The Online Library of Liberty

A project of Liberty Fund, Inc.

• Pubusher's Note
• Foreword
• Preface to the First Edition
• Preface to the Eighth Edition
• Introduction
• Outline of Subject: the True Nature of Constitutional Law
• Part I: The Sovereignty of Parliament
• Chapter I: The Nature of Parliamentary Sovereignty
• Chapter II: Parliament and Non-sovereign Law-making Bodies
• Chapter III: Parliamentary Sovereignty and Federalism
• Part II: The Rule of Law
• Chapter IV: The Rule of Law: Its Nature and General Applications
• Chapter V: The Right to Personal Freedom
• Chapter VI: The Right to Freedom of Discussion
• Chapter VII: The Right of Public Meeting 1
• Chapter VIII: Martial Law
• Chapter IX: The Army 1
• Chapter X: The Revenue 1
• Chapter XI: The Responsibility of Ministers
• Chapter XII: Rule of Law Compared With Droit Administratif 1
• Chapter XIII: Relation Between Parliamentary Sovereignty and the Rule of Law
• Part III: The Connection Between the Law of the Constitution and the Conventions of the Constitution
• Chapter XIV: Nature of Conventions of Constitution
• Chapter XV: The Sanction By Which the Conventions of the Constitution Are Enforced
• Appendix
• Note I: Rigidity of French Constitutions
• Note II: Division of Powers In Federal States
• Note III: Distinction Between a Paruamentary Executive and a Non-parliamentary Executive
• Note IV: The Right of Self-defence
• Note V: Questions Connected With the Right of Public Meeting
• Note VI: Duty of Soldiers Called Upon to Disperse an Unlawful Assembly
• Note VII: The Meaning of an “unconstitutional” Law
• Note VIII: Swiss Federalism 89
• Note IX: Australian Federalism 101
• Note X: Martial Law In England During Time of War Or Insurrection 121
• Note XI: Constitution of the Tribunal Des Conflits 159
• Note XII: Proceedings Against the Crown
• Note XIII: Parliament Act, 1911 [i & 2 Geo. 5. Ch. Ch. 13.]

Chapter VII

THE RIGHT OF PUBLIC MEETING1

Right of public meeting The law of Belgium2 with regard to public meetings is contained in the nineteenth article of the constitution, which is probably intended in the main to reproduce the law of England, is probably and runs as follows:

Rules of Belgian constitution Art. 19. Les Belges ont le droit de s'assembler paisiblement et sans armes, en se conformant aux lois, qui peuvent régler l'exercice de ce droit, sans néanmoins le soumettre à une autorisation préalable.

Cette disposition ne s'applique point aux rassemblements en plein air, qui restent entièrement soumis aux lois de police.3

Principal of English law as to right of public meeting The restrictions on the practice of public meeting appear to be more stringent in Belgium than in England, for the police have with us no special authority to control open-air assemblies. Yet just as it cannot with strict accuracy be asserted that English law recognises the liberty of the press, so it can hardly be said that our constitution knows of such a thing as any specific right of public meeting. No better instance can indeed be found of the way in which in England the constitution is built up upon individual rights than our rules as to public assemblies. The right of assembling is nothing more than a result of the view taken by the Courts as to individual liberty of person and individual liberty of speech. There is no special law allowing A, B, and C to meet together either in the open air or elsewhere for a lawful purpose, but the right of A to go where he pleases so that he does not commit a trespass, and to say what he likes to B so that his talk is not libellous or seditious, the right of B to do the like, and the existence of the same rights of C, D, E, and F, and so on ad infinitum, lead to the consequence that A, B, C, D, and a thousand or ten thousand other persons, may (as a general rule)4 meet together in any place where otherwise they each have a right to be for a lawful purpose and in a lawful manner. A has a right to walk down the High Street or to go on to a common. B has the same right. C, D, and all their friends have the same right to go there also. In other words, A, B, C, and D, and ten thousand such, have a right to hold a public meeting; and as A may say to B that he thinks an Act ought to be passed abolishing the House of Lords, or that the House of Lords are bound to reject any bill modifying the constitution of their House, and as B may make the same remark to any of his friends, the result ensues that A and ten thousand more may hold a public meeting either to support the government or to encourage the resistance of the Peers. Here then you have in substance that right of public meeting for political and other purposes which is constantly treated in foreign countries as a special privilege, to be exercised only subject to careful restrictions. The assertion, however, that A, B, C, and D, and a hundred thousand more persons, just because they may each go where they like, and each say what they please, have a right to hold meetings for the discussion of political and other topics, does not of course mean that it is impossible for persons so to exercise the right of meeting as to break the law. The object of a meeting may be to commit a crime by open force, or in some way or other to break the peace, in which case the meeting itself becomes an unlawful assembly.5 The mode in which a meeting is held may threaten a breach of the peace on the part of those holding the meeting, and theref ore inspire peaceable citizens with reasonable fear; in which case, again, the meeting will be unlawful. In either instance the meeting may lawfully be broken up, and the members of it expose themselves to all the consequences, in the way of arrest, prosecution, and punishment, which attend the doing of unlawful acts, or, in other words, the commission of crimes.

