Chapter I: The Nature of Liberty (1)

I

I mean by liberty the absence of restraint upon the existence of those social conditions which, in modern civilization, are the necessary guarantees of individual happiness. I seek to inquire into the terms upon which it is attainable in the Western world, and, more especially, to find those rules of conduct to which political authority must conform if its subjects are, in a genuine sense, to be free.

Already, therefore, I am maintaining a thesis. I am arguing, first, that liberty is essentially an absence of restraint. It implies power to expand, the choice by the individual of his own way of life without imposed prohibitions from without. Men cannot, as Rousseau claimed, be forced into freedom. They do not, as Hegel insisted, find their liberty in obedience to the law. They are free when the rules under which they live leave them without a sense of frustration in realms they deem significant. They are unfree whenever the rules to which they have to conform compel them to conduct which they dislike and resent. I do not deny that there are types of conduct against which prohibitions are desirable: I ought, for instance, to be compelled, even against my wish, to educate my children. But I am arguing that any rule which demands from me something I would not otherwise give is a diminution of my freedom.

A second implication is important. My thesis involves the view that if in any state there is a body of men who possess unlimited political power, those over whom they rule can never be free. For the one assured result of historical investigation is the lesson that uncontrolled power is invariably poisonous to those who possess it. They are always tempted to impose their canon of good upon others, and, in the end, they assume that the good of the community depends upon the continuance of their power. Liberty always demands a limitation of political authority, and it is never attained unless the rulers of a state can, where necessary, be called to account. That is why Pericles insisted that the secret of liberty is courage.

By making liberty the absence of restraint, I make it, of course, a purely negative condition. I do not thereby mean to assume that a man will be the happier the more completely restraints are absent from the society to which he belongs. In a community like our own, the pressure of numbers and the diversity of desires, make necessary both rules and compulsions. Each of these is a limitation upon freedom. Some of them are essential to happiness, but that does not make them for a moment less emphatically limitations. Our business is to secure such a balance between the liberty we need and the authority that is essential as to leave the average man with the clear sense that he has elbow-room for the continuous expression of his personality.

Nor must we confound liberty with certain other goods without which it has no meaning. There may be absence of restraint in the economic sphere, for example, in the sense that a man may be free to enter any vocation he may choose. Yet if he is deprived of security in employment he becomes the prey of a mental and physical servitude incompatible with the very essence of liberty. Nevertheless, economic security is not liberty though it is a condition without which liberty is never effective. I do not mean that those who can take their ease in Zion are thereby free men. Once and for all, let us agree that property alone does not make a man free. But those who know the normal life of the poor, its perpetual fear of the morrow, its haunting sense of impending disaster, its fitful search for beauty which perpetually eludes, will realize well enough that, without economic security, liberty is not worth having. Men may well be free and yet remain unable to realize the purposes of freedom.

Again, we live in a big world, about which, at our peril, we have to find our way. There can, under these conditions, be no freedom that is worth while unless the mind is trained to use its freedom. We cannot, otherwise, make explicit our experience of life, and so report the wants we build upon that experience to the centre of political decision. The right of the modern man to education became fundamental to his freedom once the mastery of Nature by science transformed the sources of power. Deprive a man of knowledge, and the road to ever greater knowledge, and you will make him, inevitably, the slave of those more fortunate than himself. But deprivation of knowledge is not a denial of liberty. It is a denial of the power to use liberty for great ends. An ignorant man may be free even in his ignorance. In our world he cannot employ his freedom so as to give him assurance of happiness. A compulsory training of the mind is still compulsion. It is a sacrifice of some liberty to a greater freedom when the compulsion ceases.

Two other preliminary remarks are important to the thesis I am urging. Everyone knows the danger to freedom which exists in any community where there is either special privilege on the one hand or what is termed the tyranny of the majority on the other. John Stuart Mill long ago pointed out that in the early history of liberty it was normally and naturally conceived as protection against the tyranny of the political rulers. The latter disposed of a power to which its subjects were compelled to conform; and it became vital in the interest of freedom to limit that power either by the recognition of special immunities or by the creation of constitutional guarantees. But even in the modern state the underlying substance of the argument may not be neglected. Power as such, when uncontrolled, is always the natural enemy of freedom. It prevents the exercise of those capacities which are released for activity by the absence of restraint. Wherever it is possessed in excess, it tilts the balance of social action in favour of its possessors. A franchise limited to the owners of property means legislation in the interests of that class. The exclusion of a race or creed from a share in citizenship is, invariably, their exclusion also from the benefits of social action. In any state, therefore, where liberty is to move to its appointed end, it is important that there should be equality.

