Chapter II: Freedom of the Mind (2)

The world, in this context, has paid the price for the suppression of truth; and another phase of the suppression should also be remembered. It is usually agreed that some of the worst elements in the Peace of Versailles were the result of the Secret Treaties by which the Allies, exclusive of America, bound themselves to each other before the entrance of America into the war. Nowhere among the associated powers was the desire for a just peace more widespread than in America; nowhere, also, was the discussion of war-aims more rigorously curtailed as a hindrance to the full prosecution of the war. Had discussion of the peace been full and effective in those critical years, the liberal instincts of President Wilson might, when reinforced by the weight of informed opinion, have compelled at least a considerable mitigation of the secret treaties. They had been published in the American Press after their issue by the Bolsheviks in 1917; full discussion would have revealed their inadequacies, and enabled the President to counteract what there was of evil in their substance. But the destruction of free opinion acted as a smoke-screen to conceal them, and Mr Wilson did not seriously give his mind to them until he reached Paris. It was then too late to undo their consequences. Here, in fact, as elsewhere, uncontrolled power acted like a miasma to blot out the only atmosphere in which truth could be made manifest. No government was compelled to do its duty, because the means were wanting to inform it of what its duty was. The powers had forgotten, or had chosen to forget, that they could not hope for a just peace save by freeing the minds of men and women who cared for justice.

IV

So far, I have considered freedom in the political sphere as though it concerned only a single individual placed over against society and the state. I have sought to discuss what his freedom means in the complex relationships in which he is involved. But, obviously, this is an undue simplification of the problem. The individual, in fact, does not stand alone; he joins hands with others of like mind to persuade, sometimes to compel, society to the adoption of the view they share. It is unnecessary for me to emphasize the vital part played by associations in the modern community.[33] Granted that they have their dangers, they are not only a vital expression of human personality, but an expression as natural as the state itself. That a man must be free to combine with his fellows for joint-action in some realm in which they have a kindred interest is, I take it, of the essence of liberty. The point it is important to examine is the degree of control, if any, that the state is entitled to exercise over voluntary associations.

Let me say at once that I know no question more difficult in the whole range of political science. I am quite certain that, from the angle of individual freedom, the less interference the state attempts, the better for everyone concerned; but, equally, I am clear that to some interference the state is fully entitled. I should deny, for instance, the right of any voluntary association to inflict physical punishment or imprisonment upon its members; and I should argue that any state was justified in immediate and drastic interference to this end. But the real problems we encounter are not so simple as this. Joseph Smith announces his reception of a message from Heaven ordaining the duty of men to practise polygamy in a community where the law only recognizes monogamy; what rights of interference has the state when a body of men and women join him and begin to give effect to his teaching? What are the rights of the state when a congress of trade unionists declares a general strike? Are those rights different when the purpose of the strike is industrial from what they are if it is political? How are we to distinguish between the two? What are the rights of combination among men employed in industries the nature of which makes the service they perform fundamental to the community? What should be the attitude of the state to a society of men engaged in propaganda for a revolution by the use of physical force? Is there a difference between such a society when it merely preaches the desirability of such a revolution and when it acts to that end? Does action, in the latter case, mean embarkation upon rebellion, for example, the purchase of machine-guns, or does it extend, say, to the stirring-up of industrial strife in the hope that a resort to political rebellion may be its outcome?

You will see that these are not merely academic questions; every one of them has been in the forefront of political discussion this last half-century, and all save the first have been vital themes of decision in the years since the war. Take first the case of an association which, like the Mormon Church, desires to practise modes of conduct different from those pursued by the society as a whole. We have to assume that the members of the association have joined it voluntarily, and continue voluntarily in its membership. We have to assume, further, that they do not desire to force their particular way of life upon others; for some single realm of conduct, like the realm of marriage, they desire that they shall be left free from interference by the organized power of society. I cannot see that we are entitled to interfere with them. We may think them unwise, foolish, muddle-headed, immoral. We know perfectly well that we cannot hope, by the external constraint of law, to abolish all conduct that comes within those terms. I happen to think that it is a gross superstition to leave money to the Roman Catholic Church that masses may be said for the testator’s soul; but I should think it an unwarrantable interference with the relations between that Church and its members if such bequests were forbidden. I see no evidence to suggest that the practice of polygamy is worse, in its nature, than a hundred other practices which organized society either directly permits, or wisely leaves alone, because it knows that rigorous control would be utterly futile. The only way to deal with the ideals of the Mormon Church is to prove their undesirability to their members. On the evidence of history, persecution will not be acceptable as proof; and it is not improbable that the only legal effect of prohibition has been to make furtive and dishonest what was, at first, open and avowed. _Mutatis mutandis_, this seems to me the case with all similar problems of association. If a society of women, enthusiastic for the independence of their sex, formed themselves into an association to propagate and practise the (to them) ideal of children outside the tie of marriage, I should not think the state entitled to interfere with its work. So, too, I should argue, with a principle like birth-control. The state is not entitled to prohibit diffusion of such knowledge, or the practice of it. When it does, it makes the family nothing more than an instrument of fecundity, and destroys the whole character of that right to privacy which is the foundation of harmonious sexual relationship.