Meeting not unlawful because it will excite unlawful oppsition A public meeting which, from the conduct of those engaged in it, as, for example, through their marching together in arms, or through their intention to excite a breach of the peace on the part of opponents,6 fills peaceable citizens with reasonable fear that the peace will be broken, is an unlawful assembly. But a meeting which in not otherwise illegal does not7 become an unlawful assembly solely because it will excite violent and unlawful opposition, and thus may indirectly lead to a breach of the peace. Suppose, for example, that the members of the Salvation Army propose to hold a meeting at Oxford, suppose that a so-called Skeleton Army announce that they will attack the Salvationists and disperse them by force, suppose, lastly, that thereupon peaceable citizens who do not like the quiet of the town to be disturbed and who dread riots, urge the magistrates to stop the meeting of the Salvationists. This may seem at first sight a reasonable request, but the magistrates cannot, it is submitted,8 legally take the course suggested to them. That under the present state of the law this must be so is on reflection pretty dear. The right of A to walk down the High Street is not, as a rule,9 taken away by the threat of X to knock A down if A takes his proposed walk. It is true that A's going into the High Street may lead to a breach of the peace, but A no more causes the breach of the peace than a man whose pocket is picked causes the theft by wearing a watch. A is the victim, not the author of a breach of the law. Now, if the right of A to walk down the High Street is not affected by the threats of X, the right of A, B, and C to march down the High Street together is not diminished by the proclamation of X, Y, and Z that they will not suffer A, B, and C to take their walk. Nor does it make any difference that A, B, and C call themselves the Salvation Army, or that X, Y, and Z call themselves the Skeleton Army. The plain principle is that A's right to do a lawful act, namely, walk down the High Street, cannot be diminished by X's threat to do an unlawful act, namely, to knock A down. This is the principle established, or rather illustrated, by the case of Beatty v. Gillbanks.10 The Salvation Army met together at Weston-super-Mare with the knowledge that they would be opposed by the Skeleton Army. The magistrates had put out a notice intended to forbid the meeting. The Salvationists, however, assembled, were met by the police, and told to obey the notice. X, one of the members, declined to obey and was arrested. He was subsequently, with others, convicted by the magistrates of taking part in an unlawful assembly. It was an undoubted fact that the meeting of the Salvation Army was likely to lead to an attack by the Skeleton Army, and in this sense cause a breach of the peace. The conviction, however, of X by the magistrates was quashed on appeal to the Queen's Bench Division.