Now equality is not the same thing as liberty. I do not, indeed, agree with Lord Acton’s famous dictum that the ‘passion for equality makes vain the hope of freedom’;[1] liberty and equality are not so much antithetic as complementary. Men might be broadly equal under a despotism, and yet unfree. But it is, I think, historically true that in the absence of certain equalities no freedom can ever hope for realization. The acute mind of Aristotle long ago saw that the craving for equality is one of the most profound roots of revolution. The reason is clear enough. The absence of equality means special privilege for some and not for others, a special privilege which is not, so to say, in nature but in a deliberate contrivance of the social environment. Men like Harrington and Madison and Marx all insisted, and with truth, that whatever the forms of state, political power will, in fact, belong to the owners of economic power. We need not argue that our happiness depends upon the possession of political power; we can argue that exclusion from it is likely to mean exclusion from that which largely determines the contours of happiness. And it follows that the more equal are the social rights of citizens, the more likely they are to be able to utilize their freedom in realms worthy of exploration. Certainly the history of the abolition of special privilege has been, also, the history of the expansion of what in our inheritance was open to the common man. The more equality there is in a State, the more use, in general, we can make of our freedom.

Here, perhaps, it is worth while for a moment to dwell upon the meaning of equality. Nothing is easier than to make it a notion utterly devoid of all common sense.[2] It does not mean identity of treatment. The ultimate fact of the variety of human nature, our differences of both hereditary capacity and social nurture, these are inescapable. To treat men so different as Newton and Byron, Cromwell and Rousseau, in a precisely similar way is patently absurd. But equality does not mean identity of treatment. It is an insistence that there is no difference inherent in nature between the claims of men to happiness. It is therefore an argument that society shall not construct barriers against those claims which weigh more heavily upon some than upon others. It shall not exclude men from the legal profession because they are black or Wesleyans or freemasons. It shall not deny access to the Courts to men of whose opinions society in general disapproves. The idea of equality is obviously an idea of levelling. It is an attempt to give each man as similar a chance as possible to utilize what powers he may possess. It means that he is to count in the framing of decisions where these affect him, that whatever legal rights inhere in any other man as a citizen, shall inhere in him also; that where differences of treatment are meted out by society to different persons, those differences shall be capable of explanation in terms of the common good. It means the recognition of urgent need in all--food, for instance, and clothing, and shelter--before there is special recognition of non-urgent claims in any.

Equality, so regarded, seems to me inescapably connected with freedom. For equality, so regarded, seems, in the first place, to mean the organization of opportunities; and, in the second place, it means that no man’s opportunities are sacrificed, except on terms of social principle, to the claims of another. In the view I am taking, no child could be deprived of education that another might receive it; but in a choice of men say for a post in the Treasury, one might be preferred to another on the ground of ability or character or training. The idea of equality, in a word, is such an organization of opportunity that no man’s personality suffers frustration to the private benefit of others. He is given his chance that he may use his freedom to experiment with his powers. He knows that in his effort to attain happiness no barriers impede him differently from their incidence upon others. He may not win his objective, but, at least, he cannot claim that society has so weighted the scale against him as to assure his defeat.

It is often argued that a theory of liberty which starts from the effort of the individual to attain happiness must break down because it fails to remember that society also has rights, and that these are necessarily superior to those of its component parts. Any organization, it is said, is more than the units of which it is composed. A nation-state like America or England is not merely a body of Englishmen or Americans, but something beyond them. It has a life and a reality, needs and purposes, which are not exhausted by the sum of the needs and purposes of its individual members. The liberty of each citizen is born of, and must be subordinated to, the liberty of that greater whole from which his whole meaning is derived. For the rights of each of us depend upon the protective rampart of social organization. It is because the State enforces our rights as obligations upon others that we have the opportunity to enjoy them. We are free, it is said, not for ourselves but for the society which gives us meaning. Where our interests conflict with the obviously greater interest of the society, we ourselves must give way.

It is, I think, true to say that an individual abstracted from society and regarded as entitled to freedom outside its environment is devoid of meaning. None of us is Crusoe or St. Simeon Stylites on his pillar. We are born to live our lives in London or New York, Paris or Berlin or Rome. Our liberty has to be realized in a welter of competing and co-operating interests which only achieve rational co-ordination by something not unlike a miracle. The need to give way to others, to accept, that is, restraint upon our right to unfettered activity is inherent in the nature of things. But the surrender we make is a surrender not for the sake of the society regarded as something other than its members, but exactly and precisely for men and women whose totality is conveniently summarized in a collective and abstract noun. I do not understand how England, for instance, can have an end or purpose different from, or opposed to, the end or purpose of its citizens. We strive to do our duty to England for the sake of Englishmen; a duty to England separate from them, and in which they did not share, is surely inconceivable.

