Chapter II: Freedom of the Mind (1)

I

I have sought, so far, to show that, however important be the political mechanisms on which liberty depends, they will not work of themselves. They depend for their creativeness upon the presence in any given society of a determination to make them work. The knowledge that an invasion of liberty will always meet with resistance from men determined upon its repulsion, this, in the last analysis, is the only true safeguard that we have. It means, I have admitted, that a certain penumbra of contingent anarchy always confronts the state; but I have argued that this is entirely desirable since the secret of liberty is always, in the end, the courage to resist.

The most important aspect of this atmosphere is undoubtedly freedom of the mind. The citizen seeks for happiness, and the state, for him, is an institution which exists to make his happiness possible. He judges it, I have urged, by its capacity to respond to the needs he infers from the experience he encounters. That experience, I have insisted, is private to himself. Its predominant quality is its uniqueness. Either it is his own, or it is nothing. The substitution for it of someone else’s experience, however much wider or wiser than his, is, where it is based upon constraint, a denial of freedom. What the citizen, quite rightly, expects from the state is to have his experience counted in the making of policy, and to have it counted as he, and he only, expresses its import.

Obviously enough, if his experience is to count, a man must be able to state it freely. The right to speak it, to print it, to seek in concert with others its translation into the event, is fundamental to liberty. If he is driven, in this realm, to silence and inactivity, he becomes a dumb and inarticulate creature, whose personality is neglected in the making of policy. Without freedom of the mind and of association a man has no means of self-protection in our social order. He may speak wrongly or foolishly; he may associate with others for purposes that are abhorrent to the majority of men. Yet a denial of his right to do these things is a denial of his happiness. Thereby, he becomes an instrument of other peoples ends, not himself an end. That is the essential condition of the perversion of power. Once we inhibit freedom of speech, we inhibit criticism of social institutions. The only opinions of which account is then taken are the opinions which coincide with the will of those in authority. Silence is taken for consent; and the decisions that are registered as law reflect, not the total needs of the society, but the powerful needs which have been able to make themselves felt at the source of power. Historically, the road to tyranny has always lain through a denial of freedom in this realm.

I desire here to maintain a twofold thesis. I shall seek to show, first, that liberty of thought and association--the two things are inextricably intertwined--is good in itself, and second, that its denial is always a means to the preservation of some special and, usually, sinister interest which cannot maintain itself in an atmosphere of freedom. I shall then discuss what restrictions, if any, must be placed upon this right, and the conditions it demands for its maximum realization. I shall, in particular, maintain that all restrictions upon freedom of expression upon the ground that they are seditious or blasphemous are contrary to the well-being of society.

The case for the view that freedom of thought and speech is a good in itself is fairly easy to make. If it is the business of those who exercise authority in the state to satisfy the wants of those over whom they rule, it is plain that they should be informed of those wants; and, obviously, they cannot be truly informed about them unless the mass of men is free to report their experience. No state, for instance, could rightly legislate about the hours of labour if only business men were free to offer their opinion upon industrial conditions. We could not develop an adequate law of divorce if only those happily married were entitled to express an opinion upon its terms. Law must take account of the totality of experience and this can only be known to it as that experience is unfettered in its opportunity of expression.

Most people are prepared to agree with this view when it is made as a general statement; most people, also, recoil from it when its implications are made fully known. For it implies not only the right to beatify the present social order, but the right, also, to condemn it with vigour and completeness. A man may say that England or America will never be genuinely democratic unless equality of income is established there; that equality of income may never be established except by force; that, accordingly, the way to a genuine democracy lies through a bloody revolution. Or he may argue that eternal truth is the sole possession of the Roman Catholic Church; that men can only be persuaded to understand this by the methods of the Inquisition; that, therefore, the re-establishment of the Inquisition is in the highest interest of society. To most of us, these views will seem utterly abhorrent. Yet they represent the generalizations of an experience that some one has felt. They point to needs which are seeking satisfaction, and the society gains nothing by prohibiting their expression.

For no one really ceases to be a revolutionary Communist or a passionate Roman Catholic by being forbidden to be either of these. His conviction that society is rotten at its base is only the more ardently held, his search for alternative ways of expressing his conviction becomes only the more feverish as a result of suppression. Terror does not alter opinion. On the one hand it reinforces it, on the other it makes the substance of opinion a matter of interest to many who would, otherwise, have had no interest whatever in it. When the United States Customs Department suppressed _Candide_ on the ground that it was an obscene book, they merely stimulated the perverse curiosity of thousands to whom _Candide_ would have remained less than a name. When the British Government prosecuted the Communists for sedition in 1925 the daily reports of the trial, the editorial discussion of its result, made the principles of Communism known to innumerable readers who would never, under other circumstances, have troubled to acquaint themselves with its nature. No state can suppress the human impulse of curiosity, and there is always a special delight, a kind of psychological scarcity-value, in knowledge of the forbidden. No technique of suppression has so far been discovered which does not have the effect of giving wider currency to the thing suppressed than can be attained in any other fashion.

