"The Law for Which We Fight"
OUR GOVERNMENTS NEED CRITICISM
By COLONEL GEORGE A. DREW, K.C., Leader of the Conservative Party in the Province of Ontario
Delivered before the Cleveland Bar Association, April 6, 1942
Vital Speeches of the Day, Vol. VII, pp. 433-437.
THIS is no mere war of ideas. Germany and Japan have before their eyes a vision of conquest which calls for the domination by Germany of the Western Hemisphere and domination by Japan of the Eastern Hemisphere. Anything less will make it impossible for them to retain the conquests they have already made. Germany cannot hope to continue her domination of Europe in a world where the United States, the British Empire, Russia, China and our other Allies remain free. Neither can Japan hope to hold the conquests she has already made in Asia. They must conquer us completely or be defeated and they do not yet envisage defeat. It is clear therefore that no matter how far the enemy may still be away from our shores, we are fighting for the very soil upon which we live. Many fine theories and many splendid plans for the improvement of mankind must wait until that threat is removed and our armies are driving forward in the east and the west againstour common enemies. But as we recognize that our first and most imperative task is to make sure that our armed forces will be adequately equipped and adequately trained to deal with the forces which are ranged against us, nevertheless it is wise to remember that we are fighting—not only to prevent our soil being overrun—but also to preserve a way of life that has become indigenous to that soil.
We are told that we will never return to the manner of life we knew before this war. Of course we won't. If we are free to choose our own course, we will advance as free men have always advanced, to a better and a broader life resulting from the free exchange of vigorous opinions. In the United States, in Canada, in Britain, and in the other United Nations, there were wrongs to be righted; there were faults to be corrected; there were injustices to be cured. But in each nation those faults could have been cured, and undoubtedly would have been cured, withoutthe advent of war. After all, that way of life, which we describe so often as democracy, provides its own machinery for the correction of abuses. We needed no new order such as Hitler has promised Europe, and Tojo has promised Asia. We needed only the free working in a modern world of an old and established order which is entirely capable of adjusting itself to the changing needs of mankind.
It is now agreed by the Atlantic Charter that each nation must be left with the job of solving its own domestic problems. Russia and China will emerge from this war with a pattern of life very different from ours. It would be Quixotic, and in the end extremely dangerous, if we should seek to impose our way of life on people who are fighting as our allies mainly because that is the best way to prevent the territorial aggression of Germany and Japan. We must never forget that they are also fighting to retain the right to work out their own destinies in their own way. If we do keep that in mind there need be no lessening of the real unity of purpose of the Allied Nations when we assert the very obvious truth that the Anglo-Saxon democracies find themselves on a special common ground because of the fact that the way of life they are fighting to preserve is fundamentally the same. It is that particular phase of the struggle which I propose to discuss today.
We hear with increasing frequency the remark "If we are going to win against dictators, we must adopt some of the methods of the dictators." That is a symptom of a state of mind which should cause concern to people living in those nations which have repudiated so vigorously the principles of dictatorship. We are being told that true democracy is an inefficient form of government to wage total war. We are being told that real democratic government cannot act with the speed necessary to meet recurring crises. We are told over and over again that freedom of speech and freedom of the press must be restrained. There are many who accept those propositions and do so sincerely. But perhaps we should recall that this was the argument which Mussolini used so effectively when he set out to destroy democracy in Italy and this also was the argument which Hitler expounded in "Mein Kampf." Perhaps the argument is right. There are people who think it is. But I prefer to believe that it is not. If it is right, however, then let us realize now and not afterwards that the crises we will be called upon to face when this war is over may well demand just as prompt decisions and just as vigorous action as anything which happens during the course of the war. Before accepting these propositions, therefore, I think we should keep in mind that if we suspend the democratic process now, we will in all likelihood suspend it for many long years to come. I think it is more than time that the people of the Anglo-Saxon democracies, and particularly the lawyers in those democracies recognized how dangerous it may be to abandon any of the fundamental principles for which so many men and women throughout the centuries have been prepared to face martyrdom, and for which the people of the United States fought a Revolutionary War and then a great Civil War not so very long ago.
American people fought, just as British people had fought before them, for the right to apply old principles to new conditions. Those old principles have often been threatened and restricted in the past. King John repudiated them more than eight hundred years ago and was called to task by the representatives of the people at Runnymede. The Stuart kings denied those principles and one Stuart king paid for his folly with his head. It was the denial of those principles which led to the separation of the two great branches of the Anglo-Saxon family in 1776. It was the denial of those principles which led to the Civil War.
