FIRST THEORY
In defence of a man's liberty, person, or property, he may lawfully use any amount of force which is both "necessary" — i.e. not more than enough to attain its object — and "reasonable" or "proportionate" — i.e. which does not inflict upon the wrongdoer mischief out of proportion to the injury or mischief which the force used is intended to prevent; and no man may use in defending his rights an amount of force which is either unnecessary or unreasonable.
This doctrine of the "legitimacy of necessary and reasonable force" is adopted by the Criminal Code Bill Commissioners. It had better be given in their own words:
We take [they write] one great principle of the common law to be, that though it sanctions the defence of a man's person, liberty, and property against illegal violence, and permits the use of force to prevent crimes, to preserve the public peace, and to bring offenders to justice, yet all this is subject to the restriction that the force used is necessary; that is, that the mischief sought to be prevented could not be prevented by less violent means; and that the mischief done by, or which might reasonably be anticipated from the force used is not disproportioned to the injury or mischief which it is intended to prevent. This last principle will explain and justify many of our suggestions. It does not seem to have been universally admitted; and we have therefore thought it advisable to give our reasons for thinking that it not only ought to be recognised as the law in future, but that it is the law at present.35
The use of the word "necessary" is, it should be noted, somewhat peculiar, since it includes the idea both of necessity and of reasonableness. When this is taken into account, the Commissioners' view is, it is submitted, as already stated, that a man may lawfully use in defence of his rights such an amount of force as is needful for their protection and as does not inflict, or run the risk of inflicting, damage out of all proportion to the injury to be averted, or (if we look at the same thing from the other side) to the value of the right to be protected. This doctrine is eminently rational. It comes to us recommended by the high authority of four most distinguished judges. It certainly represents the principle towards which the law of England tends to approximate. But there is at least some ground for the suggestion that a second and simpler view more accurately represents the result of our authorities.
SECOND THEORY
A man, in repelling an unlawful attack upon his person or liberty, is justified in using against his assailant so much force, even amounting to the infliction of death, as is necessary for repelling the attack — i.e. as is needed for self-defence; but the infliction upon a wrongdoer of grievous bodily harm, or death, is justified, speaking
35 C. C. B. Commission, Report, p. 11.
generally, only by the necessities of self-defence — i.e. the defence of life, limb, or permanent liberty.36
This theory may be designated as the doctrine of "the legitimacy of force necessary for self-defence." Its essence is that the right to inflict grievous bodily harm or death upon a wrongdoer originates in, and is limited by, the right of every loyal subject to use the means necessary for averting serious danger to life or limb, and serious interference with his personal liberty.
The doctrine of the "legitimacy of necessary and reasonable force" and the doctrine of the "legitimacy of force necessary for self-defence" conduct in the main, and in most instances, to the same practical results.
On either theory A, when assaulted by X, and placed in peril of his life, may, if he cannot otherwise repel or avoid the assault, strike X dead. On the one view, the force used by A is both necessary and reasonable; on the other view, the force used by A is employed strictly in self-defence. According to either doctrine A is not justified in shooting at X because X is wilfully trespassing on A's land. For the damage inflicted by A upon X — namely, the risk to X of losing his life — is unreasonable, that is, out of all proportion to the injury done to A by the trespass, and A in firing at a trespasser is dearly using force, not for the purpose of self-defence, but for the purpose of defending his property. Both theories, again, are consistent with the elaborate and admitted rules which limit a person's right to wound or slay another even in defence of life or limb.37 The gist of these rules is
36 See Stephen, Commentaries (i4th ed.), i. p. 79; iii. p. 267; iv. pp. 42-46. "In the case of justifiable self-defence the injured party may repel force with force in defence of his person, habitation, or property, against one who manifestly intendeth and endeavoureth with violence or surprise to commit a known felony upon either. In these cases he is not obliged to retreat, but may pursue his adversary 'till he findeth himself out of danger, and if in a conflict between them he happeneth to kill, such killing is justifiable.
"Where a known felony is attempted upon the person, be it to rob or murder, here the party assaulted may repel force with force, and even his servant then attendant on him, or any other person present, may interpose for preventing mischief; and if death ensueth, the party so interposing will be justified. In this case nature and social duty co-operate." — Foster, DiscourseII. chap. iii. pp. 273, 274.
37 See Stephen, Criminal Digest (6th ed.), art. 221, but compare Commentaries (8th ed.), iv. pp. 54-56; and i Hale, P. C. 479. The authorities are not precisely in agreement as to the
that no man must slay or severly injure another until he has done everything he possibly can to avoid the use of extreme force. A is struck by a ruffian, X; A has a revolver in his pocket. He must not then and there fire upon X, but, to avoid crime, must first retreat as far as he can. X pursues; A is driven up against a wall. Then, and not till then, A, if he has no other means of repelling attack, may justifiably fire at X. Grant that, as has been suggested, the minute provisos as to the circumstances under which a man assaulted by a ruffian may turn upon his assailant, belong to a past state of society, and are more or less obsolete, the principle on which they rest is, nevertheless, dear and most important. It is, that a person attacked, even by a wrongdoer, may not in self-defence use force which is not "necessary," and that violence is not necessary when the person attacked can avoid the need for it by retreat; or, in other words, by the temporary surrender of his legal right to stand in a particular place — e.g. in a particular part of a public square, where he has a lawful right to stand.38 Both theories, in short, have reference to the use of "necessary" force, and neither countenances the use of any force which is more than is necessary for its purpose. A is assaulted by X, he can on neither theory justify the slaying or wounding of X, if A can provide for his own safety simply by locking a door on X. Both theories equally well explain how it is that as the intensity of an unlawful assault increases, so the amount of force legitimately to be used in self-defence increases also, and how defence of the lawful possession of property, and especially of a man's house, may easily turn into the lawful defence of a man's person. "A justification of a battery in
right of A to wound X before he has retreated as far as he can. But the general principle seems pretty clear. The rule as to the necessity for retreat by the person attacked must be always taken in combination with the acknowledged right and duty of every man to stop the commission of a felony, and with the fact that defence of a man's house seems to be looked upon by the law as nearly equivalent to the defence of his person. "If a thief assaults a true man, either abroad or in his house, to rob or kill him, the true man is not bound to give back, but may kill the assailant, and it is not felony." — i Hale, P. C. 481. See as to defence of house, i East, P. C. 287.
38 Stephen, Commentaries (i4th ed.), iv. pp. 42-46; compare i Hale, P. C. 481, 482, Stephen, Criminal Digest, art. 222; Foster, Discourse II. cap. iii. It should be noted that the rule enjoining that a man shall retreat from an assailant before he uses force, applies, it would appear, only to the use of such force as may inflict grievous bodily harm or death.
defence of possession, though it arose in defence of possession, yet in the end it is the defence of the person."39 This sentence contains the gist of the whole matter, but must be read in the light of the caution insisted upon by Blackstone, that the right of self-protection cannot be used as a justification for attack.40
Whether the two doctrines may not under conceivable circum-stances lead to different results, is an inquiry of great interest, but in the cases which generally come before the Courts, of no great importance. What usually requires determination is how far a man may lawfully use all the force necessary to repel an assault, and for this purpose it matters little whether the test of legitimate force be its "reasonableness" or its "self-defensive character." If, however, it be necessary to choose between the two theories, the safest course for an English lawyer is to assume that the use of force which inflicts or may inflict grievous bodily harm or death — of what, in short, may be called "extreme" force — is justifiable only for the purpose of strict self-defence.
This view of the right of self-defence, it may be objected, restricts too narrowly a citizen's power to protect himself against wrong.
The weight of this objection is diminished by two reflections.
For the advancement of public justice, in the first place, every man is legally justified in using, and indeed is often bound to use, force, which may under some circumstances amount to the infliction of death.
Hence a loyal citizen may lawfully interfere to put an end to a breach of the peace, which takes place in his presence, and use such force as is reasonably necessary for the purpose.41 Hence, too, any private person who is present when any felony is committed, is bound by law to arrest the felon, on pain of fine and imprisonment if he negligently permit him to escape.42
39 Rolle's Ab. Trespass, g. 8.
40 Blacks. Comm. iv. pp. 183, 184.
41 See Timothy v. Simpson, i C. M. & R. 757.
42 Stephen, Commentaries (i4th ed.), iv. p. 309; Hawkins, P. C. bookii. cap. 12.
Where a felony is committed and the felon flyeth from justice, or a dangerous wound is given, it is the duty of every man to use his best endeavours for preventing an escape. And if in the pursuit the party flying is killed, where he cannot otherwise be overtaken, this will be deemed justifiable homicide. For the pursuit was not barely warrantable; it is what the law requireth, and will punish the wilful neglect of.43
No doubt the use of such extreme force is justifiable only in the case of felony, or for the hindrance of crimes of violence. But
such homicide as is committed for the prevention of any forcible and atrocious crime, is justifiable ... by the law of England ... as it stands at the present day. If any person attempts the robbery or murder of another, or attempts to break open a house in the night-time, and shall be killed in such attempt, either by the party assaulted, or the owner of the house, or the servant attendant upon either, or by any other person, and interposing to prevent mischief, the slayer shall be acquitted and discharged. This reaches not to any crime unaccompanied with force — as, for example, the picking of pockets; nor to the breaking open of a house in the day-time, unless such entry carries with it an attempt of robbery, arson, murder, or the like.44
Acts therefore which would not be justifiable in protection of a person's own property, may often be justified as the necessary means, either of stopping the commission of a crime, or of arresting a felon. Burglars robe's house, they are escaping over his garden wall, carrying off A's jewels with them. A is in no peril of his life, but he pursues the gang, calls upon them to surrender, and having no other means of preventing their escape, knocks down one of them, X, who dies of the blow; A, it would seem, if Foster's authority may be trusted, not only is innocent of guilt, but has also discharged a public duty.45
43 Foster, Discourse II. of Homicide, pp. 271, 272, and compare pp. 273, 274.
"The intentional infliction of death is not a crime when it is done by any person ... in order to arrest a traitor, felon, or pirate, or keep in lawful custody a traitor, felon, or pirate, who has escaped, or is about to escape from such custody, although such traitor, felon, or pirate, offers no violence to any person." — Stephen, Digest (6th ed.), art. 222.
44 Stephen, Commentaries (8th ed.), iv. pp. 49, 50, and compare 14th ed. p. 40.
45 A story told of the eminent man and very learned judge, Mr. Justice Willes, and related by an ear-witness, is to the following effect: — Mr. Justice Willes was asked: "If I look into my drawing-room, and see a burglar packing up the clock, and he cannot see me, what ought I to do?" Willes replied, as nearly as may be: "My advice to you, which I give as a
Let it be added that where A may lawfully inflict grievous bodily harm upon X — e.g. in arresting him — X acts unlawfully in resisting A, and is responsible for the injury caused to A by X's resistance.46
Every man, in the second place, acts lawfully as long as he merely exercises his legal rights, and he may use such moderate force as in effect is employed simply in the exercise of such rights.
A is walking along a public path on his way home, X tries to stop him; A pushes X aside, X has a fall and is hurt. A has done no wrong; he has stood merely on the defensive and repelled an attempt to interfere with his right to go along a public way. X thereupon draws a sword and attacks A again. It is dear that if A can in no other way protect himself — e.g. by running away from X, or by knocking X down — he may use any amount of force necessary for his self-defence. He may stun X, or fire at X.
Here, however, comes into view the question of real difficulty. How far is A bound to give up the exercise of his rights, in this particular instance the right to walk along a particular path, rather than risk the maiming or the killing of X?
Suppose, for example, that A knows perfectly well that X claims, though without any legal ground, a right to dose the particular footpath, and also knows that, if A turns down another road which will also bring him home, though at the cost of a slightly longer walk, he will avoid all danger of an assault by X, or of being driven, in so-called self-defence, to inflict grievous bodily harm upon X.
Of course the case for A's right to use any force necessary for his purpose may be put in this way. A has a right to push X aside. As X's violence grows greater, A has a right to repel it. He may thus turn a scuffle over a right of way into a struggle for the defence of A's life, and so justify the infliction even of death upon X. But this manner of
man, as a lawyer, and as an English judge, is as follows: In the supposed circumstance this is what you have a right to do, and I am by no means sure that it is not your duty to do it. Take a double-barrelled gun, carefully load both barrels, and then, without attracting the burglar's attention, aim steadily at his heart and shoot him dead." See Saturday Review, Nov. 11, 1893, p. 534. 46 Foster, DiscourseII. p. 272.
looking at the matter is unsound. Before A is justified in, say, firing at X or stabbing X, he must show distinctly that he comes within one at least of the two principles which justify the use of extreme force against an assailant. But if he can avoid X's violence by going a few yards out of his way, he cannot justify his conduct under either of these prindples. The firing atX is not "reasonable," for the damage inflicted by A upon X in wounding him is out of all proportion to the mischief to A which it is intended to prevent — namely, his being forced to go a few yards out of his way on his road home. The firing at X, again, is not done in strict self-defence, for A could have avoided all danger by turning into another path. A uses force, not for the defence of his life, but for the vindication of his right to walk along a particular pathway. That this is the true view of A's position is pretty dearly shown by the old rules enjoining a person assaulted to retreat as far as he can before he grievously wounds his assailant.
Reg. v. Hewlett, a case tried as late as 1858, contains judidal doctrine pointing in the same direction. A was struck by X, A thereupon drew a knife and stabbed X. The judge laid down that "unless the prisoner [A] apprehended robbery or some similar offence, or danger to life, or serious bodily danger (not simply being knocked down), he would not be justified in using the knife in self-defence."47 The essence of this dictum is, that the force used by A was not justifiable, because, though it did ward off danger to A — namely, the peril of being knocked down — it was not necessary for the defence of A's life or limb, or property. The case is a particularly strong one, because X was not a person asserting a supposed right, but a simple wrongdoer.
Let the last case be a little varied. Let X be not a ruffian but a policeman, who, acting under the orders of the Commissioner of Police, tries to prevent A from entering the Park at the Marble Arch. Let it further be supposed that the Commissioner has taken an erroneous view of his authority, and that therefore the attempt to hinder A from going into Hyde Park at the particular entrance does not
47 Foster & Finlason, 91, per Crowder J.
admit of legal justification. X, under these circumstances, is therefore legally in the wrong, and A may, it would seem,48 push by X. But is there any reason for saying that if A cannot simply push X aside he can lawfully use the force necessary — e.g. by stabbing X — to effect an entrance? There dearly is none. The stabbing of X is neither a reasonable nor a self-defensive employment of force.
A dispute, in short, as to legal rights must be settled by legal tribunals, "for the King and his Courts are thevindices injuriarum, and will give to the party wronged all the satisfaction he deserves";49 no one is allowed to vindicate the strength of his disputed rights by the force of his arm. Legal controversies are not to be settled by blows. A bishop who in the last century attempted, by means of riot and assault, to make good his claim to remove a deputy registrar, was admonished from the Bench that his view of the law was erroneous, and was saved from the condemnation of the jury only by the rhetoric and the fallacies of Erskine.50
From whatever point therefore the matter be approached, we come round to the same conclusion. The only undoubted justification for the use of extreme force in the assertion of a man's rights is, subject to the exceptions or limitations already mentioned, to be found in, as it is limited by, the necessities of strict self-defence.
NoteV
QUESTIONS CONNECTED WITH THE RIGHT OF PUBLIC MEETING
Four important questions connected with the right of public meeting require consideration.
These inquiries are: first, whether there exist any general right of meeting in public places? secondly, what is the meaning of the term
48 It is of course assumed in this imaginary case that Acts of Parliament are not in force empowering the Commissioner of Police to regulate the use of the right to enter into the Park. It is not my intention to discuss the effect of the Metropolitan Police Acts, or to intimate any opinion as to the powers of the Commissioner of Police.
49 Stephen, Commentaries (i4th ed.), iv. p. 44.
50 The Bishop ofBangor's Case, 26 St. Tr. 463.
"an unlawful assembly"? thirdly, what are the rights of the Crown or its servants in dealing with an unlawful assembly? and fourthly, what are the rights possessed by the members of a lawful assembly when the meeting is interfered with or dispersed by force?
For the proper understanding of the matters under discussion, it is necessary to grasp firmly the truth and the bearing of two indisputable but often neglected observations.
The first is that English law does not recognise any special right of public meeting either for a political or for any other purpose.51
The right of assembling is nothing more than the result of the view taken by our Courts of individual liberty of person and individual liberty of speech.
Interference therefore with a lawful meeting is not an invasion of a public right, but an attack upon the individual rights of A or B, and must generally resolve itself into a number of assaults upon definite persons, members of the meeting. A wrongdoer who disperses a crowd is not indicted or sued for breaking up a meeting, but is liable (if at all) to a prosecution or an action for assaulting A, a definite member of the crowd.52 Hence further the answer to the question how far persons present at a lawful meeting may resist any attempt to disperse the assembly, depends at bottom on a determination of the methods prescribed by law to a given citizen A, for punishing or repelling an assault.
The second of these preliminary observations is that the most serious of the obscurities which beset the law of public meetings arise from the difficulty of determining how far a citizen is legally justified in using force for the protection of his person, liberty, or property, or, if we may use the word "self-defence" in its widest sense, from uncertainty as to the true principles which govern the right of self-defence.53
The dose connection of these introductory remarks with the questions to be considered will become apparent as we proceed.
51 See chap, vii., ante.
52 SeeRedford v. Birley, i St. Tr. (n. s.) 1017.
53 See Note IV., ante.
DOES THERE EXIST ANY GENERAL RIGHT OF MEETING IN PUBLIC PLACES?
The answer is easy. No such right is known to the law of England.
Englishmen, it is true, meet together for political as well as for other purposes, in parks, on commons, and in other open spaces accessible to all the world. It is also true that in England meetings held in the open air are not subject, as they are in other countries — for instance, Belgium — to special restrictions. A crowd gathered together in a public place, whether they assemble for amusement or discussion, to see an acrobat perform his somersaults or to hear a statesman explain his tergiversations, stand in the same position as a meeting held for the same purpose in a hall or a drawing-room. An assembly convened, in short, for a lawful object, assembled in a place which the meeting has a right to occupy, and acting in a peaceable manner which inspires no sensible person with fear, is a lawful assembly, whether it be held in Exeter Hall, in the Grounds of Hatfield or Blenheim, or in the London parks. With such a meeting no man has a right to interfere, and for attending it no man incurs legal penalites.
