preliminary observations are important. In any industrial society, as
Mr Justice Holmes has insisted,[34] liberty of contract always begins
where equality of bargaining power begins. Granted, therefore, the
normal conditions of modern enterprise, only the existence of strong
trade unions will ensure to the average worker just terms in his
contract of service. If he stands alone, he has neither the knowledge
nor the power to secure for himself proper protection. Nor is this
all. Strong trade unionism always means that public opinion can be
made effective in an industrial dispute. One has only to compare
the situation in the British textile industries, where the power of
the unions necessarily involves a search by the state, if there is
a dispute, for the terms of a just settlement, with that in America
where, from the weakness of the unions, the state seems hardly to
know when a dispute has occurred, where, also, the police-power is
almost invariably exerted on the side of the employer, to realize
the meaning of strong trade unionism. It is, in fact, the condition
of industrial justice. No limitation upon freedom to associate is,
I urge, permissible unless it can be demonstrated that clear and
decisive advantage to the community, including, be it remembered, trade
unionists themselves, is likely to result.
In this background, let us examine the first of the four principles I
have enumerated. No coercion of the government, direct or indirect, is
legitimate. If men want to obtain from government a solution other than
government is willing to attempt, the way to that end is not by the use
of industrial power, but through the ballot-box at a general election.
Or, from the angle of indirect coercion, the first interest of the
state is in the general well-being of the community; a general strike
necessarily aims at that well-being and may therefore be prohibited.
The general strike, even a large sympathetic strike, is in fact a
revolutionary weapon. As such, it is a threat to the Constitution and
illegal as well as unjustifiable.
I do not think the problem is so straightforward as the delusive
simplicity of this argument would seem to make it. If it is said that
the Trades Union Congress of Great Britain would not be justified in
calling a general strike to compel the government to make Great Britain
a federation, I should agree at once. But I point out that no one
supposes it would take such action and that therefore a prohibition
of it is unnecessary. But I should not agree that a general strike is
unjustified to secure the eight-hour day, or to protect the payment of
unemployment relief, or to continue the Trade Board system in sweated
industries. Whether a general strike for these, or similar ends, would
be wise is another matter. That it cannot in any circumstances be
justified I am not prepared to say until I know the circumstances of
some given case. I am not willing, for instance, to condemn the General
Strike of 1926; on a careful analysis of its history, I believe that
the blame for its inception lies wholly at the door of the Baldwin
Government. No one acquainted with the character of the trade union
movement but knows that a weapon so tremendous as the general strike
will only be called into play on the supreme occasion. To lay it down
as law that, whatever the occasion, the weapon shall not be used, seems
to me an unjustifiable interference with freedom.
I am not greatly moved by the argument that it involves coercion of the
government. There are occasions when that coercion is necessary, and
even essential. I believe that was the case in Great Britain in 1926.
The trade unions would never have called the strike had they seen in
the policy of the government even the fragment of a genuine search for
justice. But the fact was that Mr Baldwin and his colleagues simply
acted as the mouthpiece of the coalowners. To illegalize a general
strike in that background is to say that the trade unions should have
acquiesced in the defeat of the miners without an attempt to prove
their solidarity with them. It would be to announce to government that
the ultimate weapon of Labour is one the use of which it need never
fear. There is no danger that the general strike will ever be other
than a weapon of last resort; the occasions when it can be successfully
used will be of the utmost rarity. But they may occur. I cannot accept
the position that government is always entitled to count on industrial
peace, whatever its policy. Nor do I see why it is unconstitutional for
Labour, as in 1926, to withdraw from work in an orderly and coherent
way.
I do not deny, of course, that both a general strike, and others of far
less amplitude, inflict grave injury and hardship upon the community.
But when trade unions seek for what they regard as justice, one of
their most powerful sources of strength is the awakening of the slow
and inert public to a sense of the position. Effectively to do this,
in a real world, it must inconvenience the public; that awkward giant
has no sense of its obligations until it is made uncomfortable. When it
is aroused, if, for instance, trains do not run, or coal is not mined,
the public begins to have interest in the position, to call for action.
Without some alternative which attempts to secure attention for a just
result--I know of no such alternative--the infliction of hardship on
the community seems to me the sole way, even if an unfortunate way, to
the end the trade unions have in view. To limit the right to strike is
a form of industrial servitude. It means, ultimately, that the worker
must labour on the employer’s terms lest the public be inconvenienced.
I can see no justice in such a denial of freedom.
Two further points it is worth while to make. It is sometimes agreed
that while the state ought not to restrict freedom of association for
industrial ends, it is justified in doing so when the strike-weapon is
used for some political purpose. This, indeed, was one of the objects
of the Baldwin Government in enacting the Trades Disputes Act of 1927.
But I know of no formula whereby such a division of purposes can be
successfully made. There is no hard and fast line between industrial
action and political action. There is no hard and fast line which
enables us to say, for instance, that pressure for a Factory Act is
industrial action, but pressure for the ratification of the Washington
Hours Convention political. Extreme cases are easy to define; but there
is a vast middle ground with which the trade unions must concern
themselves and this escapes definition of a kind that will not hamper
the trade union in legitimate activity vital to its purpose. And there
are certain types of political action by trade unions--a strike against
war, for example--which I do not think they ought in the interest
of the community itself, to abandon. Quite frankly, I should have
liked to see a general strike proclaimed against the outbreak of war
in 1914; and I conceive the power to act in that way as a necessary
and wise protection of a people against a government which proposes
such adventures. You cannot compartmentalize life; and where grave
emergencies arise, the weapons to be utilized must be fitted to meet
them. A government which knew that its declaration of war was, where it
intended aggressive action, likely to involve a general strike, would
be far less likely to think in belligerent terms. I do not see why such
a weapon should be struck from the community’s hand. I do not forget
that the German Republic was saved from the Kapp Putsch by a general
strike.
