Chapter I: The Nature of Liberty (2)

My own years of residence in the United States have convinced me that there is a real value in Bills of Rights which it is both easy, and mistaken, to under-estimate. Granted that the people are educated to the appreciation of their purpose, they serve to draw attention, as attention needs to be drawn, to the fact that vigilance is essential in the realm of what Cromwell called fundamentals. Bills of Rights are, quite undoubtedly, a check upon possible excess in the government of the day. They warn us that certain popular powers have had to be fought for, and may have to be fought for again. The solemnity they embody serves to set the people on their guard. It acts as a rallying-point in the state for all who care deeply for the ideals of freedom. I believe, for instance, that the existence of the First Amendment has drawn innumerable American citizens to defend freedom of speech who have no atom of sympathy with the purposes for which it is used. A Bill of Rights, so to say, canonizes the safeguards of freedom; and, thereby, it persuades men to worship at the altar who might not otherwise note its existence.

All this, I think, is true; but it does not for a moment imply that a Bill of Rights is an automatic guarantee of liberty. For the relationship of legislation to its substance has to be measured by the judiciary. Its members, after all, are human beings, likely, as the rest of us, to be swept off their feet by gusts of popular passion. The first Amendment to the American Constitution guarantees freedom of speech and peaceable assembly; the fourth Amendment legally secures to the citizen that his house shall not be searched except upon a warrant of probable cause; the eighth Amendment legally secures him against excessive bail. Yet you will remember how, in one hysterical week in 1919, the action of the executive power rendered all these amendments worthless;[16] and you will not forget that the fifteenth Amendment, which sought political freedom for the coloured citizens of the South, has never been effectively applied either by the executive or by the Courts.

The fact is that any Bill of Rights depends for its efficacy on the determination of the people that it shall be maintained. It is just as strong, and no more, than the popular will to freedom. No one now doubts that the Espionage Acts were strained so as to destroy almost all that the first Amendment was intended to cover; that most of the charges preferred under it were, on their face, ludicrous. Yet you will remember that, in _Abrams_ v. _United States_,[17] two judges stood alone in their insistence that the first Amendment really meant something; the judgment of the others was caught in the meshes of war hysteria. No principle is better established than the right of the citizen, under proper circumstances, to a writ of _habeas corpus_; that is, perhaps, the ark of the covenant in the Anglo-American conception of freedom. But who can ever forget the noble and pathetic words of Chief Justice Taney, in _ex parte Merryman_,[18] where he insists that the applicant is entitled to the writ and that, in view of President Lincoln’s suspension of it--a suspension entirely illegal in character--he could not secure to Mr Merryman his due rights? And let us remember, also, that even where the judge is prepared to do his duty, he cannot, in a period of excitement, count upon public opinion. Nothing is clearer than the fact that those who hanged Mr Gordon during the Jamaica riots were guilty of murder. The opinion of Chief Justice Cockburn could not have made the issue more clear; it is a landmark in the judicial history of freedom. Yet the jury at once, in its despite, acquitted the accused. There have been, further, many occasions when breaches of fundamental principles of freedom, breaches which, on any showing, have been quite indefensible, have been followed at once by Acts of Indemnity. I know only of one case in England in the last hundred years in which such an Act has been refused. Yet it is, I think, obvious that unless such breaches are definitely and deliberately punished, they will always occur on critical occasions. At such times, it is impossible to trust those who are charged with the exercise of power; and only the knowledge that swift and certain punishment will follow its abuse will make our rulers attentive to the needs of freedom.