Or, at least, would be inconceivable, were it not that perhaps the most influential theory of the state in our own time has been built upon it. What is termed the idealist theory of the state is broadly the argument that individual freedom means obedience to the law of the society to which I belong. My personality, it is said, is simply an expression of the organized whole to which I belong. When I say that I am seeking to realize myself, I mean in fact that I am seeking to be one with the order of which I am a part. I am not independent of, or isolated in, that order, but one with it and of it. As it realizes itself, so am I also realized. The greater and more powerful it becomes, the greater and more powerful do I become as a consequence. The more fully, therefore, I serve it, the more fully do I express myself. True liberty is thus so far from being an absence of restraint that it is essentially subordination to a system of rational purposes which receive their highest expression in the activity of the state. To be one with that activity may well then be regarded as the highest freedom a citizen can know.

In the whole history of political philosophy there is nothing more subtle than the skill with which the idealist school has turned the flank of the classic antithesis between liberty and authority. From the Greeks to Rousseau it was always conceived that a man’s freedom is born of a limitation upon what his rulers may exact from him; since Rousseau, and, more particularly, since Hegel, it has been urged that conformity to a code, and even compulsory obedience to it, is the very essence of freedom. So startling a paradox needs, at the least, explanation. Liberty, it argues, is not a mere negative thing like absence of restraint. It is rather a positive self-determination of the will which, in each of us, seeks the fulfilment of rational purpose as this lies behind, and gives unified meaning to, the diversified chaos of purposes in each of us. We desire freedom, that is to say, in order that we may be ourselves at our best. The right object of our wills, the thing which, did we know all the facts, we would truly desire, this is clearly that for which we would seek freedom. This is our real will, and the highest part of ourselves. This will, moreover, is the same in each member of society; for, at bottom, the real will is a common will which finds its highest embodiment in the state. In this view, therefore, the state is the highest part of ourselves. For it represents, in its will, what each of us would seek to be if the temporary, the immediate and the irrational, were stripped from the objects we desire. Its object is what alone we should aim at were we free to will only our permanent good. It is, so to say, the long and permanent end that, in the ultimate analysis, we come individually to will after private experience of wrong direction and erroneous desire. The more intimately, therefore, we make our will one with that of the state, the more completely are we free. The nature of the social bond makes service to its demands the very essence of freedom.

Before I seek to analyse this view, I would point out how simply this argument enables us to resolve the very difficult problem of social obligation. When I obey the state, I obey the best part of myself. The more fully I discover its purposes the more fully, also, there is revealed to me their identity with that at which, in the long view, I aim. So that when I obey it, I am, in fact, obeying myself; in a real sense its commands are my own. Its view is built upon the innumerable intelligences from the interplay of which social organization derives its ultimate form; obviously such a view is superior in its wisdom to the result my own petty knowledge can attain. My true liberty is, therefore, a kind of permanent tutelage to the state, a sacrifice of my limited purpose to its larger end upon the ground that, as this larger end is realized, so I, too, am given realization. I may, in fact, be most fully free when I am most suffused with the sense of compulsion.

To me, at least, this view contradicts all the major facts of experience. It seems to me to imply not only a paralysis of the will, but a denial of that uniqueness of individuality, that sense that each of us is ultimately different from our fellows, that is the ultimate fact of human experience. For as I encounter the state, it is for me a body of men issuing orders. Most of them I can obey either with active good will or, at least, with indifference. But I may encounter some one order, a demand, for instance, for military service, a compulsion to abandon my religious faith, which seems to me in direct contradiction to the whole scheme of values I have found in life. How I can be the more free by subordinating my judgment of right to one which directly changes that judgment to its opposite, I cannot understand. If the individual is not to find the source of his decisions in the contact between the outer world and himself, in the experience, that is, which is the one unique thing that separates him from the rest of society, he ceases to have meaning as an individual in any sense that is creative. For the individual is real to himself not by reason of the contacts he shares with others, but because he reaches those contacts through a channel which he alone can know. His true self is the self that is isolated from his fellows and contributes the fruit of isolated meditation to the common good, which, collectively, they seek to bring into being.