Nor must we forget the limits within which effective legal action is
possible. _Jus est quod jussum est_ is a maxim the validity of which
is singularly unimpressive. When the issue in dispute seems to the
trade unions so vital that only by a general strike can they defend
their position adequately, they will, in those circumstances, defend
their position whatever the law may be. Legal prohibition will merely
exacerbate the dispute. It will transfer the discussion of legality
which serves merely to conceal it. A legal command is, after all,
a mere static form of words; what gives it appropriateness is its
relevance as just to the situation to which it is applied. And its
relevance as just is made not by those who announce that it is to
be applied, but by those who receive its application. The secret of
avoiding general strikes does not lie in their prohibition but in the
achievement of the conditions which render them unnecessary.
Nor is the denial of the right to declare a general strike a necessary
protection of the total interest of the community. Right and wrong
in these matters are matters to be defined in each particular case.
A government which meets the threat of a general strike is not
entitled to public support merely because it meets the threat. It
is no more possible to take that view than it is to say that all
governments deserve support when they confront a rebellion of their
subjects. Everything depends on what the general strike is for,
just as everything depends on the purpose of the rebellion; and the
individual trade unionist must make up his mind about the one, just as
the individual citizen must make up his mind about the other. Law in
this realm is, in fact, largely futile. It could not prevent a general
strike by men who saw no alternative open to them; and, in that event,
it would merely intensify its rigours when it came. The limitation
of liberty in this realm seems to me, therefore, neither just in its
purpose nor beneficent in its results.
I do not, of course, deny that freedom of action in this field is
capable of being abused. That is the nature of liberty. Any body of
persons who exercise power may abuse it. It is an abuse of power
when an employer dismisses his workmen because he does not like
their political opinions. It is an abuse of power when the owners of
halls in Boston refuse to hire them to the promoters of a meeting in
memory of Sacco and Vanzetti. It was an abuse of power when British
naval officers connived at the attempted internment of the Belgian
socialist, M. Camille Huysmans, in England. It was, I think, an abuse
of power when the Universities of Oxford and Cambridge refused to admit
Nonconformists as students, or Parliament to seat Mr Bradlaugh because
he was an infidel. But the trade unions are no more likely, on the
historic record, to abuse their power than is Parliament itself. The
latter, if it wished, has the legal competence to abolish the trade
unions, to disenfranchise the working classes, to confine membership
of the House of Commons to persons with an independent income. We
know that Parliament is unlikely to do any of these things because
omnicompetence, when gravely abused, ceases to be omnicompetent. And
the same truth holds, as it seems to me, of the liberty to proclaim a
general strike.
A much more difficult problem arises where the second of my four
principles is concerned. A government is, I think, entitled generally
to the loyal and continuous service of its employees. It is therefore
entitled to make regulations which restrain their liberty of action.
The army and navy and the police, in particular, occupy a special
position in the state; if they were free, like ordinary citizens, to
withdraw their labour as they pleased, the executive power would be in
an impossible position. The government, therefore, may make suitable
regulations for their control. But it is important, in the framing of
these regulations, that the conditions of service should be just. To be
just, two principles are, I suggest, of primary importance. They should
be made and administered in conjunction with those who are affected by
them; and in their application or change executive action should not be
the final court of appeal. The principles which, in England, we call
Whitleyism are the _quid pro quo_ which government servants of this
type are entitled to expect in return for the surrender of the right
to strike; and Whitleyism must include the right of those servants to
appeal from an executive decision to such a body as the Civil Service
Division of the Industrial Court. To leave the executive sole master
of the field is to invite the kind of purblind folly which resulted,
in 1919, in the police strikes of Boston and London. Here, certainly,
the fact that the governments concerned were the judges in their own
cause made it impossible for the police to get either attention or
justice without drastic action. And I draw your attention to the fact
that although in each case the original strikers were defeated, their
successors obtained the terms, and even more than the terms, for which
they fought.
The defence forces of the state constitute a special case. When we turn
to the ordinary public services, central and local, quite different
considerations emerge. If you analyse Whitehall, for instance, you
will find a very small body of men and women who may be regarded as
concerned with the making of policy; below them is another body,
perhaps two or three times as large, engaged in assembling the material
out of which policy is made, and applying it in minor cases; while
below these once more is a vast army of clerks engaged in routine work
of a more or less mechanical kind. To this last class, it cannot, I
think, be said that government emerges as an employer different in
kind from what they would encounter in the ordinary labour market.
General economic conditions govern their pay; in France and America,
indeed, it is below, rather than above, the level obtaining elsewhere
for their kind of work. All their interests go along with those engaged
in similar employment outside the sphere of government activity. Their
union, therefore, with persons in private firms seems to me justified
in order to raise their general economic level; and I do not see the
justice of prohibiting it as was done by the Baldwin Government in the
Trades Disputes Act of 1927. I think, further, that they are entitled
to strike, if there is no other way in which they can, as they think,
secure the enforcement of their demands; though I think, also, that
the executive would be justified in compelling them to exhaust the
resources of a comprehensive scheme of conciliation before they went
so far. The history, indeed, of most modern civil services. France
being a notable exception[35] shows clearly that there is no danger of
officials abusing the right to strike. But it shows also the unwisdom
of leaving the government free to determine the substance of the
contract of service. It is just as likely as any private employer to
extract the most it can get for the least it needs to give; and it is
no more fit than any other employer to be left uncontrolled in this
field. The more labour conditions in government service are determined
finally by an independent authority, the more reasonable they are
likely to be. We must not be led away by false claims to a special
majesty born of its sovereign character to regard the state as entitled
to a peculiar and uncontrolled power over its servants. History
shows that it is just as likely as anyone else to abuse an unlimited
authority.
