs to which men do not become habituated
by experience, few, therefore, which, after the long passage of time,
they will not be persuaded are inherent in nature. But such habituation
is never permanent; sooner or later someone arises, like the child in
the fairy-story, to point out that in fact the emperor is naked. If
attention is drawn to some need which is widely experienced, the denial
that the need is real by those who have not experienced it, will not
prove effective. Workingmen never found it easy to believe that long
hours of work or low wages were the essential conditions of industrial
leadership in the nineteenth century. Few Nonconformists sympathized
with Burke’s attitude to parliamentary reform. Few American trade
unionists see in the use of the injunction by the courts a method of
preserving social peace in terms of a strict impartiality between
capital and labour. Opponents of Mussolini are not moved by his plea
that he thinks only of the well-being of Italy. Russian working-men
have probably been often tempted to the view that their Bolshevik
masters mistake Communist dogma for social truth.
To satisfy experience, in short, we must weigh experience as we move
to the making of decisions. We cannot rule it out because it is not
ours; that is the error of autocracy which insists upon the _a priori_
rightness of its own experience. We have to regard experience as
significant in itself and seek to come to terms with it. If it is
mistaken in the implications it assumes, we have to convince it of
its error. Our business, hard as it is, is the discovery of that need
in the experience which must be satisfied if successful government is
to be possible. For successful government is simply government which
satisfies the largest possible area of demand. It is not mysterious
or divine. It is simply a body of men making decisions which, in the
long run, live or die by what other men think of them. Their validity
as decisions is in that thought if only because its content is born
of what the decisions mean to ourselves. All of us are inescapably
citizens, and, at some point, therefore, the privacy in which we seek
escape from our obligation as citizens, will seem unsatisfying. A
crisis comes which touches us; a decision is made which contradicts
something we happen to have experienced as fundamental; we then judge
our rulers by the fact of that denial, and act as we think its terms
warrant.
This, as I think, is the real pathway to an answer to the kind of
problem which students of public opinion like Mr Lippmann have posed.
They are right in their analysis of the constituent factors in its
making, especially in their emphasis of the difficulties we confront
in making that opinion correspond to the realities it must satisfy.
They are right, further, I believe, in their emphasis upon the vital
connexion between truthful news and liberty; nor do I doubt that
some of the remedies they propose would have the valuable effect
of increasing the degree of truth in the news. But all of them, I
think, miss out the vital fact that truthful news is dangerous to a
society the actual contours of which its presentation might seriously
change. It would have been a different war in 1914 without propaganda;
the history of political parties would have been different if the
principles they announced were measured by their application to total
and not to partial experience. It only pays to print the truth when
the interest responsible for publication is not prejudiced thereby. My
point has been that in an unequal society that prejudice is inevitable.
And that prejudice, in its basic implications, is incompatible with
liberty. For what it does is to emphasize some experience at the
expense of other experience, to enable one need to make its way while
another need remains unknown. The policy of censorship during the war
meant that everyone anxious for its prosecution to the end had ample
opportunity to express his view; the pacifist, the Christian, the
believer in peace by negotiation, found it extraordinarily difficult
to speak. Clamant opinion was, as always, taken for actual opinion;
and policy, particularly in the making of peace, was built upon the
assumption that no other opinion existed save that which made itself
heard. To any observer with a grain of common sense, it was obvious
that no treaty would be possible of application save as it impressed
Germany as just, and that where, when the glow of war had gone, Germany
resisted its application, a public opinion would not easily be found to
demand the imposition of penalties. Nothing is more dangerous in the
taking of decisions than to assume that because people are silent, they
have nothing to say.
Yet that is the underlying assumption of much of our social life. We
emphasize opinion which satisfies those in power, we discount opinion
which runs counter to it; above all we take it for granted that silence
and consent are one and the same thing. Every one of these attitudes
is a blunder; especially is it a blunder, for which we pay heavily,
in matters of social importance. It is extraordinarily dangerous, for
example, to assume that English public opinion disapproved the General
Strike because Mayfair was indignant, the _Morning Post_ hysterical,
and Sir John Simon coldly hostile; for Mayfair and the _Morning Post_,
even with Sir John Simon, do not constitute English public opinion. Our
difficulty is that they will be taken to constitute it when it is to
the interest of government to do so. Such an equation is serious, and
may well be fatal, to any who think of social peace as a thing really
worth while to preserve.
We must remember, too, what goes along with a process of this kind.
Those who lament the ignorance of public opinion too often forget
that in an unequal society it is necessary to repress the expression
of individuality. Every attempt at such expression is an attempt
at the equalization of social conditions; it is an attempt to make
myself count, an insistence on my claim, an assertion of my right
to be treated as equal in that claim with other persons. To admit
that I ought to have that freedom is to deny that the inequality
upon which society rests is valid. And, accordingly, every sort of
devious method, conscious and unconscious, is adopted to prevent my
assertiveness. The most subtle, perhaps, is the denial of adequate
educational facilities; for what, in fact, that does is to prevent me
from knowing how to formulate my claim effectively, and unattention
is the price I have to pay for my ineffectiveness. My claim, then,
however real or just, because it is clumsily presented fails to secure
the consideration it deserves. Or, again, the view of a group may be
simply discounted where it fails to please the holders of power. We
are impressed, for instance, when we hear that a government, say that
of Mr Lloyd George, is solid in its determination not to give way to
the miners; we assume a careful weighing of the facts and a decision
taken in the light of their total significance. But when we hear that
the miners are solidly behind their leaders, we feel that this is a
clear case of ignorant and misguided men being led to their destruction
by agitators enjoying the exercise of power. The whole machinery of
news-making is directed to the confirmation of that impression;
and the chance that the miners’ claim will be considered equally is
destroyed by the weight which unequal economic power attaches to the
case against that claim. The opinion represented by the miners is not
objectively valued. It is the victim of a process of valuation the
purpose of which is to prevent, so far as possible, an alteration of
the _status quo_; and, _mutatis mutandis_, this is true of all claims
which seek alteration in a significant degree.