But this is only the beginning of the case for freedom of speech. The heresies we may suppress today are the orthodoxies of tomorrow. New truth begins always in a minority of one; it must be someone’s perception before it becomes a general perception. The world gains nothing from a refusal to entertain the possibility that a new idea may be true. Nor can we pick and choose among our suppressions with any prospect of success. It would, indeed, be hardly beyond the mark to affirm that a list of the opinions condemned as wrong or dangerous would be a list of the commonplaces of our time. Most people can see that Nero and Diocletian accomplished nothing by their persecution of Christianity. But every argument against their attitude is an argument also against a similar attitude in other persons. Upon what grounds can we infer prospective gain from persecution of opinion? If the view held is untrue, experience shows that conviction of its untruth is invariably a matter of time; it does not come because authority announces that it is untrue. If the view is true in part only, the separation of truth and falsehood is accomplished most successfully in a free intellectual competition, a process of dissociation by rational criticism, in which those who hold the false opinion are driven to defend their position on rational grounds. If, again, the view held is wholly true, nothing whatever is gained by preventing its expression. Whether it relates to property, or marriage, to religion or the form of the state, by being true it demands a corresponding change in individual outlook and social organization. For untrue opinions do not permanently work. They impede discovery and they diminish happiness. They enable, of course, those to whom they are profitable, to benefit by their maintenance, but it is at the cost of society as a whole.

There is the further question, moreover, of the persons to whom the task of selecting what should be suppressed to be confided. What qualifications are they to possess for their task? What tests are they to apply from which the desirability of suppression is to be inferred? A mere zeal for the well-being of society is an utterly inadequate qualification; for most persons who have played the part of censor have possessed this and have yet been utterly unfit for their task. The self-appointed person, Mr Comstock, for instance, merely identifies his private view of moral right with the ultimate principles of ethics; and only the intellectually blind would ask that the citizen be fitted to his vicious bed of Procrustes. The official censor, a man like the famous Pobedonostev, normally assumes that any thorough criticism of the existing social order is dangerous and destructive; and, thereby, he transforms what might be creative demand into secret attack which is ten times more dangerous in its attack. If you take almost any of those who are appointed to work of this kind, you discover that association with it seems necessarily to unfit them for their task. For it turns them into men who see undesirability in work which the average man reads without even a suspicion that it is not the embodiment of experience with which he ought to be acquainted. Anyone who looks through the list of prohibited publications enforced by the Dominion of Canada will, I think, get a sense that the office of censorship is the avenue to folly.[27] No one with whom I am acquainted seems wise enough or good enough to control the intellectual nutrition of the human mind.

What tests, further, are they to apply? Broadly speaking, we suppress publications on the ground that they are obscene or dangerous. But no one has ever arrived at a working definition of obscenity, even for legal purposes. Take, for instance, two books suppressed by the English magistrates for obscenity in 1929. One, Miss Radclyffe Hall’s _Well of Loneliness_, seemed to men like Mr Arnold Bennett and Mr Bernard Shaw a work which treated of a theme of high importance to society in a sober and high-minded way. They saw no reason to suppose that the treatment of its difficult subject--sexual perversion--could be regarded by any normal person as offensive. The magistrate, Sir Chartres Biron, took a different view. I, certainly, am not prepared, on _a priori_ grounds, to say that a lawyer, however well-trained in the law, has a better sense of what is likely to produce moral depravity than Mr Bennett or Mr Shaw; and a reading of Miss Hall’s dull and sincere pamphlet only reinforces that impression. Another book was distributed privately and secretly--Mr D. H. Lawrence’s _Lady Chatterly’s Lover_--in a limited and expensive special edition. I gather that its public sale would have been definitely prohibited. Yet I observe that some of the most eminent American critics have praised it as the finest example of a novel seeking the truth about the sexual relations of men and women that an Englishman has published in the twentieth century. That may be--I am not competent to say--excessive praise. My point is that in a choice, say, between the average police magistrate and Mr Robert Morss Lovett, I am not prepared to accept the former’s opinion of what I may be safely left to read.