I argue, therefore, that voluntary bodies are entitled outside the realm where their ideas and conduct are intended directly to alter the law, or to arrest the continuity of general social habits, to believe what they please and to practise what they please. This would not permit a body of burglars to take over from Proudhon the principle that property is theft and assume their right to restore it to themselves; but it would justify, to take the case of principles I personally abhor, a society of Mormons practising polygamy in a society like that of the United States. Let me turn from this to the political field. I take first the question of the right of the state to control freedom of association in the industrial sphere. Practically speaking, the question reduces itself to one of whether the state is justified in limiting the power of a trade union, or of a combination of trade unions to call out its members on strike. I want to put on one side the technical juristic questions involved and to discover, if I can, the justice of the general principles which underlie the problem.

These are, I think, broadly four in number. It is argued that the state has a right to prohibit a general strike on the ground that this is an attempt to coerce the government either directly, by making it introduce legislation which it would not otherwise do, or indirectly, by inflicting such hardship on the community that public opinion forces the government to act. It is said, secondly, that the state is entitled to prohibit those whom it directly employs, for example postmen, from either going on strike, or affiliating themselves with any organization the nature of which may compromise the neutrality of the government. It is said, thirdly, that certain industries, railways, for example, or electricity supply, are so vital to the community that continuity of service in them is the law of their being, and that, therefore, the right to strike can be legitimately denied to those engaged in them. It is argued, fourthly, that a limitation upon the purposes of trade unions, so that they are confined within their proper industrial sphere, is also justified.

I want to analyse each of these principles separately, but certain preliminary observations are important. In any industrial society, as Mr Justice Holmes has insisted,[34] liberty of contract always begins where equality of bargaining power begins. Granted, therefore, the normal conditions of modern enterprise, only the existence of strong trade unions will ensure to the average worker just terms in his contract of service. If he stands alone, he has neither the knowledge nor the power to secure for himself proper protection. Nor is this all. Strong trade unionism always means that public opinion can be made effective in an industrial dispute. One has only to compare the situation in the British textile industries, where the power of the unions necessarily involves a search by the state, if there is a dispute, for the terms of a just settlement, with that in America where, from the weakness of the unions, the state seems hardly to know when a dispute has occurred, where, also, the police-power is almost invariably exerted on the side of the employer, to realize the meaning of strong trade unionism. It is, in fact, the condition of industrial justice. No limitation upon freedom to associate is, I urge, permissible unless it can be demonstrated that clear and decisive advantage to the community, including, be it remembered, trade unionists themselves, is likely to result.

In this background, let us examine the first of the four principles I have enumerated. No coercion of the government, direct or indirect, is legitimate. If men want to obtain from government a solution other than government is willing to attempt, the way to that end is not by the use of industrial power, but through the ballot-box at a general election. Or, from the angle of indirect coercion, the first interest of the state is in the general well-being of the community; a general strike necessarily aims at that well-being and may therefore be prohibited. The general strike, even a large sympathetic strike, is in fact a revolutionary weapon. As such, it is a threat to the Constitution and illegal as well as unjustifiable.

I do not think the problem is so straightforward as the delusive simplicity of this argument would seem to make it. If it is said that the Trades Union Congress of Great Britain would not be justified in calling a general strike to compel the government to make Great Britain a federation, I should agree at once. But I point out that no one supposes it would take such action and that therefore a prohibition of it is unnecessary. But I should not agree that a general strike is unjustified to secure the eight-hour day, or to protect the payment of unemployment relief, or to continue the Trade Board system in sweated industries. Whether a general strike for these, or similar ends, would be wise is another matter. That it cannot in any circumstances be justified I am not prepared to say until I know the circumstances of some given case. I am not willing, for instance, to condemn the General Strike of 1926; on a careful analysis of its history, I believe that the blame for its inception lies wholly at the door of the Baldwin Government. No one acquainted with the character of the trade union movement but knows that a weapon so tremendous as the general strike will only be called into play on the supreme occasion. To lay it down as law that, whatever the occasion, the weapon shall not be used, seems to me an unjustifiable interference with freedom.