But the law which does not prohibit open-air meetings does not, speaking generally, provide that there shall be spaces where the public can meet in the open air, either for political discussion or for amusement. There may of course be, and indeed there are, special localities which by statute, by custom or otherwise, are so dedicated to the use of the public as to be available for the purpose of public meetings. But speaking in general terms, the Courts do not recognise certain spaces as set aside for that end. In this respect, again, a crowd of a thousand people stand in the same position as an individual person. If A wants to deliver a lecture, to make a speech, or to exhibit a show, he must obtain some room or field which he can legally use for his purpose. He must not invade the rights of private property — i.e. commit a trespass. He must not interfere with the convenience of the public — i.e. create a nuisance.
The notion that there is such a thing as a right of meeting in public places arises from more than one confusion or erroneous assumption. The right of public meeting — that is, the right of all men to come
together in a place where they may lawfully assemble for any lawful purpose, and especially for political discussion — is confounded with the totally different and falsely alleged right of every man to use for the purpose of holding a meeting any place which in any sense is open to the public. The two rights, did they both exist, are essentially different, and in many countries are regulated by totally different rules. It is assumed again that squares, streets, or roads, which every man may lawfully use, are necessarily available for the holding of a meeting. The assumption is false. A crowd blocking up a highway will probably be a nuisance in the legal, no less than in the popular, sense of the term, for they interfere with the ordinary citizen's right to use the locality in the way permitted to him by law. Highways, indeed, are dedicated to the public use, but they must be used for passing and going along them,54 and the legal mode of use negatives the claim of politicians to use a highway as a forum, just as it excludes the claim of actors to turn it into an open-air theatre. The crowd who collect, and the persons who cause a crowd, for whatever purpose, to collect in a street, create a nuisance.55 The claim on the part of persons so minded to assemble in any numbers and for so long a time as they please, to remain assembled "to the detriment of others having equal rights, is in its nature irreconcilable with the right of free passage, and there is, so far as we have been able to ascertain, no authority whatever in favour of it."56 The general public cannot make out a right to hold meetings even on a common.57 The ground of popular delusions as to the right of public meeting in open places is at bottom the prevalent notion that the law favours meetings held for the sake of political discussion or agitation, combined with the tacit assumption that when the law allows a right it provides the means for its exercise. No ideas can be more unfounded. English law no more favours or provides for the holding of political meetings than for the giving of public concerts. A man has a right to hear an orator
54 Dauaston v. Payne, 2Hy. Bl. 527.
55 Rex v. Carlile, 6 C. & P. 628, 636; the Tramways Case, The Times, 7* September 1888.
56 Ex parte Lewis, 21Q. B. D. 191, 197; per Curiam.
57 Bailey v. Williamson, L. R. 8Q. B. 118; De Morgan v. Metropolitan Board of Works, 5Q. B. D. 155.
as he has a right to hear a band, or to eat a bun. But each right must be exercised subject to the laws against trespass, against the creation of nuisances, against theft.
The want of a so-called forum may, it will be said, prevent ten thousand worthy citizens from making a lawful demonstration of their political wishes. The remark is true, but, from a lawyer's point of view, irrelevant. Every man has a right to see a Punch show, but if Punch is exhibiting in a theatre for money, no man can see him who cannot provide the necessary shilling. Every man has a right to hear a band, but if there be no place where a band can perform without causing a nuisance, then thousands of excellent citizens must forgo their right to hear music. Every man has a right to worship God after his own fashion, but if all the landowners of a parish refuse ground for the building of a Wesleyan chapel, parishioners must forgo attendance at a Methodist place of worship.
WHAT IS THE MEANING OF THE TERM "AN UNLAWFUL ASSEMBLY"?
The expression "unlawful assembly" does not signify any meeting of which the purpose is unlawful. If, for example, five cheats meet in one room to concoct a fraud, to indite a libel, or to forge a bank-note, or to work out a scheme of perjury, they assemble for an unlawful purpose, but they can hardly be said to constitute an "unlawful assembly." These words are, in English law, a term of art. This term has a more or less limited and definite signification, and has from time to time been defined by different authorities58 with varying degrees of precision. The definitions vary, for the most part, rather in words than in substance. Such differences as exist have, however, a twofold importance. They show, in the first place, that the circumstances which may render a meeting an unlawful assembly have not been
58 See Hawkins, P. C. book i. cap. 65, ss. 9, 11; Blackstone, iv. p. 146; Stephen, Commentaries (i4th ed.), iv. p. 174; Stephen, Criminal Digest, art. 75; Criminal Code Bill Commission, Draft Code, sec. 84, p. 80; Rex v. Pinney, 5 C. & P. 254; Rex v. Hunt, i St. Tr. (n. s.) 171; Redford v. Birley, ibid. 1071; Rex v. Morris, ibid, 521; Reg. v. Vincent, 3 St. Tr. (n. s.) 1037, 1082; Beatty v. Gillbanks, 9 Q. B. D. 308; Reg. v. M'Naughton (Irish), 14 Cox, C. C. 576; O'Kelly v. Harvey (Irish), 15 Cox, C. C. 435.
absolutely determined, and that some important questions with regard to the necessary characteristics of such an assembly are open to discussion. They show, in the second place, that the rules defining the right of public meeting are the result of judicial legislation, and that the law which has been created may be further developed by the judges, and hence that any lawyer bent on determining the character of a given meeting must consider carefully the tendency, as well as the words, of reported judgments.
The general and prominent characteristic of an unlawful assembly (however defined) is, to any one who candidly studies the authorities, dear enough. It is a meeting of persons who either intend to commit or do commit, or who lead others to entertain a reasonable fear that the meeting will commit, a breach of the peace. This actual or threatened breach of the peace is, so to speak, the essential characteristic or "property" connoted by the term "unlawful assembly." A careful examination, however, of received descriptions or definitions and of the authoritative statements contained in Sir James Stephen's Digest and in the Draft Code drawn by the Criminal Code Commissioners, enables an inquirer to frame a more or less accurate definition of an "unlawful assembly."
It may (it is submitted) be defined as any meeting of three or more persons who
1. Assemble to commit, or, when assembled do commit, a breach of
the peace; or
2. Assemble with intent to commit a crime by open force; or
3. Assemble for any common purpose, whether lawful or unlawful,
in such a manner as to give firm and courageous persons in the neighbourhood of the assembly reasonable cause to fear a breach of the peace, in consequence of the assembly; or
4. Assemble with intent to incite disaffection among the Crown's
subjects, to bring the Constitution and Government of the realm, as by law established, into contempt, and generally to carry out, or prepare for carrying out, a public conspiracy.59
59 O'Kelly v. Harvey (Irish), 15 Cox, C. C. 435. The portion of this definition contained in brackets must perhaps be considered as, in England, of doubtful authority (see, however, Reg. v. Ernest Jones, 6 St. Tr. (n. s.) 783, 816, 817, summing up of Wilde, C. }., and Reg. v.
The following points require notice:
1. A meeting is an unlawful assembly which either disturbs the peace, or inspires reasonable persons in its neighbourhood with a fear that it will cause a breach of the peace.
Hence the state of public feeling under which a meeting is convened, the class and the number of the persons who come together, the mode in which they meet (whether, for instance, they do or do not carry arms), the place of their meeting (whether, for instance, they assemble on an open common or in the midst of a populous city), and various other circumstances, must all be taken into account in determining whether a given meeting is an unlawful assembly or not.
2. A meeting need not be the less an unlawful assembly because it meets for a legal object.
A crowd collected to petition for the release of a prisoner or to see an acrobatic performance, though meeting for a lawful object, may easily be, or turn into, an unlawful assembly. The lawfulness of the aim with which a hundred thousand people assemble may affect the reasonableness of fearing that a breach of the peace will ensue. But the lawfulness of their object does not of itself make the meeting lawful.
3. A meeting for an unlawful purpose is not, as already pointed out, necessarily an unlawful assembly.
The test of the character of the assembly is whether the meeting does or does not contemplate the use of unlawful force, or does or does not inspire others with reasonable fear that unlawful force will be used — i.e. that the King's peace will be broken.
4. There is some authority for the suggestion that a meeting for the purpose of spreading sedition, of exciting class against class, or of bringing the constitution of the country into contempt, is ipso facto an unlawful assembly,60 and that a meeting to promote an unlawful
Fussell, ibid. 723, 764, summing up of Wilde, C. J.), but would, it is conceived, certainly hold good if the circumstances of the time were such that the seditious proceedings at the meeting would be likely to endanger the public peace.
60 SeeRedford v. Birley, i St. Tr. (n. s.) 1071; Rex v. Hunt, ibid. 171; Rex v. Morris, ibid. 521; Reg. v. M'Naughton (Irish), 14 Cox. C. C. 572; O'Kelly v. Harvey (Irish), 15 Cox, C. C. 435; Reg. v. Bums, id Cox, C. C. 355; Reg. v. Ernest Jones, 6 St. Tr. (n. s.) 783; Reg. v. Fussell, ibid. 723.
conspiracy of a public character, even though it does not directly menace a breach of the peace, is also an unlawful assembly.
This is a matter on which it is prudent to speak with reserve and hesitation, and to maintain a suspended judgment until the point suggested has come fairly before the English Courts. The true rule (possibly) may be, that a meeting assembled for the promotion of a purpose which is not only criminal, but also if carried out will promote a breach of the peace, is itself an unlawful assembly.
5. Two questions certainly remain open for decision.
Is a meeting an unlawful assembly because, though the meeting itself is peaceable enough, it excites reasonable dread of future disturbance to the peace of the realm; as where political leaders address a meeting in terms which it is reasonably supposed may, after the meeting has broken up, excite insurrection?
The answer to this inquiry is doubtful.61
Need again the breach of the peace, or fear thereof, which gives a meeting the character of illegality, be a breach caused by the members of the meeting?
To this inquiry an answer has already been given in the body of this treatise.62
The reply is, in general terms, that, on the one hand, a meeting which, as regards its object and the conduct of the members of it, is perfectly lawful, does not become an unlawful assembly from the mere fact that possibly or probably it may cause wrongdoers who dislike the meeting to break the peace,63 but, on the other hand, a
61 See Rex v. Hunt, i St. Tr. (n. s.) 171; Rex v. Dewhurst, ibid. 530, 599. "Upon the subject of terror, there may be cases in which, from the general appearance of the meeting, there could be no fear of immediate mischief produced before that assembly should disperse; and I am rather disposed to think that the probability or likelihood of immediate terror before the meeting should disperse is necessary in order to fix the charge upon that second count to which I have drawn your attention. But if the evidence satisfies you there was a present fear produced of future rising, which future rising would be a terror and alarm to the neighbourhood, 1 should then desire that you would present that as your finding in the shape of what I should then take it to be, a special verdict": per Bailey, J. See also Reg. v. Ernest Jones, 6 St. Tr. (n. s.) 783; Reg. v. Fussell, ibid. 723.
62 See chap, vii., ante.
63 Beatty v. Citibanks, 9 Q. B. D. 308; Reg. v. Justices of Londonderry, 28 L. R. Ir. 440, pp. 461, 462, judgment of Holmes, J.
meeting which, though perhaps not in strictness an unlawful assembly, does from some illegality in its object, or in the conduct of its members, cause a breach of the peace by persons opposed to the meeting, may thereby become an unlawful assembly,64 and a meeting which, though in every way perfectly lawful, if it in fact causes a breach of the peace on the part of wrongdoers who dislike the meeting may, if the peace can be restored by no other means, be required by the magistrates or other persons in authority to break up, and on the members of the meeting refusing to disperse, becomes an unlawful assembly.65
WHAT ARE THE RIGHTS OF THE CROWN OR ITS SERVANTS IN DEALING WITH AN UNLAWFUL ASSEMBLY?
\. Every person who takes part in an unlawful assembly is guilty of a misdemeanour, and the Crown may therefore prosecute every such person for his offence.
Whether a given man A, who is present at a particular meeting, does thereby incur the guilt of "taking part" in an unlawful assembly, is in each case a question of fact.
A, though present, may not be a member of the meeting; he may be there accidentally; he may know nothing of its character; the crowd may originally have assembled for a lawful purpose; the circumstances, e.g. the production of arms, or the outbreak of a riot, which render the meeting unlawful, may have taken place after it began, and in these transactions A may have taken no part. Hence the importance of an official notice, e.g. by a Secretary of State, or by a magistrate, that a meeting is convened for a criminal object. A citizen after reading the notice or proclamation, goes to the meeting at his peril. If it turns out in fact an unlawful assembly, he cannot plead ignorance of its character as a defence against the charge of taking part in the meeting.66
64 Wise v. Dunning [1902], i K. B. 167.
65 On this point see especially Humphries v. Connor, 17 Ir. C. L. R. i.
66 Rex v. Fursey, 6 C. & P. 81; 3 St. Tr. (n. s.) 543.
2. Magistrates, policemen, and all loyal citizens not only are entitled, but indeed are bound to disperse an unlawful assembly, and, if necessary, to do so by the use of force; and it is a gross error to suppose that they are bound to wait until a riot has occurred, or until the Riot Act has been read.67 The prevalence of this delusion was the cause, during the Gordon Riots, of London being for days in the hands of the mob. The mode of dispersing a crowd when unlawfully assembled, and the extent of force which it is reasonable to use, differ according to the circumstances of each case.
3. If any assembly becomes a riot — i.e. has begun to act in a tumultuous manner to the disturbance of the peace — a magistrate on being informed that twelve or more persons are unlawfully, riotously, and tumultuously assembled together to the disturbance of the public peace, is bound to make the short statutable proclamation which is popularly known as "reading the Riot Act."68
The consequences are as follows: first, that any twelve rioters who do not disperse within an hour thereafter, are guilty of felony; and, secondly, that the magistrate and those acting with him may, after such hour, arrest the rioters and disperse the meeting by the employment of any amount of force necessary for the purpose, and are protected from liability for hurt inflicted or death caused in dispersing the meeting. The magistrates are, in short, empowered by the Riot Act to read the proclamation before referred to, and thereupon, after waiting for an hour, to order troops and constables to fire upon the rioters, or charge them sword in hand.69 It is particularly to be noticed that the powers given to magistrates for dealing with riots under the Riot Act in no way lessen the common law right of a magistrate, and indeed of every citizen, to put an end to a breach of the peace, and hence to disperse an unlawful assembly.70
67 Reg. v. Neale, 9 C. & P. 431; Burdet v. Abbot, 4 Taunt. 401, 449. See pp. 285, 286, ante.
68 iGeo. I. stat. 2, cap. 5, s. 2.
69 See Stephen, Hist. Crim. Law, i. 203; Criminal Code Bill Commission, Draft Code, ss.! 99-
70 Rex v. Fursey, 6 C. & P. 81; 3 St. Tr. (n. s.) 543.
WHAT ARE THE RIGHTS POSSESSED BY
THE MEMBERS OF A LAWFUL ASSEMBLY WHEN
THE MEETING IS INTERFERED WITH
OR DISPERSED BY FORCE?
The Salvation Army assemble in a place where they have a right to meet, say an open piece of land placed at their disposal by the owner, and for a lawful purpose, namely, to hear a sermon. Certain persons who think the meeting either objectionable or illegal attempt to break it up, or do break it up, by force. What, under these circumstances, are the rights of the Salvationists who have come to listen to a preacher? This in a concrete form is the problem for consideration.71
An attempt, whether successful or not, to disperse a lawful assembly involves assaults of more or less violence upon the persons A, B, and C who have met together. The wrong thus done by the assailants is, as already pointed out, a wrong done, not to the meeting — a body which has legally no collective rights — but to A, B, or C, an individual pushed, hustled, struck, or otherwise assaulted.
Our problem is, then, in substance — What are the rights of A, the member of a meeting, when unlawfully assaulted? And this inquiry, in its turn, embraces two different questions, which, for clearness sake, ought to be carefully kept apart from each other.
First, what are the remedies of A for the wrong done to him by the assault?
The answer is easy. A has the right to take civil, or (subject to one reservation) criminal proceedings against any person, be he an officer, a soldier, a commissioner of police, a magistrate, a policeman, or a private ruffian, who is responsible for the assault upon A. If, moreover, A be killed, the person or persons by whom his death has been caused may be indicted, according to circumstances, for manslaughter or murder.
71 For the sake of convenience, I have taken a meeting of the Salvation Army as a typical instance of a lawful public meeting. It should, however, be constantly remembered that the rights of the Salvationists are neither more nor less than those of any other crowd lawfully collected together — e.g. to hear a band of music.
This statement as to A's rights or (what is, however, the same thing from another point of view) as to the liabilities of A's assailants, is made subject to one reservation. There exists considerable doubt as to the degree and kind of liability of soldiers (or possibly of policemen) who, under the orders of a superior, do some act (e.g. arrest A or fire at A) which is not on the face of it unlawful, but which turns out to be unlawful because of some circumstance of which the subordinate was not in a position to judge, as, for example, because the meeting was not technically an unlawful assembly, or because the officer giving the order had in some way exceeded his authority.
I hope [says Willes, J. ] I may never have to determine that difficult question, how far the orders of a superior officer are a justification. Were I compelled to determine that question, I should probably hold that the orders are an absolute justification in time of actual war — at all events, as regards enemies or foreigners — and, I should think, even with regard to English-born subjects of the Crown, unless the orders were such as could not legally be given. I believe that the better opinion is, that an officer or soldier, acting under the orders of his superior — not being necessarily or manifestly illegal — would be justified by his orders.72
A critic were rash who questioned the suggestion of a jurist whose dicta are more weighty than most considered judgments. The words, moreover, of Mr. Justice Willes enounce a principle which is in itself pre-eminently reasonable. If its validity be not admitted, results follow as absurd as they are unjust: every soldier is called upon to determine on the spur of the moment legal subtleties which, after a lengthy consultation, might still perplex experienced lawyers, and the private ordered by his commanding officer to take part in the suppression of a riot runs the risk, if he disobeys, of being shot by order of a court-martial, and, if he obeys, of being hanged under the sentence of a judge. Let it further be carefully noted that the doctrine of Mr. Justice Willes, which is approved of by the Criminal Code Commissioners,73 applies, it would seem, to criminal liability only.
72 Keighly v. Bell, 4 F. & F. 763, 790, per Willes, J. See also Note VI. p. 512, post, Duty of Soldiers called upon to disperse an Unlawful Assembly.