Those old principles, which are forever new, had their beginning long ago in the Sermon On The Mount. For those who speak the English tongue, they had their temporal declaration in Magna Charta. They have been reasserted time and time again. It was accepted as self-evident that each individual human being was born free, that he had certain inalienable rights which he could assert even against the authority of the State itself, and that the highest purpose of government was to assure the welfare and opportunity for advancement of each individual under the government's authority. That, in its simplest form, is the way of life for which those of us who live in the Anglo-Saxon democracies are now fighting. It is a special type of social relationship which we wish to preserve. And since law may be defined as the authoritative regulation of social relationship, it may be said that we who speak the English tongue are fighting for the same fundamental law.
In every nation Law may be described as the system of control based on custom and statutory enactment, which determines the rights and obligations of the citizens of that nation as between each other and also as between each one of them and the State as a whole. Law is the very fabric of our way of life. I believe therefore that it is a fact of the utmost importance that the principles underlying the Law are the same in the United States, Great Britain, Canada, Australia, New Zealand, and South Africa. The law of each of those nations is derived from the ancient Common Law of England.
This fact is worthy of emphasis not only to explain the similarity of the system of control which determines the way of life in each of the Anglo-Saxon nations, but also for the purpose of recalling some of the lessons of the past at a time when we hear so many people expressing a willingness to suspend some of those principles of personal freedom which were so clearly established in the Common Law of England and were stated with such clarity in the first ten amendments of The Constitution of the United States.
After preserving the integrity of our soil, and the right to choose the form of government under which we will live, it seems clear that we are fighting for freedom of speech, freedom of worship, freedom of assembly, freedom of association, and those other simple principles which are so essential if government of the people is really to be government by the people.
No matter what the form of government may be, there cannot be any such thing as government by the people unless freedom of speech, which carries with it freedom of the press and freedom of communication, are assured for the purpose of a free exchange of opinion upon all matters of public concern. And it is essential to the preservation of our way of life that these rights be determined if necessary by an impartial trial in open court. Star Chamber methods are no less opposed to our way of life now than they were in the time of the Stuart kings.
I raise this issue before you today because it has become an issue in Great Britain, in Canada, and also in the United States. You have all read of the heated debates now taking place in Great Britain regarding the threatened suspension of "The Daily Mirror," because of the things it said about the conduct of the war. Some of the greatest figures in the public life of Britain have banded themselves together to fight what they believe to be a dangerous tendency toward restraint of the freedom of the press. But I hope that no one in the United States or Canada will suggest that this tendency is confined to Great Britain alone. Next to the effective prosecution of the war, I believe there is nothing so important as the assurance of freedom of the press and freedom of speech assured by open and impartial trial. Thereis no characteristic of our way of life, there is no characteristic of the law for which we fight, there is nothing which so clearly distinguishes our system of government from those of Germany and Japan as freedom of speech, freedom of the press, freedom of communication and the other assurances of freedom which go with them.
This is not the first time that free men have been tempted to turn from the old Common Law or "Folk Law," as it was sometimes called. Four hundred years ago the people of Europe were carried away with the idea of a New Order and gave up their simple laws of custom for the Absolutist Doctrines of Roman Law. England alone escaped this invasion of an alien legal system and I believe the reason for that provides a lesson for English-speaking lawyers everywhere.
You will recall that it was the redoubtable Coke who headed the common lawyers of England in their determined fight to preserve the liberties of the subjects under the Common Law of England against the despotic claims of the Stuart kings.
Their victory preserved fundamental principles of personal freedom which had evolved in England throughout long centuries of trial and error. They were principles of law older than Magna Charta itself, which, as we are sometimes inclined to forget, was not the beginning but merely the declaration of the existing Common Law.
The lawyers of England fought successfully as a body to retain that English Common Law four hundred years ago at a time when nearly every other nation came under the spell of the totalitarian principles of Roman Law.
Their conviction, and the success which attended their efforts, were the result of a simple but extremely important fact. Medieval England possessed great schools of law at the Inns of Court. The men trained at the Inns of Court learned not only the law but also the traditions and history of the law. To them the profession of law was something far above a mere job of interpreting words for a fee. By virtue of their high calling and their professional training they believed it was their duty to act as the defenders of the personal liberty of the people of England. That had been the guiding purpose of the Common Law for so long that they were very conscious of the dangers of the New Order offered by the Roman Law with its attractive simplification of procedure and arbitrary centralization of all authority in the State. With their knowledge they believed that they were the ones who should warn others of the dangers which would not be so apparent to laymen.