Now it is, I think, unquestionable that in an unequal society, the
effort of ordinary men to attain the condition we call happiness is
hampered at every turn. The power of numbers is sacrificed to the
interest of a few. The truth of the facts which might make a just
solution is distorted for a similar end. Freedom, therefore, in an
unequal society has no easy task as it seeks realization. For its
search is not to realize itself for its own sake, but for what, as it
is realized, it is able to bring. We seek religious freedom for the
truth our religion embodies. We seek political freedom for the ends
that, in the political world, we deem good. We seek economic freedom
for the satisfaction brought by making an end of the frustration to our
personality an irrational subordination implies. Men do not, I believe,
resent an environment when they feel that they share adequately in its
making and in the end for which it is made. But they are bound to be
at least apathetic, and possibly hostile, when the sense is wide and
deep that they are no more than its instruments. That is the secret of
the profound allegiance trade unionism is able to create. Its members
see in its activities the expression of the power for which they
are individually searching. Few states--it is surely a significant
thing--have ever won from their subjects a loyalty so profound as the
Miners’ Federation of Great Britain, or the trade unions in the cotton
trades. Even the blunders of their leaders meet with a pardon far more
generous than would be extended to the political heads of the state.
The reason lies in the degree to which the trade union expresses the
intimate experience of its members. And until the policy of the state
meets that experience with similar profundity conflict between the
government and the trade union will rarely involve the desertion by
the members of the association they have themselves made. What the
government will represent as disloyalty to the state will seem to trade
unionists a service which is freedom.
The point I am seeking to make was summarized with the insight of
genius by Disraeli when he spoke of the rich and poor as in fact two
nations. For the poor, their voluntary organizations evoke the same
kind of impassioned loyalty as a nation struggling to be free is able
to win from its members. Anyone who reads, for example, the early
history of bodies like the miners’ unions, and seeks to measure the
meaning of the sacrifices men were willing to make on their behalf,
will realize that he is meeting precisely the same kind of temper
as he can parallel from the history of the Italian struggle against
Austria or of the Balkan fight against Turkish domination. What Keir
Hardie did for the miners of Ayrshire, what Sidney Hillman has done
for the garment workers of America, are as epic and as creative, in
their way, as the work of Garibaldi and Mazzini. The latter must have
seemed at Vienna just as wrong and as unwise as Keir Hardie seemed to
the mineowners fifty years ago, or Hillman to the garment manufacturer
accustomed, in the classic phrase, to “conduct his own business in his
own way.” The point in each case is the important one that power is
challenged in the interest of self-government; that the focal point of
conflict is an inability on the part of those who govern to interpret
the experience of their subjects as these read its meaning; with the
result, again in each case, that the imposition of an interpretation
from without leaves those upon whom it is imposed with the sense that
their lives and their happiness are instruments and not ends.
What is the outcome of it all? For me, at least, essentially that a
society pervaded by the fact of unequality is bound to deny freedom
and, therefore, to provoke conflict. Its values will be so distorted,
its apparatus for magnifying that distortion so complete, that it is
blinded to the realities which confront it. We do not need to go far
for proof. The daily newspaper, the novel, the poet, all confirm it.
Compare Macaulay’s glorification of Victorian progress with the picture
in Carlyle’s _Chartism_, or Dickens’ _Hard Times_. Set the resounding
complacency of Mr. Gladstone’s perorations against the indignant
insight of William Morris and Ruskin. Think of the America of President
Coleridge’s speeches, and the America as bitterly described by Mr
Sinclair Lewis. Remember that Treitzschke’s eulogy of blood and iron
is a picture of the same Germany as that which Bebel and Liebkneckt
sought to overthrow. Guizot’s era of the _juste milieu_ is the period
of Proudhon and Leroux, of Considerant and Louis Blanc, all of them,
however mistakenly, the protagonists of a just society. Men think
differently who live differently. If we have a society of unequals,
how can we agree either about means or ends? And if this agreement is
absent how can we, at least over a considerable period, hope to move
on our way in peace?
An unequal society always lives in fear, and with a sense of impending
disaster in its heart. The effect of this atmosphere is clear enough.
We have only to examine the history of France after the death of Louis
XIV to realize exactly what it implies. Everyone who seeks to penetrate
below the surface sees some vast calamity ahead. It may be a visitor
like Chesterfield, a timid lawyer like Barbier, an ex-minister like
D’Argenson, a philosopher like Voltaire. The government itself, and
those with whom it is allied, has a perception that something new is
abroad. They fear the novelty and they seek to suppress it, in the
belief that a bold front and an adequate severity will stem the tide of
critical scepticism. But neither boldness nor severity can stem that
tide. The government falters for a moment on the verge of concession:
there is an hour when the ministry of Turgot seemed likely to
inaugurate an era of conciliation. It is too late because the price of
conciliation is the sacrifice of precisely the vested interests with
which the government is in partnership. So the ancient régime moves
relentlessly to its destruction. It is forced to consult those whose
experience it had never taken into account in the hope of salvation;
and they find that, if they are to fulfil, they must also destroy.