73 See C. C. B. Commission, Draft Code, ss. 49-53.
The soldier or policeman who, without full legal justification, assaults or arrests A incurs (it is submitted), even though acting under orders, full civil liability.
Secondly, how far is A entitled to maintain by force against all assailants his right to take part in a lawful public meeting, or, in other words, his right to stand in a place where he lawfully may stand — e.g. ground opened to A by the owner, for a purpose which is in itself lawful — e.g. the hearing of an address from a captain of the Salvation Army?
In order to obtain a correct answer to this inquiry we should bear in mind the principles which regulate the right of self-defence,74 and should further consider what may be the different circumstances under which an attempt may be made without legal warrant to disperse a meeting of the Salvation Army. The attack upon the meeting, or in other words upon A, may be made either by mere wrongdoers, or by persons who believe, however mistakenly, that they are acting in exercise of a legal right or in discharge of a legal duty. Let each of these cases be examined separately.
Let us suppose, in the first place, that the Salvationists, and A among them, are attacked by the so-called Skeleton Army or other roughs, and let it further be supposed that the object of the assault is simply to break up the meeting, and that therefore, if A and others disperse, they are in no peril of damage to life or limb.
A and his friends may legally, it would seem, stand their ground, and use such moderate force as amounts to simple assertion of the right to remain where they are. A and his companions may further give individual members of the Skeleton Army in charge for a breach of the peace. It may, however, happen that the roughs are in large numbers, and press upon the Salvationists so that they cannot keep their ground without the use of firearms or other weapons. The use of such force is in one sense necessary, for the Salvationists cannot hold their meeting without employing it. Is the use of such force legal? The strongest way of putting the case in favour of A and his friends is that, in firing upon their opponents, they are using force to
74 See Note IV. p. 341, ante.
put down a breach of the peace. On the whole, however, there can, it is submitted, be no doubt that the use of firearms or other deadly weapons, to maintain their right of meeting, is under the circumstances not legally justifiable. The principle on which extreme acts of self-defence against a lawless assailant cannot be justified until the person assaulted has retreated as far as he can, is applicable to A, B, C, etc., just as it would be to A singly. Each of the Salvationists is defending, under the supposed circumstances, not his life, but his right to stand on a given plot of ground.
Next, suppose that the attempt to disperse the Salvationists is made, not by the Skeleton Army, but by the police, who act under the order of magistrates who hold bond fide, though mistakenly,75 that a notice from the Home Secretary forbidding the Army to meet, makes its meeting an unlawful assembly.
Under these circumstances, the police are dearly in the wrong. A policeman who assaults A, B, or C, does an act not admitting of legal justification. Nor is it easy to maintain that the mere fact of the police acting as servants of the Crown in supposed discharge of their duty makes it of itself incumbent upon A to leave the meeting.
The position, however, of the police differs in two important respects from that of mere wrongdoers. Policeman X, when he tells A to move on, and compels him to do so, does not put A in peril of life or limb, for A knows for certain that, if he leaves the meeting, he will not be further molested, or that if he allows himself to be peaceably arrested, he has nothing to dread but temporary imprisonment and appearance before a magistrate who will deal with his rights in accordance with law. Policeman X, further, asserts bona fide a supposed legal right to make A withdraw from a place where X believes A has no right to stand; there is a dispute between A and X as to a matter of law. This being the state of affairs, it is at any rate fairly arguable that A, B, and C have a right to stand simply on the defensive,76 and
75 SeeBeattyv. Citibanks, gQ. B. D. 308.
76 The legality, however, of even this amount of resistance to the police is doubtful. "Any man who advises a public assembly when the police come there to disperse them, to stand their ground shoulder by shoulder, if that means to resist the police, although it might not mean to resist by striking them; yet if it meant to resist the police and not to disperse, that
remain where they are as long as they can do so without inflicting grievous bodily harm upon X and other policemen. Suppose, however, as is likely to be the fact, that, under the pressure of a large body of constables, tine Salvationists cannot maintain their meeting without making use of arms — e.g., using bludgeons, swords, pistols, or the like. They have dearly no right to make use of this kind of force. A and his friends are not in peril of their lives, and to kill a policeman in order to secure A the right of standing in a particular place is to inflict a mischief out of all proportion to the importance of the mischief to A which he wishes to avert.77 A, therefore, if he stabs or stuns X, can on no theory plead the right of self-defence. A and X further are, as already pointed out, at variance on a question of legal rights. This is a matter to be determined not by arms, but by an action at law.
Let it further be noted that the supposed case is the most unfavourable for the police which can be imagined. They may well, though engaged in hindering what turns out to be a lawful meeting, stand in a much better situation than that of assailants. The police may, under orders, have fully occupied and filled up the ground which the Salvationists intend to use. When the Salvationists begin arriving, they find there is no place where they can meet. Nothing but the use of force, and indeed of extreme force, can drive the police away. This force the Salvation Army cannot use; if they did, they would be using violence not on any show of self-defence, but to obtain possession of a particular piece of land. Their only proper course is the vindication of their rights by proceedings in Court.
was illegal advice. If the police had interfered with them, they were not at liberty to resist in any such circumstances; they ought to have dispersed by law, and have sought their remedy against any unjust interference afterwards. . . . This is a body of police acting under the responsibility of the law, acting under the orders of those who would be responsible for the orders which they gave, charged with the public peace, and who would have authority to disperse when they received those orders, leaving those who should give them a deep responsibility if they should improperly interfere with the exercise of any such public duties. . . . Gentlemen, the peaceable citizens are not in the performance of their duty if they stand shoulder to shoulder, and when the police come and order the assembly to disperse, they do not disperse, but insist on remaining, they are not in the peaceable execution of any right or duty, but the contrary, and from that moment they become an illegal assembly." — Reg. v. Ernest Jones, 6 St. Tr. (n. s.) 783, 811, summing up of Wilde, C. J. 77 Rex v. Fursey, 6 C. & P. 81; 3 St. Tr. (n. s.) 543.
Of the older cases, which deal with the question how far it is justifiable to resist by violence an arrest made by an officer of justice without due authority, it is difficult to make much use for the elucidation of the question under consideration,78 for in these cases the matter discussed seems often to have been not whether A's resistance was justifiable, but whether it amounted to murder or only to manslaughter. There are, however, one or two more or less recent decisions which have a real bearing on the right of the members of a public meeting to resist by force attempts to disperse it. And these cases are, on the whole, when properly understood, not inconsistent with the inferences already drawn from general principles. The doctrine laid down in Reg. v. Hewlett,79 that A ought not to inflict grievous bodily harm even upon X a wrongdoer unless in the strictest self-defence, is of the highest importance. Rex v. Fursey,80 a decision of 1833, has direct reference to the right of meeting. At a public meeting held that year in London, A carried an American flag which was snatched from him by X, a policeman, whereupon A stabbed X. He was subsequently indicted under 9 Geo. I. c. 31, s. 12, and it appears to have been laid down by the judge that though, if the meeting was a legal one, X had no right to snatch away A's flag, still that even on the supposition that the meeting was a lawful assembly, A, if X had died of his wound, would have been guilty either of manslaughter, or very possibly of murder. Quite in keeping with Rex v. Fursey is the recent case of Reg. v. Harrison.81 Some of the expressions attributed, in a very compressed newspaper report, to the learned judge who tried the case, may be open to criticism, but the principle involved in the defendant's conviction, namely, that a ruffian cannot assert his alleged right to walk down a particular street by stunning or braining a policeman, or a good citizen who is helping the policeman, is good law no less than good sense.82
78 See, e.g., Dixon's Case, i East, P. C. 313; Borthwick's Case, ibid.; Wither's Case, i East, P. C. 233, 309; Tooley's Case, 2 Lord Raymond, 1296.
79 iF. &F. 91.
80 3 St. Tr. (n. s.) 543, and compare Criminal Code Commission Report, pp. 43, 44.
81 The Times, igth December 1887.
82 "Well, if any heads are broken before [after?] men are ordered [by the police] to disperse
Nor does the claim to assert legal rights by recourse to pistols or bludgeons receive countenance from two decisions occasionally adduced in its support.
The one is Beatty v. Gillbanks.83 This case merely shows that a lawful meeting is not rendered an unlawful assembly simply because ruffians try to break it up, and, in short, that the breach of the peace which renders a meeting unlawful must, in general,84 be a breach caused by the members of the meeting, and not by wrongdoers who wish to prevent its being held.85
The second is M'Clenaghan v. Waters.86 The case may certainly be so explained as to lay down the doctrine that the police when engaged under orders in dispersing a lawful meeting are not engaged in the "execution of their duty," and that therefore the members of the meeting may persist in holding it in spite of the opposition of the police. Whether this doctrine be absolutely sound is open to debate. It does not necessarily, however, mean more than that a man may exercise a right, even though he has to use a moderate amount of force, against a person who attempts to hinder the exercise of the right. Bui M'Clenaghan v. Waters certainly does not decide that the member of a lawful assembly may exercise whatever amount of force is necessary to prevent its being dispersed, and falls far short of justifying the proceedings of a Salvationist who brains a policeman rather than surrender the so-called right of public meeting. It is, however, doubtful whether M'Clenaghan v. Waters really supports even the doctrine that moderate resistance to the police is justifiable in order to prevent the dispersing of a lawful assembly. The case
and refuse to disperse, those who break their heads will find their own heads in a very bad situation if they are brought into a court of law to answer for it. No jury would hesitate to convict, and no court would hesitate to punish." — Reg. v. Ernest Jones, 6 St. Tr. (n. s.) 783, 811, 812, summing up of Wilde. C. J. 8390.6.0.308.
84 Seep. 356,ante.
85 As already pointed out, the principle maintained in Beatty v. Gillbanks is itself open to some criticism.
86 The Times, i8th July 1882.
purports to follow Beatty v. Gillbanks, and therefore the Court cannot be taken as intentionally going beyond the principle laid down in that case. The question for the opinion of the Court, moreover, in M'Clanaghan v. Waters was, "whether upon the facts stated the police at the time of their being assaulted by the appellants (Salvationists) were legally justified in interfering to prevent the procession from taking place"; or, in other words, whether the meeting of the Salvationists was a lawful assembly? To this question, in the face of Beatty v. Gillbanks, but one reply was possible. This answer the Court gave: they determined "that in taking part in a procession the appellants were doing only an act strictly lawful, and the fact that that act was believed likely to cause others to commit such as were unlawful, was no justification for interfering with them." Whether the Court determined anything more is at least open to doubt, and if they did determine, as alleged, that the amount of the resistance offered to the police was lawful, this determination is, to say the least, not inconsistent with the stern punishment of acts like that committed by the prisoner Harrison.
No one, however, can dispute that the line between the forcible exercise of a right in the face of opposition, and an unjustifiable assault on those who oppose its exercise, is a fine one, and that many nice problems concerning the degree of resistance which the members of a lawful meeting may offer to persons who wish to break it up are at present unsolved. The next patriot or ruffian who kills or maims a policeman rather than compromise the right of public meeting will try what, from a speculative point of view, may be considered a valuable legal experiment which promises results most interesting to jurists. The experiment will, however, almost certainly be tried at the cost, according to the vigour of his proceedings, of either his freedom or his life.87
87 The whole summing up of Wilde, C. J., in Reg. v. Ernestines, 6 St. Tr. (n. s.) 783, 807-816, merits particular attention. His language is extremely strong and if it be taken as a perfectly correct exposition of the law, negatives the right to resist by force policemen who with the bona fide intention to discharge their duty, disperse an assembly which may ultimately turn out not to have been an unlawful assembly.
Note VI
DUTY OF SOLDIERS CALLED UPON TO DISPERSE AN UNLAWFUL ASSEMBLY
On /th September 1893 Captain Barker and a small number of soldiers were placed in the Ackton Colliery, in order to defend it from the attack of a mob. A body of rioters armed with sticks and cudgels entered the colliery yard, and with threats demanded the withdrawal of the soldiers. The mob gradually increased, and broke the windows of the building in which the troops were stationed and threw stones at them. Attempts were made to burn the building, and timber was actually set on fire. The soldiers retreated, but were at last surrounded by a mob of 2000 persons. The crowd was called upon to disperse, and the Riot Act read. More stones were hurled at the troops, and it was necessary to protect the colliery. At last, before an hour from the reading of the Riot Act, and on the crowd refusing to disperse, Captin Barker gave orders to fire. The mob dispersed, but one or two bystanders were killed who were not taking an active part in the riot. Commissioners, including Lord Justice Bowen, afterwards Lord Bowen, were appointed to report on the conduct of the troops. The following passage from the report is an almost judicial statement of the law as to the duty of soldiers when called upon to disperse a mob:
We pass next to the consideration of the all-important question whether the conduct of the troops in firing on the crowd was justifiable; and it becomes essential, for the sake of clearness, to state succinctly what the law is which bears upon the subject. By the law of this country every one is bound to aid in the suppression of riotous assemblages. The degree of force, however, which may lawfully be used in their suppression depends on the nature of each riot, for the force used must always be moderated and proportioned to the circumstances of the case and to the end to be attained.
The taking of life can only be justified by the necessity for protecting persons or property against various forms of violent crime, or by the necessity of dispersing a riotous crowd which is dangerous unless dispersed, or in the case of persons whose conduct has become felonious through disobedience to the provisions of the Riot Act, and who resist the attempt to disperse or apprehend them. The riotous crowd at the Ackton Hall Colliery was one
whose danger consisted in its manifest design violently to set fire and do serious damage to the colliery property, and in pursuit of that object to assault those upon the colliery premises. It was a crowd accordingly which threatened serious outrage, amounting to felony, to property and persons, and it became the duty of all peaceable subjects to assist in preventing this. The necessary prevention of such outrage on person and property justifies the guardians of the peace in the employment against a riotous crowd of even deadly weapons.
Officers and soldiers are under no special privileges and subject to no special responsibilities as regards this principle of the law. A soldier for the purpose of establishing civil order is only a citizen armed in a particular manner. He cannot because he is a soldier excuse himself if without necessity he takes human life. The duty of magistrates and peace officers to summon or to abstain from summoning the assistance of the military depends in like manner on the necessities of the case. A soldier can only act by using his arms. The weapons he carries are deadly. They cannot be employed at all without danger to life and limb, and in these days of improved rifles and perfected ammunition, without some risk of injuring distant and possibly innocent bystanders. To call for assistance against rioters from those who can only interpose under such grave conditions ought, of course, to be the last expedient of the civil authorities. But when the call for help is made, and a necessity for assistance from the military has arisen, to refuse such assistance is in law a misdemeanour.
The whole action of the military when once called in ought, from first to last, to be based on the principle of doing, and doing without fear, that which is absolutely necessary to prevent serious crime, and of exercising all care and skill with regard to what is done. No set of rules exists which governs every instance or defines beforehand every contingency that may arise. One salutary practice is that a magistrate should accompany the troops. The presence of a magistrate on such occasions, although not a legal obligation, is a matter of the highest importance. The military come, it may be, from a distance. They know nothing, probably, of the locality, or of the special circumstances. They find themselves introduced suddenly on a field of action, and they need the counsel of the local justice, who is presumably familiar with the details of the case. But, although the magistrate's presence is of the highest value and moment, his absence does not alter the duty of the soldier, nor ought it to paralyse his conduct, but only to render him doubly careful as to the proper steps to be taken. No officer is justified by English law in standing by and allowing felonious outrage to be committed merely because of a magistrate's absence.
The question whether, on any occasion, the moment has come for firing upon a mob of rioters, depends, as we have said, on the necessities of the case. Such firing, to be lawful, must, in the case of a riot like the present, be necessary to stop or prevent such serious and violent crime as we have alluded to; and it must be conducted without recklessness or negligence.
When the need is clear, the soldier's duty is to fire with all reasonable caution, so as to produce no further injury than what is absolutely wanted for the purpose of protecting person and property. An order from the magistrate who is present is required by military regulations, and wisdom and discretion are entirely in favour of the observance of such a practice. But the order of the magistrate has at law no legal effect. Its presence does not justify the firing if the magistrate is wrong. Its absence does not excuse the officer for declining to fire when the necessity exists.
With the above doctrines of English law the Riot Act does not interfere. Its effect is only to make the failure of a crowd to disperse for a whole hour after the proclamation has been read a felony; and on this ground to afford a statutory justification for dispersing a felonious assemblage, even at the risk of taking life. In the case of the Ackton Hall Colliery, an hour had not elapsed after what is popularly called the reading of the Riot Act, before the military fired. No justification for their firing can therefore be rested on the provisions of the Riot Act itself, the further consideration of which may indeed be here dismissed from the case. But the fact that an hour had not expired since its reading did not incapacitate the troops from acting when outrage had to be prevented. All their common law duty as citizens and soldiers remained in full force. The justification of Captain Barker and his men must stand or fall entirely by the common law. Was what they did necessary, and no more than was necessary, to put a stop to or prevent felonious crime? In doing it, did they exercise all ordinary skill and caution, so as to do no more harm than could be reasonably avoided?
If these two conditions are made out, the fact that innocent people have suffered does not involve the troops in legal responsibility. A guilty ringleader who under such conditions is shot dead, dies by justifiable homicide. An innocent person killed under such conditions, where no negligence has occurred, dies by an accidental death. The legal reason is not that the innocent person has to thank himself for what has happened, for it is conceivable (though not often likely) that he may have been unconscious of any danger and innocent of all imprudence. The reason is that the soldier who fired has done nothing except what was his strict legal duty.
In measuring with the aid of subsequent evidence the exact necessities of the case as they existed at the time at Ackton Hall Colliery, we have formed a clear view that the troops were in a position of great embarrassment. The withdrawal of half their original force to Nostell Colliery had reduced them to so small a number as to render it difficult for them to defend the colliery premises effectively at nighttime. The crowd for some hours had been familiarised with their presence, and had grown defiant. All efforts at conciliation had failed. Darkness had meanwhile supervened, and it was difficult for Captain Barker to estimate the exact number of his assailants, or to what extent he was being surrounded and outflanked. Six or seven appeals had been made by the magistrate to the crowd. The Riot Act had been read without result. A charge had been made without avail. Much valuable col-
liery property was already blazing, and the troops were with difficulty keeping at bay a mob armed with sticks and bludgeons, which was refusing to disperse, pressing where it could into the colliery premises, stoning the fire-engine on its arrival, and keeping up volleys of missiles. To prevent the colliery from being overrun and themselves surrounded, it was essential for them to remain as dose as possible to the Green Lane entrance. Otherwise, the rioters would, under cover of the darkness, have been able to enter in force. To withdraw from their position was, as we have already intimated, to abandon the colliery offices in the rear to arson and violence. To hold the position was not possible, except at the risk of the men being seriously hurt and their force crippled. Assaulted by missiles on all sides, we think that, in the events which had happened, Captain Barker and his troops had no alternative left but to fire, and it seems to us that Mr. Hartley was bound to require them to do so.