Their victory, under the leadership of the great Coke, has had a profound effect upon the life of every man, woman and child living in the English-speaking democracies. The principles of personal freedom, which they maintained against the absurd assertion of divine right by the Stuart kings, were again threatened under George III, not only in the Thirteen Colonies but also in England itself. This led to the revolt of the Thirteen Colonies on one hand, and in England to the most famous of all cases dealing with the freedom of the press.
The great pamphleteer, Thomas Paine, whose thoughts left such a profound impression not only in the United States hut also in England and France, wrote a pamphlet in England under the title "The Rights of Man" in which he asserted with great force the simple proposition that the freedom and welfare of the individual is the highest purpose of the State and that no ruler can claim any greater authority than is conferred upon him by the government of the state as, representative of all the people.
The publication of this pamphlet led to Paine's prosecution. He was defended by one of the greatest Englishpleaders of all time—Lord Erskine. His address to the jury on the 10th of December, 1792, still stands as one of the finest expositions in English of the freedom of the press. The things Lord Erskine said a century and a half ago may well be repeated today and particularly at a time when the freedom of the press is being discussed so vigorously in England. May I quote a few passages from that famous address which may well be borne in mind by lawyers today.
Before doing so I should perhaps recall that the words which led to Paine's prosecution were little more than a restatement of what Coke had said 200 years before when he told the people of England that the claim of the Stuart kings to divine prerogative was a denial of the rights of the people and, to use his own words, "the King hath no prerogative but that which the Common Law allows him." Lord Erskine had this to say in his address to the jury:
"The proposition which I mean to maintain as the basis of the liberty of the press, and without which it is an empty sound, is this: That every man, not intending to mislead, but seeking to enlighten others with what his own reason and conscience, however erroneously, have dictated to him as truth, may address himself to the universal reason of a whole nation, either upon the subject of governments in general, or upon that of our own particular country; then he may analyze the principles of its constitution, point out its errors and defects, examine and publish its corruptions, warn his fellow-citizens against their ruinous consequences, and exert his whole faculties in pointing out the most advantageous changes in establishments which he considers to be radically defective, or sliding from their object by abuse. All this every subject of this country has a right to do, if he contemplates only what he thinks would be for its advantage, and but seeks to change the public mind by the conviction which flows from reasonings dictated by conscience."
He said further:
"I shall ever maintain it to be the dearest privilege of the people of Great Britain to watch over everything that affects their happiness, either in the system of their government or in the practice, and that for this purpose the press must he free. It has always been so, and much evil has been corrected by it. If Government finds itself annoyed by it, let it examine its own conduct, and it will find the cause; let it amend it, and it will find remedy. . . . Engage the people by their affection,—convince their reason,—and they will be loyal from the only principle that can make loyalty sincere, vigorous or rational,—a conviction that it is their truest interest, and that their government is for their good."
I think those words place before us the very issue that we of the English-speaking democracies must determine. The Nazis, the Fascists, the Japs and their satellites do not attempt to convince the reason. They do not attempt to engage the people by their affections. They tell the people that they are incapable of deciding for themselves. They tell their people that they must be obedient to the will of the supreme leader because he is the embodiment of the greatness of their nation. We repudiated that nonsense long ago. The people of the United States and the other English-speaking democracies parted company in 1776 because that theory had again been reasserted in Britain. Apart from the question of territorial aggression, those words of Lord Erskine's go to the very root of the fundamental issue between the Axis Powers and the United Nations. And they go particularly to the root of the issuebetween the Axis Powers and those whose way of life is based upon the ancient Common Law.
It is significant that in every dictatorship the very first step taken to preserve the dictatorship is to restrain the freedom of the press, and to deny freedom of speech. It seems strangely inconsistent for any of us to accept the proposition that in a war to destroy dictatorship we should ourselves take the first and most important step toward setting up a dictatorship.
We are sometimes told that in times as serious as these it may be necessary to impose some limitations upon the freedom of the press and upon freedom of speech so that the public mind may not be disturbed when all the Nation's energies must be concentrated upon the winning of the war.
But it was not always in peaceful times that these rights were asserted in the past. In fact, they were asserted most strongly in the past in the most troubled times. And it was not only in the English-speaking countries that those rights were asserted. They have been asserted elsewhere when men have turned to freedom from tyranny, and it is significant that this right has always been recognized for many centuries as the hall-mark of freedom. Perhaps we may recall with advantage that in the Declaration of the Rights of Man by the National Assembly of France in 1789, at a time when by no stretch of the imagination it would be suggested that the nation was free from disturbance, Section 11 of the Declaration of Rights read as follows:
"The unrestrained communication of thought and opinion being one of the most precious rights of man, every citizen may speak, write, and publish freely, provided he is responsible for the abuse of this liberty in cases determined by the law."