That is, other things being equal, the inevitable history of such
societies. Their mental habits resemble nothing so much as the
horrified timidity which persuaded Hobbes to find in despotism the
only cure for social disagreement. They are afraid of reason, for this
involves an examination into their own prerogative and, as at least
probable, a denunciation of the title by which it is preserved. They
are afraid of concession, because they see in it an admission of the
weakness of their case. They magnify scepticism into sedition and they
accuse even their friends who doubt the virtue of severity of betraying
the allegiance which is their due. They cannot see that men will not
accept the state as the appointed conscience of the nation unless they
conceive themselves to possess a full share of its benefits. They
minimize the sufferings of others, because they do not have experience
of them, and they magnify their own virtues that they may gain
confidence in themselves. They distort history, and call it patriotism;
they repress the expression of grievance and call it the maintenance
of law and order. In such a society, the governors appear to their
subjects as dwellers in another world; and communication between them
lacks the vivifying quality of fellowship. For the truth of one party
is never sufficiently the truth of another for the members to talk a
common language. Every vehemence becomes a threat; and by a kind of
mad logic every threat is taken as an act of treason. The society is
unbalanced because justice is not its habitation. Even its generosity
will be resented because it has not known how to be just.
I do not want to be taken as implying that violence is the inevitable
end. I only argue that the irrefutable and inherent logic of a
society where the gain of living is not proportioned to its toil
is one of which violence is the inevitable end. We have never any
choice in history except to follow reason wholly or, ultimately, to
expect disaster; and as we approach that ultimate, the temper of the
society will be what I have described. For the rule of reason in a
community means that a special interest must always give way before the
principles it discovers. And the rule of reason is the only kind of
rule which can afford the luxury of freedom. That is, I think, because
an admission that the claims of reason are paramount makes possible the
emergence of a spirit of compromise. The basis of the society being
just, men are not prepared for conflict over detail; but when the basis
itself is unacceptable, conflict over detail is magnified into a fight
over principle. In such a temper, men are always discussing with their
backs on the edge of a precipice. Social discussion becomes Carlyle’s
ultimate question of “Can I kill thee or canst thou kill me?” Every
utterance is necessarily a challenge; and suppressed because so taken;
every association is a conspiracy and attacked because so imagined.
The only way to avoid so poisonous an atmosphere is to be prepared to
surrender what you cannot prove it is reasonable to hold. But, human
nature being what it is, men do not easily surrender what they have the
power to retain; and they will pay the price of conflict if they think
they can win. They do not remember that the price of conflict is the
destruction of freedom and that with its loss there go the qualities
which make for the humanity of men.
IV
I spoke a little earlier of the sense of national freedom; and these
lectures would be even more incomplete than they are unless I sought to
dwell briefly on what such freedom means. Let me take here as my text
a sentence from John Stuart Mill which might well stand as the classic
embodiment of one of the outstanding ideals of the nineteenth century.
“It is” he wrote “in general a necessary condition of free institutions
that the boundaries of governments should coincide in the main with
those of nationalities.” I do not need to remind you of the commentary
history has written upon that text. In its name were accomplished the
unity of Italy and Germany, the breakup of the Turkish and Russian
empires, the separation of the Baltic peoples from the domination of
Russia. The economic motive apart, no principle has been more fruitful
of war than the demand for national freedom. Even yet, the day of its
power is far from ended; for every misapplication of Mill’s principle
in the peace treaties of 1919 has raised problems of government
which the world will find it difficult to solve without the bloody
arbitrament of the sword.
Now nationality is a subjective conception that eludes definition in
scientific terms. As an Englishman, I can feel in my bones the sense of
what English nationality implies; I feel intimately, for instance, the
things that enable me to claim Shakespeare or Jane Austen or Dickens
as typically English, without being able to put into words the things
that make them so. Every factor to which nationality has been traced,
race, language, common political allegiance, is an excessive simplicity
which betrays scientific exactitude. It is true that nationality is
born of a common historic tradition, of achievement and suffering
mutually shared; it is true, also, that language and race, and even a
common political allegiance, have played their part in its formation.
It is obvious that there is something exclusive about nationality,
that the members of any given nation have a sense of separateness from
other people which gives them a feeling of difference, of uniqueness,
which makes domination by others so unpleasant as to involve profound
discomfort to a point which may involve, even justly involve,
resistance to that domination. But the fact remains that nationality is
a psychological phenomenon rather than a juridical principle. It is in
the former, not the latter, sphere that we must seek to meet its claims.
Mill’s principle, if carried to its logical conclusion, would mean
that every nation has a title to statehood. I want you to think what
that implies. The modern state is a sovereign state, and in terms of
that title no will can bind its purpose but its own. The legal meaning
of sovereignty is omnicompetence. The state may, as it please, make
peace or war. It can erect its own tariffs, restrict its immigration,
decide upon the rights of aliens within its borders, without the duty
of consulting its neighbours, or paying any attention to principles of
justice. States have done all these things. There is no crime they have
not been prepared to commit for the defence or the extension of their
own power. A different moral code has been applied in history to their
acts from what we insist upon applying to individual acts, and it is,
quite definitely, a lower moral code. The history of the nation which
becomes a state and insists upon the prerogatives of its statehood
is a history incompatible with the terms upon which the maintenance
of peace depends. That exclusive temper which, as I have argued, is
the root of nationality means a measurable loss of ethical quality in
those international relations which are concerned with questions of
power. You have only to remember the acts which, during the war, states
attempted against one another amid the applause of their subjects to
realize that the recognition of national unity as a state means the
destruction of private liberty and the violation of international
justice, unless we can find means of setting some limit to the powers
of which a nation-state can dispose.