A true theory of liberty, I urge, is built upon a denial of each of the assumptions of idealism. My true self is not a selected system of rational purposes identical with those sought by every member of society. We cannot split up the wholeness of personality in this way. My true self is all that I am and do. It is the total impression produced by the bewildering variety of my acts, good and bad and indifferent. All of them go to the formation of my view of the universe; all of them are my expression of my striving to fulfil my personality. Each, while it is, is real, and each, as real, must give way only in terms of a judgment I make, not of one made for me by some other will, if I am to remain a purposive human being serving myself as an end. This attempt, in a word, at the extraction of a partial self from the whole of my being as alone truly myself not only denies that my experience is real, but, also, makes me merely an instrument to the purpose of others. Whatever that condition is, surely it cannot be recognized as freedom.

But we can go further than this. I see no reason to suppose that this assumed real will is identical in every member of society. The ultimate and inescapable fact in politics is the final variety of human wills. There is no continuum which makes all of them one. Experience suggests common objects of desire, but each will that wills these common objects is a different will in every sense not purely metaphorical. We all have a will to international peace. But the unity these make is not in the will but in the fusion of separate wills to the attainment of a common purpose. And we must remember that in every society the objects of wills cannot, in some mystic fashion, be fused into a higher unity somehow compounded of them all. I see no meaning, for instance, in the statement that the antithetic purposes of Jesuits and Freemasons are somehow transcended in a higher purpose which resumes them both; that is to say that a Jesuit or a Freemason is most truly himself when he ceases to be himself, which, frankly, seems to me nonsense. A member of the Praesidium of the Third International, whose will aims supremely at the overthrow of capitalism, is not somehow at one with the will of the President of the British Federation of Industries to whom all the purposes of the Third International are anathema. Both, doubtless, will the good; but the point is that each wills the good as he sees it, and each would regard the fulfilment of the other’s ideal of good as a definite destruction of his own. There is, therefore, no single and common will in society, unless we mean thereby the vague concept, entirely useless for political philosophy, that men desire the good. Each of us desires the good as he sees it; and each of us sees a good derived from an individual and separate experience into which no other person can fully enter. Our connection with others is, at the best, partial and interstitial. Our pooling of experiences to make a common purpose somewhere is in no case other than fragmentary. We remain ourselves even when we join with others to attain some common object of desire. The ultimate isolation of the individual personality is the basis from which any adequate theory of politics must start.

I reject, therefore, the idea of a real will, and, still more, the idea that there is a common will in society. It is a logical inference therefrom that I should reject also the doctrine that all state-action is, at bottom, the exercise of the real will of society. For, first of all, I see no reason to suppose that social life is ultimately the product of a single and rational mind organizing its activities in terms of a logical process. To speak of the “mind of society”, seems to me merely a metaphorical way of describing a course of action which is made valid by translation into fact. There are no governing principles in social life deliberately emerging from the interplay of its myriad constituent parts. Governing principles emerge; but they emerge through the wills of individual minds. And the state is magnified to excess when it is regarded as embodying a unified will. The state is a complex of rulers and subjects territorially organized and seeking, by the conference of power upon those rulers, effective co-ordination of social activities. They exercise the right to use force, if necessary, to that end. But no one, I think, can examine the course of history and say that the experience of any state indicates a permanent embodiment of the highest good we know in the purpose of the state. Our rulers, doubtless, aim at the good as they see it. Yet what they see as good may not be so recognizable to us, and may well provoke in us the sense that life would not be worth living if their view was to prevail. The unity of the state, in a word, is not inherently there. It is made by civic acceptance of what its rulers propose. It is not necessarily good because it is accepted; it is not necessarily right because it is proposed. Obedience ought always to be a function of the substance contained in the rules made by government; it is a permanent essay in the conditional mood.[3]

Here, of course, the idealist retorts that he is dealing not with the states of history, but with the state as such; he is concerned with the “pure” instance and not with deviations from the ideal.[4] But it is with actual states that we have to deal in everyday life as we know it, with states the policy of which is directed by men who are human like ourselves. The policy they announce must, obviously, be subject to our scrutiny; and the result of our judgment is necessarily made out of an experience not identical with, even though it be similar to, theirs. I cannot believe that a theory fits the facts of history which assumes that this policy is going to be right, whatever it is; and that freedom will be found only in acceptance of it. I do not believe that the Huguenot of 1685 was made the more free by accepting, against his conscience, the Revocation; nor do I believe that Luther would have been more free had he accepted the decrees of Rome and abandoned his protest. Man is a one among many obstinately refusing reduction to unity. His separateness, his isolation, are indefeasible; indeed, they are so ultimate that they are the basis out of which his civic obligations are builded. He cannot abandon the consequences of his isolation which are, broadly speaking, that his experience is private and the will built out of that experience personal to himself. If he surrenders it to others, he surrenders his personality. If his will is set by the will of others, he ceases to be master of himself. I cannot believe that a man no longer master of himself is in any meaning sense free.