The civil servant is not merely an employee of government; he is also a
citizen. In our own day, especially, delicate questions have arisen as
to the right of the civil servant, or of a person engaged in the armed
forces of the state, to enjoy all the normal political privileges of a
person in private employ. Is a civil servant, for instance, entitled to
enter on a political career with the chance, if it is interrupted, to
return to his department? Most modern states, England, for instance,
Canada, South Africa, regard political activities as beyond the area
within which a civil servant may engage; France, on the other hand,
hardly limits its officials in this way, while Germany expressly allows
its officials to engage in politics, and some fifty civil servants are
now in the Reichstag, with the power to return to their departments if
they are defeated. Certainly there are few rights for which the rank
and file of officials press so strongly as for this; and they regard
the limitation of their political opportunities as an invasion of
civic liberty at once unnecessary and unjustifiable.
I do not think the problem is a simple one; and I think any solution
of it must therefore be complex in character. If a high official of
the Foreign Office in England could be elected to Parliament, spend
a term there in bitter criticism of the Foreign Secretary and then,
on defeat, return to work with the minister whom he had sought to
destroy, the latter’s position would, I think, be intolerable. There
is, that is to say, a class of civil service work the very nature and
associations of which involves exclusion from political life; and if
those engaged therein desire a political career, they must terminate
their connexion with the civil service. We can, of course, draw a line.
I see no reason why all the industrial employees of the government,
postmen, for instance, or shipwrights in a national dockyard, should
not enjoy all ordinary civil rights. I see no reason, either, to
expect any deleterious consequence if civil servants below what we
call in England the executive class are allowed ordinary political
rights, so long as a decent discretion in their exercise is observed.
Those engaged in the making of policy must, in my judgment, accept a
self-denying ordinance in this regard. Unless government can be assured
that its chief officials are aloof from political ties, it cannot trust
them; and all the considerations which create a “spoils system” will
then come into play. Since experience makes it evident that a spoils
system is incompatible with either honest or efficient administration,
a restriction upon the liberty of public officials is, I would argue,
justified. It is an inevitable part of their contract of service from
the point of view of the end that service is intended to secure.
I believe, further, that this restriction applies with special force
to the Army and Navy and to the police. The state is justified, in the
interest of the community, in placing an absolute embargo upon the
political activities of all their members. For unless this liberty is
restrained, their allegiance becomes the possession of a party and
they cannot give that neutral service which is the basic principle
of their existence. Anyone who remembers the attempted use of the
Army in 1913-14 for Ulster, the habits of the French Army during the
Dreyfus period, the peculiar relations between the German Army and
the Monarchy, will easily see how vital is this abstinence. There
are American cities where the relations between big business and the
police mean that the authority of the latter is certain to be abused in
an industrial dispute. Nothing, perhaps, illustrates more nicely the
delicacy of this problem than the activities of Sir Henry Wilson[36]
during the years from 1912. He was, it appears, prepared to go from a
meeting of the Committee of Imperial Defence to a discussion of its
plans with the leaders of the Conservative opposition; and to advise
with them upon the best way of rendering some of those plans nugatory.
Even during the Great War he did not cease from the cultivation of
political intimacies of this kind. Nor must we forget that Sir John
French, at the time the Commander-in-Chief of the British Armies
in France, was ready to go behind the back of the Government he
served to offer secret information to the military correspondent of a
Conservative newspaper; and the result of that betrayal of confidence
was the breakdown of the first Asquith Government in 1915. The proper
conduct of political life is clearly impossible, if the armed forces
of the state are free to take a definite part in its formation. No
one would endorse the Russian principle that a soldier’s quality is a
function of his agreement with the political faith of the government;
yet once relations are established between the politician and the Army
a movement towards this principle is inevitable. Sooner or later, in
this condition, the Army, like the Praetorian guard, determines the
personality of the state. When that occurs, no one can hope for the
enjoyment of political freedom.
I turn, in the third place, to the view that industries which have a
vital impact on social life can restrain the right to strike in those
engaged in them. That is a peculiarly favoured doctrine at the present
time; some writers even use the analogy of the Army and Navy, and argue
that the principles applicable to these have a legitimate extension to
this field. Others, the eminent French jurist M. Duguit, for example,
take a similar view, but upon other grounds. They argue that vital
public service, transport, for instance, or electricity supply, derive
their whole meaning from continuity; to allow an interruption of them
is, therefore, to destroy the whole law of their being.
I am as willing, I hope, as anyone to agree that an interruption of a
vital public service is undesirable, and that every possible step to
minimize the possibility of its occurrence should be taken. But I do
not think the denial of the right to strike obtains this end in any
of them; and I do not believe that the same considerations apply to
every sort of vital public service. It must, I think, make a difference
whether the industry is primarily operated for private profit or no;
for only in the latter case is its quality as both vital and public
fully recognized. No one, surely, can examine the record of the coal
industry either in England or in America and say that the motives
which underlie its ownership by private interest are compatible with
the view that an uninterrupted service to the community has been the
first object of the owners. There are several reasons of primary
importance for retaining the right to strike so long as private
ownership continues in this sphere. If, for instance, a steamship
company proposes to send out its ship under the conditions in which the
_Vestris_ of ill-fated memory sailed in the spring of 1929, I think the
crew would be justified in striking in the public interest. So, also, I
should argue that the Seamen’s Union would be justified in striking, to
see to it, if it could, that every vessel putting to sea carries with
it wireless equipment. Again, a body of miners might, in my judgment,
justifiably strike if they believed that some part of a pit to which
they were to be sent was in fact too dangerous for coal to be hewed
there without an alteration of the physical conditions of mining in
that particular place. I should, further, urge that a strike to secure
a national agreement for uniform conditions in a particular industry as
against a variety of local agreements was a justifiable enterprise if
that end could not be attained in any other way.
My view, broadly, reduces itself to this. Where the vital industry is
in public hands, the conditions which should operate are those which
relate to government service in general where it is in private hands;
the state is, I think, justified in seeing to it that the danger of
dislocation is reduced to a minimum; but it is not justified in saying
that, in the event of a disagreement, the men shall always abide by the
results of compulsory arbitration. For, first of all, the men will not
always do so; their refusal, doubtless, will be exceptional, but there
will be instances in which it will occur. The famous munitions strikes
on the Clyde, and the South Wales Miners’ strike, during the war show
that this is the case. It is, I suggest, obvious folly to attempt
legislation which cannot be enforced at the critical point of urgency.
