CHAPTER II. Freedom of the Mind

FREEDOM OF THE MIND

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. 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. 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.

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. 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., 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.

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, 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.

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. 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, 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 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 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 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.

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; 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.

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. That way lies corruption and blackmail, the kind of habits which, in England, we associate with names like that of Oliver the spy, 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.