I speak the language of severity; and I am anxious that you should not think that the language of severity is that of the extremist. I invite you, as the proof of what I say, to read, in the light of cold reason a decade after the close of the war, the history of the tribunals in England which were charged with examining conscientious objectors to military service and on the military authorities to whom some of those objectors were handed over.[19] No one can go through the record without the sense that some of the tribunals deliberately evaded the purposes of the exemption clause; and it is clear that in the administration of punishment for refusal to obey orders, there was wanton cruelty, a deliberate pleasure in the infliction of pain, for which no words can be too strong. Nor is that all. The record shows occasions when Ministers of the Crown, when responding to questions in the House of Commons, used evasions of a kind which showed a complete contempt of truth;[20] and they were supported in their attitude by the majority of the members there. I note, also, at least one occasion when a number of conscientious objectors were taken from England to France for the purpose of execution by the military authorities; and it was only the accident that Professor Gilbert Murray was able to appeal on their behalf to the Prime Minister, which prevented the sentence from being carried out.[21] These are worse than the methods of the Inquisition; for, at least, the members of that tribunal believed that they were rescuing their victims from eternal damnation. Those of whom I speak had no excuse save ignorant prejudice and the blindness of passion.

You will see, therefore, why I cannot believe that constitutional expedients alone, however substantial, will prevent the invasion of liberty. They will work just so long as people are determined they shall work, and no longer. They are valuable because, since they have been consecrated by tradition, their invasion tends to awaken, at least in some of us, a prejudice to which we have become habituated. But to keep them active and alive, requires a deliberate and purposive effort it is by no means easy to make when the result of doing so conflicts with some other object keenly desired. That is, I think, capable of a simple demonstration. No class of men is so carefully trained as the judiciary to the habit of a balanced mind. Yet if you examine the observations of judges in cases where their passions are deeply involved you will note how great is the effort they have to make to show tolerance to antagonistic views. Nor do they always succeed. In most of the classic English blasphemy cases, for example, the judge has too often been, either consciously or unconsciously, an additional counsel for the prosecution.[22] In many of the American Espionage Acts cases what chiefly emerges from the summing up of the judge is a desire, at all costs, to see that the prisoner does not secure an acquittal.[23] Recent injunction cases in America show a desire, no doubt unconscious, on the part of the Court, to lend aid and countenance to a social philosophy of which it happens to approve.

I conclude, therefore, that in general we shall not allow, as a society, the mechanisms of the state to serve the cause of freedom unless we approve the objects at which freedom aims. In a time of crisis, particularly, when the things we hold most dear are threatened, we shall find the desire to throw overboard the habits of tolerance, almost irresistible. For those habits are not in Nature, which teaches us that opinions we deem evil are fraught with death. They come from our social heritage, and are part of a process the value of which we must relearn continuously if we are to preserve it. That is the meaning of the famous maxim that eternal vigilance is the price of liberty. It is why, also, it becomes necessary in each age to restate the case for freedom, if it is to be maintained.

V

There is one other general part of this political aspect of liberty that I wish to consider before I turn to a different portion of my theme. I have argued that resistance to the encroachments of power is essential to freedom because it is the habit of power continuously, if it can, to enlarge the boundaries of its authority. Is there any specific rule by which men can be trained to such resistance? Is there, that is, a way in which the average citizen of the modern state can be persuaded that it is in his interest to be vigilant against those who would invade his rights? Can it, further, be shown that such a temper in the citizen is likely, as it grows, to confer benefit upon the community as a whole?

Broadly speaking, I think the answer to these questions is in the affirmative. I hazard the generalization that the more widespread the distribution of power in the state, the more decentralized its character, the more likely men are to be zealous for freedom. That is, of course, a large statement to make. It is the thesis that, in terms of historic experience, good government is always, in the end, both less valuable and less efficient than self-government. I mean that, in general, rules imposed upon a society from above for its benefit are less effective to the end that they seek than rules which have grown naturally from below. I believe that to be true both of the individual and the group in society. Its full realization is, of course, an impossibility since it would make the uniformities we need in social life unattainable. But the greater the degree in which we can realize it, the better for the community to which we belong.