I am particularly concerned with the exercise of those powers on
their economic side. The nation-state is expected to protect the
activities of its citizens outside its own boundaries. Its prestige
becomes associated with its power to act in this way. So Germany
supports the Mannesman brothers in Morocco, England the Rothschilds in
Egypt, America its citizens in half the territories of South America.
Nationalism becomes imperialism and this means the enslavement of
lesser nations to the imperialistic power. In its worst temper, its
eternal character was described by Thucydides in that passage where he
relates the tragic end of Melos, a passage it would be mere insolence
either to summarize or to praise. Even where imperialism has resulted
in measurable benefit to the subject people, as with Great Britain in
India, or the United States in the Philippines, the resultant loss
of responsibility and character, which an imposed rule implies, is a
heavy price to pay for the efficiency of administration that has been
conferred. The noble phrase of Sir Henry Campbell-Bannerman that good
government is no substitute for self-government seems to me borne out
by every phase of the history of imperialism. It is the imposition
of a system of experience upon a people ignorant of the character
of that experience for ends only partially its own, and by methods
which neglect unduly the relation of consent to happiness in the
process of government. The classic case in my own experience is that
of Ireland. I cannot find ground upon which to defend the habits of
Great Britain there. But those habits seem to me the inevitable outcome
of an assumption that Great Britain was entitled to decide alone the
character of her own destiny.
Nationality, in a word, must, if it is to be consistent with the
needs of civilization, be set in the context that matters of common
interest to more than one nation-state cannot be decided by the fiat
of one member of the international community. Modern science and
modern economic organization has reduced this world to the unity of
interdependence: the inference from this condition is, as I think, the
supremacy of cosmopolitan need over the national claim. A nation, that
is, is not entitled to be the sole judge of its conduct where that
conduct, by its subject-matter, implicates others. It must consult with
them, compromise with them, find the means of resolving the problem
in terms of peace. Everyone of us can think of functions that, in the
modern world, entail international consequences by their inherent
character. We have passed the stage where we can allow a state to
fix its own boundaries as it thinks best, without consultation with
other states. The same is true of matters like the treatment of racial
minorities, of the scale of armaments, of the making of war and peace.
Everyone can see that matters like the control of the traffic in
noxious drugs, or of women and children, of epidemics like cholera and
typhus, cannot be settled save as states co-operate upon agreed methods
of action. Most people can see, at least in principle, that the same
thing applies to labour conditions, to legal questions like the law of
bills and notes, or the rights of aliens before a municipal court, or
the incorporation of public companies. An historian who surveyed the
history of international investment would, I think, not illegitimately
conclude that there are principles applicable to its control which can
justly regard with indifference the question of the nationality of the
investor or the state-power to which, save in cases of default, he
is certain to appeal. The importance of the supply of raw materials
to international economic life forces us to consider the deliberate
rationing of that supply, and the maintenance of a stable world
price level which thinks first of cosmopolitan need, and, only after
a long interval, of national profit. A sane man would, I suggest,
conclude that if bodies like the International Rail Syndicate, or the
Continental Commercial Union in the glass industry, find it sensible to
transcend national competition by international agreement, _a fortiori_
the principle applies to matters of world-concern.
I am, of course, only illustrating the problem.[51] The principle
which seems to me to emerge is the necessity for world-control where
the decision is of world-concern. The inference from that principle
is that the rights of the state are always subject to, and limited
by, the necessarily superior rights of the international community.
State-sovereignty, that is, in the sense in which the nineteenth
century used that term, is obsolete and dangerous in a world like our
world. It gives an authority to the nation-state which, in the light
of the facts, is incompatible with the well-being of the world. It
invokes the factor of prestige in realms where it has no legitimate
application. It means that problems of which a wise solution is
possible only in terms of reason have to find a solution amid
circumstances of passion and power which obviate any possibility of
justice.
For in the external, as in the internal, sphere of the state, the
choice is between the use of reason and conflict. The use of reason is
the law of liberty; conflict means the erosion of liberty. If states
are to conduct their operations always with the knowledge in the
background that the price of disagreement is war, the consequences are
obvious. The atmosphere of international affairs will be poisoned by
fear, and fear will bring with it the system of armaments and alliances
which, in 1914, issued naturally and logically in the Great War. That
was the price properly paid for a scheme of things which assumed that
the legal right of the state was unlimited, and harnessed to the
support of that legality every primitive and barbarous passion by which
nationalism can degrade humanity. We need not be afraid to assert
that, in the international sphere, the sovereignty of the state simply
means the right of any powerful nation to make its own conception
of self-interest applicable to its weaker opponents. It is the old
doctrine of self-help clothed in legal form; the doctrine against which
law itself came as a protest in the name of order and common sense.
And exactly as we cannot admit the right of a man to make his own law
in the internal life of the community, so we cannot allow the single
nation-state to make its own law in the wider life of the international
community. Because that is what the sovereignty of the state ultimately
means, the sovereignty of the state is a conception which outrages the
patent needs of international well-being.