I am not greatly moved by the argument that it involves coercion of the government. There are occasions when that coercion is necessary, and even essential. I believe that was the case in Great Britain in 1926. The trade unions would never have called the strike had they seen in the policy of the government even the fragment of a genuine search for justice. But the fact was that Mr Baldwin and his colleagues simply acted as the mouthpiece of the coalowners. To illegalize a general strike in that background is to say that the trade unions should have acquiesced in the defeat of the miners without an attempt to prove their solidarity with them. It would be to announce to government that the ultimate weapon of Labour is one the use of which it need never fear. There is no danger that the general strike will ever be other than a weapon of last resort; the occasions when it can be successfully used will be of the utmost rarity. But they may occur. I cannot accept the position that government is always entitled to count on industrial peace, whatever its policy. Nor do I see why it is unconstitutional for Labour, as in 1926, to withdraw from work in an orderly and coherent way.

I do not deny, of course, that both a general strike, and others of far less amplitude, inflict grave injury and hardship upon the community. But when trade unions seek for what they regard as justice, one of their most powerful sources of strength is the awakening of the slow and inert public to a sense of the position. Effectively to do this, in a real world, it must inconvenience the public; that awkward giant has no sense of its obligations until it is made uncomfortable. When it is aroused, if, for instance, trains do not run, or coal is not mined, the public begins to have interest in the position, to call for action. Without some alternative which attempts to secure attention for a just result--I know of no such alternative--the infliction of hardship on the community seems to me the sole way, even if an unfortunate way, to the end the trade unions have in view. To limit the right to strike is a form of industrial servitude. It means, ultimately, that the worker must labour on the employer’s terms lest the public be inconvenienced. I can see no justice in such a denial of freedom.

Two further points it is worth while to make. It is sometimes agreed that while the state ought not to restrict freedom of association for industrial ends, it is justified in doing so when the strike-weapon is used for some political purpose. This, indeed, was one of the objects of the Baldwin Government in enacting the Trades Disputes Act of 1927. But I know of no formula whereby such a division of purposes can be successfully made. There is no hard and fast line between industrial action and political action. There is no hard and fast line which enables us to say, for instance, that pressure for a Factory Act is industrial action, but pressure for the ratification of the Washington Hours Convention political. Extreme cases are easy to define; but there is a vast middle ground with which the trade unions must concern themselves and this escapes definition of a kind that will not hamper the trade union in legitimate activity vital to its purpose. And there are certain types of political action by trade unions--a strike against war, for example--which I do not think they ought in the interest of the community itself, to abandon. Quite frankly, I should have liked to see a general strike proclaimed against the outbreak of war in 1914; and I conceive the power to act in that way as a necessary and wise protection of a people against a government which proposes such adventures. You cannot compartmentalize life; and where grave emergencies arise, the weapons to be utilized must be fitted to meet them. A government which knew that its declaration of war was, where it intended aggressive action, likely to involve a general strike, would be far less likely to think in belligerent terms. I do not see why such a weapon should be struck from the community’s hand. I do not forget that the German Republic was saved from the Kapp Putsch by a general strike.

Nor must we forget the limits within which effective legal action is possible. _Jus est quod jussum est_ is a maxim the validity of which is singularly unimpressive. When the issue in dispute seems to the trade unions so vital that only by a general strike can they defend their position adequately, they will, in those circumstances, defend their position whatever the law may be. Legal prohibition will merely exacerbate the dispute. It will transfer the discussion of legality which serves merely to conceal it. A legal command is, after all, a mere static form of words; what gives it appropriateness is its relevance as just to the situation to which it is applied. And its relevance as just is made not by those who announce that it is to be applied, but by those who receive its application. The secret of avoiding general strikes does not lie in their prohibition but in the achievement of the conditions which render them unnecessary.

Nor is the denial of the right to declare a general strike a necessary protection of the total interest of the community. Right and wrong in these matters are matters to be defined in each particular case. A government which meets the threat of a general strike is not entitled to public support merely because it meets the threat. It is no more possible to take that view than it is to say that all governments deserve support when they confront a rebellion of their subjects. Everything depends on what the general strike is for, just as everything depends on the purpose of the rebellion; and the individual trade unionist must make up his mind about the one, just as the individual citizen must make up his mind about the other. Law in this realm is, in fact, largely futile. It could not prevent a general strike by men who saw no alternative open to them; and, in that event, it would merely intensify its rigours when it came. The limitation of liberty in this realm seems to me, therefore, neither just in its purpose nor beneficent in its results.