I do not mean to imply that there is any rigid principle which enables us to mark off the lines of demarcation between what is individual and what is social, between what belongs to the group and what belongs to the state, between the sphere of central, and the sphere of local government. The only possible approach to that problem is a pragmatic one, as anyone can see who tries to make common sense out of John Stuart Mill’s famous attempt, with its list of exceptions[24] by which he reduced it to something like absurdity. Most of us, I think, could draw up lists of governmental subjects in which central and local topics could be demarcated without undue disagreement. We should fairly universally say that foreign policy and defence, fiscal technique and commercial regulation were naturally within the sphere of the central, and playing fields, were within the sphere of the local, authority. We should agree that crime is a matter for the state, and sin a matter for the churches. We should admit that there must be uniform regulations for marriage and divorce, but that individuals only could make up their minds when, within the regulations, either to marry or divorce.

This, I think, is pretty straightforward. The points I wish to emphasize are different. They are, first, that in the making of public decisions, it is desirable that as many persons as possible who are affected by the result should share in reaching it; and, secondly, that whenever the decision to make some rule of conduct a matter of governmental regulation arouses widespread and ardent dissent, the probability is that the case against the decision is stronger than the case in its favour.

My first point I may perhaps best make by the statement that all creative authority is essentially federal in character. The purpose for which authority is exercised is the maximum satisfaction of desire. To achieve that end, it is in the long run vital to take account of the wills of those who will be affected by the decision. For, otherwise, their desires are unexplored, and there is substituted for the full experience that should be available, the partial experience, perhaps suffused with a sinister interest, which is able to influence the legal source of decision. Maximum satisfaction, in other words, is a function of maximum consultation; and the greater the degree in which the citizen shares in making the rules under which he lives, the more likely is his allegiance to those rules to be free and unfettered. Nor is this all. The process of being consulted gives him a sense of being significant in the state. It makes him feel that he is more than the mete recipient of orders. He realizes that the state exists for his ends and not for its own. He comes to see that his needs will be met only as he contributes his instructed judgment to the experience out of which decisions are compounded. He gains the expectation of being consulted, the sense that he must form an opinion on public affairs. He learns to dislike orders which are issued without regard being paid to his will. He comes to have a sense of frustration when decisions are made arbitrarily, and without an attempt to build them from the consent of those affected. He learns vigilance about the ways of power. Those who are trained to that vigilance become the conscious guardians of liberty.

For they will protest against what they regard as the invasion of their rights, and tribute will have to be paid to their protest. In any community, fortunately for ourselves, power is always upon the defensive; and when men are vigilant to expose its encroachments it is urgent to seek their good opinion. Those active-minded enough to fight for their rights will, doubtless, be always in a minority; but they prick the indifferent multitude into thought and they thus act as the gadflies of liberty. The handful of American lawyers who protested against the methods of the Department of Justice in 1920 forced its officials to a change of their ways. The little group of men who, in season and out of season, have protested that the white man’s burden ought not, in justice, to be borne by the black, have the Mandates’ system of the League of Nations to their credit: what E. D. Morel did for the Congo, what H. W. Nevinson did for Portuguese Angola, these are lessons in the service of citizenship to liberty. And it is the peculiar value of this habit of mind that it grows by what it feeds on. To accustom the average man to regard himself as a person who must be consulted is, in the long run, to assure him, through consultation, of satisfaction. For the holders of power are always desirous of finding the convenient routine; and if they are driven by pressure to give the people freedom, they will discover that this is the object they have set before themselves.

Into the institutional pattern which such a federalization of authority requires I cannot here enter.[25] It must suffice to say that it makes totally inadequate the traditional forms even of the democratic state. For the notion that, when the citizen has chosen his representatives for Parliament or his local authority, he can sit back in the comfortable knowledge that his wants are known, his interests safeguarded, has not one jot of evidence to support it. We need, of a certainty, a much more complex scheme. We have not only to provide for more adequate relationships between Parliament and the administrative process; we have also to integrate the latter with the public it serves on a much ampler scale than any we have hitherto imagined. I have elsewhere tried to show how vital in this context is the device of the advisory committee. Its value both as a check upon bureaucracy, and as a means of making decision genuinely representative in character, becomes the more clear the wider our experience of its functioning.

