Chapter II · FREEDOM OF THE MIND (continued 2)

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

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

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

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

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

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

For consider, once more, the historic record. The Roman suppression of Christianity was built upon the belief that unity of religious belief is the necessary condition of citizenship; later experience shows that view to be without any substance. What in fact emerges from the history of religious persecution is the lesson that the unity made by the suppression of Nonconformity is the unity of stagnation. That was the history of France under the repeal of the Edict of Nantes; it has been the history of Spain ever since the sixteenth century; it is, indeed, the history of any community, however rich and powerful, the rulers of which assume that they know what constitute truth and right, what opinions, therefore, they are entitled to prescribe. Any government which attacks a body organized to promote some set of opinions which may become dangerous to its safety may fairly be presumed to have something to conceal. It is co-ordinating social life not to the end of its greater fullness, but simply for the sake of co-ordination.

But law, as I have insisted earlier, does not exist for the sake of law. It is not entitled to obedience because it is legal, because, that is, it proceeds from a source of reference formally competent to enact it. Law exists for what it does; and its rightness is made by the attitude adopted to it by those whose lives it proposes to shape. Since bodies like the Communist Party are in fact an announcement that some lives at least are shaped inadequately by the laws of a régime like our own, suppression seems to me an indefensible way of meeting that announcement. Force is never a reply to argument; and until argument itself seeks force as the expression of its principle, it is only by argument that it can justifiably be countered.

VI

I turn to a very different phase of the subject. In every society there are modes of conduct which, though not in themselves harmful, offer an easy prospect of becoming so. It is therefore assumed by many that it is the business of the state actively to discourage such conduct, even to the point, if necessary, of making its most innocuous expression illegal. No one is harmed, for instance, by a moderate indulgence in alcoholic liquor; but since drunkenness is harmful both to the individual and society, the state, it is said, is justified in prohibiting the manufacture or sale of alcoholic liquor. The same principle is urged of noxious drugs, of the use of tobacco, of gambling. Sometimes, indeed, the principle is carried to an extreme point and it is said that the state may prohibit any form of conduct, Sunday games, for example, which a majority of the society finds obnoxious. The claim to freedom, it is urged, may be denied in the interest of a social view of good.

I do not find it easy to accept any single principle that is obvious and straightforward as applicable to the very complex problems we encounter in this realm. Neither the fact that a mode of conduct may be harmful in excess, nor the fact that, whether harmful or no, society dislikes it, seems to me in itself a just ground for its suppression by the law. The first case seems to me one for safeguards against excess; care, for instance, may be taken to see to it that it is manufactured at a limited strength, is sold only under careful restrictions, and so on. The second case I find it impossible to decide as a general principle, and apart from particular cases each of which is judged upon its own merits. I am prepared, for example, to make it illegal to keep a gaming-house; but I am not prepared to legislate against a social game of bridge played for money in a private house. Conduct must be punished or prohibited when it is harmful in itself or in the excess in which it touches society before we ought to seek access to the clumsy machinery of the law.

For we cannot suppress all modes of conduct in which excess does harm. In most cases, we have to leave the individual free to judge at what point excess is a fact. Over-eating does great harm, but no one would propose legislation against over-eating. Many motorists sacrifice their lives to their motor-car, especially in America; but no one would propose legislation against an undue indulgence in motoring. False social standards result from our excessive adulation of film-stars and athletes; but we should obviously be merely foolish if we legislated against the publicity which makes for that excessive adulation. We have always, I think, to study any proposed social prohibition in terms of the object to which it is applied. We have to remember that it always runs the risk of undermining character by a limitation of responsibility. Men are made not by being safeguarded against temptation but by being able to triumph over it. It would be impossible to forbid the use of cheques because some people succumb to the habit of embezzlement. There is a clear case for forbidding the sale of noxious drugs like heroin or cocaine except under severe restrictions, because it is clear that in themselves their consumption is bound to harm the recipient. There is a clear case for insisting that persons, even if they be passionate Christian Scientists, who are suffering from an infectious disease like small-pox, shall be isolated until they are cured; for anyone who goes about with small-pox inflicts direct and measurable injury on other persons. But unless we can show that the particular mode of conduct it is proposed to repress must necessarily destroy the will-power of those who practise it, as is true of noxious drugs, or directly and unquestionably injures the rest of society in a measurable way, I think the method of prohibition an unwarranted interference with freedom.