I do not, of course, deny that freedom of action in this field is capable of being abused. That is the nature of liberty. Any body of persons who exercise power may abuse it. It is an abuse of power when an employer dismisses his workmen because he does not like their political opinions. It is an abuse of power when the owners of halls in Boston refuse to hire them to the promoters of a meeting in memory of Sacco and Vanzetti. It was an abuse of power when British naval officers connived at the attempted internment of the Belgian socialist, M. Camille Huysmans, in England. It was, I think, an abuse of power when the Universities of Oxford and Cambridge refused to admit Nonconformists as students, or Parliament to seat Mr Bradlaugh because he was an infidel. But the trade unions are no more likely, on the historic record, to abuse their power than is Parliament itself. The latter, if it wished, has the legal competence to abolish the trade unions, to disenfranchise the working classes, to confine membership of the House of Commons to persons with an independent income. We know that Parliament is unlikely to do any of these things because omnicompetence, when gravely abused, ceases to be omnicompetent. And the same truth holds, as it seems to me, of the liberty to proclaim a general strike.

A much more difficult problem arises where the second of my four principles is concerned. A government is, I think, entitled generally to the loyal and continuous service of its employees. It is therefore entitled to make regulations which restrain their liberty of action. The army and navy and the police, in particular, occupy a special position in the state; if they were free, like ordinary citizens, to withdraw their labour as they pleased, the executive power would be in an impossible position. The government, therefore, may make suitable regulations for their control. But it is important, in the framing of these regulations, that the conditions of service should be just. To be just, two principles are, I suggest, of primary importance. They should be made and administered in conjunction with those who are affected by them; and in their application or change executive action should not be the final court of appeal. The principles which, in England, we call Whitleyism are the _quid pro quo_ which government servants of this type are entitled to expect in return for the surrender of the right to strike; and Whitleyism must include the right of those servants to appeal from an executive decision to such a body as the Civil Service Division of the Industrial Court. To leave the executive sole master of the field is to invite the kind of purblind folly which resulted, in 1919, in the police strikes of Boston and London. Here, certainly, the fact that the governments concerned were the judges in their own cause made it impossible for the police to get either attention or justice without drastic action. And I draw your attention to the fact that although in each case the original strikers were defeated, their successors obtained the terms, and even more than the terms, for which they fought.

The defence forces of the state constitute a special case. When we turn to the ordinary public services, central and local, quite different considerations emerge. If you analyse Whitehall, for instance, you will find a very small body of men and women who may be regarded as concerned with the making of policy; below them is another body, perhaps two or three times as large, engaged in assembling the material out of which policy is made, and applying it in minor cases; while below these once more is a vast army of clerks engaged in routine work of a more or less mechanical kind. To this last class, it cannot, I think, be said that government emerges as an employer different in kind from what they would encounter in the ordinary labour market. General economic conditions govern their pay; in France and America, indeed, it is below, rather than above, the level obtaining elsewhere for their kind of work. All their interests go along with those engaged in similar employment outside the sphere of government activity. Their union, therefore, with persons in private firms seems to me justified in order to raise their general economic level; and I do not see the justice of prohibiting it as was done by the Baldwin Government in the Trades Disputes Act of 1927. I think, further, that they are entitled to strike, if there is no other way in which they can, as they think, secure the enforcement of their demands; though I think, also, that the executive would be justified in compelling them to exhaust the resources of a comprehensive scheme of conciliation before they went so far. The history, indeed, of most modern civil services. France being a notable exception[35] shows clearly that there is no danger of officials abusing the right to strike. But it shows also the unwisdom of leaving the government free to determine the substance of the contract of service. It is just as likely as any private employer to extract the most it can get for the least it needs to give; and it is no more fit than any other employer to be left uncontrolled in this field. The more labour conditions in government service are determined finally by an independent authority, the more reasonable they are likely to be. We must not be led away by false claims to a special majesty born of its sovereign character to regard the state as entitled to a peculiar and uncontrolled power over its servants. History shows that it is just as likely as anyone else to abuse an unlimited authority.

The civil servant is not merely an employee of government; he is also a citizen. In our own day, especially, delicate questions have arisen as to the right of the civil servant, or of a person engaged in the armed forces of the state, to enjoy all the normal political privileges of a person in private employ. Is a civil servant, for instance, entitled to enter on a political career with the chance, if it is interrupted, to return to his department? Most modern states, England, for instance, Canada, South Africa, regard political activities as beyond the area within which a civil servant may engage; France, on the other hand, hardly limits its officials in this way, while Germany expressly allows its officials to engage in politics, and some fifty civil servants are now in the Reichstag, with the power to return to their departments if they are defeated. Certainly there are few rights for which the rank and file of officials press so strongly as for this; and they regard the limitation of their political opportunities as an invasion of civic liberty at once unnecessary and unjustifiable.