II

If we reject a view which, like that just considered, seeks to dissolve the reality of the individual into the society of which he is a part, what are we left with as the pattern within which a man seeks freedom? Let us try to draw a picture of the place of man in a community like our own. He finds himself involved in a complex of relationships out of which he must form such a pattern of conduct as will give him happiness. There are his family, his friends, the church to which he may belong, his voluntary association, trade union, or employers’ association or whatever it may be, and there is the state. All of these, save the state, he may in greater or less degree avoid. A man may cut himself off from family or friends; he may refuse membership of a church or vocational body; he cannot refuse membership of the state. Somewhere or other, he encounters it as a body of persons issuing orders, and he is involved in the problem of deciding whether or no he will obey those orders. Every order issued is, in a final analysis, issued by a person or persons to another person or persons. When we say that, in such a complex of relationships as this, that a man is free, what do we mean? We know that if his Church issues an order to him of which he disapproves, he can leave his church; so, too, with all other bodies save the state. The latter can, if he seeks evasion of its commands, use compulsion to secure obedience to its orders. It makes, we say, the law, and a member of the state is legally compelled to obey the law.

But he is not free merely because he obeys the law. His freedom, in relation to the law, depends on the effect of any particular order upon his experience. He is seeking happiness; some order seems to him a wanton invasion of that happiness. He may be right or wrong in so thinking; the point of fact is that he has no alternative but to go by his own moral certainties. Now freedom exists in a state where a man knows that the decisions made by the ultimate authority do not invade his personality. The conditions of freedom are then those which assure the absence of such invasion. The citizen who asks for freedom is entitled to the conditions which, collectively, are the guarantees that he will be able to go on the road to his happiness, as he conceives it, unhindered. Neither conditions nor guarantees will ever be perfect; nor will they ever cover all upon which happiness depends. The state, for instance, may say that I may marry the woman I love; it cannot say that she will marry me if I so desire. The freedom it secures to me is the absence of a barrier in the way of marriage if I can win her consent.

From this angle, liberty may appropriately be resolved into a system of liberties. There are realms of conduct within which, to be free, I must be permitted to act as I please; to be denied self-expression there, is to be denied freedom. What we need to know is, I suggest, first what those realms of conduct are, and, second, what my duty as a citizen is when I am, in any one of them, prohibited from acting as I please. The difficulty here, of course, it is impossible to exaggerate. It is the problem of knowing when a man ought deliberately to make up his mind to break the law or to refuse obedience to it. In the idealist theory, this problem does not arise; it is answered _a priori_ by the definition of freedom as obedience to the law. But because we have rejected this view, we have to admit that there will be occasional disobedience, at the least, and that this may be justified. We have to discover the principles of its justification.

Liberty may be resolved into a system of liberties; and from this angle it may be said that it is the purpose of social organization to see to it that this system is adequately safeguarded. How can the state, which charges itself with the function of supreme co-ordination, properly fulfil this task? How can it guarantee to me such an environment to my activity that I do not suffer frustration in my search for happiness?

There have been many answers to this question, some of them of the highest interest and importance. One or two I wish to consider partly because of their significance in themselves, and partly because, from that consideration, I wish to make the inference that no merely mechanical arrangements will ever secure freedom in permanence to the citizens of a state. While there are certain constitutional forms which are, as I think, essential to freedom, their mere presence as forms will not, of themselves, suffice to make men free. I shall seek, further, to draw the conclusion that, whatever the forms of social organization, liberty is essentially an expression of an impalpable atmosphere among men. It is a sense that in the things we deem significant there is the opportunity of continuous initiative, the knowledge that we can, so to speak, experiment with ourselves, think differently or act differently, from our neighbours without danger to our happiness being involved therein. We are not free, that is, unless we can form our plan of conduct to suit our own character without social penalties. Freedom is in an important degree a matter of law; but in a degree not less important it is a matter, also, of the _mores_ of the society outside the sphere within which law can operate.