Field, J. says:

What has happened here is that an unlawful organisation [the Skeleton Army] has assumed to itself the right to prevent the appellants and others from lawfully assembling together, and the finding of the justices amounts to this, that a man may be convicted for doing a lawful act if he knows that his doing it may cause another to do an unlawful act. There is no authority for such a proposition.11

The principle here laid down is thus expressed by an Irish judge in a case which has itself received the approval of the English King's Bench Division.12

Much has been said on both sides in the course of the argument about the case of Beatty v. Gitlbanks.13 I am not sure that I would have taken the same view of the facts of that case as was adopted by the Court that decided it; but I agree with both the law as laid down by the Judges, and their application of it to the facts as they understood them. The principle underlying the decision seems to me to be that an act innocent in itself, done with innocent intent, and reasonably incidental to the performance of a duty, to the carrying on of business, to the enjoyment of legitimate recreation, or generally to the exercise of a legal right, does not become criminal because it may provoke persons to break the peace, or otherwise to conduct themselves in an illegal way.14

Nor is it in general an answer to the claim of, e.g. the Salvationists, to exercise their right of meeting, that whilst such exercise may excite wrongdoers to break the peace, the easiest way of keeping it is to prevent the meeting, for “if danger arises from the exercise of lawful rights resulting in a breach of the peace, the remedy is the presence of sufficient force to prevent that result, not the legal condemnation of those who exercise those rights.”15

The principle, then, that a meeting otherwise in every respect lawful and peaceable is not rendered unlawful merely by the possible or probable misconduct of wrongdoers, who to prevent the meeting are determined to break the peace, is, it is submitted,16 well established, whence it follows that in general an otherwise lawful public meeting cannot be forbidden or broken up by the magistrates simply because the meeting may probably or naturally lead to a breach of the peace on the part of wrongdoers.

To the application of this principle there exist certain limitations or exceptions. They are grounded on the absolute necessity for preserving the King's peace.

FIRST LIMITATION

(1) Where illegality in meeting provokes breach of peace If there is anything unlawful in the conduct of the persons convening or addressing a meeting, and the illegality is of a kind which naturally provokes opponents to a breach of the peace, the speakers at and the members of the meeting may be held to cause the breach of the peace, and the meeting itself may thus become an unlawful meeting. If, for example, a Protestant controversialist surrounded by his friends uses in some public place where there is a large Roman Catholic population, abusive language which is in fact slanderous of Roman Catholics, or which he is by a local by-law forbidden to use in the streets, and thereby provokes a mob of Roman Catholics to break the peace, the meeting may become an unlawful assembly. And the same result may ensue where, though there is nothing in the mode in which the meeting is carried on which provokes a breach of the peace, yet the object of the meeting is in itself not strictly lawful, and may therefore excite opponents to a breach of the peace.17

SECOND LIMITATION

(2) Where meeting lawful but peace can only be kept by dispersing it. Where a public meeting, though the object of the meeting and the conduct of the members thereof are strictly lawful, provokes a breach of the peace, and it is impossible to preserve or restore the peace by any other means than by dispersing the meeting, then magistrates, constables, and other persons in authority may call upon the meeting to disperse, and, if the meeting does not disperse, it becomes an unlawful assembly,18 Let us suppose, for example, that the Salvation Army hold a meeting at Oxford, that a so-called Skeleton Army come together with a view to preventing the Salvationists from assembling, and that it is in strictness impossible for the peace to be preserved by any other means than by requiring the Salvationists to disperse. Under these circumstances, though the meeting of the Salvation Army is in itself perfectly lawful, and though the wrongdoers are the members of the Skeleton Army, yet the magistrates may, it would seem, if they can in no other way preserve the peace, require the Salvationists to disperse, and if the Salvationists do not do so, the meeting becomes an unlawful assembly; and it is possible that, if the magistrates have no other means of preserving the peace, i.e. cannot protect the Salvationists from attack by the Skeleton Army, they may lawfully prevent the Salvationists from holding the meeting.19 But the only justification for preventing the Salvationists from exercising their legal rights is the necessity of the case. If the peace can be preserved, not by breaking up an otherwise lawful meeting, but by arresting the wrongdoers—in this case the Skeleton Army—the magistrates or constables are bound, it is submitted, to arrest the wrongdoers and to protect the Salvationists in the exercise of their lawful rights.20

One point, however, deserves special notice since it is apt to be overlooked.