I do not think the problem is a simple one; and I think any solution of it must therefore be complex in character. If a high official of the Foreign Office in England could be elected to Parliament, spend a term there in bitter criticism of the Foreign Secretary and then, on defeat, return to work with the minister whom he had sought to destroy, the latter’s position would, I think, be intolerable. There is, that is to say, a class of civil service work the very nature and associations of which involves exclusion from political life; and if those engaged therein desire a political career, they must terminate their connexion with the civil service. We can, of course, draw a line. I see no reason why all the industrial employees of the government, postmen, for instance, or shipwrights in a national dockyard, should not enjoy all ordinary civil rights. I see no reason, either, to expect any deleterious consequence if civil servants below what we call in England the executive class are allowed ordinary political rights, so long as a decent discretion in their exercise is observed. Those engaged in the making of policy must, in my judgment, accept a self-denying ordinance in this regard. Unless government can be assured that its chief officials are aloof from political ties, it cannot trust them; and all the considerations which create a “spoils system” will then come into play. Since experience makes it evident that a spoils system is incompatible with either honest or efficient administration, a restriction upon the liberty of public officials is, I would argue, justified. It is an inevitable part of their contract of service from the point of view of the end that service is intended to secure.

I believe, further, that this restriction applies with special force to the Army and Navy and to the police. The state is justified, in the interest of the community, in placing an absolute embargo upon the political activities of all their members. For unless this liberty is restrained, their allegiance becomes the possession of a party and they cannot give that neutral service which is the basic principle of their existence. Anyone who remembers the attempted use of the Army in 1913-14 for Ulster, the habits of the French Army during the Dreyfus period, the peculiar relations between the German Army and the Monarchy, will easily see how vital is this abstinence. There are American cities where the relations between big business and the police mean that the authority of the latter is certain to be abused in an industrial dispute. Nothing, perhaps, illustrates more nicely the delicacy of this problem than the activities of Sir Henry Wilson[36] during the years from 1912. He was, it appears, prepared to go from a meeting of the Committee of Imperial Defence to a discussion of its plans with the leaders of the Conservative opposition; and to advise with them upon the best way of rendering some of those plans nugatory. Even during the Great War he did not cease from the cultivation of political intimacies of this kind. Nor must we forget that Sir John French, at the time the Commander-in-Chief of the British Armies in France, was ready to go behind the back of the Government he served to offer secret information to the military correspondent of a Conservative newspaper; and the result of that betrayal of confidence was the breakdown of the first Asquith Government in 1915. The proper conduct of political life is clearly impossible, if the armed forces of the state are free to take a definite part in its formation. No one would endorse the Russian principle that a soldier’s quality is a function of his agreement with the political faith of the government; yet once relations are established between the politician and the Army a movement towards this principle is inevitable. Sooner or later, in this condition, the Army, like the Praetorian guard, determines the personality of the state. When that occurs, no one can hope for the enjoyment of political freedom.

I turn, in the third place, to the view that industries which have a vital impact on social life can restrain the right to strike in those engaged in them. That is a peculiarly favoured doctrine at the present time; some writers even use the analogy of the Army and Navy, and argue that the principles applicable to these have a legitimate extension to this field. Others, the eminent French jurist M. Duguit, for example, take a similar view, but upon other grounds. They argue that vital public service, transport, for instance, or electricity supply, derive their whole meaning from continuity; to allow an interruption of them is, therefore, to destroy the whole law of their being.

I am as willing, I hope, as anyone to agree that an interruption of a vital public service is undesirable, and that every possible step to minimize the possibility of its occurrence should be taken. But I do not think the denial of the right to strike obtains this end in any of them; and I do not believe that the same considerations apply to every sort of vital public service. It must, I think, make a difference whether the industry is primarily operated for private profit or no; for only in the latter case is its quality as both vital and public fully recognized. No one, surely, can examine the record of the coal industry either in England or in America and say that the motives which underlie its ownership by private interest are compatible with the view that an uninterrupted service to the community has been the first object of the owners. There are several reasons of primary importance for retaining the right to strike so long as private ownership continues in this sphere. If, for instance, a steamship company proposes to send out its ship under the conditions in which the _Vestris_ of ill-fated memory sailed in the spring of 1929, I think the crew would be justified in striking in the public interest. So, also, I should argue that the Seamen’s Union would be justified in striking, to see to it, if it could, that every vessel putting to sea carries with it wireless equipment. Again, a body of miners might, in my judgment, justifiably strike if they believed that some part of a pit to which they were to be sent was in fact too dangerous for coal to be hewed there without an alteration of the physical conditions of mining in that particular place. I should, further, urge that a strike to secure a national agreement for uniform conditions in a particular industry as against a variety of local agreements was a justifiable enterprise if that end could not be attained in any other way.