You will observe that I am still, from the angle of political organization, thinking of liberty as a safeguard of the individual against those who rule him. I do so for the best of reasons. Whoever exerts power in a community is tempted to the abuse of power. Even in a democracy, we must have ways and means of protecting the minority against a majority which seeks to invade its freedom. Mankind has suffered much from the assumption that, once the people had become master in its own house, there was no limit to its power. You have only to remember the history of racial minorities like the negroes, of religious or national minorities like Jews and Czechs, to realize that democracy, of itself, is no guarantee of freedom. This raises the larger question of whether freedom in the modern state can ever be satisfactorily secured by internal sanctions, and whether, in fact, it is ever durably possible save in the terms of a strong and stable international organization. For, clearly, we must not think of freedom as involving only an individual set over against the community; it involves also the freedom of groups, racial, ecclesiastical, vocational, set over against the community and the state; it involves also the relation of states to one another, as, for instance, in the problem of annexation. No Englishman would think himself free if his domestic life were defined for him by another state; and no German but has had a bitter sense of unfreedom during the foreign occupation of the Rhineland. Our generation, at least, is unlikely to under-estimate the problem of what limits may be set to the demand for freedom by a national group.

III

Everyone who considers the relation of liberty to the institutions of a state will, I think, find it difficult to resist the conclusion that without democracy there cannot be liberty. That is not an over-popular thesis in our time. A reaction against democratic ideals is the fashion, and the dictatorships which proliferate over half Europe are earnest in maintaining their obsolescence. Yet consider, for a moment, what democracy implies. It involves a frame of government in which, first, men are given the chance of making the government under which they live, in which, also, the laws that government promulgates are binding equally upon all. I do not think the average man can be made happy merely by living in a democracy: I do not see how he can avoid a sense of continuous frustration unless he does. For if he does not share in making the government, if he cannot, where his fellows so choose, be himself made one of the rulers of the state, he is excluded from that which secures him the certainty that his experience counts. To read the history of England before the enfranchisement of the wage-earner is to realize that however small is the value of the franchise it still assures the attention of government to grievance. The right, therefore, to the franchise is essential to liberty; and a citizen excluded from it is unfree. Unfree for the simple reason that the rulers of the state will not regard his will as entitled to consideration in the making of policy. They will do things for him, but not those things he himself regards as urgent; as Parliament a hundred years ago met the grim problem of urban want by building more churches to the glory of the Lord. Whatever is to be said against the democratic form of state, it seems to me unquestionable that it has forced the needs of humble men on the attention of government in a way impossible under any other form.

To be free a people must be able to choose its rulers at stated intervals simply because there is no other way in which their wants, as they experience those wants, will receive attention. It is fundamental to the conference of power that it should never be permanent. If it is so, it ceases to give attention to the purposes for which it is conferred and thinks only of the well-being of those who can exercise it. That has been, notably, the history of monarchy and aristocracy, and in general, of the practice of colonial dominion. Power that is unaccountable makes instruments of men who should be ends in themselves. Responsible government in a democracy lives always in the shadow of coming defeat; and this makes it eager to satisfy those with whose destinies it is charged.

That is a general principle which, stated as baldly as this, does not adequately illustrate the substance it implies. The history of the struggle for popular freedom has given us knowledge of certain rules in the organization of a state the presence of which is fundamental to freedom. It can, I think, be shown that no citizen is secure in liberty unless certain rights are guaranteed to him, rights which the government of the state cannot hope to overthrow; and unless, to secure the maintenance of those rights, there is a separation of the judicial from the executive power.

The citizens of a state choose men to make the laws under which they are to live. It is urgent that they should be binding upon all without fear or favour; that I, for instance, should be able to live secure in the knowledge that they will not apply to me differently from their incidence upon others. Clearly enough, in the modern state, the application of law to life demands a vast body of civil servants to administer it. Not the least important problem of our time is that which arises when the legality of their administration is in question. In Anglo-Saxon communities it has been regarded as elementary that the interpretation of law should be entrusted to an independent body of officials--the judges--who can arbitrate impartially between government and citizens. That view I take to be of the first importance to freedom; and its acceptance involves considerations which we must examine in some detail.

The business of a judiciary, broadly speaking, is the impartial interpretation of the law as between government and citizen, or between classes of citizens who dispute with one another. The government, for instance, charges a man with treason; obviously he is deprived of something essential to his freedom if the law is strained so as to make of treason something it in fact is not in order to cover the acts which the government seeks to have accepted as treason. Here, obviously, the judge must be assured that his independence may be maintained with safety to himself. He must not suffer in his person or position because of the view he takes. It must not be within the power either of the government or other persons to deprive him of his authority because, as best he may, he applies the law. This, as I think, makes it essential that all judicial appointments should be held during good behaviour. There may be an age-limit of service, of course; but, this apart, nothing should permit the removal of a judge from the bench except corruption or physical unfitness. I do not, therefore, believe that a judicial system founded upon popular election is a satisfactory way of choosing judges, the more so if submission to re-election is involved; and the system, abandoned in England in 1701, of making judicial appointment dependent upon the pleasure of government is equally indefensible. Once a man has been appointed to judicial office nothing must stand in the way of his complete independence of mind. Election, re-election, a power in the government to dismiss, are all of them incompatible with the function the judge is to perform. They will not, as a general rule, either give us the men we want, or enable us to keep them when we have found them.

