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Published online by Cambridge University Press: 02 September 2013
To refute the maxim silent leges inter arma is one of the modern challenges to a democracy at war. It is usually recognized that when a state is at war many of the rights of personal liberty normally enjoyed by its citizens must be limited to prevent interference with the prosecution of hostilities. In international conflicts having an ideological basis, such limitations, if too severe, produce a somewhat embarrassing dilemma for a democratic state. The requirements of total war may necessitate at home some of the very objectionable features of government which are to be overthrown elsewhere; yet to be too lenient with dissident groups can well be disastrous. At all events, the government hesitates so to act as to invite its citizens to ask: “To what purpose is a war in defense of democracy if it begins by ending the very liberties which a people are asked to defend against external aggression?” Nevertheless, war conditions are not alone responsible for altered conceptions of personal rights. Internal developments in peace-time may also create a need for changes in such rules; the law cannot remain constant when the conditions upon which it is based are being transformed. Within a twenty-five-year period in English history, two major wars, as well as a series of domestic emergencies, have produced conditions sufficiently serious to arouse substantial sentiment favoring restrictions on civil liberties. At the same time, however, other equally determined groups, whose position is strengthened by the increased popularity of democratic ideals, have sought to combat such restrictions. The events of the period examined show the nature and the result of this conflict.
1 General surveys of the law of public meeting may be found in Dicey, A. V., Introduction to the Study of the Law of the Constitution, 9th ed. by Wade, E. C. S.CrossRefGoogle Scholar; Keith, A. B., The Constitution of England from Queen Victoria to George VI, Vol. IIGoogle Scholar; Wade, E. C. S. and Phillips, G. G., Constitutional Law, 2nd ed.Google Scholar
2 4 & 5 Geo. V, c. 29; 4 & 5 Geo. V, c. 63; 5 & 6 Geo. V, c. 8.
3 Defense of the Realm Manual (1918), 91, 95, and 185.
4 78 H.C. Deb. 5s., 15.
5 Samuel, H., “War and Liberty,” New Statesman, Vol. 9, 224 (June 9, 1917)Google Scholar; Ibid., 253; 86 H.C. Deb. 5s., 299.
6 86 H.C. Deb. 5s., 300–301.
7 H. Samuel, loc. cit., 224.
8 108 H.C. Deb. 5s., 487.
9 10 & 11 Geo. V, c. 65.
10 140 H.C. Deb. 5s., 315–371.
11 140 H.C. Deb. 5s., 338.
12 Statutory Rules and Orders, 1926, Emergency Regulations (No. 2).
13 199 H.C. Deb. 5s., 2087.
14 197 H.C. Deb. 5s., 1808.
15 269 H.C. Deb. 5s., 276–277.
16 London Times, Nov. 2, 4, and 9, 1932.
17 Ibid., Dec. 19, 1932.
18 Thomas v. Sawkins [1935], 2 K.B. 249.
19 Duncan v. Jones [1936], 1 K.B. 218. See 314 H.C. Deb. 5s., 1551–1552.
20 188 H.C. Deb. 5s., 25.
21 See, e.g., 273 H.C. Deb. 5s., 1272–1273; London Times, Sept. 30, 1933.
22 London Times, Nov. 9, 14, 15, 16, and Dec. 19, 1934. Among those acquitted was William Joyce, later to become Berlin's Lord Haw-Haw.
23 Ibid., Oct. 5, 1936.
24 Ibid., Oct. 14, 1936.
25 317 H.C. Deb. 5s., 1350–1351, 1442–1444, and 1454.
26 1 Edw. VIII & Geo. VI, c. 6.
27 325 H.C. Deb. 5s., 848; 326 H.C. Deb. 5s., 1794–1795.
28 330 H.C. Deb. 5s., 1283–1284.
29 351 H.C. Deb. 5s., 63–64.
30 Emergency Powers (Defense) Act, 1939, 2 & 3 Geo. VI, c. 62; Emergency Powers (Defense) Regulations, 1939. S. R. & O., No. 927.
31 Ibid.
32 352 H.C. Deb. 5s., 1827–1900.
33 Emergency Powers (Defense) Regulations, 1939. S. R. & O., No. 1681.
34 357 H.C. Deb. 5s., 1505; 358 H.C. Deb. 5s., 1366.
35 357 H.C. Deb. 5s., 2245.
36 358 H.C. Deb. 5s., 1209.
37 London Times, March 4, 5, and 11, and June 3, 1940.
38 360 H.C. Deb. 5s., 354–355.
39 London Times, May 20, 1940. One test of the actual Fascist sentiment in the division was afforded by the ensuing election. The Conservative candidate received 32,036 votes against 418 for his sole opponent, the Fascist candidate (London Times, May 23, 1940). Mosley and several dozen other persons were interned immediately after this election, under the defense regulations which authorized the “detention of members of organizations which have had associations with the enemy or are subject to foreign influence or control, and which may be used for purposes prejudicial to the national security.” London Times, May 24 and 25, 1940.
40 Ibid., July 11, 1940. The Fascist newspaper, Action, suspended publication in June, 1940.
41 Ibid., Sept. 4, 1940.
42 New York Times, Jan. 19, 1941. Shortly after this, the government suppressed the Daily Worker, the Communist newspaper, and the Week, a leftist weekly news-letter, for deliberately fostering a spirit of defeatism (New York Times, Jan. 23, 1941). This action was approved in the House of Commons by a vote of 297 to 11 (New York Times, Jan. 29, 1941).
43 358 H.C. Deb. 5s., 558.
44 A recent illustration of the Commons' opportunity to air grievances is found in the debate on the annual renewal of the Emergency Powers (Defense) Act, 1939, held on July 23, 1941 (373 H.C. Deb. 5s., 941–1024). Criticisms were aimed almost exclusively at the procedures in detaining fifth columnists; no objections to the restrictions on public meetings were made.
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