It cannot be expected that this view should be adopted by many of the crowd in Green Lane who were taking no active part in the riotous proceedings. Such persons had not, at the time, the means of judging of the danger in which the troops and the colliery stood. But no sympathy felt by us for the injured bystanders, no sense which we entertain of regret that, owing to the smallness of the military force at Featherstone and the prolonged absence of a magistrate, matters had drifted to such a pass, can blind us to the fact that, as things stood at the supreme moment when the soldiers fired, their action was necessary. We feel it right to express our sense of the steadiness and discipline of the soldiers in the circumstances. We can find no ground for any suggestion that the firing, if it was in fact necessary, was conducted with other than reasonable skill and care. The darkness rendered it impossible to take more precaution than had been already employed to discriminate between the lawless and the peaceable, and it is to be observed that even the first shots fired produced little or no effect upon the crowd in inducing them to withdraw. If our conclusions on these points be, as we believe them to be, correct, it follows that the action of the troops was justified in law.88
NoteVH
THE MEANING OF AN "UNCONSTITUTIONAL" LAW
The expression "unconstitutional" has, as applied to a law, at least three different meanings varying according to the nature of the constitution with reference to which it is used:
88 Report of the committee appointed to inquire into the circumstances connected with the disturbances at Featherstone on the 7th of September 1893 [C. — 7234].
1. The expression, as applied to an English Act of Parliament, means simply that the Act in question, as, for instance, the Irish Church Act, 1869, is, in the opinion of the speaker, opposed to the spirit of the English constitution; it cannot mean that the Act is either a breach of law or is void.
2. The expression, as applied to a law passed by the French Parliament, means that the law, e.g. extending the length of the President's tenure of office, is opposed to the articles of the constitution. The expression does not necessarily mean that the law in question is void, for it is by no means certain that any French Court will refuse to enforce a law because it is unconstitutional. The word would probably, though not of necessity, be, when employed by a Frenchman, a term of censure.
3. The expression, as applied to an Act of Congress, means simply that the Act is one beyond the power of Congress, and is therefore void. The word does not in this case necessarily import any censure whatever. An American might, without any inconsistency, say that an Act of Congress was a good law, that is, a law calculated in his opinion to benefit the country, but that unfortunately it was "unconstitutional," that is to say, ultra vires and void.
NoteVTfl
SWISS FEDERALISM89
The Swiss Federal Constitution may appear to a superficial observer to be a copy in miniature of the Constitution of the United States; and there is no doubt that the Swiss statesmen of 1848 did in one or two points, and notably in the formation of the Council of States or Senate, intentionally follow American precedents. But for all this, Swiss Federalism is the natural outgrowth of Swiss history, and bears a peculiar character of its own that well repays careful study.
Three ideas underlie the institutions of modern Switzerland.
89 See Lowell, Governments and Parties in Continental Europe, ii., Switzerland, pp. 180 — 336; Orelli, Das Staatsrecht der Schweizerischen Eidgenossenschaft; Marquardsen'sHandbuch des Oef-fentlichen Rechts, iv. i. 2.
The first is the uncontested and direct sovereignty of the nation.
In Switzerland the will of the people, when expressed in the mode provided by the Constitution, is admittedly supreme. This supremacy is not disputed by any political party or by any section of the community. No one dreams of changing the democratic basis of the national institutions. There does not exist in Switzerland any faction which, like the reactionists in France, meditates the overthrow of the Republic. There does not exist any section of the community which, like the Bohemians in Austria, or like the French in Alsace, is, or may be supposed to be, disloyal to the central government. But in Switzerland not only the supremacy but the direct authority of the nation is, practically as well as theoretically, acknowledged. The old idea of the opposition between the government and the people has vanished. All parts of the government, including in that term not only the Executive but also the Legislative bodies, are the recognised agents of the nation, and the people intervene directly in all important acts of legislation. In Switzerland, in short, the nation is sovereign in the sense in which a powerful king or queen was sovereign in the time when monarchy was a predominant power in European countries, and we shall best understand the attitude of the Swiss nation towards its representatives, whether in the Executive or in Parliament, by considering that the Swiss people occupies a position not unlike that held, for example, by Elizabeth of England. However great the Queen's authority, she was not a tyrant, but she really in the last resort governed the country, and her ministers were her servants and carried out her policy. The Queen did not directly legislate, but by her veto and by other means she controlled all important legislation. Such is, speaking roughly, the position of the Swiss people. The Federal Executive and the Federal Parliament pursue the lines of policy approved by the people. Under the name of the Referendum there is exercised a popular veto on laws passed by the Legislature, and of recent years, under the name of the Initiative, an attempt has been made at more or less direct legislation by the people. Whatever be the merits of Swiss institutions, the idea which governs them is obvious. The nation is monarch, the Executive and the members of the Legislature are the people's agents or ministers.
The second idea to which Swiss institutions give expression is that politics are a matter of business. The system of Swiss government is business-like. The affairs of the nation are transacted by men of capacity, who give effect to the will of the nation.
The last and most original Swiss conception is one which it is not easy for foreigners bred up under other constitutional systems to grasp. It is that the existence of political parties does not necessitate the adoption of party government.
These are the principles or conceptions embodied in Swiss institutions; they are closely inter-connected, they pervade and to a great extent explain the operation of the different parts of the Swiss Constitution. Many of its features are of course common to all the federal governments, but its special characteristics are due to the predominance of the three ideas to which the reader's attention has been directed. That this is so will be seen if we examine the different parts of the Swiss Constitution.
THE FEDERAL COUNCIL
This body, which we should in England call the Ministry, consists of seven persons elected at their first meeting by the two Chambers which make up the Swiss Federal Assembly or Congress, and for this purpose sit together. The Councillors hold office for three years, and being elected after the first meeting of the Assembly, which itself is elected for three years, keep their places till the next Federal Assembly meets, when a new election takes place. The Councillors need not be, but in fact are, elected from among the members of the Federal Assembly, and though they lose their seats on election, yet, as they can take part in the debates of each House, may for practical purposes be considered members of the Assembly or Parliament. The powers confided to the Council are wide. The Council is the Executive of the Confederacy and possesses the authority naturally belonging to the national government. It discharges also, strange as this may appear to Englishmen or Americans, many judicial functions. To the Council are in many cases referred questions of "administrative law," and also certain classes of what Englishmen or Americans consider strictly legal questions. Thus the Council in effect determined some years
ago what were the rights as to meeting in public of the Salvation Army, and whether and to what extent Cantonal legislation could prohibit or regulate their meetings. The Council again gives the required sanction to the Constitutions or to alterations in the Constitutions of the Cantons, and determines whether clauses in such Constitutions are, or are not, inconsistent with the articles of the Federal Constitution. The Council is in fact the centre of the whole Swiss Federal system; it is called upon to keep up good relations between the Cantons and the Federal or National government, and generally to provide for the preservation of order, and ultimately for the maintenance of the law throughout the whole country. All foreign affairs fall under the Coundl's supervision, and the conduct of foreign relations must, under the circumstances of Switzerland, always form a most important and difficult part of the duties of the government.
Though the Councillors are elected they are not dismissible by the Assembly, and in so far the Council may be considered an independent body; but from another point of view the Council has no independence. It is expected to carry out, and does carry out, the policy of the Assembly, and ultimately the policy of the nation, just as a good man of business is expected to carry out the orders of his employer. Many matters which are practically determined by the Council might constitutionally be decided by the Assembly itself, which, however, as a rule leaves the transaction of affairs in the hands of the Council. But the Council makes reports to the Assembly, and were the Assembly to express a distinct resolution on any subject, effect would be given to it. Nor is it expected that either the Council or individual Councillors should go out of office because proposals or laws presented by them to the Assembly are rejected, or because a law passed, with the approval of the Council, by the Chambers, is vetoed on being referred to the people. The Council, further, though as the members thereof, being elected by the Federal Assembly, must in general agree with the sentiments of that body, does not represent a Parliamentary majority as does an English or a French Ministry. The Councillors, though elected for a term of three years, are re-eligible, and as a rule are re-elected. The consequence is that a man may hold
office for sixteen years or more, and that the character of the Council changes but slowly; and there have, it is said, been cases in which the majority of the Parliament belonged to one party and the majority of the Council to another, and this want of harmony in general political views between the Parliament and the Government did not lead to inconvenience. In truth the Council is not a Cabinet but a Board for the management of business, of which Board the so-called President of the Confederation, who is annually elected from among the members of the Council, is merely the chairman. It may fairly be compared to a Board of Directors chosen by the members of a large joint-stock company. In one sense the Board has no independent power. The majority of the shareholders, did they choose to do so, could always control its action or reverse its policy. In another sense, as we all know, a Board is almost free from control. As long as things are well, or even tolerably, managed, the shareholders have neither the wish nor practically the power to interfere. They know that the directors possess knowledge and experience which the shareholders lack, and that to interfere with the Board's management would imperil the welfare of the association. So it is with the Federal Council. Its dependence is the source of its strength. It does not come into conflict with the Assembly; it therefore is a permanent body, which carries on, and carries on with marked success, the administration of public affairs. It is a body of men of business who transact the business of the State.
It is worth while to dwell at some length on the constitution and character of the Swiss Council or Board, because it gives us a kind of Executive differing both from the Cabinet government of England or France, and from the Presidential government of America. The Council does not, like an English Cabinet, represent, at any rate directly and immediately, a predominant political party. It is not liable to be at any moment dismissed from office. Its members keep their seats for a period longer than the time during which either an English Ministry or an American President can hope to retain office. But the Council, though differing greatly from a Cabinet, is a Parliamentary or semi-Parliamentary Executive.90 It has not, like an
90 See Note III. p. 331, ante.
American President, an independent authority of its own which, being derived from popular election, may transcend, and even be opposed to, the authority of the Legislature. The constitutional history of Switzerland since 1848 has exhibited none of those conflicts between the Executive and the legislative body which have occurred more than once in the United States. The position of the Council may, if we seek for an historical parallel, be compared with that of the Council of State under the Cromwellian Instrument of Government, and indeed occupies very nearly the position which the Council of State would have held had the Instrument of Government been, in accordance with the wishes of the Parliamentary Opposition, so modified as to allow of the frequent re-election by Parliament of the members of the Council.91 If we desire a modern parallel we may perhaps find it in the English Civil Service. The members of the Council are, like the permanent heads of the English Government offices, officials who have a permanent tenure of office, who are in strictness the servants of the State, and who are expected to carry out, and do carry out, measures which they may not have framed, and the policies of which they may not approve. This comparison is the more instructive, because in the absence of the elaborate Civil Service the members of the Council do in effect discharge rather the duties of permanent civil servants than of ministers.
THE FEDERAL ASSEMBLY
This Parliament is certainly modelled to a certain extent on the American Congress. For several purposes, however, the two chambers of which it consists sit together. As already pointed out, when thus combined they elect the Federal Council or Ministry. The Assembly, moreover, is, unlike any representative assembly to which the English people are accustomed, on certain administrative matters a final Court of Appeal from the Council. The main function, however, of the Assembly is to receive reports from the Council and to legislate. It sits but for a short period each year, and confines itself pretty closely to the transaction of business. Laws passed by it may,
91 See the "Constitutional Bill of the First Parliament of the Protectorate," cap, 39; Gardiner, Constitutional Documents of the Puritan Revolution, pp. 366, 367.
when referred to the people, be vetoed. Its members are pretty constantly re-elected, and it is apparently one of the most orderly and business-like of Parliaments.
The Assembly consists of two chambers or houses.
The Council of States, or, as we may more conveniently call it, the Senate, represents the Cantons, each of which as a rule sends two members to it.
The National Council, like the American House of Representatives, directly represents the citizens. It varies in numbers with the growth of the population, and each Canton is represented in proportion to its population.
In one important respect the Federal Assembly differs from the American Congress. In the United States the Senate has hitherto been the more influential of the two Houses. In Switzerland the Council of States was expected by the founders of the Constitution to wield the sort of authority which belongs to the American Senate. This expectation has been disappointed. The Council of States has played quite a secondary part in the working of the Constitution, and possesses much less power than the National Council. The reasons given for this are various. The members of the Council are paid by the Cantons which they represent. The time for which they hold office is regulated by each Canton, and has generally been short. The Council has no special functions such as has the American Senate, and the general result has been that leading statesmen have sought for seats not in the Council of State, but in the National Council. One cause of the failure on the part of the Council of States to fulfil the expectations of its creators seems to have escaped Swiss attention. The position and functions of the Federal Council or Ministry, its permanence and its relation to the Federal Parliament, make it impossible for the chamber which represents the Cantons to fill the place which is occupied in America by the House which represents the States. The inferior position of the Swiss Council of States deserves notice. It is one of the parts of the Constitution which was suggested by the experience of a foreign country, and for this very reason has, it may be suspected, not fitted in with the native institutions of Switzerland.
THE FEDERAL TRIBUNAL92
This Court was constituted by statesmen who knew the weight and authority which belongs to the Supreme Court of the United States; but the Federal Tribunal was from the beginning, and is still, a very different body from, and a much less powerful body than, the American Supreme Court. It is composed of fourteen judges, and as many substitutes elected for six years by the Federal Assembly, which also designates the President and the Vice-President of the Court for two years at a time. It possesses .criminal jurisdiction in cases of high treason, and in regard to what we may term high crimes and misdemeanours, though its powers as a criminal Court are rarely put into operation. It has jurisdiction as regards suits between the Confederation and the Cantons, and between the Cantons themselves, and generally in all suits in which the Confederation or a Canton is a party. It also determines all matters of public law, and has by degrees, in consequence of federal legislation, been made virtually a general Court of Appeal from the Cantonal tribunals in all cases arising under federal laws where the amount in dispute exceeds 3000 francs. Add to this that the Court entertains complaints of the violation of the constitutional rights of citizens, and this whether the right alleged to be violated is guaranteed by a Federal or by a Cantonal constitution. The primary object for which the Court was constituted was the giving decisions, or rather the making of judicial declarations where points of public law are in dispute; and its civil jurisdiction has, under the stress of circumstances, been increased beyond the limits within which the founders of the Swiss Constitution intended it to be restrained. But the Federal Tribunal, though possessed of a wide and somewhat indefinite jurisdiction, wields nothing like the power possessed by the Supreme Court of the United States. It has no jurisdiction whatever in controversies with reference to "administrative law"; these are reserved for the Federal Council, and ultimately for the Federal Assembly,93 and the term "administrative controversies" has been given a very extensive signification, so that the Court has
92 Lowell, ii. p. 214; Orelli, pp. 38-44.
93 See Swiss Constitution, Art. 85, s. 12, and Art. 113.
been excluded "from the consideration of a long list of subjects, such as the right to carry on a trade, commercial treaties, consumption taxes, game laws, certificates of professional capacity, factory acts, bank-notes, weights and measures, primary public schools, sanitary police, and the validity of cantonal elections,"94 which would prima fade seem to fall within its competence. The Tribunal, moreover, though it can treat cantonal laws as unconstitutional, and therefore invalid, is bound by the Constitution to treat all federal legislation as valid.95
The judges of the Federal Tribunal are appointed by the Federal Assembly, and for short terms. The Tribunal stands alone, instead of being at the head of a national judicial system. It has further no officials of its own for the enforcement of its judgments. They are executed primarily by the cantonal authorities, and ultimately, if the cantonal authorities fail in their duty, by the Federal Council.96 The control, moreover, exerted by the Federal Tribunal over the acts of Federal officials is incomplete. Any citizen may sue an official, but, as already pointed out, administrative controversies are excluded from the Court's jurisdiction, and in case there is a conflict of jurisdiction between the Federal Council and the Federal Tribunal, it is decided not by the Court but by the Federal Assembly, which one would expect to support the authority of the Council. The Federal Tribunal, at any rate, cannot as regards such disputes fix the limits of its own competence.97 Under these circumstances it is not surprising that the Tribunal exercises less authority than the Supreme Court of the United States. What may excite some surprise is that, from the very nature of federalism the jurisdiction of the Federal Tribunal has, in spite of all disadvantages under which the Court suffers, year by year increased. Thus until 1893 questions relating to religious liberty, and the rights of different sects, were reserved for the decision of the Federal Assembly. Since that date they have been transferred to the
94 Lowell, p. 218.
95 See Swiss Constitution, Art. 113; Brinton Coxe, Judicial Power and Unconstitutional Legislation, p. 86.
96 See Adams, Swiss Confederation, pp. 74, 75.
97 See Lowell, p. 220.
jurisdiction of the Federal Tribunal. This very transfer, and the whole relation of the Tribunal, the Council, and the Assembly respectively, to questions which would in England or the United States be necessarily decided by a law court, serve to remind the reader of the imperfect recognition in Switzerland of the "rule of law," as it is understood in England, and of the separation of powers as that doctrine is understood in many continental countries.98
THE REFERENDUM99
If in the constitution of the Federal Tribunal and of the Council of States we can trace the influence of American examples, the referendum, as it exists in Switzerland, is an institution of native growth, which has received there a far more complete and extensive development than in any other country. If we omit all details, and deal with the referendum as it in fact exists under the Swiss Federal Constitution, we may describe it as an arrangement by which no alteration or amendment in the Constitution, and no federal law which any large number of Swiss citizens think of importance, comes finally into force until it has been submitted to the vote of the citizens, and has been sanctioned by a majority of the citizens who actually vote. It may be added that a change in the Constitution thus referred to the people for sanction cannot come into force unless it is approved of both by a majority of the citizens who vote, and by a majority of the Cantons. It must further be noted that the referendum in different forms exists in all but one of the Swiss Cantons, and may therefore now be considered an essential feature of Swiss constitutionalism. The referendum is therefore in effect a nation's veto. It gives to the citizens of Switzerland exactly that power of arresting legislation which is still in theory and was in the time, for example, of Elizabeth actually possessed by an English monarch. A bill could not finally become a law until it had obtained the consent of the Crown. In
98 Lowell, pp. 218, 219.
99 See Lowell, ii. chap, xii.; Adams, Swiss Confederation, chap. vi. The referendum, though not under that name, exists for many purposes in the different States of the American Union. There is no trace of it, or of any institution corresponding to it, in the Constitution of the United States. Compare Oberholtzer, Referendum in America.
popular language, the Crown, in case the monarch dissented, might be said to veto the bill. A more accurate way of describing the Crown's action is to say that the King threw out or rejected the bill just as did the House of Lords or the House of Commons when either body refused to pass a bill. This is in substance the position occupied by the citizens of Switzerland when a law passed by the Federal Assembly is submitted to them for their approbation or rejection. If they give their assent it becomes the law of the land; if they refuse their assent it is vetoed, or, speaking more accurately, the proposed law is not allowed to pass, i.e. to become in reality a law.