Let me remind you, moreover, of what cannot too often be pointed out, that the rigorous application of the legal tests of obscenity would prohibit the circulation of a very considerable part of the great literature of the world. The Bible, Shakespeare, Rabelais, Plato, Horace, Catullus, to take names at random, would all come under the ban. It is worth while pointing out that those most concerned with the suppression of “obscene” books are religious people. On their tests of obscenity the Bible certainly could not hope to escape; yet they believe, in general, that the Bible is the inspired word of God, a position which, I venture to suggest, should at the least give them pause. I do not know, indeed, how we are to create a healthy social attitude to the problems of sex, if all that deals with it from a new point of view, and with a frankness that admits the experimental nature of our contemporary solutions, is to be dismissed as “obscene”. Questions like those of birth control, extra-marital love, companionate marriage, sexual perversion, cannot really be faced in a scientific fashion by applying to them the standards of a nomadic Eastern people which drew up its rules more than two thousand years ago. Virtuous people who shrink from frank discussion in this realm seem to me responsible for probably more gratuitous suffering than any other group of human beings. The thing they call “innocence” I believe to be quite wanton ignorance, and, by its abridgment of freedom, it imprisons human personality in a fashion that is quite unpardonable.

The same seems to me to be the case in the realm that is called blasphemy. I have no sort of sympathy with that attitude of mind which finds satisfaction in wanton insult to the religious convictions of others. But I am not prepared for its suppression. For I note that, historically, there are no limits to the ideas which religious persons will denounce as blasphemous; and, especially, that in an age of comparative religious indifference, the hand of persecution almost invariably chooses to fall only on humble men.[28] It attacks Mr G. W. Foote, but it leaves Lord Morley free to do infinitely more damage than any for which Mr Foote can ever have been responsible. I cannot, moreover, forget that what is blasphemy in Tennessee is common sense in New York, that the works of Wollaston and Toland and Chubb, which seemed entirely blasphemous to their generation, seem commonplace to ourselves. Every religious body really means by blasphemy an attack upon its fundamental principles. Such attacks are, of course, necessarily circulated to bring them into contempt. We who read Paine’s _Age of Reason_ with admiration for its cogency of argument, its trenchant style, its fearless appetite for truth, can hardly avoid a sense of dismay when we remember the days when it was secretly passed from hand to hand as an outrageous production, the possession of which was itself an indication of social indecency.

And here let me remind you of certain facts on the other side. We denominate as blasphemous works calculated to bring the principles of Christianity into hatred, ridicule, or contempt. As I have said, I entirely dislike the type of work which finds pleasure in offensiveness to Christians. But if we are to suppress works, and punish their authors, because they cause grief to certain of our fellow-citizens, exactly how far are we to carry the principle? A very large part of propagandist religious literature is highly offensive to sincere and serious-minded persons who are unable, in their conscience, to subscribe to any particular creed. When you remember the descriptions applied by Mr William Sunday to those who do not accept Christianity, you cannot, I think, avoid a sense that there is a religious blasphemy for which, at least from the angle of good manners, nothing whatever can be said. Mr Sunday is only one of the worse offenders in a whole tribe of preachers and writers to whom belief, however sincere, that is alien from their own, is normally and naturally described in the language it is a euphemism to call Billingsgate; and charges of immorality are brought against unbelievers by them for which not an atom of proof exists. Are we to suppress all such publications also? And if we are to continue this campaign of prohibition to its appointed and logical end, shall we have time for any other social adventure?

Nor is this all. In the world of education we are continually presented with the problem of text-books which are offensive to a particular denomination. We are asked, for instance, to prohibit their use in schools. I sit as an appointed member of the Education Committee of the London County Council. I have been presented there with a requisitory, drawn up by a Catholic body, against the use of certain books on the ground that they contain untrue statements about questions like the Reformation, in which Catholics are particularly interested. But I have not observed in the same Catholic body a desire only to use those text-books in their own denominational schools which Protestants are prepared to accept as a true picture of the Reformation. Nor is this problem of school text-books merely religious in character. Americans of our own generation have seen passionate controversy over the view of the War of Independence, of the Constitution, of the motives and responsibility in the war of 1914, which are to be presented not merely to school children, but also to university students; there is a heresy-hunt in the fields of politics and economics, a desire to have only “true” opinions taught to the immature mind. But “true” opinions, on examination, usually turn out to be the opinions which suit the proponents of some particular cause. In London we think that a “true” theory of value is best obtained from the works of Professor Cannan; in Cambridge they pin their faith to Marshall and Pigou; in the Labour Colleges ultimate wisdom is embodied in the writings of Marx, and Cannan, Marshall and Pigou are all dismissed as the pathetic servants of bourgeois capitalism. Is anything gained for anyone by insisting that truth resides on one side only of a particular Pyrenees? Is it not wisdom to begin by an admission of its many-sidedness? And does not that admission involve an unlimited freedom of expression in the interpretation of facts? For facts, as William James said, are not born free and equal. They have to be interpreted in the light of our experience; and to suppress someone’s experience is to suppress someone’s personality, to impose upon him our view of what his life implies to the forcible exclusion of that in which alone he can find meaning. I see neither wisdom nor virtue in action of this kind.