But we must, I think, go further than this. Judicial independence is not merely a matter of mechanical technique; it is also psychological in character. The judge whose promotion is dependent upon the will of the executive, even more, the judge who may look to a political career as a source of future distinction, neither of these is adequately protected in that independence of mind which is the pivot of his function. No less a person than Mr Chief Justice Taft has told us that he appointed a predecessor to that eminent position at least partly because he approved of one of his decisions.[5] No one could, I think, have confidence in the Bench if it were known that decisions pleasing to a given political party might lead either to promotion or to choice as either a presidential candidate or as Lord Chancellor. It seems to me, therefore, that we must so organize the method of judicial promotion as to prevent the executive from choosing men of its own outlook, and, further, see to it that appointment to the Bench is definitely taken as the end of a political career. These are problems of detailed technique into which I cannot now enter;[6] here I am only concerned to point out that the problem of independence which they raise is one that it is necessary to meet with frankness.

But the judge’s authority as a safeguard of our freedom is in the modern state threatened in another way. Modern legislation is so huge both in volume and extent that the average assembly has neither time nor energy to scrutinize its details. The modern habit is, therefore, to pass Acts which confer a general power, and to leave the filling in of details to the discretion of the department concerned. To this, I think, no one can really take exception. The state must do its work; and it must develop the agencies necessary to that end. But I think we have grave reason for fear when the growth of this delegated legislative authority is accompanied with, or followed by, the conference of powers upon government departments themselves to determine the question of whether the powers they take are legal or no. I regard the growth of delegated legislation as both necessary and desirable; but if it is not gravely to impair our freedom, it should, I think, be developed only under the amplest safeguards.

Decisions, for instance, like that on the _Fu Toy_ case[7] in the United States, and in _Arlidge_ v. _Local Government Board_[8] in England, are clearly a real menace to the liberty of the subject. They suggest a type of executive justice for which the methods of the Star Chamber are the nearest analogy. No body of civil servants, however liberal-minded they may be, ought to be free both to make the law and to devise the procedure by which its legality may be tested; and that, be it remembered, without a power of appeal from their decision. It may be taken for granted that the modern state needs an administrative law; in matters, for instance, like rate-fixing in public utilities, in workmen’s compensation cases, in matters concerning public health, the views of a body of experts in a public department are generally at least as valid as that of the judicial body. But one wants to be certain that in arriving at his decision the expert has been compelled to take account of all the relevant evidence; that the parties to his decision have had their day in court. This seems to me to involve the organization of a procedure for all administrative tribunals which takes account of the lessons we have learned both from the procedure of ordinary courts and from the history of the law of evidence; and it involves an appeal from administrative tribunals to the ordinary courts on all questions where denial of proper procedure is held to involve a denial of proper consideration. Something of this, if I understand the matter aright, has been granted to the American citizen by the Supreme Court in _McCall_ &c. v. _New York_;[9] and I should feel happier about the future of administrative law if I were certain that the principles of that decision applied to all governmental activities of the kind.

Another safeguard is not less essential. We agree, for the most part, in ordinary legal matters that the opinion of a single judge, even when reinforced by the verdict of a jury, ought not to be final in either criminal or civil cases. I should like to see that agreement extended to the sphere of administrative law. Where, that is to say, a departmental tribunal has rendered its decision I should like an appeal to lie to a higher administrative tribunal composed not only of officials, but, also, of laymen of experience in the matters involved who could be trusted to bring an independent mind to the settlement of the matter in dispute. English experience of tribunals like the civil service division of the Industrial Court, and the Commissioners of Income Tax, convinces me that the common sense of a good lay mind is, in this realm, an immense safeguard against departmental error. And we must remember that, however great be the good will of the public services, what, to them, may seem a simple matter of administrative routine, may be to the citizens involved a denial of the very substance of freedom. Certainly a case like _ex parte O’Brien_[10] makes one see how real would be the threat to public liberty if departmental legislation grew without proper judicial scrutiny at every stage of its development.