The referendum has a purely negative effect. It is in many of the Cantonal Constitutions, and in the Federal Constitution to a certain extent, supplemented by what is called the Initiative — that is, a device by which a certain number of citizens can propose a law and require a popular vote upon it in spite of the refusal of the legislature to adopt their views. 10° The Initiative has, under the Federal Constitution at any rate, received as yet but little trial. Whether it can be under any circumstances a successful mode of legislation may be doubted. All that need here be noted is that while the introduction of the Initiative is neither in theory nor in fact a necessary consequence of the maintenance of the referendum, both institutions are examples of the way in which in Switzerland the citizens take a direct part in legislation.
The referendum, taken in combination with the other provisions of the Constitution, and with the general character of Swiss federalism, tends, it is conceived, to produce two effects.
It alters, in the first place, the position both of the Legislature and of the Executive. The Assembly and the Federal Council become obviously the agents of the Swiss people. This state of things, while it decreases the power, may also increase the freedom of Swiss statesmen. A member of the Council, or the Council itself, proposes a law which is passed by the Legislature. It is, we will suppose, as has often happened, referred to the people for approval and then rejected. The Council and the Assembly bow without any discredit to the popular
100 Lowell, p. 280.
decision. There is no reason why the members either of the Council or of the Legislature should resign their seats; it has frequently happened that the electors, whilst disapproving of certain laws submitted for their acceptance by the Federal Assembly, have re-elected the very men whose legislation they have refused to accept. Individual politicians, on the other hand, who advocate particular measures just because the failure to pass these measures into law does not involve resignation or expulsion from office, can openly express their political views even if these views differ from the opinions of the people. The referendum, in the second place, discourages the growth of party government. The electors do not feel it necessary that the Council, or even the Assembly, should strictly represent one party. Where the citizens themselves can veto legislation which they disapprove, it matters comparatively little that some of their representatives should entertain political opinions which do not at the moment commend themselves to the majority of the electorate. The habit, moreover, acquired of taking part in legislation must probably accustom Swiss citizens to consider any proposed law more or less on its merits. They are at any rate less prone than are the voters of most countries to support a party programme which possibly does not as to every one of its provisions command the assent of any one voter. It may, of course, on the other hand, be maintained that it is the incomplete development of party government in Switzerland which favours the adoption of the referendum. However this may be, there can be little doubt that the existence of the most peculiar of Swiss institutions has a dose connection with the condition of Swiss parties.
Swiss Federalism has been, as we have already pointed out, considerably influenced by American Federalism, and it is almost impossible for an intelligent student not to compare the most successful federal and democratic government of the New World with the most successful federal and democratic government of Europe, for the history and the institutions of America and of Switzerland exhibit just that kind of likeness and unlikeness which excites comparison.
The United States and Switzerland are both by nature federations; neither country could, it is pretty dear, prosper under any but a federal constitution; both countries are, at the present day at any rate,
by nature democracies. In each country the States or Cantons have existed before the federation. In each country state patriotism was originally a far stronger sentiment than the feeling of national unity. In America and in Switzerland national unity has been the growth of necessity. It is also probable that the sentiment of national unity, now that it has been once evoked, will in the long run triumph over the feeling of State rights or State sovereignty. In a very rough manner, moreover, there is a certain likeness between what may be called the federal history of both countries. In America and in Switzerland there existed for a long time causes which prevented and threatened finally to arrest the progress towards national unity. Slavery played in the United States a part which resembled at any rate the part played in Swiss history by religious divisions. In America and in Switzerland a less progressive, but united and warlike, minority of States held for a long time in check the influence of the richer, the more civilised, and the less united States. Constant disputes as to the area of slavery bore at any rate an analogy to the disputes about the common territories which at one time divided the Catholic and Protestant Cantons. Secession was anticipated by the Sonderbund, and the triumph of Grant was not more complete than the triumph of Dufour. Nor is it at all certain that the military genius of the American was greater than the military genius of the Swiss general. The War of Secession and the War of the Sonderbund had this further quality in common. They each absolutely concluded the controversies out of which they had arisen; they each so ended that victors and vanquished alike soon became the loyal citizens of the same Republic. Each country, lastly, may attribute its prosperity, with plausibility at least, to its institutions, and these institutions bear in their general features a marked similarity.
The unlikeness, however, between American and Swiss Federalism is at least as remarkable as the likeness. America is the largest as Switzerland is the smallest of Confederations; more than one American State exceeds in size and population the whole of the Swiss Confederacy. The American Union is from every point of view a modern state; the heroic age of Switzerland, as far as military glory is concerned, had dosed before a single European had set foot in
America, and the independence of Switzerland was acknowledged by Europe more than a century before the United States began their political existence. American institutions are the direct outgrowth of English ideas, and in the main of the English ideas which prevailed in England during the democratic movement of the seventeenth century; American society was never under the influence of feudalism. The democracy of Switzerland is imbued in many respects with continental ideas of government, and till the time of the great French Revolution, Swiss society was filled with inequalities originating in feudal ideas. The United States is made up of States which have always been used to representative institutions; the Cantons of Switzerland have been mainly accustomed to non-representative, aristocratic or democratic government. Under these circumstances, it is naturally to be expected that even institutions which possess a certain formal similarity should display an essentially different character in countries which differ so widely as the United States and Switzerland.
These differences may be thus roughly summed up: American Federalism is strong where Swiss Federalism is weak; where American Federalism is weak, Swiss Federalism is strong.
The Senate and the Judiciary of the United States have rightly excited more admiration than any other part of the American Constitution. They have each been, to a certain extent, imitated by the founders of the existing Swiss Republic. But in neither instance has the imitation been a complete success. The Council of States has not the authority of the Senate; the Federal Tribunal, though its power appears to be on the increase, cannot stand comparison with the Supreme Court. The judicial arrangements of Switzerland would appear, at any rate to a foreign critic, to be the least satisfactory of Swiss institutions, and the exercise by the Federal Council and the Federal Assembly of judicial powers is not in unison with the best modern ideas as to the due administration of justice.
The features in American institutions which receive very qualified approval, if not actual censure even from favourable critics, are the mode in which the President is appointed, the relation of the Executive Government to the Houses of Congress, the disastrous de-
velopment of party organisation, and the waste or corruption which are the consequence of the predominance of party managers or wirepullers.
The Federal Council, on the other hand, forms as good an Executive as is possessed by any country in the world. It would appear to a foreign observer (though on such a matter foreign critics are singularly liable to delusion) to combine in a rare degree the advantages of a Parliamentary and of a non-Parliamentary government. It acts in uniform harmony with the elected representatives of the people, but though appointed by the legislature, it enjoys a permanent tenure of office unknown to Parliamentary Cabinets or to elected Presidents. Though parties, again, exist, and party spirit occasionally runs high in Switzerland, party government is not found there to be a necessity. The evils, at any rate, attributed to government by party are either greatly diminished or entirely averted. The Caucus and the "Machine" are all but unknown. The country is freed from the unwholesome excitement of a Presidential election, or even of a general election, which, as in England, determines which party shall have possession of the government. There is no notion of spoils, and no one apparently even hints at corruption.
Note IX
AUSTRALIAN FEDERALISM W1
The aim of Australian statesmen has been to combine in the Constitution of the Commonwealth ideas borrowed from the federal and republican constitutionalism of the United States, or, to a certain extent, of Switzerland, with ideas derived from the Unitarian102 and monarchical constitutionalism of England. They have also created for the Commonwealth itself, and retained for each of the several States thereof, the relation which has for years existed between England and the self-governing colonies of Australia.
101 The Commonwealth of Australia Constitution Act, 63 & 64 Viet. c. 12. Quick and Garran, The Annotated Constitution of the Australian Commonwealth. Moore, The Commonwealth of Australia. Bryce, i. Studies in History and Jurisprudence, Essay VIII.
102 See pp. 73 — 74, ante.
Hence the Commonwealth exhibits four main characteristics: first, a Federal form of Government; secondly, a Parliamentary Executive; thirdly, an effective Method for amending the Constitution; fourthly, the maintenance of the Relation which exists between the United Kingdom and a self-governing colony.
FEDERAL GOVERNMENT
The Commonwealth is in the strictest sense a federal government. It owes its birth to the desire for national unity which pervades the whole of Australia, combined103 with the determination on the part of the several colonies to retain as States of the Commonwealth as large a measure of independence as may be found compatible with the recognition of Australian nationality. The creation of a true federal government has been achieved mainly by following, without however copying in any servile spirit, the fundamental principles of American federalism. As in the United States so in the Australian Commonwealth the Constitution is (subject of course to the sovereign power of the Imperial Parliament) the supreme law of the land;104 the Constitution itself in the Australian Commonwealth, as in the United States, fixes and limits the spheres of the federal or national government and of the States respectively, and moreover defines these spheres in accordance with the principle that, while the powers of the national or federal government, including in the term government both the Executive and the Parliament of the Commonwealth, are, though wide, definite and limited, the powers of the separate States are indefinite, so that any power not assigned by the Constitution to the federal government remains vested in each of the several States, or, more accurately, in the Parliament of each State.105 In this point Australian statesmen have followed the example, not of Canada, but of the United States and of Switzerland. The methods again for keeping the government of the Commonwealth on the one side, and the States on the other, within their proper spheres have
103 See pp. 75-76, ante.
104 Constitution ss. 51, 108.
105 Ibid. ss. 106, 107.
been suggested in the main by American experience. The Parliament of the Commonwealth is so constituted as to guarantee within reasonable limits the maintenance of State rights. For whilst the House of Representatives represents numbers, the Senate represents the States of the Commonwealth, and each of the Original States is entitled, irrespective of its size and population, to an equal number of senators.106 The Constitution, further, is so framed as to secure respect for the Senate; the longer term for which the Senators are elected and the scheme of retirement by rotation, which will, in general, protect the Senate from a dissolution, are intended to make the Senate a more permanent, and therefore a more experienced, body than the House of Representatives, which can under no circumstances exist for more than three years, and may very well be dissolved before that period has elapsed; then too the senators will, as the Constitution now stands, represent the whole of the State for which they sit.107 The States, again, retain a large amount of legislative independence. Neither the Executive nor the Parliament of the Commonwealth can either directly or indirectly veto the legislation, e.g., of the Victorian Parliament. Lastly, the law Courts, and especially the Federal Supreme Court, are, as in the United States, the guardians of the Constitution, for the Courts are called upon, in any case which comes before them for decision, to pass judgment, should the point be raised, upon the constitutionality, or, in other words, upon the validity under the Constitution of any Act passed either by the Parliament of that Commonwealth or by the Parliament of, e.g., Victoria. That this duty is laid upon the Courts is not indeed expressly stated in the Constitution of the Commonwealth, any more than in the Constitution of the United States; but no English lawyer can doubt that the Courts, and ultimately the Federal Supreme Court, are intended to be the interpreters, and in this sense the protectors of the Constitution. They are, be it noted, in no way
106 Ibid. s. 7. Such experience however as can be supplied by the events of eight years shows, it is said, that the Senate is absolutely hostile to the maintenance of State rights, and far more so than the House of Representatives.
107 Ibid. s. 7.
bound, as is the Swiss Federal tribunal, to assume the constitutionality of laws passed by the federal legislature.
The founders, then, of the Commonwealth have, guided in the main by the example of the United States, created a true federal government; but they have, we shall find, as far as is compatible with the existence of federalism, imported into the Constitution ideas borrowed, or rather inherited, from England. This is specially visible in
THE PARLIAMENTARY EXECUTIVE
The Executive of the Commonwealth is a parliamentary Cabinet, such as has long existed in England, and as exists in all the self-governing British colonies. The authors indeed of the Australian Constitution have, true to English precedent, never made use of the word cabinet; they have not even in so many words enacted that the executive shall be a body of ministers responsible to the federal Parliament; but no one who has the least acquaintance with the history of the English constitution, or of the working of the constitutions which have been conferred upon the self-governing colonies of Australia, can doubt that the federal executive is intended to be, as it in fact is, a parliamentary ministry, which, though nominally appointed by the Governor-General, will owe its power to the support of a parliamentary majority, and will therefore, speaking broadly, consist in general of the leaders of the most powerful parliamentary party of the day. This cabinet possesses the most peculiar among the attributes of an English ministry, namely, the power, in many cases at any rate, to dissolve Parliament, and thus appeal from the body by whom the ministry was created to the people, or in other words to the electors, of the Commonwealth. We should here also observe that the powers of the Australian executive exceed in one respect the authority of an English ministry; an English cabinet may often dissolve the House of Commons, but can never dissolve the House of Lords. But an Australian cabinet can under certain circumstances cause, indirectly at any rate, the dissolution of the Senate. In studying indeed the Constitution of the Commonwealth great attention should be paid to this
existence of the right or power to dissolve Parliament; it is not possessed by the President of the United States or by the Executive Council of the Swiss Confederation, and it is granted under the constitution of the existing French Republic only in a very limited degree to the French President; nor is there anything to make it certain that the President, even if being sure of the assent of the Senate he has the power to dissolve the Chamber of Deputies, will exert his authority at the request of the ministry.108 The point to be specially noted is that the Federalists of Australia have almost as a matter of course placed the executive power in the hands of a parliamentary cabinet; they have neither adopted the American plan of an elected President, whereby the administration of affairs is placed in the hands of a non-parliamentary executive, or the Swiss scheme of creating a semi-parliamentary executive, which, while elected by the federal Parliament, cannot be dismissed by it. It is true that it might have been found difficult to adjust the relations between a non-parliamentary or a semi-parliamentary executive and the English cabinet or the Imperial Parliament. But the difficulty is not one which need necessarily be insuperable. The true reason, it may be conjectured, why Australia has decisively adhered to the system of cabinet government is that a Parliamentary cabinet is the only form of executive to which the statesmen either of Australia or of England are accustomed. In one point, indeed, the executive of Australia may appear to bear an even more parliamentary character than does an English cabinet, for whilst, in theory at least, a statesman might be the member of an English ministry, though he were not a member of either House of Parliament, no Australian minister can hold office, i.e. in effect be a member of the cabinet for more than three months, unless he becomes a Senator, or a member of the House of Representatives.109 But here Australian statesmanship has followed the conventions rather than the law of the English constitution, for in practice an English cabinet always consists of men who are members or will become members either of the House of Lords or of the House of
108 Esmein, Droit Constitutionnel, pp. 555-563.
109 Constitution, s. 64.
Commons. Indeed it is worth remark that in several instances where the Australian Constitution deviates from that of England, the deviation is caused by the desire to follow the spirit of modern English constitutionalism. Thus the elaborate and ingenious plan for avoiding in case of disagreement between the two Houses a parliamentary deadlock110 is simply an attempt to ensure by law that deference for the voice of the electorate which in England constitutional conventions enforce in the long run upon both Houses of the Imperial Parliament.
AMENDMENT OF THE CONSTITUTION
A federal constitution must of necessity be a "rigid" constitution; but the constitutions of each of the Australian self-governing colonies, e.g. of Victoria, have been in substance "flexible" constitutions of which the colonial Parliament could change the articles as easily, or nearly as easily, as any other law. Now the people of Australia have, we may safely assume, no desire to forego the advantages of a flexible constitution or to adopt a federal polity which should lend itself as little to amendment as does the Constitution of the United States, or should, like the Constitution of the Canadian Dominion, be amendable only by the action of the Imperial Parliament. Hence Australian Federalists were forced to solve the problem of giving to the Constitution of the Commonwealth as much rigidity as is required by the nature of a federal government, and at the same time such flexibility as should secure to the people of Australia the free exercise of legislative authority, even as regards articles of the Constitution.
Their solution of this problem is ingenious.
The Constitution of the Commonwealth is, looked at as a whole, a rigid constitution, since it cannot be fundamentally altered by the ordinary method of parliamentary legislation.
But this rigidity of the constitution is tempered in three different ways.
First, the Parliament of the Commonwealth is endowed with very wide legislative authority; thus it can legislate on many topics which
no Constitution, s. 57.
lie beyond the competence of the Congress of the United States, and on some topics which lie beyond the competence of the Parliament of the Canadian Dominion;111 and it is here worth notice that the extension of the powers of the Commonwealth Parliament is facilitated by the fact that on many topics the federal legislature and the State Parliaments have concurrent legislative authority, though of course where a law of the Commonwealth conflicts with, the law of a State, the federal law, if within the competence of the Commonwealth Parliament, prevails.112
Secondly, a large number of the articles of the constitution remain in force only "until Parliament otherwise provides"; they can therefore be changed like any other law by an Act of Parliament passed in the ordinary manner; in other words, the constitution is as to many of its provisions flexible.113
Thirdly, the constitution provides the means for its own alteration114 and embodies the principle, though not the name, of the Swiss institution known as the referendum. The process of constitutional amendment is broadly and normally as follows: A law changing the constitution must be passed by an absolute majority of each House of Parliament; it must then be submitted to the electors of the Commonwealth for their approval; if in a majority of the States a majority of the electors voting approve the law and also a majority of all the electors voting approve the law, it must be submitted to the Governor-General for the King's assent, and on receiving the due assent becomes, like any other bill, an Act of Parliament. The principle of the whole proceeding is that the constitution can be changed by a vote of the federal Parliament, ratified by the approval both of the majority of the States and of the majority of the Commonwealth electorate.
It should, however, be noted that under certain circumstances a law for changing the constitution which has been passed by an ab-
111 Compare Commonwealth Constitution, ss. 51, 52, with Constitution of U. S., art. i, ss. i and 8, and British North America Act, 1867 (30 & 31 Viet. c. 3), ss. 91, 92.