But even this is not enough. There will never be liberty in any state where there is an excessive concentration of power at the centre. The need for a wide conference of authority away from that centre becomes more obvious with the growth of our experience. If the decisions to be made are to embody the needs of those affected by them, the latter must have major responsibility for their making. All of our problems are not central problems; and to leave to the central government the decision of questions which affect only a portion of the community is to destroy in that portion the sense of responsibility and the habit of inventiveness. The inhabitants of any given area have a consciousness of common purposes, a sense of the needs of their neighbourhood, which only they can fully know. They find that the power to satisfy them of themselves gives to them a quality of vigour far greater in the happiness it produces than would be the case if satisfaction were always provided by, or controlled from, without. For administration from without always lacks the vitalizing ability to be responsive to local opinion; it misses shades and expressions of thought and want which are urgent to successful government. It lacks the genius of place. It does not elicit creative support from those over whom it rules. It makes for mechanical uniformity, an effort to apply similar rules to unsimilar things. It is too distant from the thing to be done to awaken interest from those concerned in the process of doing it. Centralized government in local matters may be more efficient than a decentralized system; but that superior efficiency will never, as Mill long ago pointed out, compensate for an inferior interest in the result.

I believe, therefore, that, with all its difficulties and dangers, the area of local government should be as little circumscribed as possible. The German system, of laying down what a local authority may not do, and leaving it free to experiment outside that realm of prohibition, seems to me superior both in principle and result to its Anglo-American antithesis. Thereby we gain not only the knowledge which comes from varied social experiment, but the freedom born of citizenship trained in the widest degree to think for itself and to solve its own problems. Most imposed solutions of a uniform character only succeed where their material is genuinely uniform. That is rarely the case in these matters. And even the impatient reformer ought sometimes to think whether, say, forcing a child-labour law on Georgia by federal amendment will lead to a genuine and whole-hearted application of its terms; whether, in fact, it will not persuade to hatred of the law, even contempt for the law, by encouraging evasion of it. Successful legislation is almost always legislation for which the minds of men are anxious; the channels of assent to it can rarely be dug too deep.

All, moreover, that I am saying of territorial locality, seems to me to apply, with no less emphasis, to what may be termed functional areas also. Everyone acquainted with the history of churches realizes the necessity of leaving them free to develop their own internal life. On matters like ecclesiastical government, dogma, ceremonial, interference by the state is almost invariably disastrous in its results. What is true of churches is true also, _mutatis mutandis_, of other associations. Bodies like the legal and medical professions are much better able to direct their own internal life than to have it directed for them by the state. It is necessary, of course, to prevent them from developing into monopolies; and to that end it is essential to devise a framework of principle within which they must work, to retain, also, the right to its revision from without from time to time. But that said, few would, I think, deny that what we call professional standards, the jealousy for the honour of the profession, the sense of _esprit de corps_, the realization that its members owe to the community something more than the qualities for which payment can be exacted, these things are born of the large degree of freedom to define their own life the professions enjoy.

It is, I think, important to extend that notion of self-government beyond the professions. We ought to learn to think of industries like cotton and coal as entities not less real than Lancashire or New York, as capable, therefore, of being organized for the purpose of government. Most of the plans as current today for national economic councils are not, in my judgment, of great value; the satisfactory weighting of the different elements is really insoluble, and any problem that concerns industry as a whole seems to me at once civic in its nature and, therefore, the proper province of the legislative assembly of the state.[26] But these considerations do not apply to industries taken individually, or linked together at special points of intimate contact. It does not seem to me inconceivable that we should create a Parliament for the mining industry, in which capital, management, labour and the consumer, should each have their due representation, and to which should be confided the determination of industrial standards on the model of professional self-government. I should give to this Parliament a power of delegated legislation which would enable it to frame rules of conduct binding upon all the members of the industry. Thus, while Georgia might refuse to pass a child-labour law, a particular industry in Georgia might refuse to allow its members to engage child labour in field or factory. There might be developed in this way a body of industrial legislation and jurisprudence growing naturally out of the experience of those who participate in the operation of the industry, and imposed with a real sense of freedom because it has been developed from within and is not the outcome of an external control. The help this system would give to the creative-minded employer, on the one hand, and the adventurous trade-union, on the other, needs no emphasis from me. Something of what it might effect, if planned in a wholesale way, the experiments of the Amalgamated Clothing Workers and the Baltimore and Ohio Railroad have amply demonstrated. They show clearly, I venture to suggest, that an authority born of consent is always definitely superior to an authority born of coercion. And the reason is the simple but vital one that creative energy is liberated only in the atmosphere of freedom.