So far, I have restricted my discussion to the non-political field, and before I enter this area, I want, for a moment, both to summarize the position we have reached and to admit the one limitation on freedom of expression I am prepared to concede. I have denied that prohibitions arising from blasphemy or obscenity, or historical or social unfairness, have any justification. They seem to me unworkable. They are bad because they prevent necessary social ventilation. They are bad because they exclude the general public from access to facts and ideas which are often of vital importance. They are bad because no one is wise or virtuous enough to stand in judgment upon what another man is to think or say or write. They are bad because they are incapable of commonsense application; there is never any possibility of a wise discrimination in their application. They give excessive protection to old traditions; they make excessively difficult the entrance of new. They confer power in a realm where qualifications for the exercise of power, and tests for its application, are, almost necessarily, non-existent. For the decision of every question of this kind is a matter of opinion in which there is no prospect of certainty. Suppression here means not the prohibition of the untrue or the unjust or the immoral, but of opinions unpleasing to those who exercise the censorship. Historically, no evidence exists to suggest that it has ever been exercised for other ends.

I do not see any rational alternative to this view. But here I should emphasize my own belief that, broadly speaking, such freedom of expression as I have discussed means freedom to express one’s ideas on general subjects, on themes of public importance, rather than on the character of particular persons. I have not, I think, a right to suggest that Jones beats his wife, or that Brown continually cheats his employer, unless I can prove, first that the suggestions are true, and, second, that they have a definite public import. I have not a right to create scandal because I find pleasure or profit in speaking ill of my neighbour. But if Brown, for instance, is a candidate for public office, my view that he cheats his employer is directly relevant to the question of his fitness to be elected; and if I can prove that my view is true, it is in the public interest that I should make it known. I cannot, that is to say, regard my freedom of expression as unlimited. I ought not to be permitted to inflict unnecessary pain on any person unless there is relevant social welfare in that infliction.

On the other hand, I would make one remark here that seems to me of increasing importance in a society like our own. The public interest in the habits of individuals is real, and we must be careful to give it its proper protection. It is, I think, reasonable to doubt whether the Anglo-American law of libel, in its present state, does not push too far the right of the individual citizen to be protected from comment. Outrageous damages, which bear no measurable relation to anything, are often claimed and not seldom awarded. Where a political flavour enters into a case, it is difficult, and sometimes impossible, to persuade a jury to consider the issue on its merits. I have myself sat on a jury in a political libel case of which I can only say that I was almost persuaded to doubt the validity of the jury-system altogether by the habits there displayed. I am tempted to suggest that, criminal libel apart, it would be worth while considering the abolition of damages in all political or quasi-political cases, and the concentration, as an alternative, upon proper publicity for the form of apology where the libel is held to be proved. We have, for instance, got into the bad habit in England of thinking that the social position of the plaintiff is a measure of the damages he should receive; and it is well known that there are places where, for instance, a socialist could hardly hope even for a verdict from any average jury. The case for careful inquiry, at any rate, seems to me to be made out. As the law at present stands and works, I do not think I could even say of a candidate for the House of Commons that he was not likely to be more than a permanent back-bencher without having to pay heavily for my opinion.

II

But I turn from these relatively simple matters to the political aspect of freedom of expression which is, of course, the pith of the whole problem. How far is a man entitled to go in an attack upon the social order? What opinions, if any, are to be prohibited on the ground that they incite to subversive conduct? Is there a distinction between the printed word and the spoken word? Is there a distinction between speech in one place, and speech in another? Is there a difference between normal times and a time of crisis like, let us say, a war or a general strike? At what point, if any, do words become acts of which authority must take account to fulfil its primary duty of maintaining the peace?

It will, I think, be universally agreed that all criticism of social institutions is a matter of degree. Let us take the problem first as we meet it in normal times and let us view it from the angle of the English law of sedition.[29] Here it may be said at once that were that law enforced in its literal terms, political controversy in England would be impossible. For the declared purpose of the law is to prevent the established institutions of the state from being brought into hatred or contempt, and every leader of the opposition is seeking to do precisely that thing when he makes a political speech. Anyone who reads, for instance, the utterances of Lord Carson at the time of the Home Rule fight in 1914, or of Mr Ramsay MacDonald in the General Election of 1929, cannot avoid the conclusion that, taken literally, they were seditious. Yet all of us agree that it is not the purpose of the law to prevent such speeches being made. When, therefore, if ever, is that law to be brought into operation?