My view, broadly, reduces itself to this. Where the vital industry is in public hands, the conditions which should operate are those which relate to government service in general where it is in private hands; the state is, I think, justified in seeing to it that the danger of dislocation is reduced to a minimum; but it is not justified in saying that, in the event of a disagreement, the men shall always abide by the results of compulsory arbitration. For, first of all, the men will not always do so; their refusal, doubtless, will be exceptional, but there will be instances in which it will occur. The famous munitions strikes on the Clyde, and the South Wales Miners’ strike, during the war show that this is the case. It is, I suggest, obvious folly to attempt legislation which cannot be enforced at the critical point of urgency. The business of the state, therefore, is not to prohibit, but to find how best to make the use of the strike the final and not the first instrument in conflict.

This, I suggest, can be accomplished in two ways. It can be done, first, by limiting the profits private ownership can make in any industry of vital importance, either absolutely so that the owners are debenture-holders merely, and not the residuary legatees of any profit made, or relatively, as in a scheme like that laid down for the gas companies of London. The state is then, I suggest, legitimately entitled to argue that a curb on the liberty of the employer to make what profit he can justifies a curb on the right to strike by postulating the conditions under which alone it can become operative. Those conditions are, I think, met by some such instrument as the Canadian Industrial Disputes Investigation Act. Under its terms, we should then have, at least, enforced public inquiry into the dispute, and the consideration by both sides, as well as by the general opinion of the community, of a reasoned attempt at a solution of the difficulty. We respect freedom of association by leaving it at liberty to insist that the proposed solution is unjust, while we protect the public interest in continuity of service by insisting that the right to strike shall not operate until the resources of conciliation have been exhausted.

I reject, therefore, M. Duguit’s notion that public interest in continuity of service is a paramount consideration which should overrule all others; and I see no reason to apply his vituperative adjectives[37] to those who take a different view. It seems to me quite definitely a denial of liberty for which no justification can be found to say that men shall work on terms they think utterly unjust; and the argument that, if they do not like those terms, they can find other work, is, increasingly, without force in a community like our own. The number of those in any society who have a genuine choice, at any given time, of alternative occupations is notably small. An electrician cannot suddenly become a barrister, as the latter can suddenly become a journalist; and if it is a matter of hundreds, or even thousands of men, the compulsion upon them to continue in the vocation for which they have been trained is obvious. The community never gains, in the long run, from work performed by men who labour under a sense of injustice. That psychological feeling of frustration is poisonous to a harmonious personality. As such, it is incompatible with that search for freedom which I have urged is a condition of happiness. I cannot, therefore, agree that the community is entitled, on any terms, to put its convenience first, and the workers’ freedom afterwards.

A final problem in this same realm remains. The trade union, it is said, must obviously concern itself with all that touches the industrial conditions of its members. But it is not entitled to a general licence to roam all over the field of public activity. We should resent it if a football club passed resolutions upon the foreign policy of a government; and it is in the same way illegitimate for a trade union to deal with matters outside its sphere. The state, therefore, is entitled to define that sphere and to limit the activities of trade unions to matters that come within it.

But I have already sought to show that such a definition of spheres is, in fact, impossible of achievement. Take, for instance, foreign policy. You cannot say that trade unions ought not to concern themselves with foreign policy since this is intimately bound up with economic policy which, in turn, is the chief factor in the determination of the conditions of employment. You cannot exclude any part of the economic realm from the trade union sphere. I should agree that a trade union ought not to concern itself, let us say, with the question of whether the Pope was justified in making the Immaculate Conception a dogma of the Roman Church; but the likelihood of a trade union acting in this way is as small as that of a football club concerning itself with foreign policy. We cannot legislate for the exceptional instance. Law can only deal with normal habits susceptible of logical reduction to well-established categories. When it goes further, it merely reveals its own impotence. A trade union, moreover, is a living body; and no law has ever been successful in coping with the growth of living things by legal promulgations upon the fact of growth. Many matters are regarded today as normally and naturally within the sphere of the trade unions which a generation ago, even a decade ago, most men would have insisted were in nowise their concern. In the American garment trade, the union concerns itself, as a vital part of its function, with the efficiency of the employers for whom its members work. A generation ago, this would have been dismissed as “an insolent interference with the rights of management”; today it is obvious that upon no other terms can the function of the trade union be fulfilled. In 1914 the unions would never have deemed it their business to concern themselves with the bank rate and credit policy; today they realize that these matters lie at the heart of their problems. Any such Procrustes’ bed of definition as this principle suggests seems to me, therefore, a quite wanton and foolish interference with freedom.