I conclude, therefore, that if the nation is entitled to
self-government, it is to a self-government limited and defined by
the demands of a wider interest. I conclude that its recognition as a
state, if sovereignty be involved in that recognition, is incompatible
with a just system of international relations. It is, further,
incompatible with the notion of an international law regarded as
binding upon the member-states of the international community. I need
not dwell upon the impossible difficulties in which the defenders of
this doctrine have found themselves.[52] In their extreme form they
have even led a great jurist to write of war as the supreme expression
of the national will.[53] I am unable to share such a view. Where war
begins, freedom ends. Where war begins, the opportunity of making just
solutions of any problem in dispute is indefinitely postponed. And I
ask you to remember that, although, under modern conditions, a whole
nation is implicated in war after its beginning, that is not the case
either with its preparation or its declaration. That is an affair of
the agents of the state whose interest in the action they take may be
totally at variance with the interest of the people for whom they are
taken as acting. They may be serving private ambition, a particular
party; they may be acting on false information or wrong conceptions. My
point is that they dispose of the whole power of the state, and that
there is no means of checking their activity save the very unlikely
means of revolution. The full implications of national sovereignty are
a license to wreck civilization. I cannot recognize those implications
as necessary to a proper view of national freedom.
I deny, therefore, that there is any qualitative difference between
the interests or the rights of states, and the interests or rights of
other associations or individuals. Their purposes are ordinary, human
purposes like any other: they are a means to the happiness of their
members. They have, it seems to me, to be judged by exactly the same
principles as those by which we judge the conduct of a trade union, or
a church, or a scientific society. They do not constitute a corporate
person living on a plane different from, and having standards other
than, those of the individuals of whom they are composed. I fully agree
that no decision ought to be taken about them, in the making of which
they do not amply share. I fully agree, also, that limitations imposed
upon their activities must pay scrupulous regard to the psychological
facts out of which they are built. I do not, for instance, deny that
the Partition of Poland was a crime against Poland, or that its
inevitable result was to persuade millions of human beings that a war
for their resuscitation was a morally justified adventure. But I see
no difference between the Partition of Poland and, let us say, the
suppression in the community of a Communist Party. Each seems to me an
attack upon a corporate experience which is wrong because it does not
persuade those who share that experience to abandon its implications.
I do not advocate the supremacy of international authority over the
national state in order to destroy the national state. I advocate that
supremacy as the sole way with which I am acquainted to set the great
fact of nationalism in its proper perspective.
My point is, then, that the fact of a nation’s existence does not
entitle it to the full panoply of a sovereign state. Scotland and Wales
are both of them nations; neither possesses that panoply; neither, I
think, suffers in moral or psychological stature by reason of its
absence. Neither, let me add, do the Scandinavian peoples--perhaps the
happiest of modern communities--who are only sovereign states upon the
essential condition that they do not exercise their sovereignty. But
there is no more humiliation in that position than in the position any
government occupies in the context of its own subjects. Power is, by
its very nature, an exercise in the conditional mood. Those who exert
it can only have their way by making its objects commend themselves,
as, also, its methods of pursuing those objects, to those over whom it
is exerted. The sovereign king in Parliament could legally disfranchise
the working-classes in England; practically we know that it dare not
do so. Everyone in England is aware of the grim, practical limitations
under which parliamentary sovereignty operates; no one, I believe,
finds humiliation in limits such as we know.
What is happening to the world is something of the same sort. The
Covenant of the League of Nations is a method of limiting the
unfettered exercise of national sovereign power. It is a painful and
delicate operation; how painful and how delicate the timidity that has
been characteristic of the League’s history makes hideously manifest.
At any point in which the history of the League is examined, elections
to the Council, operations of the Mandate system, application of a
plebiscite, resolution of an international dispute, the statesmen of
Geneva have hesitated to act upon the logic of the world’s facts. They
have seen great nations confronting them, and they have feared that
those nations might, if angered, flout the League and go their own
way. So the League has fumbled and compromised and evaded. The big
states have controlled it, and over almost all of its history there has
fallen, darkening it, the shadow of the war.
Yet experience of the League gives us hope rather than despair. It
took three centuries to build up the sovereign national state to that
amplitude which proclaimed its own disastrous character in 1914; it
would be remarkable indeed if a decade full of memories and hates
so passionate as those of the last ten years sufficed to overthrow
its authority. We can at least say out of the experience of those ten
years that remarkable incursions into that authority have occurred.
We have discovered a great range of social questions the solution
of which is not relevant to the national state or to the problems
of power that state first of all considers. We have been able, that
is, to devise subjects of government in which national control is
not the obvious technique of operation. We have found, further, that
a platform can be constructed at Geneva the nature of which throws
any possible aggressor upon the defensive, and suggests the possible
organization against it of the rest of the civilized world. We are
finding ways of reaching the opinion of citizens in different states
over the heads of their governments; of making those citizens demand
attention to League recommendations in a way that a generation ago
would have been unthinkable. We have shown, and this, in some ways, is
the vital discovery of our time, that men of different nationalities
can co-operate together in the task of international government in
such a way as to sink the pettiness of a narrow outlook before the
greatness of the common task. I know that Sir Arthur Salter is a great
Englishman; but I believe his quality as an Englishman has been made
complete because he is above all a great citizen of the world.