We must, I think, begin by a distinction between the written and the spoken word. If an English Communist leader writes a book or pamphlet, whatever its substance, and to whomever it is addressed, I do not think the law ought to be used against him. For it is the history of these matters that if governments once begin to prohibit men from seeking to prove in writing that violent revolution is desirable, they will, sooner or later, prohibit them from saying that the social order they represent is not divine. In Italy, at the moment, for example, papers are actually suppressed not for anything positive that they say, but because there is absent from their pages frequent and emphatic eulogy of the present régime; there have even been calls for suppression because particular papers, while saying no word against Mussolini, have been too insistently eulogistic of the Papacy. I yield to no one in my dissent from, say, Lenin’s analysis of the nature of the modern state. But I think it urgent that his criticism should be available to society. For it represents the impress made upon him by experience of political life, and a government which remains unaware of that criticism has lost its chance of seeking to satisfy the critic. If it begins by assuming that the exposition of Revolutionary Communism is undesirable, it will end, as the record shows, that language classes to teach English to Russians are a form of Communist propaganda. There is never any such certitude in matters of social constitution as to justify us in saying that any exposition of principles must be suppressed. No authority has ever a capacity for wise discrimination in these matters; and, even if it had, I do not see why it is justified in the exercise of discrimination.

For suppression, in the first place, never convinces. What it does is to drive a small body of men to desperation and to reduce the masses to complete apathy in political matters. Most men who are prohibited from thinking as their experience teaches them soon cease to think at all. Men who cease to think cease also in any genuine sense to be citizens. They become the mere inert recipients of orders which they obey without scrutiny of any kind. And their inertia surrounds the acts of authority with that false glamour of confidence which mistakes silence for consent. The government which is not criticized at its base never truly knows the sentiments to which its activity gives rise among its subjects. It ultimately must fail to satisfy them because it does not know what desires it has to satisfy. Political thought, after all, however unwise or mistaken, is never born in a vacuum. Lenin’s view of capitalist society is just as relevant to its habits as the view of the Duke of Northumberland or of Judge Gary; each is born of contact with it, and each, as it is expressed, has lessons to teach from which, as these are scrutinized, a wise policy can be born.

Here, I think, it is relevant to say a word upon one special aspect of freedom of expression for printed matter. I have argued that no limit of any kind is to be placed upon it, at any rate in normal times. The book, the pamphlet, the newspaper, ought to circulate with unimpeded freedom in whatever direction they can move. Many people who sympathize with this view will, however, except from this freedom printed material which is addressed to the armed forces of the state; and most governments, of course, have special legislation, with specially severe penalties, against any attempt at interference with their loyalty. I cannot myself see that this exception is justified. The armed forces of the state consist of citizens. The government has quite exceptional opportunities to retain their allegiance. If a printed document is able to sow disaffection amongst them, there must be something very wrong with the government. And, in fact, whenever agitation has produced military or naval disloyalty that has been the outcome not of affection for the principles upon which the agitators lay emphasis, but of grievances which have made either soldiers or sailors responsive to a plea for their disloyalty. That was the case with the Spithead mutinies of 1797; with the French troops in 1789; with the Russian troops in 1917. If the army or the navy is prepared to turn upon the government, the likelihood is great that the government is unfit to retain power. For anyone who can disturb the allegiance of a mind as trained to obedience as that of the soldier or the sailor has, I believe, an _a priori_ case for insisting that his particular philosophy corresponds to an urgent human need.

It is said that ideas are explosive and dangerous. To allow them unfettered freedom is, in fact, to invite disorder. But, to this position, there are at least two final answers. It is impossible to draw a line round dangerous ideas, and any attempt at their definition involves monstrous folly. If views, moreover, which imply disorder are able to disturb the foundations of the state, there is something supremely wrong with the governance of that state. For disorder is not a habit of mankind. We cling so eagerly to our accustomed ways that, as even Burke insisted, popular violence is always the outcome of a deep popular sense of wrong. The common man can only be persuaded to outbreak, granted his general habits, when the government of the taste has lost its hold upon his affections; and that loss is always the reflection of a profound moral cause. We may, indeed, go further and argue that the best index to the quality of a state is the degree in which it is able to permit free criticism of itself. For that implies an alertness to public opinion, a desire to remedy grievance, which enables the state to gain ground in the allegiance of its citizens. Almost always freedom of speech results in a mitigation which renders disorder unnecessary; almost always, also, prohibition of that freedom merely makes the agitation more dangerous because it drives it underground. Rousseau was infinitely more dangerous as a persecuted wanderer, because infinitely more interesting and, therefore, infinitely more persuasive, than he would have been when unfettered in Paris. Lenin did far more harm to Russia as an exile in Switzerland than he could ever have accomplished as an opposition leader in the Duma. The right freely to publish the written word is, in fact, the supreme Katharsis of discontent. Governments that are wise can always learn more from the criticism of their opponents than they can hope to discover in the eulogies of their friends. When they stifle that criticism, they prepare the way for their own destruction.

There is, I think, an undeniable difference between freedom of written and freedom of spoken, expression. In the one case, a man attempts conviction by individual persuasion; he seeks, by argument which he believes to be rational, to move the mind of those who read what he has written. To speak at a meeting raises different problems. No one with experience of a great crowd under the sway of a skilled orator can doubt his power deliberately to create disorder if he so desires. A speaker at Trafalgar Square, for instance, who urged a vast meeting of angry unemployed to march on Downing Street, could do so with a fair assurance that they would obey his behest. I do not think a government can be left to the not always tender mercies of an orator with a grievance to exploit. The state, clearly, has the right to protection against the kind of public utterance which is bound to result in disorder.