out there is another answer often given to the assertion of this clearly established right. It is said that criticism of existing military establishments and of our military efforts may give information to the enemy. It is time for each one of us to tell anyone who uses that argument to act his age. Up till four months ago today Japanese nationals moved perfectly freely in the United States, in Canada, in Britain and elsewhere in the English-speaking democracies. No restraint was placed upon their opportunity to obtain information regarding the nature of our military establishments, the types of our weapons, or the essential details of our military strength. Is it to be supposed that the information which they then possessed was not then and is not now available to Germany? If it is, then discussion of our military organization and of the type of weapons and their adequacy can give no information of use to the enemy which they do not already possess except in the case of new designs and new formations about which undoubtedly there should be the strictest secrecy.
I hope I will not be charged with indelicacy when I say that not one of the English-speaking nations yet has a right to express complete satisfaction with what it has done. So far the most we can say is that we have collectively avoided defeat. But no matter how confident of victory we may be, we have not yet demonstrated by actual performance that we are trained and equipped to overcome the two most highly organized fighting teams the world has ever seen. We need to remember that Germany and Japan, each with a population of about eighty millions, have been fighting full scale wars for several years. Our fighting teams must be trained and equipped even better than theirs because, except as a last resort, we will be fighting on foreign soil far from our main bases of supply. That will only come about when the people of the Anglo-Saxon democracies are fully aware of the extent of their danger.
Our governments need criticism. Not one of them has been accustomed to handling large armies. They need the advantage of all the suggestions which can be made. Any English-speaking government which came to consider itself above criticism would be a very dangerous government indeed because the government of every English-speaking democracy is learning about war as the days go on. They have no right to claim immunity from criticism when the critics are just as likely to be right as they are about the course which should be followed.
There is another reason why criticism is not only justified but extremely necessary. There is every probability that this is going to be a long war. We are not going to create some brave, new world after this war is over completely unlike the kind of existence we have built up during the course of the war itself. I returned not long ago from an extended visit to the British Isles. One of the things which impressed me most of all was the extent to which they realize that they are building their new world hour by hour and day by day. There are few really rich people in England today and there are comparatively few people who would still be regarded in England as extremely poor. I believe that they have gone further in developing a real spirt of national team play than any other democracy of our day. I am not overlooking the errors that have been made and the faults which must be cured. But they have broken down political barriers and have submerged all other considerations in the one job of winning the war more than we have on this side of the Atlantic. I had the opportunity to spend some time with Mr. Churchill and also with Mr. Ernest Bevin. In the days before this war they represented opposite poles in politics, in their daily occupations, and in their attitude towards international affairs. They possessed one faith in common however—their abiding faith in Britain and their profound belief that they could work out their own problems under their own system of government. The appointment of Sir Stafford Cripps to the second post in England is further proof of that spirit. All have joined hands regardless of party to save the country that they love and the way of life they want their children to live no matter what happens to them. I noticed that few slogans now remain in public discussion. You hear little talk of the new order, or of conscription of wealth, or other meaningless phrases of that nature which have been borrowed so freely from Lenin's literary arsenal. They are doing their utmost to work out their new world day by day so that when peace does come it will not necessitate a complete upheaval to re-establish the freedom which they fought to preserve. I believe an understanding of that truth has much to do with the vigorous demand that the freedom of the press should be preserved and that legitimate criticism should not be restrained.
I do not believe that any war was ever lost by criticism. I do believe, however, that this war can be lost unless the ruinous consequences of ineffective military organization and inadequate training are freely criticized by the press and by individuals as well.
France was not destroyed by criticism. The weakness of France only remained hidden because legitimate criticism had been restrained. It was impossible for those who knew the truth to tell the people of France how ineffective their military preparations really were. Let France be a warning to all of us.
I believe that the principles of freedom for which we are fighting must be preserved now if we are going to have them when the struggle is over. I believe that the new and better relationships, which we hope to establish within our own national boundaries and between nation and nation,must be created month by month and day by day and notsimply prepared as some revolutionary plan to be suddenlyintroduced when the war is over. I believe that this is a subject of equal concern to eachof the English-speaking democracies. What happens in one nation may well influence the thoughts of many people in the other nations because we have the good fortune to speak the same language. I believe implicitly in the words of our great leader, Winston Churchill, that:
"The day will come when the British Empire and the United States will share together the solemn but splendid duties which are the crown of victory." We are fighting for the same way of life and the legal principles which preserve that way of life. A victory worthy of the terrible sacrifices which must be made will depend upon the extent to which the people of the United States and the British Empire work together for that purpose now and after victory is won.