Limitations on right of public meeting are really limitations on individual freedom The limitations or restrictions which arise from the paramount necessity for preserving the King's peace are, whatever their extent, —and as to their exact extent some fair doubt exists,—in reality nothing else than restraints, which, for the sake of preserving the peace, are imposed upon the ordinary freedom of individuals.

Thus if A, a religious controversialist, acting alone and unaccompanied by friends and supporters, addresses the public in, say, the streets of Liverpool, and uses language which is defamatory or abusive, or, without being guilty of defamation, uses terms of abuse which he is by a local by-law forbidden to use in the streets, and thereby, as a natural result of his oratory, excites his opponents to a breach of the peace, he may be held liable for the wrongful acts of which his language is the cause though not the legal justification, and this though he does not himself break the peace, nor intend to cause others to violate it. He may, certainly, be called upon to find sureties for his good behaviour, and he may, probably, be prevented by the police from continuing addresses which are exciting a breach of the peace, for

the cases with respect to apprehended breaches of the peace show that the law does regard the infirmity of human temper to the extent of considering that a breach of the peace, although an illegal act, may be the natural consequence of insulting or abusive language or conduct.”21

So again it may, where the public peace cannot otherwise be preserved, be lawful to interfere with the legal rights of an individual and to prevent him from pursuing a course which in itself is perfectly legal. Thus A, a zealous Protestant lady, walks through a crowd of Roman Catholics wearing a party emblem, namely, an orange lily, which under the circumstances of the case is certain to excite, and does excite, the anger of the mob. She has no intention of provoking a breach of the peace, she is doing nothing which is in itself unlawful; she exposes herself, however, to insult, and to pressing danger of public attack. A riot has begun; X, a constable who has no other means of protecting A, or of restoring the peace, requests her to remove the lily. She refuses to do so. He then, without use of any needless force, removes the flower and thereby restores the peace. The conduct of X is apparently legal, and A has no ground of action for what would otherwise have been an assault. The legal vindication of X's conduct is not that A was a wrongdoer, or that the rioters were within their rights, but that the King's peace could not be restored without compelling A to remove the lily.22

Meeting not made unlawful by official proclamation of its illegality No public meeting, further, which would not otherwise be illegal, becomes so (unless in virtue of some special Act of Parliament) in consequence of any prodamation or notice by a Secretary of State, by a magistrate, or by any other official. Suppose, for example, that the Salvationists advertise throughout the town that they intend holding a meeting in a field which they have hired near Oxford, that they intend to assemble in St. Giles's and march thence with banners flying and bands playing to their proposed place of worship. Suppose that the Home Secretary thinks that, for one reason or another, it is undesirable that the meeting should take place, and serves formal notice upon every member of the army, or on the officers who are going to conduct the so-called “campaign” at Oxford, that the gathering must not take place. This notice does not alter the character of the meeting, though, if the meeting be illegal, the notice makes any one who reads it aware of the character of the assembly, and thus affects his responsibility for attending it.23 Assume that the meeting would have been lawful if the notice had not been issued, and it certainly will not become unlawful because a Secretary of State has forbidden it to take place. The proclamation has under these circumstances as little legal effect as would have a proclamation from the Home Office forbidding me or any other person to walk down the High Street. It follows, therefore, that the government has little or no power of preventing meetings which to all appearance are lawful, even though they may in fact turn out when actually convened to be unlawful because of the mode in which they are conducted. This is certainly a singular instance of the way in which adherence to the principle that the proper function of the state is the punishment, not the prevention, of crimes, deprives the executive of discretionary authority.