I take this view on three grounds. I believe, first, that it is socially most important to leave the individual as uninhibited as possible in forming his own way of life, granted, of course, that he is adult and mature. To shelter him at every point from experience which, if carried to excess, may harm him is not only impossible, but also dangerous. It makes him pass his life under the aegis of a system of fear-sanctions which, for the most part, he will be quite unable to sublimate, and the result will be that sense of continuous frustration which is fatal to freedom. I must, in general, learn my own limitations by experimentation with myself. I cannot pass my life adjusting my conduct to standards and habits which represent the experiments of other people. For the reasons which make the results of particular experiments seem to them convincing, I may in my own case regard as completely unsuccessful. To insist that their rule of life is to be mine is, normally, to destroy my personality. It is to compel me to live at the behest of others even where I can discover no ground for the behest. Most people would agree that a statute compelling an atheist to go to church was utterly foolish. His absence does not affect the salvation of any other person. His presence there does him no good because his mood is inevitably one of gnawing indignation at being compelled to participate in ceremonies that have no meaning for him. Either he will invent excuses which enable him to stay away, or he will adopt an aggressive disbelief which makes him a source of offence to the faithful. He loses, that is, the habit of truth, on the one hand, or the capacity to give and take which makes for decent citizenship, on the other. Both forms of behaviour do real injury to him; neither produces an attitude of conviction. From the angle of character, the only rules of conduct in this realm that work, are those that are self-imposed. And these, so far as I know, are the invariable outcome of experiment made by oneself with one’s own personality.

My second reason is not less important. The power of law to define modes of social conduct depends very largely upon its ability to command a sentiment of general approval. What it seeks to do must broadly commend itself, on rational grounds, to those over whose lives its principles are to preside. Legislation which does not fulfil this condition is always unsuccessful, and always has the result of bringing the idea of law itself into contempt. For where a particular statute is regarded as foolish or obnoxious by a considerable body of persons, they will rejoice in breaking it. Illegal conduct becomes a matter even of pride. It becomes a principle of conduct which gives rise to special pleasure and peculiarly satisfies human vanity. No one in London, so far as I know, regards the average policeman as an unwarrantable attack on liberty; but it seems to be the case that thousands of people in New York regard the prohibition agent in that way. They wear a breach of the law as a badge of courage, like the revolutionary in Czarist Russia or the suffragette in pre-war England; and the imposition of penalties upon them arouses in them and their friends a sense of angry injustice. Now I think it is an elementary principle of penal psychology that you cannot make a crime of conduct which people do not a priori regard as criminal. Popular sentiment approves a law against murder, and you can enforce that law. But popular sentiment, in England at least, would not, in my judgment, approve a law forbidding the manufacture and sale of alcoholic liquor; and its chief result would be to direct the minds of thousands to the problem of ways and means of evading the law. That is a habit which grows upon those who indulge in it. It loosens all the principles of conduct which make for social peace by making us think of the rules under which we live as unjustifiable and oppressive. It forces social effort quite unduly and unwisely in one direction. It persuades it to think out mean and petty expedients for the enforcement of the law in the same way as its subjects think out mean and petty expedients for its evasion. The spectacle, for instance, of the Supreme Court deciding that the American government is entitled to tap telephone wires in order to obtain evidence of infraction of the Volstead Act is not an encouraging one.⁠[39] That way lies corruption and blackmail, the kind of habits which, in England, we associate with names like that of Oliver the spy,⁠[40] in Russia with that of agents-provocateurs like Azeff. Few things are more detrimental than this to the moral equilibrium of a social order.

Nor must we forget two other effects of attempted enforcement, both of which are, I think, entirely evil. A government which is continually flouted in its attempt at administration is bound to attempt even greater severity. There will be an extension not only of the area of offence, but also of the methods of coping with offence, and the punishment to be inflicted where it occurs. The classic instance of this result is the government of Geneva from the period of Calvin’s dispensation. It does not result in the satisfactory enforcement of the law, but in its wider evasion. Severity on one side is met by brutality upon another; one might as well be hung for a sheep as a lamb. And the disproportion between crime and punishment which emerges draws the sympathy of the general population away from the government to the offender. This is, I suggest, wholly bad for any society. It makes the habits of government generally suspect to the multitude. It creates martyrs unduly and unwisely. And this has, of course, the consequence that it becomes ever more impossible to enforce the law. Its irrationalism is advertised to the multitude. It becomes inacceptable to an ever-increasing circle who, while they may sympathize with its principle, are not prepared to acquiesce in the price that has to be paid for its application. Not only, sooner or later, does such legislation perish, but the habits to which it gives rise persist, and are frequently carried over into realms where they are still more undesirable. And the severity which a government is tempted to practise makes it blind to wrong through becoming inured to its consequences. When the British Government first met the weapon of the hunger-strike it was baffled; later, it turned that weapon against those who employed it by what was called the Cat and Mouse Act. Much of this proceeding, where the suffragettes were concerned, had a comic, as well as a tragic side. But the whole procedure had the serious result of making the public expect that any hunger-strike would be a dramatic battle between the government and its prisoner, in which the cause of the imprisonment was lost sight of in the gamble of the procedure. The public, accordingly, was not greatly moved by the hunger-striking which took place during the Irish Revolution; and when Mr Lloyd George left the Lord Mayor of Cork to die, people were more interested in the circumstance of his death than in the vital question of whether he should have been allowed to die. In all this realm, the denial of liberty seems to result in the slow maximization of unhappiness.