The business of the state, therefore, is not to prohibit, but to find
how best to make the use of the strike the final and not the first
instrument in conflict.
This, I suggest, can be accomplished in two ways. It can be done,
first, by limiting the profits private ownership can make in any
industry of vital importance, either absolutely so that the owners
are debenture-holders merely, and not the residuary legatees of any
profit made, or relatively, as in a scheme like that laid down for the
gas companies of London. The state is then, I suggest, legitimately
entitled to argue that a curb on the liberty of the employer to
make what profit he can justifies a curb on the right to strike by
postulating the conditions under which alone it can become operative.
Those conditions are, I think, met by some such instrument as the
Canadian Industrial Disputes Investigation Act. Under its terms, we
should then have, at least, enforced public inquiry into the dispute,
and the consideration by both sides, as well as by the general
opinion of the community, of a reasoned attempt at a solution of the
difficulty. We respect freedom of association by leaving it at liberty
to insist that the proposed solution is unjust, while we protect the
public interest in continuity of service by insisting that the right to
strike shall not operate until the resources of conciliation have been
exhausted.
I reject, therefore, M. Duguit’s notion that public interest in
continuity of service is a paramount consideration which should
overrule all others; and I see no reason to apply his vituperative
adjectives[37] to those who take a different view. It seems to me quite
definitely a denial of liberty for which no justification can be found
to say that men shall work on terms they think utterly unjust; and the
argument that, if they do not like those terms, they can find other
work, is, increasingly, without force in a community like our own.
The number of those in any society who have a genuine choice, at any
given time, of alternative occupations is notably small. An electrician
cannot suddenly become a barrister, as the latter can suddenly become
a journalist; and if it is a matter of hundreds, or even thousands of
men, the compulsion upon them to continue in the vocation for which
they have been trained is obvious. The community never gains, in the
long run, from work performed by men who labour under a sense of
injustice. That psychological feeling of frustration is poisonous to a
harmonious personality. As such, it is incompatible with that search
for freedom which I have urged is a condition of happiness. I cannot,
therefore, agree that the community is entitled, on any terms, to put
its convenience first, and the workers’ freedom afterwards.
A final problem in this same realm remains. The trade union, it
is said, must obviously concern itself with all that touches the
industrial conditions of its members. But it is not entitled to a
general licence to roam all over the field of public activity. We
should resent it if a football club passed resolutions upon the foreign
policy of a government; and it is in the same way illegitimate for
a trade union to deal with matters outside its sphere. The state,
therefore, is entitled to define that sphere and to limit the
activities of trade unions to matters that come within it.
But I have already sought to show that such a definition of spheres is,
in fact, impossible of achievement. Take, for instance, foreign policy.
You cannot say that trade unions ought not to concern themselves
with foreign policy since this is intimately bound up with economic
policy which, in turn, is the chief factor in the determination of the
conditions of employment. You cannot exclude any part of the economic
realm from the trade union sphere. I should agree that a trade union
ought not to concern itself, let us say, with the question of whether
the Pope was justified in making the Immaculate Conception a dogma of
the Roman Church; but the likelihood of a trade union acting in this
way is as small as that of a football club concerning itself with
foreign policy. We cannot legislate for the exceptional instance. Law
can only deal with normal habits susceptible of logical reduction to
well-established categories. When it goes further, it merely reveals
its own impotence. A trade union, moreover, is a living body; and
no law has ever been successful in coping with the growth of living
things by legal promulgations upon the fact of growth. Many matters are
regarded today as normally and naturally within the sphere of the trade
unions which a generation ago, even a decade ago, most men would have
insisted were in nowise their concern. In the American garment trade,
the union concerns itself, as a vital part of its function, with the
efficiency of the employers for whom its members work. A generation
ago, this would have been dismissed as “an insolent interference with
the rights of management”; today it is obvious that upon no other
terms can the function of the trade union be fulfilled. In 1914 the
unions would never have deemed it their business to concern themselves
with the bank rate and credit policy; today they realize that these
matters lie at the heart of their problems. Any such Procrustes’ bed of
definition as this principle suggests seems to me, therefore, a quite
wanton and foolish interference with freedom.
V
Such a discussion of the relation of trade unionism to the state,
illustrates, I think, the general problem of the approach to freedom
of association in the political sphere. I have denied the right of
the state to control the internal life of such bodies; and I have
sought to show the limits of liberty where that life has ramifications
outside their membership. It is, I think, a good general rule that the
state should not interfere in this realm unless it must. Whenever, for
example, it has interfered with the claims of churches to lead their
own life, conflict has been the inevitable outcome. For in any meeting
of church and state, the latter will assert its paramountcy; and a
church has no alternative but to deny that assertion. For this reason
I believe that any attempt at partnership between them is bound to
result in injury to freedom somewhere. If, as in England, the Church
is formally established by the state, its dependency becomes obvious
as soon as it develops ideas of which the state does not approve; in
matters like marriage and divorce and education, the church has had
to surrender positions held for centuries to preserve the privileges
of establishment. It now appears that where there is disagreement in
an established church, the minority, on defeat, will not hesitate to
go beyond the organs which formally record the voice of the church,
in order to maintain doctrine or ritual which the church itself seeks
to change; and a legislative assembly most members of which are
either alien from the church, or without competence in its technical
problems, will find themselves defining its most sacred principles.
Such a church, quite obviously, is the mere creature of the state; it
sacrifices its spiritual birthright for a material mess of pottage.
Or, as in the concordat between Italy and the Papacy, there may be a
looser alliance of which the result is to deprive all non-Catholics of
their right to a secular state treating all religions equally, in the
realm of marriage and education. I cannot avoid the conclusion that in
this historic realm only the American principle of complete separation
and non-interference can produce freedom. Unless state and church
pursue an independent path, liberty is sacrificed; for either fusion or
partnership will, in fact, involve a conflict for supremacy.