Meeting may be lawful though its holding contrary to public interest. A meeting, lastly, may be lawful which, nevertheless, any wise or public-spirited person would hesitate to convene. For A, B, and C may have a right to hold a meeting, although their doing so will as a matter of fact probably excite opponents to deeds of violence, and possibly produce bloodshed. Suppose a Protestant zealot were to convene a meeting for the purpose of denouncing the evils of the confessional, and were to choose as the scene of the open-air gathering some public place where meetings were usually held in the midst of a large town filled with a population of Roman Catholic poor. The meeting would, it is conceived, be lawful, but no one can doubt that it might provoke violence on the part of opponents. Neither the government, however, nor the magistrates could (it is submitted), as a rule, at any rate, prohibit and prevent the meeting from taking place. They might, it would seem, prevent the meeting if the Protestant controversialist and his friends intended to pursue a course of conduct, e.g. to give utterance to libellous abuse, which would be both illegal and might naturally produce a breach of the peace, or if the circumstances were such that the peace could not be preserved otherwise than by preventing the meeting.24 But neither the government nor the magistrates can, it is submitted, solely on the ground that a public meeting may provoke wrongdoers to a breach of the peace, prevent loyal citizens from meeting together peaceably and for a lawful purpose. Of the policy or of the impolicy of denying to the highest authority in the state very wide power to take in their discretion precautionary measures against the evils which may flow from the injudicious exercise of legal fights, it is unnecessary here to say anything. The matter which is worth notice is the way in which the rules as to the right of public meeting illustrate both the legal spirit of our institutions and the process by which the decisions of the courts as to the rights of individuals have in effect made the right of public meeting a part of the law of the constitution.

[1]See generally as to the fight of public meeting, Stephen, Commentaries, iv. (14th ed.), pp. 174–178, and Kenny, Outlines of Criminal Law (3rd ed.), pp. 280–286. See Appendix, Note V., Questions connected with the Right of Public Meeting.

[2]See Law Quarterly Review, iv. p. 159. See also as to right of public meeting in Italy, ibid. p. 78; in France, ibid, p. 165; in Switzerland, ibid. p. 169; in United States, ibid. p. 257. See as to history of law of public meeting in France, Duguit, Manuel de Droit Constitutionnel, pp. 554–559.

[3]Constitution de la Belgique, art. 19.

[4]It is not intended here to express any opinion on the point whether an agreement on the part of A, B, and C to meet together may not under exceptional circumstances be a conspiracy.

[5]For the meaning of the term “unlawful assembly” see Appendix, Note V., Questions connected with the Right of Public Meeting.

[6]Compare O'Kelly v. Harvey, 14 L. R. Ir. 105, Humphries v. Connor, 17 Ir. C. L. R. 1,8, 9, judgment of Fitzgerald, J.

[7]This statement must be read subject to the limitations stated, p. 174, post.

[8]I assume, of course, that the Salvationists meet together, as they certainly do, for a lawful purpose, and meet quite peaceably, and without any intent either themselves to break the peace or to incite others to a breach thereof. The magistrates, however, could require the members of the Skeleton Army, or perhaps even the members of the Salvation Army, to find sureties for good behaviour or to keep the peace. Compare Kenny, Outlines of Criminal Law (3rd ed.), pp. 282,486; Wise v. Dunning [1902], 1K. B. 167.

[9]See p. 178, post, and compare Humphries v. Connor, 17 Ir. C. L. R. 1;

[10]9 Q. B. D. 308.

[11]Beatty v. Gillbanks, 9 Q. B. D. 308, at p. 314. Beatty v. Glenister, W. N. 1884, p. 93; Reg. v. Justices of Londonderry, 28 L. R. Ir. 440; with which contrast Wise v. Dunning [1902], 1K. B. 167, and the Irish cases, Humphries v. Connor, 17Ir. C. L. R. 1 Reg. v. M'Naghton, 14 Cox C. C. 572; O'Kelly v. Harvey, 14 L. R. Ir. 105.

It is to noted that the King's Bench Division in deciding Wise v. Dunning did not mean to overrule Beatty v. Gillbanks, and apparently conceived that they were following Reg. v. Justices of Londonderry.

See also Appendix, Note V., Questions connected with the Right of Public Meeting.

[12]See Reg. v. Justices of Londonderry, 28 L. R. Ir. 440; Wise v. Dunning [1902], 1K. B. 167, 179, judgment of Darling, J.