I do not want to exaggerate the prospects of achievement that lie
before us; one blunder in Moscow or Rome might easily destroy every
hope we may tentatively cherish. I want merely to note that the idea of
a world-state is slowly, painfully, hesitantly, taking shape before our
eyes. I want to emphasize the logic of that state in an international
community so inescapably interdependent as this. I want to draw
therefrom the inference that national sovereignty and the international
community confront one another as incompatibles. Even the states which
have most carefully stood aloof from Geneva are in a degree to which
they are themselves unconscious within the orbit of that influence
which its idea makes so compelling. There is hardly one aspect of the
League’s work in which American citizens have not borne their share;
and I should hazard the suspicion that there have been occasions
when “unofficial observers” have done considerably more than observe
unofficially. I do not believe it is exaggeration to suggest that the
underlying motive of the Kellogg Pact was compensation by America for
her abstention from the Geneva Covenant. The Pact, by itself, is an
empty declaration; but its logic, like that of the Covenant, is likely
to take it much further in the direction of international government
than its authors intended it should go. Even Russia, in some sort the
antipodes of Geneva, has appeared there at Disarmament Conferences; and
even granted the rigour of the premises upon which her life is built,
she cannot remain unrelated to the structure of a world-order.
I believe, accordingly, that we can retain all that is essential to the
freedom of national life, and yet fully admit the implications of the
international community. We can leave to England, for instance, her
full cultural independence, her characteristic internal institutions,
her special contacts with the Dominions she has begotten; to sacrifice
the predominance of her navy, her right, by its means, to dictate the
law of the sea, would still leave her England. She would still be
England even if, to push speculation to the furthest point, the Suez
Canal were internationalized and Gibraltar returned to Spain. France
would be not the less France if the gold policy of her bank were set
by an international authority, if she gave up her zeal for a conscript
army, if she built her frontiers upon the impalpable solidity of
friendship rather than the shifting waters of the Rhine. I can see
nothing in the conceivable policy of a stronger League which would take
from her the glory that has made her the Athens of the modern world.
Changes in law policy, a different colonial outlook, a willingness to
improve the physical standards of labour, an acceptance of novel and
military forces determined upon the basis of world safety instead of
national aggressiveness--it is difficult to see in any of these things
such a blow at freedom as destroys the prospect of national happiness.
I can see grounds for the view that an international authority which
forbade the teaching of French in French schools; or altered the
boundary of France so as to make Marseilles Italian; or sought the
abrogation of the French civil code with its profound impact on the
social customs of France; might reasonably be regarded as invading what
in a nation’s life that nation only can claim to decide. I can see
that a nation might feel an international authority to be oppressive
if it sought, say, by an immigration policy seriously to alter the
_mores_ of a national life; it should not impose Japanese immigration
on California any more than Great Britain seeks to impose it upon
Australia. I can even see that oppression might be felt where, in the
building of an international civil service, there was a sense that
there is discrimination against the members of any particular nation,
or that in composing the committees of its government proper attention
is not given to the claims of some particular power.
The likelihood of any of these difficulties becoming real is, surely,
exceedingly small. An international authority must presumably be
endowed with an average volume of human common sense; and it is no
more likely than any other authority to invite disaster. Indeed it is
rather likely to fail to embark upon experiments and decisions it ought
to make from an excessively delicate sense of what some particular
nation may feel. International life in this realm is much more likely
to be a régime of example and influence than one of legislative
compulsion simply because the penalties of national dissent would
strain too gravely the structure of the authority which sought an
unwise imposition of its will. Here, once more, the situation is very
like that of the internal life of a national state. There is hardly
any association the state could not overthrow if it bent its energies
to the task. But, also, most states are wise enough to realize that
victories of this kind are empty victories, that solutions imposed by
force have consequences invariably too grave to be satisfactory in
their application. Consent has its full place in the international
sphere; and it is a safeguard of national right as creative here,
as elsewhere. Indeed it may reasonably be argued that with the
disappearance of national sovereignty, the factor of consent is likely
to be far more effective, far more genuinely related to the realities
of the world; than it is at the present time. For consent between two
powers like, say, America and Nicaragua, or Great Britain and Iraq has
something in it which partakes of the ironical spirit. It is consent
always in the knowledge that refusal to agree will make no serious
difference to the result that occurs. But the surrender of national
sovereignty is the surrender of aggressive power; and the nation can
move on its way the more freely since it knows that it no longer lives
in the shadow of international injustice.
CHAPTER IV
THE OUTLOOK FOR LIBERTY
Every study of freedom is a plea for toleration; and every plea for
toleration is a vindication of the rights of reason. The chief danger
which always confronts a society is the desire of those who possess
power to prohibit ideas and conduct which may disturb them in their
possession. They are rarely concerned with the possible virtues of
novelty and experiment. They are interested in the preservation of a
static society because in such an order their desires are more likely
to be fulfilled. Their ideas of right and wrong lie at the service of
those desires. The standards they formulate are nothing so much as
methods of maintaining an order with which they are satisfied; and
those they repress or resent, are equally methods of establishing a new
order in which different demands would secure fulfilment.
But this is not a static world, and there is no means of making it
so. Curiosity, discovery, invention, all of these jeopardize by their
nature the foundations of any society to which their results are denied
admission. Toleration is therefore not merely desirable in itself,
but also politically wise, because no other atmosphere of activity
offers the assurance of peaceful adjustment. If power is held by a few,
happiness will be confined to a few also. Every novelty will seem a
challenge to that confinement; and it will always accrete about itself
the wills of those who are excluded from a share in its benefits.