The remaining question I wish to discuss in this context is the right
of the state over associations the purpose of which is the overthrow
of the existing social order. What powers here ought the state to
possess? At what point can it interfere? Has it what may be termed a
preventive capacity, a right to prevent the development of associations
the natural tendency of which will be an attempt at such overthrow?
Or should its jurisdiction be limited to punishment for overt acts?
Obviously the quality of liberty depends very largely upon the powers
we give the state in this realm. I take it as elementary that the
state has a right to protect itself from attack. It must, as a state,
assume that its life is worth preserving. It must demand that changes
in its organization be the outcome of peaceful persuasion and not the
consequence of violent assault. A state must, therefore, assume that
its duty to maintain peace and security lies at the very root of its
existence. The liberty which associations enjoy must therefore be set
in the context that they cannot have a liberty to overthrow the state.
To that extent, any denial of freedom to them is justified.
But what are the limits within which that denial must work. The world
today is littered with organizations that are denied a legal existence
and suppressed at any opportunity. The existence of a Communist party
is denied by Lithuanian law; the Peasants’ Party in Jugoslavia was
formally dissolved; Russian principle seems to be the imprisonment
or exile of members of any organization which can be suspected of
counter-revolutionary tendencies. We must, I think, begin with the
principle that a government is not entitled to suppress associations
the beliefs of which alone are subversive of the established order.
For, otherwise, persecution will be built, not on fact, but on
suspicion that facts may one day emerge, not on overt acts, but on
principles of faith which are in truth only dangerous when they are
expressed in practice. A society might be formed, for instance, to
discuss and propagate the principles of Tolstoyan anarchy; I do not
think any government has legitimate ground for interference with it.
The time for that interference comes only when, outside the specific
categories of peaceful persuasion, men have moved to action which
cannot logically be interpreted as other than a determination to
overthrow the social order.
I agree, for instance, that a society of Communists which began to
teach its members military drill could legitimately be regarded as a
direct threat to peace. So, also, when a political party, the Ulster
Volunteers, for instance, or their opponents, the Nationalists, begin
to purchase munitions of war, interference by government is justified.
But I cannot see that a government is entitled to prevent a society
of Communists from preaching their doctrines either by speech or by
publication of the printed word. It is, I think, essential that, as
with the English law of treason, the government should be compelled
to prove the commission of some overt act which directly tends to
imminent rebellion in a court of law, and to bring two witnesses
at least to bear testimony to its commission. It ought not to be
sufficient for a government to say that since a particular party has
beliefs which include the right to violence and has elsewhere practised
violence, that its suppression is legitimate. Recently, again, Mr
Ghandi announced that if the British Government did not grant Dominion
Home Rule to India by the end of 1929, he and his followers would
practise civil disobedience such as a refusal to pay taxes. We do not
think that announcement would have justified the British Government in
imprisoning Mr Ghandi before the end of 1929 in order that he might be
prevented from accomplishing his threat at a later time. Or, once more,
Mr Arthur Ponsonby’s organization of men pledged to refuse military
service in the event of Great Britain going again to war ought not to
be suppressed because, if Great Britain did go to war, some hundred
thousand individuals would refuse to obey any military service Act
that would then be enacted.
I am anxious, as you will see, to make it difficult for the government
of a state to attack an organization the views of which it happens
to dislike. In the light of the evidence, we can rest assured that,
unless we compel proof, in an ordinary court of law, that overt acts
have been committed, such attacks will be made. One has only to
remember the Treason Trials of 1794, where there was not a scintilla
of evidence against any one of the accused, or the follies enacted by
governments during the Great War, to see that this is the case. In
August of 1929, an Italian official actually drew public attention to
the undue circulation, as he deemed, of books by Chekov, Turgenev and
Tolstoy;[38] we can be sure that if a Society for the study of Russian
literature had then existed in Italy, the attention of the government
to its suppression would have been called. In the opening stages of
the Communist trial in Meerut, the counsel for the prosecution drew
attention not merely to the alleged offences of the accused, but
also to the actions of the Russian Communist leaders from 1917-20,
though it is difficult to see how either Indian or English Communists
could have been held responsible for them. The logic, indeed, of
habitual government suppression seems to be that abnormal opinion
is always dangerous because, if it is acted upon, the supremacy of
the law will be endangered. That is, of course, perfectly true. If
the Communist Party in England sought to initiate a rebellion, there
would be a threat to the supremacy of the law. But no one of common
sense believes today in a Communist menace in England, least of all,
perhaps, the Communists themselves. What can possibly be gained by an
attempt to suppress that philosophy by an imprisonment of its members
is quite beyond my understanding. I see no evidence to suggest that the
slightest good has been accomplished in America by all the legislation
against criminal syndicalism. Nor can I see that anything would have
been gained by the kind of prohibitions which the Lusk Committee, of
dubious memory, sought to put upon the statute-book.
My point is that men are always entitled to form voluntary associations
for the expression of grievance, and for the propagation of ideas
which, as they think, will remedy what they believe to be wrong. They
are not entitled to move to the commission of acts which bring them
into conflict with the state. By acts I mean things like the planning
of Mussolini’s march on Rome, or the training of civilians as soldiers
by the Ulster Defence Council. Things like these the government may
legitimately attack because they have a clear and direct relation to
immediate violence, actual or prospective. But governments would do
well to remember, what they are too prone to forget, that they do not
remove grievance, however ill-conceived, by suppressing it. And if they
are allowed to associate violent opinion with actual violence, there
are few follies upon which they cannot be persuaded to embark. The
persecution of opinion grows by what it feeds on. Every social order
is ardently upheld by fanatics who are eager to make dissent from
their view a crime. The last thing that is desirable is to give them an
opportunity for the exercise of their fanaticism.