VI

In all that I have so far said there is implied a theory of the nature of law upon which, perhaps, I ought to say a word. The view I am taking suggests that law is not simply a body of commands justifiable by virtue of their origin. Laws are rules seeking to satisfy human desires. They are the more certain of acceptance the more fully they seek to inquire what desires it is urgent to satisfy, and the best way of inquiry is to associate men with each stage of the process of law-making. For men, in fact, will not obey law which goes counter to what they regard as fundamental. Their notion of what is fundamental may be wrong, or unwise, or limited; but it is their notion, and they do not feel free unless they can act by their own moral certainties. It is useless to tell them that an assumption on their part that they are entitled to forgo obedience will result in anarchy. Every generation contains examples of men who, in the context of ultimate experience, deliberately decide that an anarchy in which they seek to maintain some principle is preferable to an order in which that principle must be surrendered. The South in 1861, Ulster in 1914, the Communist in the context of a capitalist society, these are but variations on the great theme of Luther’s classic _Ich Kann nicht anders_. They illustrate the inescapable truth that law must make its way to acceptance through the channel of consenting minds.

Let me put this in a different way. Law is not merely a command; it is also an appeal. It is a search for the embodiment of my experience in the rule it imposes. The best way, therefore, to make that search creative is to consult me who can alone fully report what my experience is. There can be no guarantee that law will be accepted save in the degree that this is done. Legal right is so made as the individual recipient of a command invests it with right; he gives it his sanction by relating it successfully to his own experience. When that relation cannot be made, the authority of law is always in doubt. And it is in doubt because, by contradicting the experience of those whom it seeks to control, it seems to them a frustration of their personality. To accept the control would be to become unfree.

An extreme way of putting this view would be to say that law is made by the individual’s acceptance of it, that the essence of the law-making process, is the consent of interested minds. At points of marginal significance, that is, I think, true; and the consequences of the truth are obviously important. Authority, if my view is right, is always acting at its peril. It lives not by its power to command but by its power to convince. And conviction is born of consent for the simple reason that the real field of social action is in the individual mind. Somewhere, inevitably, the power to coerce that mind to ways of thoughts of which it does not approve, breaks down; man, as Tyrrell said, is driven on “to follow the dominant influence of his life even if it should break the heart of all the world”. That is the stark fact which conditions the loyalty any authority seeks to secure. At some point, it cannot be imposed but must be won from us. And the greater the degree in which it springs from that persuasion, the greater, also, is the success of authority in imposing its solutions. No power can ever hope for successful permanence, no power, either, is entitled to it, which does not make its way, in vital matters, through the channels of consent.