V

Such a discussion of the relation of trade unionism to the state, illustrates, I think, the general problem of the approach to freedom of association in the political sphere. I have denied the right of the state to control the internal life of such bodies; and I have sought to show the limits of liberty where that life has ramifications outside their membership. It is, I think, a good general rule that the state should not interfere in this realm unless it must. Whenever, for example, it has interfered with the claims of churches to lead their own life, conflict has been the inevitable outcome. For in any meeting of church and state, the latter will assert its paramountcy; and a church has no alternative but to deny that assertion. For this reason I believe that any attempt at partnership between them is bound to result in injury to freedom somewhere. If, as in England, the Church is formally established by the state, its dependency becomes obvious as soon as it develops ideas of which the state does not approve; in matters like marriage and divorce and education, the church has had to surrender positions held for centuries to preserve the privileges of establishment. It now appears that where there is disagreement in an established church, the minority, on defeat, will not hesitate to go beyond the organs which formally record the voice of the church, in order to maintain doctrine or ritual which the church itself seeks to change; and a legislative assembly most members of which are either alien from the church, or without competence in its technical problems, will find themselves defining its most sacred principles. Such a church, quite obviously, is the mere creature of the state; it sacrifices its spiritual birthright for a material mess of pottage. Or, as in the concordat between Italy and the Papacy, there may be a looser alliance of which the result is to deprive all non-Catholics of their right to a secular state treating all religions equally, in the realm of marriage and education. I cannot avoid the conclusion that in this historic realm only the American principle of complete separation and non-interference can produce freedom. Unless state and church pursue an independent path, liberty is sacrificed; for either fusion or partnership will, in fact, involve a conflict for supremacy.

The remaining question I wish to discuss in this context is the right of the state over associations the purpose of which is the overthrow of the existing social order. What powers here ought the state to possess? At what point can it interfere? Has it what may be termed a preventive capacity, a right to prevent the development of associations the natural tendency of which will be an attempt at such overthrow? Or should its jurisdiction be limited to punishment for overt acts? Obviously the quality of liberty depends very largely upon the powers we give the state in this realm. I take it as elementary that the state has a right to protect itself from attack. It must, as a state, assume that its life is worth preserving. It must demand that changes in its organization be the outcome of peaceful persuasion and not the consequence of violent assault. A state must, therefore, assume that its duty to maintain peace and security lies at the very root of its existence. The liberty which associations enjoy must therefore be set in the context that they cannot have a liberty to overthrow the state. To that extent, any denial of freedom to them is justified.

But what are the limits within which that denial must work. The world today is littered with organizations that are denied a legal existence and suppressed at any opportunity. The existence of a Communist party is denied by Lithuanian law; the Peasants’ Party in Jugoslavia was formally dissolved; Russian principle seems to be the imprisonment or exile of members of any organization which can be suspected of counter-revolutionary tendencies. We must, I think, begin with the principle that a government is not entitled to suppress associations the beliefs of which alone are subversive of the established order. For, otherwise, persecution will be built, not on fact, but on suspicion that facts may one day emerge, not on overt acts, but on principles of faith which are in truth only dangerous when they are expressed in practice. A society might be formed, for instance, to discuss and propagate the principles of Tolstoyan anarchy; I do not think any government has legitimate ground for interference with it. The time for that interference comes only when, outside the specific categories of peaceful persuasion, men have moved to action which cannot logically be interpreted as other than a determination to overthrow the social order.

I agree, for instance, that a society of Communists which began to teach its members military drill could legitimately be regarded as a direct threat to peace. So, also, when a political party, the Ulster Volunteers, for instance, or their opponents, the Nationalists, begin to purchase munitions of war, interference by government is justified. But I cannot see that a government is entitled to prevent a society of Communists from preaching their doctrines either by speech or by publication of the printed word. It is, I think, essential that, as with the English law of treason, the government should be compelled to prove the commission of some overt act which directly tends to imminent rebellion in a court of law, and to bring two witnesses at least to bear testimony to its commission. It ought not to be sufficient for a government to say that since a particular party has beliefs which include the right to violence and has elsewhere practised violence, that its suppression is legitimate. Recently, again, Mr Ghandi announced that if the British Government did not grant Dominion Home Rule to India by the end of 1929, he and his followers would practise civil disobedience such as a refusal to pay taxes. We do not think that announcement would have justified the British Government in imprisoning Mr Ghandi before the end of 1929 in order that he might be prevented from accomplishing his threat at a later time. Or, once more, Mr Arthur Ponsonby’s organization of men pledged to refuse military service in the event of Great Britain going again to war ought not to be suppressed because, if Great Britain did go to war, some hundred thousand individuals would refuse to obey any military service Act that would then be enacted.