112 See Constitution, s. 109.
113 Ibid. s. 51, sub. s. xxxvi. compared e.g. with ss. 3, 29, 31, etc.
114 Ibid. s. 128.
solute majority of one House of Parliament only, and either is rejected by the other House or not passed by an absolute majority thereof, must be submitted to the electors for their approval, and if approved in the manner already stated, becomes, on the assent of the Crown being duly given, an Act of Parliament.
Add to this that there are a few changes, e.g. an alteration diminishing the proportionate representation in any State in either House of Parliament, which cannot be carried through unless the majority of the electors voting in that State approve of the change.11S
What may be the working of new institutions no one will venture confidently to predict; but a critic of constitutions may entertain the hope that Australian statesmanship has accomplished the feat of framing a polity which shall have the merits both of a rigid and of a flexible constitution, which cannot hastily be changed, but yet admits of easy amendment, whenever alteration or reform is demanded by the deliberate voice of the nation.
MAINTENANCE OF THE RELATION WITH THE UNITED KINGDOM
The founders of the Commonwealth have admittedly been influenced at once by a growing sense of Australian nationality, and by enduring, or even increasing loyalty to the mother-country. The one sentiment has been satisfied by the union of the Australian colonies under a federal government which secures to the people of Australia as complete power of self-government as is compatible with the position of a colony that desires to form part of the British Empire. The other sentiment has been satisfied by placing the Commonwealth itself as regards the mother-country in the position of a self-governing colony, and also by leaving the relation between each State of the Commonwealth and the United Kingdom as little disturbed as is compatible with the creation of the Australian Commonwealth. Each point is worth notice.
The Commonwealth of Australia itself is, as regards the Crown and the Imperial Parliament, nothing but a large self-governing colony.
115 Constitution, s. 28.
Thus the Governor-General is appointed by the Crown, i.e. by the English ministry, and fills substantially the same position as, before the formation of the Commonwealth, was occupied by the Governor, e.g., of Victoria. A bill passed by the Parliament of the Commonwealth, whether it be an ordinary law or a law which, because it affects the constitution, has been submitted to the electors for their approval, requires in order that it may become an Act the assent of the Crown,116 and the Crown can negative or veto bills passed by the Parliament of the Commonwealth just as it could, and still can, veto bills passed by the Parliament, e.g., of Victoria. The Imperial Parliament, again, has the admitted right, though it is a right which, except at the wish of the Australian people, would most rarely be exercised, to legislate for Australia, or even to modify the constitution of the Australian Commonwealth. An appeal further lies on most subjects from the decisions of the federal Supreme Court to the English Privy Council, and even the limitations placed on such appeals when certain questions as to the Commonwealth constitution are raised are themselves subject to some qualifications.m The broad result therefore is that as regards the Commonwealth the connection with the United Kingdom is retained, and the sovereignty of the Imperial Parliament is untouched.
The position of any State of the Commonwealth in regard to the United Kingdom remains pretty much what it was when the State, e.g. Victoria, was still merely a self-governing colony. The Governor of Victoria is now, as then, appointed by the Crown, i.e. by the English ministry. A bill passed by the Victorian Parliament still, in order that it may become an Act, requires the assent of the Crown. The Government of the Commonwealth possesses no power of putting a veto on bills passed by the Victorian Parliament. The right of appeal from a Court of Victoria to the English Privy Council stands, in most matters at any rate, substantially where it did before the passing of the Australian Commonwealth Act, except indeed that there is an alternative right of appeal to the High Court of Australia, for "the
116 Constitution, ss. i, 58, 59, and 128.
117 See Constitution, ss. 71, 73, 74.
Constitution grants a new right of appeal from the State Courts to the High Court, but does not take away the existing right of appeal from the State Courts to the Privy Council, which therefore remains unimpaired."118
The peculiarities of Australian federalism receive illustration from a comparison between the constitution of the Canadian Dominion119 and the constitution of the Australian Commonwealth.
The Dominion is from one point of view more, and from another point of view less, directly subject to the control of the Imperial Parliament than is the Commonwealth. The Dominion is more completely subject than the Commonwealth, because the greater part of the Canadian constitution120 can be amended only by an Act of the Imperial Parliament, whilst the Australian constitution can be amended by the people of the Commonwealth; this distinction, it is well to add, sounds more important than it is in reality, since we may feel morally certain that the Imperial Parliament would introduce any amendment into the constitution of the Dominion which was deliberately desired by the majority at once of the people and of the
118 Quick and Garran, Annotated Constitution, p. 738. Thus an appeal lies from the Supreme Court of each of the States to the Privy Council from any decision of their Courts; as of right in circumstances defined in the several instruments constituting the Courts; by special leave from the Privy Council in all cases without exception. This rule applies to the exercise of any jurisdiction, whether State or federal, vested in the State Courts, but the State Courts have not full federal jurisdiction. From their power are excepted all cases involving the relation inter se of the States, and the States and the Commonwealth.
Appeals lie also from the State Courts to the High Court of Australia in matters both of State and federal jurisdiction on terms defined in the Judicature Act, 1903, of the Commonwealth Parliament. The appellant has of course the choice of appeal. There is nothing to prevent an appeal from such Courts to decide whether any particular case falls under sec. 74 of the constitution or not. Nor is there any mode of preventing contradictory decisions on matters other than questions arising as to the limits inter se of the constitutional powers of the Commonwealth and those of any State or States, or to the limits inter se of the constitutional powers of any two or more States which cannot reach the Privy Council. The High Court further is not bound to accept the rulings of the Privy Council as superior to its own except in those cases where an actual appeal is successfully brought not from the Superior Court of a State, but from the High Court to the Privy Council.
119 See Munro, Constitution of Canada.
120 But certain important though limited powers are under the constitution itself, i.e. the British North America Act, 1867, given to the Dominion Parliament and to the Provincial legislatures, enabling them from time to time to amend their constitutions (Munro, Constitution of Canada, p. 229). See e.g. B. N. A. Act, 1867, ss. 35, 41, 45, 78, 83, 84.
provinces of the Dominion. The Dominion of Canada, on the other hand, is less subject to the Imperial Parliament than is the Commonwealth, because the Provinces of the Dominion are in a sense less directly connected with the Imperial Government and Parliament than are the States of the Commonwealth.
Here however we come across the most important distinction between Canadian federalism and Australian federalism, namely, the difference of the relation of the federal power to the States, or, as in the case of Canada they are called, the Provinces, of the federation. The Dominion possesses all the residuary powers which are not under the Constitution conferred exclusively upon the Provinces; the Commonwealth possesses only those powers which are conferred upon it by the Constitution, whilst all the residuary powers not conferred upon the Commonwealth belong to the States.
The government of the Dominion, again, can exercise very considerable control over the legislation of the Provincial legislatures and over the administration of the Provinces; the government of the Dominion can in all cases put a veto upon laws passed by the Provincial Parliaments; the government of the Dominion appoints the judges of the State Courts; the government of the Dominion, lastly, can appoint and dismiss the Lieu tenant-Governor of any Province, who therefore is neither an Imperial official nor a Provincial official, but a Dominion official.
NoteX
MARITAL LAW IN ENGLAND DURING TIME OF WAR OR INSURRECTION121
The question for our consideration is, on what principle, and within what limits, does armed resistance to the authority of the Crown, either on the part of an invading army, or on the part of
121 See Law Quarterly Review, xviii., Holdsworfh, Martial Law Historically Considered, pp. 117-132; Richards, Martial Law, ibid. pp. 133-142; Pollock, What is Martial Law? ibid. pp. 152-158; Dodd, TI-ieCaseofMarais, ibid, pp. 143-151. The Case of Ship Money, 381. Tr. 826; Wall's Case, 28 St. Tr. 51; Ex parte D. F. Marais [1902], A. C. 109; Forsyth, Cases and Opinions, ch. vi. p. 188; Clode, Military Forces of the Crown, ii. ch. xviii.
rebels or rioters, afford a legal justification for acts done in England by the Crown, its servants, or loyal citizens, which, but for the existence of war or insurrection, would be breaches of law?
In considering this question two preliminary observations must be borne in mind.
The first is that this note does not treat of several topics which are often brought within the vague term, martial law. It does not refer to Military Law, i.e. the rules contained in the Army Act and the Articles of War for the government of the Army and of all persons included within the term "persons subject to military law"; it has no reference to the laws that govern the action of an English General and his soldiers when carrying on war in a foreign country, or in their treatment of foreign invaders of England; it has no reference to transactions taking place out of England, or to the law of any other country than England. It does not refer, e.g., to the law of Scotland or of Jersey.
The second observation is that, in regard to the subject of this note, we must constantly bear in mind the broad and fundamental principle of English law that a British subject must be presumed to possess at all times in England his ordinary common-law rights, and especially his right to personal freedom, unless it can be conclusively shown, as it often may, that he is under given circumstances deprived of them, either by Act of Parliament or by some well-established principle of law. This presumption in favour of legality is an essential part of that rule of law122 which is the leading feature of English institutions. Hence, if any one contends that the existence of a war in England deprives Englishmen of any of their common-law rights, e.g. by establishing a state of martial law, or by exempting military officers from the jurisdiction of the civil Courts, the burden of proof falls distinctly upon the person putting forward this contention.
Ex parte Milligan (Am.), 4 Wall. 2, and Thayer, Cases on Constitutional Law, ii. p. 2376. This, and the other American cases on martial law, though not authorities in an English Court, contain an expostion of the common law in regard to martial law which deserves the most careful attention.
See also Note IV., Right of Self-Defence; Note V., Right of Public Meeting; Note VI., Soldiers and Unlawful Meeting, ante. 122 See chap, iv., ante.
Our topic may be considered under three heads; first, the nature of martial law; secondly, the inferences which may be drawn from the nature of martial law; thirdly, certain doctrines with regard to martial law which are inconsistent with the view propounded in this note.
NATURE OF MARTIAL LAW
"Martial law," in the sense in which the expression is here used, means the power, right, or duty of the Crown and its servants, or, in other words, of the Government, to maintain public order, or, in technical language, the King's peace, at whatever cost of blood or property may be in strictness necessary for that purpose. Hence martial law comes into existence in times of invasion or insurrection when, where, and in so far as the King's peace cannot be maintained by ordinary means, and owes its existence to urgent and paramount necessity.123 This power to maintain the peace by the exertion of any amount of force strictly necessary for the purpose is sometimes described as the prerogative of the Crown, but it may more correctly be considered, not only as a power necessarily possessed by the Crown, but also as the power, right, or duty possessed by, or incumbent upon, every loyal citizen of preserving or restoring the King's peace in the case, whether of invasion or of rebellion or generally of armed opposition to the law, by the use of any amount of force whatever necessary to preserve or restore the peace. This power or right arises from the very nature of things. No man, whatever his opinions as to the limits of the prerogative, can question the duty of loyal subjects to aid, subject to the command of the Crown, in resistance, by all necessary means, to an invading army.124 Nor can it be denied that acts, otherwise tortious, are lawful when necessary for the resistance of invaders.125
123 See Kent, Comm. i. p. 341, and opinion of Sir John Campbell and Sir R. M. Rolfe, Forsyth, Opinions on Constitutional Law, pp. 198, 199.
124 See especially the Case of Ship Money, 3 St. Tr. 860, 905, 974, 975, 1011-1013, 1:[34' ™49, 1162, and 1214.
125 See i Dyer, 3$).
When enemies come against the realm to the sea coast, it is lawful to come upon my land adjoining to the same coast, to make trenches or bulwarks for the defence of the realm, for every subject hath benefit by it. And, therefore, by the common law, every man may come upon my land for the defence of the realm, as appears 8 Ed. IV. 23. And in such case or such extremity they may dig for gravel for the making of bulwarks: for this is for the public, and every one hath benefit by it. ... And in this case the rule is true, Princeps et respublica exjusta causa possunt rem meam auferre.126
So to the same effect counsel for the defence in the Case of Ship Money.
My Lords, in these times of war I shall admit not only His Majesty, but likewise every man that hath power in his hands, may take the goods of any within the realm, pull down their houses, or burn their corn, to cut off victuals from the enemy, and do all other things that conduce to the safety of the kingdom, without respect had to any man's property.127
And though these authorities refer, as is worth noticing, to interferences with rights of property and not to interferences with personal freedom, between which there exist considerable differences, it will not (it is submitted) be disputed that, in case of invasion, a general and his soldiers acting under the authority of the Crown may lawfully do acts which would otherwise be an interference with the personal liberty, or even, under conceivable circumstances, which may cause the death of British subjects, if these acts are a necessary part of military operations. The point to be borne in mind is that the power to exercise martial law, which is not ill-described by an expression known to the American Courts, viz. the "war power," as it originates in, so it is limited by, the necessity of the case.128
On this matter note the opinion of Sir J. Campbell and Sir R. M. Rolfe that "martial law is merely a cessation from necessity of all
126 12 Rep. 12.
127 Case of Ship Money, 3 St. Tr. 826, 906. Compare especially the language of Holborne in the same case at p. 975, and language of Buller, J., in British Cast Plate Manufacturers v. Meredith, 4!. R. at p. 797.
128 See especially opinion of Henley and Yorke, Forsyth, pp. 188, 189; opinion of Hargrave, ibid. pp. 189, 190; opinion of Sir John Campbell and Sir R. M. Rolfe, ibid. pp. 198, 199.
municipal law, and what necessity requires it justifies";129 and this description of the circumstances which justify martial law also implies the limits within which it is justifiable; these have been stated with truth, if not with the precise accuracy of legal argument, by Sir James Mackintosh.
The only principle on which the law of England tolerates what is called Martial Law is necessity; its introduction can be justified only by necessity; its continuance requires precisely the same justification of necessity; and if it survives the necessity on which alone it rests for a single minute, it becomes instantly a mere exercise of lawless violence. When foreign invasion or Civil War renders it impossible for Courts of Law to sit, or to enforce the execution of their judgments, it becomes necessary to find some rude substitute for them, and to employ for that purpose the Military, which is the only remaining Force in the community. While the laws are silenced by the noise of arms, the rulers of the Armed Force must punish, as equitably as they can, those crimes which threaten their own safety and that of society; but no longer. 13°
The existence of martial law thus understood, taken in combination with the rules of the common law as to the duty of loyal subjects, gives very wide authority in England to all persons, and of course above all to a general engaged in repelling an invasion. He holds the armed forces completely under his control; they are governed by military law;131 so too are all citizens who, though not in strictness soldiers, are persons subject to military law; and in this connection it must be remembered that the King and his servants have a right to call for the help of every loyal subject in resisting an invasion,132 whence it follows that the number of persons subject to military law may be greatly, indeed almost indefinitely, increased. A general again is dearly entitled to use or occupy any land which he requires for the purpose of military operations and may, if he see fit, erect fortifications thereon, and generally he has the right to use land or any other property which is required for the conduct of the war. It is
129 Forsyth, p. 201.
130 Cited Qode,Mi7< tory Forces oftheCrown, ii.p. 486.
131 See chaps, viii. and ix., ante.
132 See Case of Ship Money, 3 St. Tr. 826, 975.
again his right, and indeed his duty, when the necessity arises, to inflict instant punishment upon, and even, if need be, put to death, persons aiding and abetting the enemy or refusing such aid to the English army as can fairly be required of them. It is indeed difficult to picture to one's self any legitimate warlike operation or measure which, while war is raging in England, a general cannot carry out without any breach of the law whatever. Let it too be noted that what is true of a general holds good of every loyal subject according to his situation and the authority which he derives from it, e.g. of a subordinate officer, of a magistrate, or even of a private citizen who is helping to resist an invader. Real obvious necessity in this case not only compels but justifies conduct which would otherwise be wrongful or criminal. To this add the consideration, which has been strongly insisted upon by several able writers, that the conditions of modern warfare, such as the existence of the telegraph, whereby acts done, e.g., in London may affect military operations, e.g., in Northumberland, greatly extend the area of necessity, and may, conceivably at least, make it legally allowable, when war or armed insurrection exists in the north of England, to interfere summarily and without waiting for legal process with the freedom of persons residing in London or Bristol. However this may be, it is dear that the existence of the necessity which justifies the use of so-called martial law must depend on the circumstances of each case.
The fact that necessity is the sole justification for martial law or, in other words, for a temporary suspension of the ordinary rights of English citizens during a period of war or insurrection, does however place a very real limit of the lawful exerdse of force by the Crown or by its servants. The presence of a foreign army or the outbreak of an insurrection in the north of England, may conceivably so affect the state of the whole country as to justify measures of extra-legal force in every part of England, but neither war nor insurrection in one part of the country prima fade suspends the action of the law in other parts thereof. The fact that the Pretender's army had advanced with unbroken success to Derby did not deprive the citizens of London of the ordinary rights of British subjects. No one has ever suggested that it would have justified the summary execution at Tyburn of an Eng-
lishman there found guilty of treason by a court-martial. It is not easy to believe that, without a breach of the law of England, an Englishman imprisoned in London on a charge of high treason could have been taken to a part of the country where in 1745 war was raging, in order that he might there be tried and executed under the authority of a court-martial.133 Nor does the consideration that the summary execution of rebels, whose crimes could be punished by the ordinary course of law, may check the spread of treason, show that their execution is necessary or legal. We need not, moreover, confine our observation to cases of punishment. It is easy to imagine circumstances under which the arrest and imprisonment on suspicion of persons who are not guilty, or cannot be proved guilty of crime, may be salutary and expedient, but such arrest or imprisonment cannot be legally justified unless it be a matter of necessity.134 If it be urged, that the respect due in England to the ordinary law of the land places restrictions which may be inconvenient or even noxious on the exercise of the authority of the Crown and its servants, the truth of the observation may be admitted. The reply to it is twofold: first, that the maintenance of the legal rights of citizens is itself a matter of the highest expediency; secondly, that whenever at a period of national danger a breach of law is demanded, if not by absolute necessity, yet by considerations of political expediency, the lawbreaker, whether he be a general, or any other servant of the Crown, who acts bona fide and solely with a view to the public interest, may confidently count on the protection of an Act of Indemnity.
Nor is it irrelevant at this point to note the striking analogy between the right of an individual to exercise force, even to the extent of causing death, in self-defence, and the right of a general or other loyal citizen to exercise any force whatever necessary for the defence of the realm. In either case the right arises from necessity. An indi-
133 If the language in the Charge of Blackburn, J., Reg. v. Eyre, p. 84, be cited in support of the possible legality of such a transaction, it must be remembered that Blackburn's hypothetical apology for Governor Eyre was based on certain statutes passed by the legislature of Jamaica, and that the whole tendency of the Charge of Cockburn, C. J., in Reg. v. Nelson, is to show that the execution of Gordon was illegal.