For this world is not only dynamic; it is also diverse. The path to
happiness is not a single one. Men are not willing to yield the insight
of their experience to other men’s insight merely because they are
commanded to do so. They must be persuaded by reason that one vision of
desire is better than another vision, the experience commended to them
must persuade and not enforce, if they are to accept its implications
with a sense of contentment.
This is, of course, a counsel of perfection. Men enjoy the exercise of
power; no passion has a deeper hold upon human impulse. The willingness
to admit the prospect of difference, the courage to see that one’s
private truth is never commensurate with the whole truth, these are
the rarest of human qualities. That is why the friends of liberty are
always a minority in every society. That is why, also, the maintenance
of liberty is a thing that has to be fought for afresh every day, lest
an inert acceptance of some particular imposition make the field of
action accessible to a general tyranny. For it is impossible to confine
the area in which freedom may be permitted to some special and defined
part of conduct. Those who have fought for the right to think freely in
theology or the natural sciences are not less certainly the ancestors
of political freedom. Without Bruno and Galileo there would have been
neither Rousseau nor Voltaire.
Liberty, therefore, cannot help being a courage to resist the demands
of power at some point that is deemed decisive; and, because of this,
liberty, also, is an inescapable doctrine of contingent anarchy. It
is always a threat to those who operate the engines of authority that
prohibition of experience will be denied. It is always an assertion
that he who has learned from life some lesson he takes to be truth will
seek to live that lesson unless he can be persuaded of its falsehood.
Punishment may persuade some to abandon the effort; and others may be
driven by its imposition to conceal their impulse to act upon the view
they take. But persecution, however thoroughgoing, will never, over any
long period, be able to suppress significant truth. If the principles
that are urged by a few correspond to some widespread experience those
who recognize the expression of their experience will inevitably
reaffirm it. It has been the historic character of persecution always
to degrade the persecutor and to strengthen the persecuted by drawing
attention to their claims. The only way to deal with novelty is to
understand it, and the only way to deal with grievance is to seek a
remedy for the complaint it embodies. To deny novelty or grievance a
right of expression is a certain, if, indeed, an ultimate, validation
of the truth they contain.
We have, it appears, to learn this anew in each generation. We grant
toleration in one part of the field only to deny it in another. We
grant it in religion to deny it in politics; we grant it in politics,
to deny it in economic matters. Each age finds that the incidence
of freedom is significant at some special point, and there, once
more, the lesson of freedom has to be learned. Each age makes some
idol in its own image and sacrifices upon its altar the freedom of
those who refuse it worship. Ultimately, that denial is always made
upon the same ground: it is insisted that the doctrines or practices
attacked are subversive of the civil order. The intolerance may be
Catholic, when it insists that a unity of outlook is essential for the
preservation of society; or it may be Protestant when, as with Calvin
and the Socinians, it holds that the blasphemous nature of the belief
anathematized destroys the reverence upon which society depends. The
essence of the persecuting position is always that the persecutor has
hold of truth and that he would betray its service by allowing it to be
questioned. He is able, accordingly, to indulge in the twofold luxury
not only of preserving his own authority, but also of assisting the
persons attacked to enter, if they so choose, the way of truth.
When attacks on liberty are political or economic, it is their motive
rather than their nature that changes. A political pattern has the same
hold upon its votaries as a religion; the enthusiasts of Moscow and of
Rome differ only in the object of their worship. An economic system
defends itself in just the same way: the devotees of Marxism in its
extreme form have never doubted their right to impose their outlook
upon the recalcitrant, even at the cost of blood. In a constitutional
state like America the suppression of liberty is called the inhibition
of license; in a dictatorship like Moscow it is termed resistance to
the admission of incorrect “bourgeois” notions. Always the effort is to
insist upon an artificial unity the maintenance of which is necessary
to the desires of those who hold power. Suppression, doubtless, eases
the way of authority, for scepticism is always painful, and to arrive
at a conclusion after careful testing of evidence always involves the
possibility that authority may have to admit that its conclusions are
mistaken.
Yet it may still be maintained with some confidence that the only
adequate answer to a principle which claims social recognition is the
rational proof that it is untrue. It may even be argued that the world
would be a happier world if this were the general theory underlying
the activities of society. Civilization is strewn with the wrecks of
systems which men at one time held for true; systems, also, in the
name of which liberty was denied and pain needlessly inflicted. A
scrutiny of history, moreover, makes it plain that the right to liberty
will always be challenged where its consequence is the equalization
of some privilege which is not generally shared by men. The more
consciously, therefore, we can seek that equalization as a desirable
object of social effort, the more likely we are to make attacks upon
liberty more rare, the evil results of such attack less frequent. No
man’s love of justice is strong enough to survive the right to inflict
punishment in the name of the creed he professes; and the simplest
way to retain his sense of justice is to take away the interest which
persuades him of the duty to punish. Scepticism, it may be, is a
dissolvent of enthusiasm; but enthusiasm has always been the enemy
of freedom. The atmosphere we require, if we are to attain happiness
for the multitude, is one in which we have everything to gain by the
statement of experience and nothing to lose by the investigation of
its convictions. That atmosphere is the condition of liberty and its
quality is light rather than heat. For light permits of argument, and
we cannot argue with men who are in a passion. Nothing is so likely to
engender passion as the perception that they are called to sacrifice a
privilege. The way, therefore, of freedom is to arrange the pattern of
social institutions so that there are no privileges to sacrifice.