I am anxious, as you will see, to make it difficult for the government of a state to attack an organization the views of which it happens to dislike. In the light of the evidence, we can rest assured that, unless we compel proof, in an ordinary court of law, that overt acts have been committed, such attacks will be made. One has only to remember the Treason Trials of 1794, where there was not a scintilla of evidence against any one of the accused, or the follies enacted by governments during the Great War, to see that this is the case. In August of 1929, an Italian official actually drew public attention to the undue circulation, as he deemed, of books by Chekov, Turgenev and Tolstoy;[38] we can be sure that if a Society for the study of Russian literature had then existed in Italy, the attention of the government to its suppression would have been called. In the opening stages of the Communist trial in Meerut, the counsel for the prosecution drew attention not merely to the alleged offences of the accused, but also to the actions of the Russian Communist leaders from 1917-20, though it is difficult to see how either Indian or English Communists could have been held responsible for them. The logic, indeed, of habitual government suppression seems to be that abnormal opinion is always dangerous because, if it is acted upon, the supremacy of the law will be endangered. That is, of course, perfectly true. If the Communist Party in England sought to initiate a rebellion, there would be a threat to the supremacy of the law. But no one of common sense believes today in a Communist menace in England, least of all, perhaps, the Communists themselves. What can possibly be gained by an attempt to suppress that philosophy by an imprisonment of its members is quite beyond my understanding. I see no evidence to suggest that the slightest good has been accomplished in America by all the legislation against criminal syndicalism. Nor can I see that anything would have been gained by the kind of prohibitions which the Lusk Committee, of dubious memory, sought to put upon the statute-book.

My point is that men are always entitled to form voluntary associations for the expression of grievance, and for the propagation of ideas which, as they think, will remedy what they believe to be wrong. They are not entitled to move to the commission of acts which bring them into conflict with the state. By acts I mean things like the planning of Mussolini’s march on Rome, or the training of civilians as soldiers by the Ulster Defence Council. Things like these the government may legitimately attack because they have a clear and direct relation to immediate violence, actual or prospective. But governments would do well to remember, what they are too prone to forget, that they do not remove grievance, however ill-conceived, by suppressing it. And if they are allowed to associate violent opinion with actual violence, there are few follies upon which they cannot be persuaded to embark. The persecution of opinion grows by what it feeds on. Every social order is ardently upheld by fanatics who are eager to make dissent from their view a crime. The last thing that is desirable is to give them an opportunity for the exercise of their fanaticism.

It is, further, of great importance that all trials relating to these offences should be held in the ordinary courts under the ordinary forms of law. Experience makes it painfully clear that special tribunals are simply special methods for securing a conviction. For the mere creation of a special tribunal persuades the ordinary man that there is an _a priori_ case against the accused, that the burden of proof lies upon him rather than upon the government. Whatever we can do to safeguard these trials from the introduction of passion is an obligation we owe to liberty. However wrong or unwise we may think the actions of men so accused, we have to remember that they represent, as a general rule, the expression of a deep-felt resentment against social injustice. We have to protect ourselves from protest which seeks deliberately to dissolve the bonds of order. But it is our duty, too, to respect that protest when it is sincerely made. And we cannot, therefore, permit attack upon it because it represents ideas or experience alien from our own. _De nobis fabula narretur_ is a maxim which every citizen should recognize as the real lesson of political punishment.

Implied in all this is a view of the place of voluntary associations in the community the significance of which I do not wish to minimize. I am, in fact, denying that they owe their existence to the state, or that the latter is entitled, by means of its agents, to prescribe the terms upon which they can live. The special place of the state in the great society does not, in my judgment, give it an unlimited right to effect that co-ordination which is its function on any terms it pleases. The principles of a legitimate co-ordination bind the state as much as they bind any other body of men. Each of us finds himself part of a vast organization in the midst of which we must seek the realization of desire. We cannot attain it alone. We have to find others with kindred desires who will join hands with us to proclaim the urgency of their realization. There is no other way to the attainment of that end; and an attitude, therefore, like that of Rousseau, who denied the legitimacy of any voluntary associations, fails altogether to take account of the elementary facts of social life. Such bodies, indeed, must run in the leading-strings of principle, but the question of what that principle must be is not one the state alone is entitled to make. For the latter is not justified in preventing the expression of desire; it is justified only in preventing the realization of desire by violent means. It must tolerate the expression of experience it hates because it is there, as a state, to satisfy even the experience it cannot understand. We must not, in fact, allow ourselves to fall into the error of believing that opinion which is antagonistic to the state-purpose is unworthy to survive. The state-purpose, like any other, is expressed through the agency of men. They may misinterpret it; they may, consciously or unconsciously, pervert it to their own ends. To leave them free to settle the limits of free association would be to leave them free to settle what criticism of their work they were prepared to permit. That is a power which could not safely be entrusted to any body of men who have ever operated as a government.