But no government is entitled itself to assume that disorder is imminent: the proof must be offered to an independent authority. And the proof so offered must be evidence that the utterance to which it takes exception was, at the time and in the circumstances in which it was made, definitely calculated to result in a breach of the peace. Its prohibitions must not be preventive prohibitions. It must not prohibit a meeting before it is held on the ground that the speaker is likely to preach sedition there. It must not seek conviction for sedition where the utterance might, under other circumstances, have had the tendency to result in a breach of the peace. To use my earlier illustration, I think a government would be justified in prosecution of the Trafalgar Square orator; but I do not think it would be entitled to prosecute the same speaker if he made the same speech on Calton Hill in Edinburgh. For we know that when men in Edinburgh are incited to march on London, they have a habit of turning back at Derby. I conclude, therefore, that the test adopted by Mr Justice Holmes, in his deservedly famous dissent in _Abrams_ v. U.S.,[30] is the maximum prohibition a government can be permitted. If it is in fact demonstrable that the speech made had a direct tendency to incite immediate disorder, the punishment of the accused is justified. I think such cases should always be tried before a jury. Experience suggests that a random sample of popular opinion is more likely to do justice in this type of case than is a judge. I have myself been present at such trials before a magistrate where the whole case for the prosecution quite obviously broke down and where, nevertheless, a conviction was secured. I do not for a moment suggest that we can be confident that a jury will act wisely; but my sense of our experience is that there is less chance of its acting unwisely than persons who occupy an official position of any kind. With the best will in the world, their tendency is to be unduly responsive to executive opinion.

You will see that my anxiety is to maximize the difficulties of any government which desires to initiate prosecutions in this realm. My reason for this view is the quite simple one that I do not trust the executive power to act wisely in the presence of any threat, nor assumed threat, to public order. Anyone who studies the treason trials of 1794, or, even more striking, the cases under the Espionage Act in America during 1917-20, will be convinced of the unwisdom of allowing the executive an undue latitude. Every state contains innumerable and stupid men who see in unconventional thought the imminent destruction of social peace. They become Ministers; and they are quite capable of thinking that a society of Tolstoyan anarchists is about to attempt a new gunpowder plot. If you think of men like Lord Eldon, like Sir William Joynson-Hicks, like Attorney-General Palmer, you will realize how natural it is for them to believe that the proper place for Thoreau or Tolstoy, for William Morris or Mr Bernard Shaw, is a prison. I am unable to take that view; and I am therefore anxious that they should not be able to make it prevail without finding that there are barriers in their path.

III

Views such as I have put forward are often regarded with sympathy when their validity is limited to normal times. In a crisis, it is argued, different considerations prevail. When the safety of a state is threatened it is bound to take, and is justified in taking, all action to end the crisis. To suggest that it should be then bound by principles which weaken its effective striking power, is, it is said, to ask it to fight with one hand tied behind its back. The first objective of any society must be organized security; it is only when this has been obtained, that freedom of speech is within the pale of discussion.

I am unable to share this view. We have really to examine two quite different positions. There is, first, the question of the principles to be applied in a period of internal violence; there is, next, the quite special question of limitation upon utterance in a period of war. I agree at once that it is entirely academic to demand freedom of speech in a time of civil war, for the simple reason that no one will pay the slightest attention to the demand; violence and freedom are, _a priori_, contradictory terms. But I would point out two things. In general, revolutions fail because those who make them deny freedom to their opponents. Losing criticism, they do not know the limits within which they can safely operate; they lose their power because they are not told when they are abusing it. I can think of no revolutionary period in history when a government has gained by stifling the opinion of men who did not see eye to eye with it; and I suggest that the revolutionary insistence that persuasion is futile finds little creative evidence in its support.

But when once the question has been settled of who is to possess power other questions of urgent delicacy arise in which, as I think, the principles I have laid down possess an irresistible force. There is the problem of how the rebel and the disaffected are to be treated; of whether the resumption of order is to be followed by free discussion; of the power to be exercised by the military authority over ordinary citizens not engaged in armed hostility to the régime. Here I can only express the view that the resumption of order ought always to be followed forthwith by the normal principles of judicial control; and that the military authorities ought not, save where it is quite impossible for the civil courts to exercise their jurisdiction, to have any powers over ordinary citizens.