134 See specially language of Holborne, Case of Ship Money, 3 St. Tr. p. 975.
vidual may use any amount of force necessary to avert death or grievous bodily harm at the hands of a wrongdoer,135 but, if he kills a ruffian, he must to justify his conduct show the necessity for the force employed in self-protection. So a general, who under martial law imprisons or kills British subjects in England, must, if he is to escape punishment, justify his conduct by proving its necessity. The analogy between the two cases is not absolutely complete, but it is suggestive and full of instruction.
Observe, further, that the principle which determines the limits of martial law is the principle which also determines the rights and duties of magistrates, of constables, and of loyal citizens generally when called upon to disperse or prevent unlawful assemblies or to suppress a riot. No doubt the degree and the area of the authority exercised by a general when resisting an invading army is far greater than the degree and the area of the authority exercised by a mayor, a magistrate, or a constable when called upon to restore the peace of a town disturbed by riot, but the authority though differing in degree has the same object and has the same source. It is exercised for the maintenance of the King's peace; it is justified by necessity. So true is this, that, when you need to fix the limits of martial law, you are compelled to study the case otRex v. Pinney,136 which refers not to the power and authority of a general in command of soldiers, but to the duty of the Mayor of Bristol to suppress a riot.
In every case in which the legal right or duty arises to maintain the King's peace by the use of force, there will be found to exist two common features. The legal right, e.g. of a general or of a mayor, to override the ordinary law of the land is, in the first place, always correlative to his legal duty to do so. Such legal right or duty, in the second place, always lasts so long, and so long only, as the circumstances exist which necessitate the use of force. Martial law exists only during time of war; the right of a mayor to use force in putting an end to a riot ceases when order is restored, just as it only begins when a breach of the peace is threatened or has actually taken place.
135 See App., Note IV., The Right of Self-Defence, p. 341, ante.
136 3 St. Tr. (n. s.) 11, with which compare Blackburn's Charge in R. v. Eyre, pp. 58, 59.
The justification and the source of the exercise in England of extraordinary or, as it may be termed, extra-legal power, is always the necessity for the preservation or restoration of the King's peace.
CONCLUSIONS
From the nature of martial law137 follow four conclusions: —
First, martial law cannot exist in time of peace.
This is on all hands admitted.138
What, then, is the test for determining whether a state of peace exists at a given time, in a given part of England, say London?
The answer is that no unfailing test is to be found; the existence of a state of peace is a question of fact to be determined in any case before the Courts in the same way as any other such question.139
According, indeed, to a number of old and respectable authorities, a state of war cannot exist, or, in other words, a state of peace always does exist when and where the ordinary Courts are open. But this rule cannot, it would seem, be laid down as anything like an absolute principle of law, for the fact that for some purposes some tribunals have been permitted to pursue their ordinary course in a district in which martial law has been proclaimed, is not conclusive proof that war is not there raging. 14° Yet the old maxim, though not to be accepted as a rigid rule, suggests, it is submitted, a sound principle. At a time and place where the ordinary civil Courts are open, and fully and freely exercise their ordinary jurisdiction, there exists, presumably, a state of peace, and where there is peace there cannot be martial law.
If, in foreign invasion or civil war, the Courts are actually closed, and it is impossible to administer criminal justice according to law, then, on the theatre of active military operations, where war really prevails, there is a necessity to furnish a substitute for the civil authority, thus overthrown, to preserve the safety of the army and society; and as no power is left but the
137 Cockburn's Charge, Reg. v. Nelson, p. 85.
138 Compare Ex parte D. F. Marais [1902], A. C. 109; Ex parte Milligan, 4 Wall. 2 (Am.).
139 Whether the Courts may not take judicial notice of the existence of a state of war?
140 Ex parte D. F. Marais [1902], A. C. 109.
military, it is allowed to govern by martial rule until the laws can have their free course. As necessity creates the rule, so it limits its duration; for, if this government is continued after the Courts are reinstated, it is a gross usurpation of power. Martial rule can never exist where the Courts are open, and in the proper and unobstructed exercise of their jurisdiction. It is also confined to the locality of actual war.141
Secondly, the existence of martial law does not in any way depend upon the proclamation of martial law.
The proclamation of martial law does not, unless under some statutory provision, add to the power or right inherent in the Government to use force for the repression of disorder, or for resistance to invasion. It does not confer upon the Government any power which the Government would not have possessed without it. The object and the effect of the proclamation can only be to give notice, to the inhabitants of the place with regard to which martial law is proclaimed, of the course which the Government is obliged to adopt for the purpose of defending the country, or of restoring tranquillity.142
Thirdly, the Courts have, at any rate in time of peace, jurisdiction in respect of acts which have been done by military authorities and others during a state of war.143
"The justification of any particular act done in a state of war is ultimately examinable in the ordinary Courts, and the prior question, whether there was a state of war at a given time and place, is a question of fact."144
The truth of this statement of the law is almost self-evident. A sues X in the High Court for assault and for false imprisonment; X justifies the alleged assault on the ground that X was at the time of the act complained of the colonel of a regiment, and that the alleged assault was the arrest and imprisonment of A by X under the orders, say, of the Commander-in-chief, during a time of war and after the proclamation of martial law. The defence may or may not be good, but it is
141 Ex parte Milligan, 4 Wall. 2; Thayer, Cases on Constitutional Law, partiv. p. 2390.
142 See opinion of Campbell and Rolfe, Forsyth, p. 198.
143 See Cockburn's Charge, Reg. v. Nelson; Blackburn's Charge, Reg. v. Eyre; Ex parte Milligan, 4 Wall, 2; and compare Wall's Case, 28 St. Tr. 51. Wright v. Fitzgerald, 27 St. Tr. 759.
144 Sir F. Pollock, What is Martial Law? L. Q. R. xviii. pp. 156, 157.
certain that the Courts have, at any rate after the restoration of peace, jurisdiction to inquire into the facts of the case, and that one of the necessary inquiries is whether a state of war did exist at the time when A was arrested, though it is quite possible that the existence of a state of war may be a fact of which the Courts take judicial notice. Expressions, indeed, have been used in a recent case145 which, if taken alone, might seem to assert that the ordinary Courts have no jurisdiction in respect of acts which have been done by military authorities in time of war. But the very width of the language used by the Privy Council in Ex parte D. F. Marais warns us that it must be limited to the circumstances of the particular case. It does not necessarily assert more, and as regards transactions taking place in England, cannot be taken to mean more than that the Courts will not, as indeed they in strictness cannot, interfere with actual military operations, or, whilst war is actually raging, entertain proceedings against military men and others for acts done under so-called martial law. The judgment of the Privy Council, in short, whatever the application of its principles to England, asserts nothing as to the jurisdiction of the Courts when peace is restored in respect of acts done during time of war, and eminent lawyers have held that even in time of war the exercise of jurisdiction by the ordinary Courts is rather rendered impossible than superseded.
The question, how far martial law, when in force, supersedes the ordinary tribunals, can never . . . arise. Martial law is stated by Lord Hale to be in truth no law, but something rather indulged than allowed as a law, and it can only be tolerated because, by reason of open rebellion, the enforcing of any other law has become impossible. It cannot be said in strictness to supersede the ordinary tribunals, inasmuch as it only exists by reason of those tribunals having been already practically superseded.146
Fourthly, the protection of military men and others against actions or persecutions in respect of unlawful acts done during a time of war, bona fide, and in the service of the country, is an Act of Indemnity.147
145 Exparte D. F. Marais [1902,] A. C. 109, 114, 115, judgment of Privy Council.
146 Joint opinion of Sir J. Campbell and Sir R. M. Rolfe, cited Forsyth, p. 199.
147 See pp. 10, 142, ante.
An Act of Indemnity is a statute the object of which is to make legal transactions which, when they took place, were illegal, or to free individuals to whom the statute applies from liability for having broken the law. Statutes of this description have been invariably, or almost invariably, passed after the determination of a period of civil war or disturbance, e.g. after the Rebellions of 1715 and of 1745,148 and their very object has been to protect officials and others who, in the interest of the country, have in a time of danger pursued an illegal course of conduct, e.g. have imprisoned citizens whom they had no legal authority to imprison. For our present purpose it is absolutely essential to appreciate the true character of an Act of Indemnity. Such a statute has no application to conduct which, however severe, is strictly lawful. A magistrate who, under proper circumstances, causes an unlawful assembly to be dispersed by force, or an officer who, under proper circumstances, orders his troops to fire on a mob and thereby, in dispersing the mob, wounds or kills some of the crowd, neither of them require to be indemnified. They are sufficiently protected by the common-law justification that in discharge of their duty they used the force, and no more than the force necessary to maintain the King's peace. A general, an officer, a magistrate, or a constable, on the other hand, who, whether in time of war or in time of peace, does without distinct legal justification, any act which injures the property or interferes with the liberty of an Englishman, incurs the penalties to which every man is liable who commits a breach of the law. The law-breaker's motives may be in the highest degree patriotic, his conduct may be politically sagacious, and may confer great benefit on the public, but all this will not, in the absence of legal justification, save him from liability to an action, or, it may be, to a prosecution; he needs for his protection an Act of Indemnity. On this point note the words of a judge of the highest reputation, who was by no means inclined to minimise the authority of the Crown and its servants.
Where the inquiry is, whether an officer is guilty of misdemeanour from an excess beyond his duty, the principle is very much the same, or rather it is
148 See Qode, Military Forces of the Crown, ii. pp. 164, 165; iGeo. I. St. 2, c. 39, and igGeo. II. c. 20.
the complement of that laid down in the case of Rex v. Pinney. If the officer does some act altogether beyond the power conferred upon him by law, so that it could never under any state of circumstances have been his duty to do it, he is responsible according to the quality of that act; and even if the doing of that illegal act was the salvation of the country, that, though it might be a good ground for the Legislature afterwards passing an Act of Indemnity, would be no bar in law to a criminal prosecution; that is, if he has done something clearly beyond his power. But if the act which he has done is one which, in a proper state of circumstances, the officer was authorised to do, so that in an extreme case, on the principle laid down in R. v. Pinney, he might be criminally punished for failure of duty for not doing it, then the case becomes very different.149
This passage from Blackburn's charge suggests further the proper answer to an objection which is sometimes raised against the view of martial law maintained in this treatise.
How, it is urged, can it be reasonable that a man should be liable to punishment, and therefore need an indemnity for having done an act (e.g. having by the use of force dispersed the mob) which it was his duty to do, and for the omission to do which he might have incurred severe punishment?
The answer is, that the supposed difficulty or dilemma cannot in reality arise. The apparent or alleged unreasonableness of the law is created by the ambiguity of the word duty, and by confusing a man's "legal duty" with his "moral duty." Now, for the non-performance of a man's legal duty, he may, of course, be punished, but for the performance of a legal duty he needs no Act of Indemnity. For the performance, on the other hand, of any moral duty, which is not a legal duty, a man may undoubtedly, if he thereby infringes upon the rights of his fellow-citizens, expose himself to punishment of one kind or another, and may therefore need an Act of Indemnity to protect him from the consequences of having done what is legally wrong, though, under the peculiar circumstances of the case, morally right. But then, for the non-performance of a merely moral duty, he will not incur the risk of punishment. If the Mayor of Bristol omits, by the use of the necessary force, to put down a riot, this omission undoubtedly exposes him to punishment, since he neglects to per-
149 Blackburn's Charge, Reg. v. Eyre, p. 58.
form a legal duty; but if he does perform his duty, and by the use of a proper amount of force puts down the riot, he incurs no legal liability to punishment, and needs no Act of Indemnity for his protection. If, on the other hand, at a period of threatened invasion or rebellion, a magistrate, without any legal authority, arrests and imprisons on suspicion a number of persons whom he holds to be disloyal, he may be performing a moral duty, and, if his view of the state of things turns out right, may have rendered a great service to the country; but he assuredly needs an Act of Indemnity to protect him from actions for false imprisonment. But, and this is the point to note, if our magistrate be a man of more prudence than energy, and omits to arrest men whom ex hypothesi he has no legal right to arrest, his conduct may incur the blame of patriots, but cannot bring him before the Courts. A man, in short, may be punished for having omitted to do an act which it is his legal duty to perform, but needs no Act of Indemnity for having done his legal duty. A man, on the other hand, who does a legal wrong, whilst performing a moral which is not a legal duty does require an Act of Indemnity for his protection, but then a man will never incur punishment for the simple omission to perform a merely moral duty.
OTHER DOCTRINES WITH REGARD TO
MARTIAL LAW
In opposition to the view of martial law upheld in this treatise, which may conveniently be termed the "doctrine of immediate necessity," three other doctrines are, or have been maintained. Of these the first bases the use of martial law on the royal prerogative; the second on the immunity of soldiers from liability to proceedings in the civil Courts as contrasted with the military Courts for any act bond fide done in the carrying out of military operations; and the third (which extends very widely the meaning of the term necessity) on political necessity or expediency.
The Doctrine of the Prerogative
It is sometimes alleged, or implied, that the Crown may, by virtue of the prerogative, in time of war proclaim martial law, and suspend
or override the ordinary law of the land, and this view is supposed to derive support from the consideration that the Petition of Right does not condemn martial law in time of war.
The fatal objection to this doctrine, in so far as it means anything more than the admitted right of the Crown and its servants to use any amount of force necessary for the maintenance of the peace or for repelling invasion, is that it utterly lacks legal authority, whilst to the inference suggested from the language of the Petition of Right no better reply can be given than that supplied by the words of Blackburn, namely, "It would be an exceedingly wrong presumption to say that the Petition of Right, by not condemning martial law in time of war, sanctioned it," though, as he cautiously adds, "it did not in terms condemn it."150
The Doctrine of Immunity151
This doctrine, it is conceived, may be thus stated. An officer in command of an army must of necessity, in carrying out military operations against an invader, override ordinary rights whether of property or of personal liberty. Decisive authorities may be produced152 in support of the proposition that he may lawfully violate rights of property, e.g. can, without incurring any legal liability, do acts which amount to trespass. But all legal rights stand on the same level; and if an officer can lawfully occupy an Englishman's land, or destroy his property, he can also lawfully, whilst bona fide carrying on war against a public enemy, imprison Englishmen, inflict punishment upon them, or even deprive them of life, and, in short, interfere with any of the rights of Englishmen in so far as is required for the carrying out of military operations. The soundness of this view is, it is urged, confirmed by the admitted inability of a civil Court to judge of the due discharge of military duties, and by the consideration that no
150 Blackburn's Charge, R. v. Eyre, p. 73, with which should be read pp. 69-73, which suggest the reasons why the authors of the Petition of Right may have omitted all reference to martial law in time of war.
151 See for a very able statement of the theory here criticised, H. Erie Richards' Martial Law, L. Q. R. xviii. p. 133.
152 See pp. 399, 400, ante.
Court would, or in fact could, during a period of warfare interfere with a general's mode of conducting the war, or with any act done by him or by soldiers acting under his orders, whence, as it is alleged, it follows that acts bona fide done in the course of military operations fall outside the jurisdiction of the ordinary Courts, not only during war time, but also after the restoration of peace.153 To put this doctrine of immunity in what appears to me to be its most plausible form, the outbreak of war is to be regarded as a suspension of the ordinary law of the land, as regards, at any rate, officers in command of troops and engaged in resisting invaders. On this view a general would occupy, during the conduct of war, a position analogous to that of a judge when engaged in the discharge of his judicial functions, and no action or other proceeding in the Courts of Common Law would lie against an officer for acts bona fide done as a part of a military operation, just as no action lies against a judge for acts done in discharge of his official duties.
This doctrine of immunity is, however, open, it is submitted, to the very strongest objections. Most of the undoubted facts on which it rests, e.g. the right of a general when resisting an invasion to use freely the land or other property of Englishmen, are merely applications of the principle that a loyal citizen may do any act necessary for the maintenance of the King's peace, and especially for the defeat of an invading army. But for the broad inferences based on this fact and similar facts there appears to exist no sufficient ground.
In support of the doctrine of immunity there can be produced no direct authority, whilst it appears to be absolutely inconsistent, not only with the charge of Cockburn, C.J., in Rex v. Nelson, but also with the principles or assumptions which are laid down or made in the charge of Blackburn,}., in Rex v. Eyre. The doctrine, further, is really inconsistent with the constant passing of Acts of Indemnity with a view to covering deeds done in the course of civil war or of rebellion. Nor is it easy to follow the line of reasoning by which it is assumed that if the Courts have no power to interfere with the acts of a general or his soldiers whilst war is raging, the Courts have no jurisdiction to
153 See L. Q. R. xviii. p. 140.
entertain during peace proceedings in respect of acts done by a general and his soldiers during a time of war. Here, at any rate, we apparently come into contradiction with some of the best known facts of legal history. The Courts, not only of England, but also of the United States, have never entertained the least doubt of their jurisdiction to inquire into the character of any act done during war time which was prima fade a breach of law.
The Doctrine of Political Necessity or Expediency154
The existence of war or invasion justifies — it is maintained by eminent lawyers, whose opinion is entitled to the highest respect — the use of what is called martial law to this extent, namely, that, e.g. during an invasion, a general, a mayor, a magistrate, or indeed any loyal citizen, is legally justified in doing any act, even though prima fade a tort or a crime, as to which he can prove to the satisfaction of a jury that he did it for the public service in good faith, and for reasonable and probable cause. This doctrine, which for the sake of convenience I term the doctrine of political expediency, manifestly justifies from a legal point of view many acts not dictated by immediate necessity. The scope thereof may be best understood from an example which I give in the words of its ablest and very learned advocate, Sir Frederick Pollock:
An enemy's army has landed in force in the north, and is marching on York. The peace is kept in London and Bristol, and the Courts are not closed. It is known that evil-disposed persons have agreed to land at several ports for the purpose of joining the enemy, and giving him valuable aid and information. Bristol is one of the suspected ports. What shall the Lord Mayor of Bristol do? I submit that it is his plain moral duty as a good citizen (putting aside for a moment the question of strict law) to prevent suspected persons from landing, or to arrest and detain them if found on shore; to assume control of the railway traffic, and forbid undesirable passengers to proceed northward, and to exercise a strict censorship and inquisitorial power over letters and telegrams. All these things are in themselves trespasses (except, probably, forbidding an alien to land); some of them may perhaps be justifiable under the statutory powers of the Postmaster-General, but summary restraint by way of prevention must be justified by a common law power
154 See Pollock, What is Martial Law? L.Q.R. xviii. p. 162.
arising from necessity, if at all. Observe that I say nothing for the present about trial or punishment. The popular (and sometimes official) notion that martial law necessarily means trial by court-martial has caused much confusion. Summary punishment may or may not be necessary. In that respect the Mayor's authority would be like that of the master of a ship.