It is, further, of great importance that all trials relating to these
offences should be held in the ordinary courts under the ordinary forms
of law. Experience makes it painfully clear that special tribunals are
simply special methods for securing a conviction. For the mere creation
of a special tribunal persuades the ordinary man that there is an _a
priori_ case against the accused, that the burden of proof lies upon
him rather than upon the government. Whatever we can do to safeguard
these trials from the introduction of passion is an obligation we owe
to liberty. However wrong or unwise we may think the actions of men so
accused, we have to remember that they represent, as a general rule,
the expression of a deep-felt resentment against social injustice. We
have to protect ourselves from protest which seeks deliberately to
dissolve the bonds of order. But it is our duty, too, to respect that
protest when it is sincerely made. And we cannot, therefore, permit
attack upon it because it represents ideas or experience alien from our
own. _De nobis fabula narretur_ is a maxim which every citizen should
recognize as the real lesson of political punishment.
Implied in all this is a view of the place of voluntary associations
in the community the significance of which I do not wish to minimize.
I am, in fact, denying that they owe their existence to the state, or
that the latter is entitled, by means of its agents, to prescribe the
terms upon which they can live. The special place of the state in the
great society does not, in my judgment, give it an unlimited right
to effect that co-ordination which is its function on any terms it
pleases. The principles of a legitimate co-ordination bind the state
as much as they bind any other body of men. Each of us finds himself
part of a vast organization in the midst of which we must seek the
realization of desire. We cannot attain it alone. We have to find
others with kindred desires who will join hands with us to proclaim the
urgency of their realization. There is no other way to the attainment
of that end; and an attitude, therefore, like that of Rousseau, who
denied the legitimacy of any voluntary associations, fails altogether
to take account of the elementary facts of social life. Such bodies,
indeed, must run in the leading-strings of principle, but the question
of what that principle must be is not one the state alone is entitled
to make. For the latter is not justified in preventing the expression
of desire; it is justified only in preventing the realization of desire
by violent means. It must tolerate the expression of experience it
hates because it is there, as a state, to satisfy even the experience
it cannot understand. We must not, in fact, allow ourselves to fall
into the error of believing that opinion which is antagonistic to the
state-purpose is unworthy to survive. The state-purpose, like any
other, is expressed through the agency of men. They may misinterpret
it; they may, consciously or unconsciously, pervert it to their own
ends. To leave them free to settle the limits of free association would
be to leave them free to settle what criticism of their work they were
prepared to permit. That is a power which could not safely be entrusted
to any body of men who have ever operated as a government.
For consider, once more, the historic record. The Roman suppression of
Christianity was built upon the belief that unity of religious belief
is the necessary condition of citizenship; later experience shows that
view to be without any substance. What in fact emerges from the history
of religious persecution is the lesson that the unity made by the
suppression of Nonconformity is the unity of stagnation. That was the
history of France under the repeal of the Edict of Nantes; it has been
the history of Spain ever since the sixteenth century; it is, indeed,
the history of any community, however rich and powerful, the rulers
of which assume that they know what constitute truth and right, what
opinions, therefore, they are entitled to prescribe. Any government
which attacks a body organized to promote some set of opinions which
may become dangerous to its safety may fairly be presumed to have
something to conceal. It is co-ordinating social life not to the end of
its greater fullness, but simply for the sake of co-ordination.
But law, as I have insisted earlier, does not exist for the sake of
law. It is not entitled to obedience because it is legal, because,
that is, it proceeds from a source of reference formally competent to
enact it. Law exists for what it does; and its rightness is made by the
attitude adopted to it by those whose lives it proposes to shape. Since
bodies like the Communist Party are in fact an announcement that some
lives at least are shaped inadequately by the laws of a régime like
our own, suppression seems to me an indefensible way of meeting that
announcement. Force is never a reply to argument; and until argument
itself seeks force as the expression of its principle, it is only by
argument that it can justifiably be countered.
VI
I turn to a very different phase of the subject. In every society
there are modes of conduct which, though not in themselves harmful,
offer an easy prospect of becoming so. It is therefore assumed by
many that it is the business of the state actively to discourage
such conduct, even to the point, if necessary, of making its most
innocuous expression illegal. No one is harmed, for instance, by a
moderate indulgence in alcoholic liquor; but since drunkenness is
harmful both to the individual and society, the state, it is said, is
justified in prohibiting the manufacture or sale of alcoholic liquor.
The same principle is urged of noxious drugs, of the use of tobacco,
of gambling. Sometimes, indeed, the principle is carried to an extreme
point and it is said that the state may prohibit any form of conduct,
Sunday games, for example, which a majority of the society finds
obnoxious. The claim to freedom, it is urged, may be denied in the
interest of a social view of good.
I do not find it easy to accept any single principle that is obvious
and straightforward as applicable to the very complex problems we
encounter in this realm. Neither the fact that a mode of conduct may
be harmful in excess, nor the fact that, whether harmful or no, society
dislikes it, seems to me in itself a just ground for its suppression by
the law. The first case seems to me one for safeguards against excess;
care, for instance, may be taken to see to it that it is manufactured
at a limited strength, is sold only under careful restrictions, and
so on. The second case I find it impossible to decide as a general
principle, and apart from particular cases each of which is judged upon
its own merits. I am prepared, for example, to make it illegal to keep
a gaming-house; but I am not prepared to legislate against a social
game of bridge played for money in a private house. Conduct must be
punished or prohibited when it is harmful in itself or in the excess in
which it touches society before we ought to seek access to the clumsy
machinery of the law.
For we cannot suppress all modes of conduct in which excess does harm.
