Civil Liberties in Wartime


By CURTIS BOK, Justice of the Court of Common Pleas, Philadelphia

Delivered at annual dinner of the National Lawyers Guild, Hotel Roosevelt, N. Y. C., May 31, 1940

Vital Speeches of the Day, Vol. VI, pp. 654-655.

I HAVE been asked to say something to you about civil liberties in war. So far as personal knowledge of war is concerned, I recall spending a couple of pleasant years in the navy during the last war, living on the fat of the land while my family and friends at home lived on the lean. I was interested only in one kind of liberty and that was getting to go ashore as often as I could.

Most of us shall have to imagine what happens to our civil liberties in war time. We can be quite sure they will be restricted and a great part of that restraint will be by common consent. We may expect to hear more and more about democracy and freedom and to see less and less of them. They will appear to us as things worth defending by arms and worth reestablishing here and abroad, but their practice will be severely curtailed while the emergency is on. For the most part this will be satisfactory, since we will hope that the emergency will be temporary. It can hardly be otherwise. If we are honest we know that there are only a few of us who can look on danger and be unafraid. And we know too that he who fears cannot be free. What we shall lose in freedom will largely be compensated by the sense of security which comes with a common purpose. This puts the best face on it. But there is more below the surface.

War is peculiarly obnoxious to us lawyers. We make our living from private warfare, and we believe with reason that

our system of orderly arbitration is good. My courtroom is piled high with the discarded hatreds and animosities of those who have seen the judgment of their neighbors come to rest with patience and discernment upon their problems. We protect them daily in the liberties which are the gateways to the way of life that we believe in all the world is best. When that way of life is challenged we also believe that we must close the gates, and no doubt we must. But there will be trouble. As the fires of intolerance burn deeper, unexpected layers of dispute will be touched off. We will regard our friends, particularly our liberal friends, with new wonder and suspicion. Many of those who disagree with us will be called fighting names. People who are otherwise mild and intelligent will suddenly advance theories that a certain race or religious doctrine is not and never was suitable to American ideals or to mankind's as a whole, for that matter. There will be gossip and witch-hunting, and the drum-fire of bigotry. The utter tragedy of it is that the greatest damage will be done within the spirit of those who give expression to these things.

This is my main concernówhat the impact of war and of lessened freedom will do to the spirit of America and its people. There are some reassuring signs. One is that if war comes to us, we will do it, not as something glorious and desirable, but as one must do a dirty job. America is comingto fear ideologies less than the notion which springs from themóthat the violence of one group is to be preferred before the violence of another. If this is so, we will resort to violence only as the householder does who finds a mad dog in his gardenówithout fear or anger, but because there's nothing else to do. Since there is unhappily as yet no consensus of instinct about what way of life is best for all men, it must be admitted that groups of men may choose their own, provided they make and exercise their choice in peace.

We must remember that the organization of the human body and the organization of human society are most likely governed by the same laws. If my body is invaded by bacteria it resists, and resists mercilessly. Both the invasion and the resistance are intuitive. In human affairs they are deliberate, and so it is within our power to inform them with purposes of our own choosing.

I hope that American resistance may be as vigorous and as firm as need be, but I hope it may be accomplished without hate or anger. We will be conquered by evil to the extent that we hate it, and we will conquer evil to the extent, in pain and compassion, that we understand it. It is possible that mankind has not yet proven itself worthy of democracy and freedom, and if it finds itself periodically thrown backwards into barbarism, we must believe that mankind deserves better of itself than of its actions. If it helps, we might reflect that most men can more easily be humble about humanity than about themselves.

But we need not all recede into barbarism. In the short run, we may have to fight another war, but the promise offreedom is quite as stubborn as its adversary, and another day is coming for which we must be ready. In this longer run, we know that the best resistance will not come from tanks and battleships and guns. The real lines of our defense are the boundaries of the mind and spirit.

There is a current play in town called "There Shall Be No Night," and I commend it to you. In it the central character speaks when he hears the mutter of the Russian guns in Finland. He says that he does not agree with those who hear in it the death rattle of civilization, but rather does he hear the death rattle of the primordial beast. If men of good will are to guide mankind there can be no other view than this. They may have to fight the wars, but they must also make the peace and maintain it, or the world will be ruled by the lost generation that comes to power out of bitterness and defeat. We too are lost if our faith in civil liberty is blotted out by hate and fear of the temporary invasion of the liberty we have. That liberty can be better than it is, and when it has become so it will be worthy of its wounds.

It may be that the children of our wars whose only present refuge is the roads and forests will have a nicer world. Whatever they have will largely be prepared for them by us. If those who can look on danger without hatred or malice can keep alive for them the assurance of a wiser peace and the vision of a way of life that is aware and strong and gentle, then no good father need be called upon to forgive them for not knowing what they do.