These are rigorous views; and, perhaps, I may devote a little time to their exposition. I know of no case where the state has exercised extraordinary power outside the normal process of law, in which that authority has not been grossly abused. It was abused in the Civil War even under a mind so humane and generous as that of Lincoln; it was emphatically and dangerously abused in the Amritsar rebellion of 1919. Let me illustrate, from this latter example, some of the things that were done. Two men were arrested in Amritsar prior to the declaration of martial law and deported to an extreme and undisturbed part of the province; on the declaration of martial law, they were brought back to Lahore, which was in the martial law area, and tried and sentenced by a martial law tribunal. A number of pleaders were arrested in Gudaspur, where there was no disturbance, taken under revolting conditions to Lahore, and confined there in the common jail for a period lasting up to a month. They were then released, without any charges being preferred against them; on the evidence, indeed, it is difficult to know with what offence they could have been charged. In the trial, again, of one Harkishan Lal, and others, for treason and waging war against the King-Emperor, the accused were not allowed to have a lawyer of their own choosing; a full record of the case was not taken, and the private notes of counsel for the defence had to be surrendered by him to the Court at the end of each day. Under such conditions it is difficult to see how any adequate defence was possible. A punitive detachment, again, under a Colonel Jacob, tried by drumhead court-martial and flogged, a man who refused, it appears with some truculence, to say who had destroyed some telegraph wires; later it appeared that the man, as he had asserted, had in fact no knowledge of who had destroyed them. In Lahore--to take a final instance--the military officer in command prohibited more than a few persons to congregate in the streets; a few persons did so congregate and they were flogged. On investigation, after the flogging, it was found that the group was a wedding-party whose purpose was not more dangerous than that of any other persons engaged in a similar function.[31]

I do not, of course, suggest that there is anything especially cruel or remarkable in these instances. Whether you study repression in Ireland or Russia, Bavaria or Hungary or India, its history is always the same. The fact always emerges that once the operation of justice is transferred from the ordinary courts to some branch of the executive, abuses always occur. The proper protection of the individual is deliberately neglected in the belief that a reign of terror will minimize disaffection. There is no evidence that it does. If it could, there would have been no Russian Revolution; and there would be no movement for Indian self-government today. The error inherent in any invasion of individuality, such as a system of special courts implies, is that it blinds the eyes of government to the facts not only by suppressing illegitimate expression of opinion, but by persuading it that most opinion which finds expression is illegitimate if it is not in the nature of eulogy. Even Lincoln supported his generals in completely indefensible attacks on civilian rights. Executive justice, in fact, is simply an euphemism for the denial of justice; and the restoration of order at this cost involves dangers of which the price is costly indeed.

The problem of war is, in a sense, a special case of the problem of disorder; but, in fact, it raises quite different considerations. Let me first of all make the point that if you are a citizen in a besieged town, you cannot expect a normal freedom of speech; to be within the area of actual military operations means that you must not hope to be regarded as an individual. You become, from the nature of things, a unit of attack or defence whose personality is immaterial and insignificant. The position here is extraordinary; and principles have little or no relation to the problems that arise. The case, as elsewhere, merely affords proof that liberty and violence are antithetic terms.

But let us rather take the position of a citizen whose country is involved in war as, say, England in 1914, or America in 1917. What are his rights and duties then? I would begin by making the point that the fact of belligerency does not suspend his citizenship; he owes as much, perhaps more than ever, the contribution his instructed judgment can make, to the public good. The scale of operations cannot, I think, make any difference to that duty. It is as real, and as compelling, when they are big, as in the war of 1914, as when, as in the Boer War, or the Spanish-American War, they are relatively small. If I think the war a just one, it is my duty to support it, and if I think it unjust there is no alternative open to me except opposition to it. I believe, for instance, that the opposition of Mr Ramsay MacDonald and Mr Snowden to the war of 1914 was a fulfilment, on their part, of the highest civil obligation. No citizen can assume that his duty in wartime is so to abdicate the exercise of his judgment that the executive has a blank cheque to act as it pleases. No government, therefore, is entitled to penalize opinion at a time when it is more than ever urgent to perform the task of citizenship. If a man sincerely thinks, like James Russell Lowell, that war is merely an alias for murder, it is his duty to say so even if his pronouncement is inconvenient to the government of the day.

I cannot, indeed, believe that there is any case on the other side worthy of serious consideration. In the war of 1914, it was said that hostile opinion must be controlled because it hinders the successful prosecution of the war. But behind the facade of prejudice contained in the imputation of a term like hostility, there are several issues each one of which requires analysis. For what does “hostile opinion” mean? Does it imply hostility to the inception of a war, to the methods of its prosecution, to the end at which it aims, to the terms on which its conclusion is proposed? In the war of 1914, the critics were divided into camps on each of these views. There were men, like Mr MacDonald, who thought the war unjustified in its inception and bad in its conclusion. There were others who criticized the manner, both diplomatic and technical, of its prosecution. Was it, for instance, hostility to the prosecution of the late war to criticize Lord Jellicoe’s conduct at the Battle of Jutland, or Sir Ian Hamilton’s handling of the operations at the Dardanelles? Was it, again, hostility on the part of _The Times_ to attack the Asquith Government on the ground, rightly or wrongly, that it showed a lack of energy in building up a munitions supply? If a statesman not in office, Mr Roosevelt, for example, thinks the diplomatic policy of the executive likely to be attended by fatal results, must he confine himself to private representations, lest public utterance hinder the national unity? If an Englishman like Lord Lansdowne believed, as President Wilson believed in 1916, that peace by negotiation is preferable to peace by victory in the field, because of the human cost that victory entails, has he no obligation to his fellow-citizens who are paying that cost with their lives?

