CHAPTER I. The Nature of Liberty

THE NATURE OF LIBERTY

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’; 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. 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.

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. 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.

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. 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; 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 in the United States, and in Arlidge v. Local Government Board 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; 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 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. 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.

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; and this, in its turn, was due to his misapplication of certain classic dicta of Locke. 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. 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.

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; 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, 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, 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. 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; 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. 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. 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. 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.

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 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. 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. 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.

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.