[13]9 Q. B. D.308.

[14]The Queen v. Justices of Londonderry, 28 L. R. Ir. 440, pp. 461, 462, judgment of Holmes, J.

[15]Reg. v. Justices of Londonderry, 28 L. R. Ir. 440, p. 450, judgment of O'Brien, J.

[16]Wise v. Dunning [1902], 1 K. B. 167, or rather some expressions used in the judgments in that case, may undoubtedly be cited as laying down the broader rule, that a public meeting in itself lawful, and carried on, so far as the promoters and the members of it are concerned, perfectly peaceably, may become unlawful solely because the natural consequence of the meeting will be to produce an unlawful act, viz. a breach of the peace on the part of opponents (see pp. 175, 176, judgment of Alverstone, C. J.; p. 178, judgment of Darling, J.; PP. 179, 180, judgment of Channell, J.). It should be noted, however, that Wise v. Dunning has reference, not to the circumstances under which a meeting becomes an unlawful assembly, but to the different question, what are the circumstances under which a person may be required to find sureties for good behaviour? (see Kenny, Outlines of Criminal Law, p. 486).

[17]Compare Wise v. Dunning [1902], 1 K. B. 167, and O'Kelly v. Harvey, 14 L. R. Ir. 105.

[18]See especially O'Kelly v. Harvey, 14 L. R. Ir. 105.

[19]It is particularly to be noted that in O'Kelly v. Harvey, 14 L. R. Ir. 105, the case in which is carried furthest the right of magistrates to preserve the peace by dispersing a lawful meeting, X, the magistrate against whom an action for assault was brought, believed that there would be a breach of the peace if the meeting broken up continued assembled, and that there was no other way by which the breach of the peace could be avoided but by stopping and dispersing the meeting. Ibid, p. 109, judgment of Law, C.

[20]This is particularly well brought out in O'Kelly v. Harvey, 14 L. R. Ir. 105.

[21]Wise v. Dunning [1902], 1K. B. 167, at pp. 179, 180, judgment of Channell, J.

[22]Humphries v. Connor, 27 Ir. C. L. R. 1. The case is very noticeable; it carries the right of magistrates or constables to interfere with the legal conduct of A, for the sake of preventing or terminating a breach of the peace by X, to its very furthest extent. The interference, if justifiable at all, can be justified only by necessity, and an eminent Irish judge has doubted whether it was not in this case carried too far. “I do not see where we are to draw the line. If [X] is at liberty to take a lily from one person [A] because the wearing of it is displeasing to others, who may make it an excuse for a breach of the peace, where are we to stop? It seems to me that we are making, not the law of the land, but the law of the mob supreme, and recognising in constables a power of interference with the rights of the Queen's subjects, which, if carried into effect to the full extent of the principle, might be accompanied by constitutional danger. If it had been alleged that the lady wore the emblem with an intent to provoke a breach of the peace, it would render her a wrongdoer; and she might be chargeable as a person creating a breach of the peace,” Humphries v. Connor, 17 Ir. C. L. R. 2, at pp. 8, 9, per Fitzgerald, J.

[23]See Rex v. Fursey, 6 C. & P. 81; 3 St. Tr. (n.s.) 543.

[24]See pp. 171–172, ante, and compare O'Kelly v. Harvey, 14 L. R. Ir. 105, with Reg. v. Justicesof Londonderry, 28 L. R. Ir. 440, and Wise v. Dunning [1902], 1K. B. 167, with Beatty v. Gillbanks, 9 Q. B. D. 308. And the magistrates might probably bind over the conveners of the meeting to find sureties for their good behaviour. The law on this point may, it appears, be thus summed up: “Even a person who has not actually committed any offence at all may be required to find sureties for good behaviour, or to keep the peace, if there be reasonable grounds to fear that he may commit some offence, or may incite others to do so, or even that he may act in some manner which would naturally tend to induce other people (against his desire) to commit one.”—Kenny, Outlines of Criminal Law, p. 486.