It is evident from our experience that to limit the expression of opinion in wartime to opinion which does not hinder its prosecution is, in fact, to give the executive an entirely free hand, whatever its policy, and to assume that, while the armies are in the field, an absolute moral moratorium is imperative. That is, surely, a quite impossible position. No one who has watched at all carefully the process of governance in time of war can doubt that criticism was never more necessary. Its limitation is, in fact, an assurance that the unity of outlook is a guarantee that mistakes will be made and wrong done. For once the right to criticize is withdrawn, the executive commits all the natural follies of dictatorship. It assumes a semi-divine character for its acts. It deprives the people of information essential to a proper judgment of its policy. It misrepresents the situation it confronts by that art of propaganda which, as Mr Cornford has happily said, enables it to deceive its friends without deceiving its enemies. A people in wartime is always blind to the facts of its position and anxious to believe only agreeable news; the government takes care to provide it only with news that is pleasant. If no such news is at hand it will be manufactured. Petty successes will be magnified into resounding victories; defeats will be minimized, wherever possible. The agony of the troops will be obscured by the clouds of censorship. A wartime government is always obtuse to suggestion, angry when inquiry is suggested, careless of truth. It can, in fact, only be moralized to the degree to which it is subject to critical examination in every aspect of its policy. And to penalize, therefore, the critic is not only to poison the moral foundations of the state, but to make it extremely difficult, when peace comes, for both government and the mass of citizens to resume the habits of normal decency.

Freedom of speech, therefore, in wartime seems to me broadly to involve the same rights as freedom of speech in peace. It involves them, indeed, more fully because a period of national trial is one when, above all, it is the duty of citizens to hear their witness. I do not, of course, mean that a citizen in wartime should be free to communicate secret military plans to the enemy; I do mean that if a man feels, like Sir Henry Campbell-Bannerman, that British policy in South Africa is “methods of barbarism,” it is his right, as well as his duty, to say so. Obviously critical activity of this kind will be unpopular, and a government which helps in the making of its unpopularity will find the task of suppression easy. But it will pay a heavy price for suppression. The winged words of criticism scatter, only too often, the seeds of peace. Sir Henry Campbell-Bannerman’s attack on the Balfour Government persuaded General Botha that trust in Great Britain might not be misplaced; President Wilson’s speeches, especially his Fourteen Points, were, impliedly, a criticism of Allied policy, and that which, also, awakened liberal opinion in Germany to a sense of its responsibilities. Wartime unity of outlook, in a word, is never worth the cost of prohibitions. If the policy of a state which decides upon war does not command the general assent of citizens, it has no right to make war. If the number of those hostile is considerable, the policy is, at the least, a dubious one. If the number is small, there is no need to attempt suppression in the interest of success. The only way, in fact, to attain the right is by free discussion; and a period of crisis, when the perception of right is difficult, only makes the emphasis upon freedom more fundamental.

Let me illustrate my view with reference to one or two of the decisive factors in the Peace of Versailles. No one now believes the wartime lie that Germany was solely responsible for the war; her responsibility may be greater than that of some others, but it is agreed that the burden of Russia is at least as heavy and that war, in any case, was rooted in the nature of the European system. But, in the interest of national unity, it was regarded as essential to represent Germany as the sole conspirator against European peace. She was painted as a malefactor whose sins were incapable of exaggeration. Her virtues were denied, her achievements belittled, until what Mr Lippmann terms a “stereotype” of her was built up for public use which made her appear to the average man a criminal who could not be too severely punished. The statesmen who constructed this stereotype knew that it was untrue; but they hoped, doubtless, to escape its consequences, when the victory had been won. They found that they could not do so. They had so successfully repressed all effort at reasonable delineation, that the atmosphere of hate was unconquerable. They had no alternative to a Carthaginian peace because that seemed, to the masses they had deceived, the only possible course for justice to take. They knew, as the famous memorandum, for instance, of Mr. Lloyd George makes manifest,[32] that a Carthaginian peace was disastrous for Europe; but it was too late to destroy the legend they had created. Like those whom Dante describes in the Inferno, they were punished by the realization of their announced desires.