This kind of plea for liberty is built, after all, upon the simple
consideration that the world is likely to be the more happy if it
refuses to build its institutions upon injustice. And institutions are
necessarily unjust if the impression they continually produce in the
majority is a feeling of envy and hatred for the results they impose.
There is something wrong in a system which, like ours, maintains itself
not by the respect and affection it evokes, but by the sanctions to
which it can appeal. What is wrong in them is their erection upon the
basis of passion and their insistence that reason shall serve what that
passion is seeking to protect. So long as that is true of our society,
we shall continue to deny the validity of all principles which attack
the existing disposition of social forces. Those principles may often
be wrong; yet sometimes, at least, they represent the certainties of
the future. It is always a hazardous enterprise to suppress belief
which claims to be rooted in the experience of men.
For no outlook which has behind it the support of considerable
numbers will ever silently acquiesce in its reduction to impotence.
It will fight for its right to be heard whatever the price of the
conflict. Here it has been urged that conflict of this kind is usually
unnecessary and frequently disastrous. It has been claimed that truth
can be established by reason alone; that departure from the way of
reason as a method of securing conviction is an indication always of a
desire to protect injustice. Where there is respect for reason, there,
also, is respect for freedom. And only respect for freedom can give
final beauty to men’s lives.
FOOTNOTES
[1] Acton, _History of Freedom_, p. 57.
[2] As Mr. Aldous Huxley, for instance, does with a quite unnecessary
apparatus of scholarship in his _Proper Studies_, pp. 1-31.
[3] All this has been put in classic form by the late Professor
Hobhouse in his _Metaphysical Theory of the State_ (1918).
[4] Cf. Barker, _Political Thought from Herbert Spencer to Today_
(1915), p. 80.
[5] W. H. Taft, _Our Supreme Magistrate and His Powers_ (1921), pp.
102-3.
[6] See my detailed discussion of the point in 34 Michigan Law Review,
p. 529.
[7] 189 U.S. 253.
[8] (1915) A. C. 120.
[9] 38 Sup. Ct. Rep. 122.
[10] (1923) 2 K. B. 61.
[11] Cf. my _Grammar of Politics_, pp. 541 f.
[12] _Ibid._
[13] _Esprit des Lois_, Bk. XI, Chap. VI.
[14] Second Treatise, Sec. 12.
[15] Cf. my paper on American Federalism in the volume entitled _The
Dangers of Obedience_ (1930).
[16] Cf. Louis Post, _The Deportations Delirium_ (1921).
[17] 250 U.S. 616.
[18] See Taney’s _Report_.
[19] I. W. Graham, _Conscription and Conscience_ (1922), Chap. III.
[20] _Ibid._, p. 209.
[21] _Ibid._
[22] See, for example, Wickwar’s _Freedom of the Press_ for an account
of judicial _mores_ in the early nineteenth century; and H. T. Buckle’s
pamphlet on the Pooley case for similar conduct thirty years later.
[23] Z. C. Chafee’s classic discussion in _Freedom of Speech_ is the
best account of this unhappy period.
[24] Thereby laying himself open to FitzJames Stephen’s crushing attack.
[25] Cf. my _Grammar of Politics_, Chap. VII.
[26] Cf. my _Grammar of Politics_, p. 82 f.
[27] A list is printed in Ernst and Segal, _To the Pure_ (1929), pp.
296-302.
[28] This is brought out well in Mr Nokes’ excellent book on the
blasphemy laws.
[29] 53 G. III, C. 160.
[30] _Ut supra._
[31] Cf. my _Grammar of Politics_, p. 554.
[32] Cd. 1614 (1922).
[33] Cf. my _Grammar of Politics_, pp. 256 f.
[34] _Coppage_ v. _Kansas_, 236 U.S. 1.
[35] Cf. my _Authority in the Modern State_, Chap. V.
[36] Calwell, _Life of Sir H. Wilson_, Vol. II, _passim_.
[37] _Le Droit Social_, Lect. III.
[38] _The Observer_, 18 August 1929.
[39] 277 U.S. 438.
[40] Hammond, _The Skilled Labourer_, Chap. XII.
[41] Cf. Mr Lippmann’s excellent analysis in _Liberty and the News_.
[42] I take my account from a summary in the _Lantern_ (Boston), July
1929.
[43] Lippmann, _Public Opinion_, pp. 379 f.
[44] Cf. Lady Constance Lytton, _Prisons and Prisoners_.
[45] Cf. Frankfurter and Green, _The Injunction in Labour Disputes_
(1930).
[46] See the lecture on Equality in _Mixed Essays_.
[47] See for instance, the very interesting letter of Mr MacDonald to
Keir Hardie in W. Stewart, _Life of Keir Hardie_ (1921), p. 92.
[48] Mr Ramsay Muir in the _Nation_, 17 August 1929.
[49] Preface to the World’s Classics edition of Bagshot’s _English
Constitution_, p. xxiii.
[50] _On Liberty_ (People’s edition), p. 68.
[51] Cf. my _Grammar of Politics_, Chap. XI.
[52] Cf. Lauterpacht, _Private Law Analogies in International Law_,
for a brilliant discussion of this question; and my paper ‘Law and the
State’ in _Economica_, No. 27, pp. 267 f.
[53] Kaufman, _Das Wesen der Volkerrechts_.
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