The problem, however, does not merely end here. There are two other sides of administrative action in which the uncontrolled power of the state is an implicit threat to civic freedom. Of the first, I would say here only a word, since I have treated it fully elsewhere.[11] The modern state is a sovereign state and, as such, there are large realms of its conduct where wrong on its part cannot imply the invocation by the citizen of penalty. The right to sue the state in tort seems to me quite fundamental to freedom. The modern state is in essence a public service corporation. Like any other body, it acts through servants who take decisions in its name. I can see no reason in the world why, like any other body serving the public, it should not be responsible for the torts of its agents. If I am run over by the negligent driver of a railway truck, I can secure damages: I do not see why I am not equally entitled to damages if the truck is the property of, and is driven for, the Postmaster-General of His Majesty.[12]

But, still in the context of administration, the needs of liberty go yet further. There has accreted today about the departments of state a type of discretionary power which seems to me full of danger unless it is exercised under proper safeguards. Examples of it are the power of the Postmaster-General in the United States over the mails and of the Home Secretary in England over requests from aliens for naturalization. An alien applies to the Home Secretary for naturalization. He answers innumerable questions, and presents certificates of good character from citizens who testify on oath to his standing. He has resided in the country for at least five years and he will not, of course, normally venture to apply unless his record is adequate. A request is published in the press for any information about him and, after a due interval, the Home Secretary makes a decision about his case. He has, of course, pursued his own inquiries, and he has, presumably, received information about the applicant upon which his action is based. Now the point that disturbs me is the fact that where a certificate of naturalization is refused, the grounds for rejection are never, even privately to the applicant, made known. He is refused privileges which may be vital to him and his family in the background of accusations which may, doubtless, be true, but may also be completely without foundation and capable, were opportunity afforded, of being immediately and decisively refuted. And so great is the discretionary power of the Minister that he may even substitute his own will for that of the legislature: the Act, for instance, demands a five-year period of residence. The late Home Secretary, Lord Brentford, announced that while he was in office he would grant no certificate unless the applicant had resided in England continuously for a period of thirteen years. It seems to me that this power to deny admission to citizenship, as it is exercised, is a complete denial of natural justice. No person ought to be condemned by accusations he is not given the opportunity to refute. Anyone who wishes to give testimony in a case of this kind ought surely to prove his _bona fides_ by submitting to cross-examination by the applicant or his representative. I should like, therefore, to see the possibility of an appeal from the decision of the Home Secretary to a judge in chambers where the latter would, on a case stated by the Department, hear such evidence as the applicant chose to bring for its refutation and then only make a final decision. Anything less than this seems to me a wanton abuse of freedom; and, _mutatis mutandis_, this type of safeguard seems to me urgent wherever a Minister is given a discretionary power which affects the liberty of the subject.

I accept, therefore, the traditional notion that the separation of the judicial from the executive power, the right of the former to determine the legality of executive decision, is the basis of freedom. I do not, however, believe that the separation of the executive from the legislature is either necessary or desirable. The origin of the idea, as you know, is in the historic misinterpretation of the British Constitution by Montesquieu;[13] and this, in its turn, was due to his misapplication of certain classic dicta of Locke.[14] The fact is that a separation in this realm results in a complete and undesirable erosion of responsibility. The British system, in which the executive, as a committee of the legislative, formulates its plans for acceptance or rejection, has, I think, the clear advantage of showing the electorate exactly where responsibility for action must lie. Where mistakes are made, where there is corruption, or dishonesty, or abuse, it can be brought home forthwith to its authors. In the American system, that is not the case. The President is neither the master nor the servant of the legislature. The latter can make its own schemes; where its views, more, where its party complexion, are different from his, there is a constant tendency to paralysis of administration. Each can blame the other for failure. No clear policy emerges upon which the electorate can form a straightforward judgment. Independence makes for antagonism and antagonism, in its turn, makes for confusion. Such a separation means, almost invariably, the construction of a separate quasi-executive in the legislature, which has an interest of its own distinct from, and often hostile to, that of the President.[15] I can see no necessary safeguard of liberty in this. On the contrary, the British system, where the executive may be at any moment destroyed by the legislature as a penalty for error or wrong, where, also, there lies always the prospect of an immediate and direct appeal to the people as the ultimate and only arbiter of difference, seems to me far more satisfactory.

IV

Another institutional mechanism for the safeguarding of freedom is that of a Bill of Rights. Certain principles, freedom of speech, protection from arbitrary arrest, and the like, are regarded as especially sacred. They are enshrined in a document which cannot, constitutionally, be invaded either by the legislature or the executive, save by a special procedure to which access is difficult. The first Amendment to the American Constitution, for example, lays it down that Congress shall pass no law abridging freedom of speech; and any Act of Congress which touches upon the matter can be challenged for unconstitutionality before the Supreme Court. The Amendment, moreover, cannot be attacked save by the usual process of constitutional change in America; and that means that, except in the event of an American Revolution, it is unlikely ever to be directly attacked at all.