The second effect is also wholly bad. Whenever government interferes to suppress some service which a considerable body of persons think they require, when, also, the suppression is disapproved by a large number of citizens, an industry to supply that service will come into existence. Its ways will be devious, its charges will be high. It will attract to its ranks many of the most undesirable elements in society. It will form an army of lawbreakers whose habits are only too often condoned by a large section of public opinion. That has been the case with bootleggers in America and with night-clubs in London. And the risks being great, the profits are high, the interests, consequently, to be protected are correspondingly great. The history of these adventures in England and America is one of organized immorality and corruption. Condemnation by the law seems to have little or no effect in dispelling its influence. Men and women attain power through its means who normally would be shunned by most decent-minded persons. The degree to which the police are corrupted by these influences is very difficult to exaggerate. There is hardly a bribe too high for them to pay. They are organizing, too, an adventure which stimulates every sort of dubious instinct in perfectly ordinary people. Mr Babbitt approaches his bootlegger, you will remember, in something like a religious frame of mind. The night-club habitué finds nothing quite so exciting as the prospect of a raid; and he leaves his meretricious surroundings with the sense that he knows the glory of danger and has escaped the humdrum pettiness of suburbia. I think it bad for society to make illegal conduct heroic. I think it still worse to make the central figures in the drama of illegality powerful in the lives of those to whom they purvey their service; men and women whose methods of obtaining a living it does not occur to their clients to condemn. Nor is it an answer to say that when the law does act, those clients immediately desert the arrested offender which is proof that they really disapprove. An enforcement which induces cowardice at the critical moment in those who are participes criminis does not seem to me anything of which to be proud.

My third reason is rather different in character. Every state contains fussy and pedantic moralists who seek to use its machinery to insist that these habits shall become the official standard of conduct in the population. They are interested in prohibition and uniformity for their own sake, and every success that they win only spurs them to greater efforts. If they stop the sale of alcohol, they become ardent for the limitation of the right to tobacco. They are anxious to control the publication of books, the production of plays, women’s dress, the laws governing sexual life, the use of leisure. They are terrified by what they call immorality, by which they mean behaviour of which they do not happen to approve. They are scandalized by the unconventional. They luxuriate in its denunciation. They form committees and leagues to prove the degeneracy of our times. They rush to the legislature to compel action every time they discover some exceptional incident of dubious conduct. To themselves, of course, they appear as little Calvins saving the modern Geneva from the insidious invasion of the Devil. No one, I suppose, can seriously doubt that men like Mr Comstock regard themselves as the saviours of society. They have an unlimited sense of a divinely appointed mission, and the whole of their life is set in its perspective. They are the men who find in Candide the means of corrupting the mind of the community. They are horrified by the nude in art. They think the performance of Mrs. Warren’s Profession the public profanation of the ideal. They regard Darwin as an “infidel” whose works were an outrage upon God; and the circumstances of Maxim Gorky’s married life seem to them to demand his public excoriation.

I know nothing more incompatible with the climate of mental freedom than the inference of such people. They lack altogether a respect for the dignity of human personality. They are utterly unable to see that people who live differently think differently and that in so various a civilization as ours absolute standards in these matters are out of place. It is difficult to overestimate the price we pay for their successes. Certainly no great art and no literature great in anything save indignation can be produced where they have sway. It is not for nothing that from the time of Calvin not a single work of ultimate literary significance was produced by a resident of Geneva. It is easy to understand why the grim excesses of Puritanism produced the luxuriant license of the Restoration. These would be, if they could, modern Inquisitors, without tolerance and without pity, thinking no means unjustified if only their end can be attained. They are the kind of people who drove Byron and Shelley into exile, and they remain unable to see upon whom that exile reflects. Their pride is inordinate; and human instincts are its chief victim. They are often ignorant, usually dangerous, and invariably active. Since the friends of liberty too often sleep, their unceasing vigilance not seldom meets with its reward. To me, at least, they commit the ultimate blasphemy since they seek to fashion man in their own image.

I do sincerely plead that, especially in a democratic society, these are grave dangers to freedom, against which we cannot too stringently be upon our guard. Especially, I say, in a democratic society. For there, the proportion of men zealous in the service of freedom, is likely to be small unless great and dramatic issues are at stake. Tyranny flows easily from the accumulation of petty restrictions. It is important that each should have to prove its undeniable social necessity before it is admitted within the fabric of the law. No conduct should be inhibited unless it can be definitely shown that its practice in a reasonable way can have no other result than to stunt the development of personality. No opportunity should be offered for the exercise of power unless by its application men are released from trammels of which it is the necessary price of purchase. We ought not to accept the easy gospel that liberty must prove that it is not license. We ought rather to be critical of every proposal that asks for a surrender of liberty. Its enemies, we must remember, never admit that they are concerned to attack it; they always base their defence of their purpose upon other grounds. But I could not, for myself, serve principles which claimed to be just if their result was to make the temple of freedom a prison for the impulses of men.