From this two conclusions seem to me to flow. Ours is not a universe in which the principles of a unified experience are unfolded. It is a multiverse embodying an ultimate variety of experiences, never identical, and always differently interpreted. There is enough similarity of view to enable us, if we have patience and goodwill, to make enough of unity to achieve order and peace. But that similarity is not identity. It does not entitle us to affirm that one man’s experience can be taken as the representation of another’s. It does not justify the inference that I shall find what I most truly desire in the desire of another. I am not a part of some great symphony in which I realize myself only as an incident in the _motif_ of the whole. I am unique, I am separate, I am myself; out of these qualities I must build my own principles of action. These are mine only, and cannot be made for me, at least creatively, by others. For their authority as principles comes from the fact that I recognize them as mine. Into them, as principles, I pour my personality, and life, for me, derives its meaning from their unique texture. To accept the forcible imposition of other principles upon me, which I do not recognize as the expression of my experience, is to make of me who might be free, a slave. I become an instrument of alien purposes, devoted to an end which denies my self-hood. Law, therefore, as coercion is always an invasion of personality, an abridgement of the moral stature of those whom it invades. To be true to its purpose, it must reduce the imperative element to a minimum if it is to release creativeness and not destroy it.

The individual, therefore, is entitled to act upon the judgment of his conscience in public affairs. He is entitled to assume that he will not find the rules of the conduct he ought to pursue objectified in any institution or set of institutions. I agree that, for most of us, conscience is a poor guide. It is perverse, it is foolish, the little knowledge it has is small alongside the worth of the social tradition. But perverse, foolish, ignorant, it is the only guide we have. Perverse, foolish, ignorant, it is at least ours; and our freedom comes from acting upon its demands. We ought, doubtless, to convince ourselves that the path it indicates is one we have no alternative but to follow. We ought to seek the best possible means for its instruction and enlightenment. We should remember that civilization is, at best, a fragile thing, and that to embark upon a challenge to order is to threaten what little security it has. It may even be wise, as T. H. Greene once put it, to assume that we should approach the state in fear and trembling, remembering constantly the high mission with which it is charged.

All this may be true, and yet it seems to me to leave the individual no option but to follow conscience as the guide to civic action. To do otherwise is to betray freedom. Those who accept commands they know to be wrong, make it easier for wrong commands to be accepted. Those who are silent in the presence of injustice are in fact part-authors of it. It is to be remembered that even a decision to acquiesce is a decision, that what shapes the substance of authority is what it encounters. If it meets always with obedience, sooner or later it will assume its own infallibility. When that moment comes, whatever its declared purpose, the good it will seek will be its own good and not that of those involved in its operations. Liberty means being faithful to oneself, and it is maintained by the courage to resist. This, and this only, gives life to the safeguards of liberty; and this only is the clue to the preservation of genuine integrity in the individual life.

If it is objected that this is a doctrine of contingent anarchy, that it admits the right of men to rebellion, my answer is that the accusation is true. But is its truth important? Order, surely, is not the supreme wrong. Power is not conferred upon men for the sake of power, but to enable them to achieve ends which win happiness for each of us. If what they do is a denial of the purpose they serve; if, as we meet their acts, there appears in them an absence of goodwill, a blindness to experience alien from their own, an incapacity imaginatively to meet the wants of others, what alternatives have we save a challenge to power or a sacrifice of the end of our life? We do not condemn Washington because there came a moment in his career when he was compelled to recognize that the time for compromise with England had passed. We do not, even more notably, condemn those early Christians who refused to offer incense to the Gods. We have to act by the dictates of our conscience knowing, as Washington knew, as the early Christians recognized, that the penalties of failure are terrible. But we can so act, also, knowing that there is a sense in which no man who serves his conscience ever fails.

For by that service he becomes a free man, and his freedom is a condition of other men’s freedom. There is immense significance in the fact that those who fought for religious liberty were the unconscious progenitors of civil liberty also. When they demanded the right to worship the God they knew, in their own mind they were insisting that in one sphere, at least, of human experience, their own perception must count as ultimate. They consecrated freedom to the service of God. But that, after all, is only one aspect of freedom. Its consecration to the service of man is, for some of us, not less vital and pervasive. To fight for the assurance that a man may do his duty as he conceives it is not only to fight for freedom, but for all the ends which the emancipation of mankind seeks to attain. I do not know whether liberty is the highest objective we can serve. I do assert that no other great purpose is possible of achievement save in the terms of fellowship with freedom.