In most cases, we have to leave the individual free to judge at what
point excess is a fact. Over-eating does great harm, but no one would
propose legislation against over-eating. Many motorists sacrifice their
lives to their motor-car, especially in America; but no one would
propose legislation against an undue indulgence in motoring. False
social standards result from our excessive adulation of film-stars and
athletes; but we should obviously be merely foolish if we legislated
against the publicity which makes for that excessive adulation. We
have always, I think, to study any proposed social prohibition in
terms of the object to which it is applied. We have to remember that
it always runs the risk of undermining character by a limitation
of responsibility. Men are made not by being safeguarded against
temptation but by being able to triumph over it. It would be impossible
to forbid the use of cheques because some people succumb to the habit
of embezzlement. There is a clear case for forbidding the sale of
noxious drugs like heroin or cocaine except under severe restrictions,
because it is clear that in themselves their consumption is bound to
harm the recipient. There is a clear case for insisting that persons,
even if they be passionate Christian Scientists, who are suffering from
an infectious disease like small-pox, shall be isolated until they are
cured; for anyone who goes about with small-pox inflicts direct and
measurable injury on other persons. But unless we can show that the
particular mode of conduct it is proposed to repress must necessarily
destroy the will-power of those who practise it, as is true of noxious
drugs, or directly and unquestionably injures the rest of society in
a measurable way, I think the method of prohibition an unwarranted
interference with freedom.
I take this view on three grounds. I believe, first, that it is
socially most important to leave the individual as uninhibited as
possible in forming his own way of life, granted, of course, that he
is adult and mature. To shelter him at every point from experience
which, if carried to excess, may harm him is not only impossible,
but also dangerous. It makes him pass his life under the aegis of a
system of fear-sanctions which, for the most part, he will be quite
unable to sublimate, and the result will be that sense of continuous
frustration which is fatal to freedom. I must, in general, learn my
own limitations by experimentation with myself. I cannot pass my life
adjusting my conduct to standards and habits which represent the
experiments of other people. For the reasons which make the results of
particular experiments seem to them convincing, I may in my own case
regard as completely unsuccessful. To insist that their rule of life
is to be mine is, normally, to destroy my personality. It is to compel
me to live at the behest of others even where I can discover no ground
for the behest. Most people would agree that a statute compelling an
atheist to go to church was utterly foolish. His absence does not
affect the salvation of any other person. His presence there does him
no good because his mood is inevitably one of gnawing indignation at
being compelled to participate in ceremonies that have no meaning for
him. Either he will invent excuses which enable him to stay away, or
he will adopt an aggressive disbelief which makes him a source of
offence to the faithful. He loses, that is, the habit of truth, on
the one hand, or the capacity to give and take which makes for decent
citizenship, on the other. Both forms of behaviour do real injury to
him; neither produces an attitude of conviction. From the angle of
character, the only rules of conduct in this realm that work, are those
that are self-imposed. And these, so far as I know, are the invariable
outcome of experiment made by oneself with one’s own personality.
My second reason is not less important. The power of law to define
modes of social conduct depends very largely upon its ability to
command a sentiment of general approval. What it seeks to do must
broadly commend itself, on rational grounds, to those over whose lives
its principles are to preside. Legislation which does not fulfil
this condition is always unsuccessful, and always has the result of
bringing the idea of law itself into contempt. For where a particular
statute is regarded as foolish or obnoxious by a considerable body of
persons, they will rejoice in breaking it. Illegal conduct becomes a
matter even of pride. It becomes a principle of conduct which gives
rise to special pleasure and peculiarly satisfies human vanity. No
one in London, so far as I know, regards the average policeman as an
unwarrantable attack on liberty; but it seems to be the case that
thousands of people in New York regard the prohibition agent in that
way. They wear a breach of the law as a badge of courage, like the
revolutionary in Czarist Russia or the suffragette in pre-war England;
and the imposition of penalties upon them arouses in them and their
friends a sense of angry injustice. Now I think it is an elementary
principle of penal psychology that you cannot make a crime of conduct
which people do not _a priori_ regard as criminal. Popular sentiment
approves a law against murder, and you can enforce that law. But
popular sentiment, in England at least, would not, in my judgment,
approve a law forbidding the manufacture and sale of alcoholic liquor;
and its chief result would be to direct the minds of thousands to the
problem of ways and means of evading the law. That is a habit which
grows upon those who indulge in it. It loosens all the principles of
conduct which make for social peace by making us think of the rules
under which we live as unjustifiable and oppressive. It forces social
effort quite unduly and unwisely in one direction. It persuades it to
think out mean and petty expedients for the enforcement of the law
in the same way as its subjects think out mean and petty expedients
for its evasion. The spectacle, for instance, of the Supreme Court
deciding that the American government is entitled to tap telephone
wires in order to obtain evidence of infraction of the Volstead Act is
not an encouraging one.[39] That way lies corruption and blackmail,
the kind of habits which, in England, we associate with names like
that of Oliver the spy,[40] in Russia with that of agents-provocateurs
like Azeff. Few things are more detrimental than this to the moral
equilibrium of a social order.
Nor must we forget two other effects of attempted enforcement, both of
which are, I think, entirely evil. A government which is continually
flouted in its attempt at administration is bound to attempt even
greater severity. There will be an extension not only of the area
of offence, but also of the methods of coping with offence, and the
punishment to be inflicted where it occurs. The classic instance of
this result is the government of Geneva from the period of Calvin’s
dispensation. It does not result in the satisfactory enforcement of
the law, but in its wider evasion. Severity on one side is met by
brutality upon another; one might as well be hung for a sheep as
a lamb. And the disproportion between crime and punishment which
emerges draws the sympathy of the general population away from the
government to the offender. This is, I suggest, wholly bad for any
society. It makes the habits of government generally suspect to the
multitude. It creates martyrs unduly and unwisely. And this has,
of course, the consequence that it becomes ever more impossible to
enforce the law. Its irrationalism is advertised to the multitude.
It becomes inacceptable to an ever-increasing circle who, while they
may sympathize with its principle, are not prepared to acquiesce in
the price that has to be paid for its application. Not only, sooner or
later, does such legislation perish, but the habits to which it gives
rise persist, and are frequently carried over into realms where they
are still more undesirable. And the severity which a government is
tempted to practise makes it blind to wrong through becoming inured to
its consequences. When the British Government first met the weapon of
the hunger-strike it was baffled; later, it turned that weapon against
those who employed it by what was called the Cat and Mouse Act. Much of
this proceeding, where the suffragettes were concerned, had a comic, as
well as a tragic side. But the whole procedure had the serious result
of making the public expect that any hunger-strike would be a dramatic
battle between the government and its prisoner, in which the cause of
the imprisonment was lost sight of in the gamble of the procedure.
The public, accordingly, was not greatly moved by the hunger-striking
which took place during the Irish Revolution; and when Mr Lloyd George
left the Lord Mayor of Cork to die, people were more interested in
the circumstance of his death than in the vital question of whether
he should have been allowed to die. In all this realm, the denial of
liberty seems to result in the slow maximization of unhappiness.
The second effect is also wholly bad. Whenever government interferes
to suppress some service which a considerable body of persons think
they require, when, also, the suppression is disapproved by a large
number of citizens, an industry to supply that service will come into
existence. Its ways will be devious, its charges will be high. It will
attract to its ranks many of the most undesirable elements in society.
It will form an army of lawbreakers whose habits are only too often
condoned by a large section of public opinion. That has been the case
with bootleggers in America and with night-clubs in London. And the
risks being great, the profits are high, the interests, consequently,
to be protected are correspondingly great. The history of these
adventures in England and America is one of organized immorality and
corruption. Condemnation by the law seems to have little or no effect
in dispelling its influence. Men and women attain power through its
means who normally would be shunned by most decent-minded persons. The
degree to which the police are corrupted by these influences is very
difficult to exaggerate. There is hardly a bribe too high for them to
pay. They are organizing, too, an adventure which stimulates every
sort of dubious instinct in perfectly ordinary people. Mr Babbitt
approaches his bootlegger, you will remember, in something like a
religious frame of mind. The night-club _habitué_ finds nothing quite
so exciting as the prospect of a raid; and he leaves his meretricious
surroundings with the sense that he knows the glory of danger and has
escaped the humdrum pettiness of suburbia. I think it bad for society
to make illegal conduct heroic. I think it still worse to make the
central figures in the drama of illegality powerful in the lives of
those to whom they purvey their service; men and women whose methods
of obtaining a living it does not occur to their clients to condemn.
Nor is it an answer to say that when the law does act, those clients
immediately desert the arrested offender which is proof that they
really disapprove. An enforcement which induces cowardice at the
critical moment in those who are _participes criminis_ does not seem to
me anything of which to be proud.
My third reason is rather different in character. Every state contains
fussy and pedantic moralists who seek to use its machinery to insist
that these habits shall become the official standard of conduct in
the population. They are interested in prohibition and uniformity for
their own sake, and every success that they win only spurs them to
greater efforts. If they stop the sale of alcohol, they become ardent
for the limitation of the right to tobacco. They are anxious to control
the publication of books, the production of plays, women’s dress, the
laws governing sexual life, the use of leisure. They are terrified by
what they call immorality, by which they mean behaviour of which they
do not happen to approve. They are scandalized by the unconventional.
They luxuriate in its denunciation. They form committees and leagues
to prove the degeneracy of our times. They rush to the legislature
to compel action every time they discover some exceptional incident
of dubious conduct. To themselves, of course, they appear as little
Calvins saving the modern Geneva from the insidious invasion of
the Devil. No one, I suppose, can seriously doubt that men like Mr
Comstock regard themselves as the saviours of society. They have an
unlimited sense of a divinely appointed mission, and the whole of
their life is set in its perspective. They are the men who find in
_Candide_ the means of corrupting the mind of the community. They are
horrified by the nude in art. They think the performance of _Mrs.
Warren’s Profession_ the public profanation of the ideal. They regard
Darwin as an “infidel” whose works were an outrage upon God; and the
circumstances of Maxim Gorky’s married life seem to them to demand his
public excoriation.
I know nothing more incompatible with the climate of mental freedom
than the inference of such people. They lack altogether a respect for
the dignity of human personality. They are utterly unable to see that
people who live differently think differently and that in so various
a civilization as ours absolute standards in these matters are out
of place. It is difficult to overestimate the price we pay for their
successes. Certainly no great art and no literature great in anything
save indignation can be produced where they have sway. It is not for
nothing that from the time of Calvin not a single work of ultimate
literary significance was produced by a resident of Geneva. It is
easy to understand why the grim excesses of Puritanism produced the
luxuriant license of the Restoration. These would be, if they could,
modern Inquisitors, without tolerance and without pity, thinking no
means unjustified if only their end can be attained. They are the kind
of people who drove Byron and Shelley into exile, and they remain
unable to see upon whom that exile reflects. Their pride is inordinate;
and human instincts are its chief victim. They are often ignorant,
usually dangerous, and invariably active. Since the friends of liberty
too often sleep, their unceasing vigilance not seldom meets with its
reward. To me, at least, they commit the ultimate blasphemy since they
seek to fashion man in their own image.
I do sincerely plead that, especially in a democratic society, these
are grave dangers to freedom, against which we cannot too stringently
be upon our guard. Especially, I say, in a democratic society. For
there, the proportion of men zealous in the service of freedom, is
likely to be small unless great and dramatic issues are at stake.
Tyranny flows easily from the accumulation of petty restrictions. It
is important that each should have to prove its undeniable social
necessity before it is admitted within the fabric of the law. No
conduct should be inhibited unless it can be definitely shown that its
practice in a reasonable way can have no other result than to stunt
the development of personality. No opportunity should be offered for
the exercise of power unless by its application men are released from
trammels of which it is the necessary price of purchase. We ought
not to accept the easy gospel that liberty must prove that it is not
license. We ought rather to be critical of every proposal that asks
for a surrender of liberty. Its enemies, we must remember, never admit
that they are concerned to attack it; they always base their defence of
their purpose upon other grounds. But I could not, for myself, serve
principles which claimed to be just if their result was to make the
temple of freedom a prison for the impulses of men.