Now, if the Lord Mayor of Bristol fails to do these things, he will surely find himself in as much trouble as his predecessor [Mr. Pinney] in the time of the Bristol riots. And I do not think he will improve his defence by pleading that the peace was still kept in Bristol, and the Courts were open, and therefore he thought he had no power to do anything beyond the ordinary process of law. Nor yet will he mend matters if he says that he was waiting for an Order in Council which was never issued, or never came to his knowledge. At best it will be a topic of slight mitigation.155
The objections to a view which at bottom differs essentially from what I have termed "the doctrine of immediate necessity" are these: The theory under consideration rests on little legal authority, except the case otRex v. Pinney;156 but that case, when its circumstances are examined, does not justify the inferences apparently grounded upon it. The charge against Mr. Pinney was in substance that, being the magistrate specially responsible for the maintenance of order in the town of Bristol, he neglected to take the proper steps to prevent the outbreak of a riot, and after the King's peace had been openly violated by rioters, the prison broken open, and the Bishop's Palace and other houses burned down, he did not take adequate steps to arrest offenders or to restore order. It is impossible to imagine a case under which there could exist a more urgent and stringent necessity for the use of force in the restoration of order. If the charges brought by the Crown could have been made out, Mr. Pinney would have been guilty of as patent a neglect of duty as could have been committed by any public official placed in a position of high authority. That he acted feebly can hardly be doubted; yet, in spite of this, he was, with the apparent approval of the Judge, held innocent of any crime. The point, however, specially to be noted is that, in Pinney's Case, no question whatever was raised as to the possible justification for acts which were prima fade tortious, but were done by a magistrate on
155 Pollock, What is Martial Law? L. Q. R. xviii. pp. 155, 156.
156 3 St. Tr. (n. s.) 11.
reasonable grounds of public expediency, though lying quite outside the scope of his ordinary authority. How, in short, the case of Mr. Pinney, which at most establishes only that a magistrate who fails to make due efforts to maintain the peace is guilty of a crime, can be supposed to justify the action of the imaginary Mayor of Bristol, who because an invasion is taking place feels it to be his right or his duty to override, in a town where peace prevails, all the ordinary rules of the common law, many lawyers will find it difficult to explain. Still harder will they find it to point out why a mayor, under the circumstances so graphically described by Sir Frederick Pollock, should fear that his failure to show despotic energy should expose him to the legal charges brought against Mr. Pinney. But if Pinney's case does not go far enough to sustain the doctrine of political expediency, I know of no other case which can be produced in its support.
This doctrine, however, is open to the further objection, of which its able advocate recognises the force, that it is inconsistent with the existence of Acts of Indemnity. Sir Frederick Pollock writes:
It may be objected that, if the view now propounded is correct, Acts of Indemnity are superfluous. But this is not so. An Act of Indemnity is a measure of prudence and grace. Its office is not to justify unlawful acts ex post facto, but to quiet doubts, to provide compensation for innocent persons in respect of damage inevitably caused by justifiable acts which would not have supported a legal claim.157
The attempt to meet this objection is ingenious, but the endeavour rests on a very inadequate description of an Act of Indemnity. Such a statute may no doubt be in part a measure of prudence and grace, but it is usually far more than this. The Indemnity Acts, whatever their formal language, which for a century or so protected Nonconformists from penalties incurred year by year through the deliberate breach of the Test and Corporation Acts, the Acts of Indemnity passed after the Rebellions of 1715 and of 1745, the Act of Indemnity passed by the Irish Parliament after the Rebellion of 1798 which was not wide
157 Pollock, What is Martial Law? L. Q. R. xviii. p. 157.
enough to protect Mr. T. Judkin Fitzgerald158 from actions for acts of cruelty done by him in the suppression of the Rebellion, the further Act finally passed which apparently was wide enough to place him beyond the reach of punishment, and the Act of the legislature of Jamaica which was successfully pleaded by the defendant in Phillips v. Eyre, were, it is submitted, all of them enactments intended to protect men from the consequences of a breach of the law. An Act of Indemnity in short is, as is insisted upon throughout this treatise, the legalisation of illegality, and is constantly intended to protect from legal penalties men who, though they have acted in the supposed, or even real discharge of a political duty, have broken the law of the land. This is a point on which it is necessary to insist strongly, for the determination of the question at issue between the supporters of the "doctrine of immediate necessity" and the advocates of the "doctrine of political necessity," turns upon the answer to the inquiry, What is the true nature of an Act of Indemnity? If such an Act is essentially the legalisation of illegality, the doctrine of political necessity or expediency falls, it is submitted, to the ground.
Two circumstances give an apparent but merely apparent impres-siveness to the doctrine of political expediency. The first is the paradox involved in the contention that action on behalf of the State which is morally right may be legally wrong, and., therefore, be the proper object of an Act of Indemnity. This paradox however is, as already pointed out, apparent only, and after all amounts merely to the assertion that a man's ordinary duty is to keep within the limits of the law, and that, if he is at any moment compelled, on grounds of public interest, to transgress these limits, he must obtain the condonation of the sovereign power, i.e. the King in Parliament. The second is the current idea that, at a great crisis, you cannot have too much energy. But this notion is a popular delusion. The fussy activity of a hundred mayors playing the part of public-spirited despots would increase tenfold the miseries and the dangers imposed upon the country by an invasion.
158 Wright v. Fitzgerald, 27 St. Tr. 759; Lecky, History of England in Eighteenth Century, viii. pp. 22-27.
Note XI
CONSTITUTION OF THE TRIBUNAL DBS CONFLITSls9
The Conflict Court consists of the following persons:
I. A President, the Minister of Justice (Garde des sceaux). 16° He rarely attends, though he may attend, preside, and vote.
II. Eight elected judges, namely: —
a. Three judges of the Court of Cassation (Conseillers a la Cour de Cassation) elected for three years by their colleagues, i.e. by the judges of the Court of Cassation.
b. Three members of the Council of State (Conseillers d'etat en service ordinaire)161 elected for three years by their colleagues (i.e. by the Conseillers d'etat en service ordinaire).
c. Two other persons elected by the foregoing six judges of the Conflict Court, enumerated under heads a and b.
These two other persons ought in strictness to be elected neither from the judges of the Court of Cassation nor from the members of the Council of State, but they are in general elected one from the Court of Cassation, the other from the Council of State.
These eight persons, who are re-eligible and usually re-elected, or, if we include the Minister of Justice, these nine persons, constitute the judges of the Conflict Court.
Then there are two substitutes (suppleants) elected by the judges coming under the heads a and b who act only when one of the judges of the Conflict Court cannot act.
There are further two so-called Commissioners of the Government (Commissaires du Gouvemement)162 appointed for a year by the Presi-
159 See Berthelemy, Traite Elementaire de Droit Administratif (5* ed.), pp. 880, 881; Chardon, UAdministration de la France, p. 411.
160 A Vice-President, who generally presides, is elected by and from the eight elected judges of the Conflict Court.
161 Conseillers d'etat en service ordinaire are permanent members of the Council of State. They are contrasted with Conseillers en service extraordinaire, who are temporary members of the Council, for the discharge of some special duty. See Berthelemy, p. 126.
162 The name may be misleading. These commissioners are, it is said, absolutely free from
dent of the Republic; the one for a year from the Masters of Requests (Maitres des requetes), who belong to the Council of State, the other from the class of public prosecutors, belonging to the Court of Cassation (avocats generaux a la Cour de Cassation).
NoteXII
PROCEEDINGS AGAINST THE CROWN
Technically it is impossible under English law to bring an action against the Crown, and this impossibility is often said to be based on the principle that the Crown can do no wrong. Hence well-informed foreign critics, and perhaps some Englishmen also, often think that there is in reality no remedy against the Crown, or in other words, against the Government, for injuries done to individuals by either,
1. The breach of a contract made with the Crown, or with a Government department, or
2. A wrong committed by the Crown, or rather by its servants. This idea is however in substance erroneous.
AS TO BREACH OF CONTRACT
For the breach of a contract made with a Government department on behalf of the Crown a Petition of Right will in general lie, which though in form a petition, and requiring the sanction of the Attorney-General (which is never refused), is in reality an action.
Many Government departments, further, such for instance as the Commissioners of Works, who have the general charge of public buildings, are corporate bodies, and can be sued as such.
Contracts made with Government departments or their representatives are made on the express or implied terms of payment out of monies to be provided by Parliament, but the risk of Parliament not providing the money is not one which any contractor takes into consideration.
pressure by the Government. They are representatives of the law, they are not strictly judges, the opinions which they express often disagree with the opinion of the representative of the Government, viz. the prefect, who has raised the conflict, i.e. has brought before the Court the question whether a judicial court has exceeded its jurisdiction by dealing with a question of administrative law.
AS TO WRONGS
Neither an action nor a Petition of Right lies against the Crown for a wrong committed by its servants.
The remedy open to a person injured by a servant of the Crown in the course of his service is an action against the person who has actually done or taken part in doing the wrongful act which has caused damage. But, speaking generally, no injustice results from this, for the Crown, i.e. the Government, usually pays damages awarded against a servant of the State for a wrong done in the course of his service. Actions, for instance, have been constantly brought against officers of the Royal Navy for damage done by collisions with other ships caused by the negligence of such officers. The damage recovered against the officer is almost invariably paid by the Admiralty.
It would be an amendment of the law to enact that a Petition of Right should lie against the Crown for torts committed by the servants of the Crown in the course of their service. But the technical immunity of the Crown in respect of such torts is not a subject of public complaint, and in practice works little, if any, injustice.
It should be further remembered that much business which in foreign countries is carried on by persons who are servants of the State is in England transacted by corporate bodies, e.g. railway companies, municipal corporations, and the like, which are legally fully responsible for the contracts made on their behalf or wrongs committed by their officials or servants in the course of their service.163
Note XIII
PARLIAMENT ACT, 1911
[t & 2 Geo. 5.01.13.]
An Act to make provision with respect to the powers of the House of Lords in relation to those of the House of Commons, and to limit the duration of Parliament.
[i8th August, 1911.]
163 See Lowell, The Government of England, ii. pp. 490 — 494.
Whereas it is expedient that provision should be made for regulating the relations between the two Houses of Parliament:
And whereas it is intended to substitute for the House of Lords as it at present exists a Second Chamber constituted on a popular instead of hereditary basis, but such substitution cannot be immediately brought into operation:
And whereas provision will require hereafter to be made by Parliament in a measure effecting such substitution for limiting and defining the powers of the new Second Chamber, but it is expedient to make such provision as in this Act appears for restricting the existing powers of the House of Lords:
Be it therefore enacted by the King's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows: —
i. — (i) If a Money Bill, having been passed by the House of Commons, and sent up to the House of Lords at least one month before the end of the session, is not passed by the House of Lords without amendment within one month after it is so sent up to that House, the Bill shall, unless the House of Commons direct to the contrary, be presented to His Majesty and become an Act of Parliament on the Royal Assent being signified, notwithstanding that the House of Lords have not consented to the Bill.
(2) A Money Bill means a Public Bill which in the opinion of the Speaker of the House of Commons contains only provisions dealing with all or any of the following subjects, namely, the imposition, repeal, remission, alteration, or regulation of taxation; the imposition for the payment of debt or other financial purposes of charges on the Consolidated Fund, or on money provided by Parliament, or the variation or repeal of any such charges; supply; the appropriation, receipt, custody, issue or audit of accounts of public money; the raising or guarantee of any loan or the repayment thereof; or subordinate matters incidental to those subjects or any of them. In this subsection the expressions "taxation," "public money," and "loan" respectively do not include any taxation, money, or loan raised by local authorities or bodies for local purposes.
(3) There shall be endorsed on every Money Bill when it is sent up to the House of Lords and when it is presented to His Majesty for assent the certificate of the Speaker of the House of Commons signed by him that it is a Money Bill. Before giving his certificate, the Speaker shall consult, if practicable, two members to be appointed from the Chairmen's Panel at the beginning of each Session by the Committee of Selection.
2. — (i) If any Public Bill (other than a Money Bill or a Bill containing any provision to extend the maximum duration of Parliament beyond five years) is passed by the House of Commons in three successive sessions (whether of the same Parliament or not), and, having sent up to the House of Lords at least one month before the end of the session, is rejected by the House of Lords in each of those sessions, that Bill shall, on its rejection for the third time by the House of Lords, unless the House of Commons direct to the contrary, be presented to His Majesty and become an Act of Parliament on the Royal Assent being signified thereto, notwithstanding that the House of Lords have not consented to the Bill: Provided that this provision shall not take effect unless two years have elapsed between the date of the second reading in the first of those sessions of the Bill in the House of Commons and the date on which it passes the House of Commons in the third of those sessions.
(2) When a Bill is presented to His Majesty for assent in pursuance of the provisions of this section, there shall be endorsed on the Bill the certificate of the Speaker of the House of Commons signed by him that the provisions of this section have been duly complied with.
(3) A Bill shall be deemed to be rejected by the House of Lords if it is not passed by the House of Lords either without amendment or with such amendments only as may be agreed to by both Houses.
(4) A Bill shall be deemed to be the same Bill as a former Bill sent up to the House of Lords in the preceding session if, when it is sent up to the House of Lords, it is identical with the former Bill or contains only such alterations as are certified by the Speaker of the House of Commons to be necessary owing to the time which has elapsed since the date of the former Bill, or to represent any amendments which have been made by the House of Lords in the former
Bill in the preceding session, and any amendments which are certified by the Speaker to have been made by the House of Lords in the third session and agreed to by the House of Commons shall be inserted in the Bill as presented for Royal Assent in pursuance of this section:
Provided that the House of Commons may, if they think fit, on the passage of such a Bill through the House in the second or third session, suggest any further amendments without inserting the amendments in the Bill, and any such suggested amendments shall be considered by the House of Lords, and, if agreed to by that House, shall be treated as amendments made by the House of Lords and agreed to by the House of Commons; but the exercise of this power by the House of Commons shall not affect the operation of this section in the event of the Bill being rejected by the House of Lords.
3. Any certificate of the Speaker of the House of Commons given under this Act shall be conclusive for all purposes, and shall not be questioned in any court of law.
4. — (i) In every Bill presented to His Majesty under the preceding provisions of this Act, the words of enactment shall be as follows, that is to say: —
"Be it enacted by the King's most Excellent Majesty, by and with the advice and consent of the Commons in this present Parliament assembled, in accordance with the provisions of the Parliament Act, 1911, and by authority of the same, as follows."
(2) Any alteration of a Bill necessary to give effect to this section shall not be deemed to be an amendment of the Bill.
5. In this Act the expression "Public Bill" does not include any Bill for confirming a Provisional Order.
6. Nothing in this Act shall diminish or qualify the existing rights and privileges of the House of Commons.
7. Five years shall be substituted for seven years as the time fixed for the maximum duration of Parliament under the Septennial Act, 1715.
8. This Act may be cited as the Parliament Act, 1911.
In defence of a man's liberty, person, or property, he may lawfully use any amount of force which is both "necessary" — i.e. not more than enough to attain its object — and "reasonable" or "proportionate" — i.e. which does not inflict upon the wrongdoer mischief out of proportion to the injury or mischief which the force used is intended to prevent; and no man may use in defending his rights an amount of force which is either unnecessary or unreasonable.
This doctrine of the "legitimacy of necessary and reasonable force" is adopted by the Criminal Code Bill Commissioners. It had better be given in their own words:
We take [they write] one great principle of the common law to be, that though it sanctions the defence of a man's person, liberty, and property against illegal violence, and permits the use of force to prevent crimes, to preserve the public peace, and to bring offenders to justice, yet all this is subject to the restriction that the force used is necessary; that is, that the mischief sought to be prevented could not be prevented by less violent means; and that the mischief done by, or which might reasonably be anticipated from the force used is not disproportioned to the injury or mischief which it is intended to prevent. This last principle will explain and justify many of our suggestions. It does not seem to have been universally admitted; and we have therefore thought it advisable to give our reasons for thinking that it not only ought to be recognised as the law in future, but that it is the law at present.35
The use of the word "necessary" is, it should be noted, somewhat peculiar, since it includes the idea both of necessity and of reasonableness. When this is taken into account, the Commissioners' view is, it is submitted, as already stated, that a man may lawfully use in defence of his rights such an amount of force as is needful for their protection and as does not inflict, or run the risk of inflicting, damage out of all proportion to the injury to be averted, or (if we look at the same thing from the other side) to the value of the right to be protected. This doctrine is eminently rational. It comes to us recommended by the high authority of four most distinguished judges. It certainly represents the principle towards which the law of England tends to approximate. But there is at least some ground for the suggestion that a second and simpler view more accurately represents the result of our authorities.
SECOND THEORY
A man, in repelling an unlawful attack upon his person or liberty, is justified in using against his assailant so much force, even amounting to the infliction of death, as is necessary for repelling the attack — i.e. as is needed for self-defence; but the infliction upon a wrongdoer of grievous bodily harm, or death, is justified, speaking
35 C. C. B. Commission, Report, p. 11.
generally, only by the necessities of self-defence — i.e. the defence of life, limb, or permanent liberty.36
This theory may be designated as the doctrine of "the legitimacy of force necessary for self-defence." Its essence is that the right to inflict grievous bodily harm or death upon a wrongdoer originates in, and is limited by, the right of every loyal subject to use the means necessary for averting serious danger to life or limb, and serious interference with his personal liberty.
The doctrine of the "legitimacy of necessary and reasonable force" and the doctrine of the "legitimacy of force necessary for self-defence" conduct in the main, and in most instances, to the same practical results.
On either theory A, when assaulted by X, and placed in peril of his life, may, if he cannot otherwise repel or avoid the assault, strike X dead. On the one view, the force used by A is both necessary and reasonable; on the other view, the force used by A is employed strictly in self-defence. According to either doctrine A is not justified in shooting at X because X is wilfully trespassing on A's land. For the damage inflicted by A upon X — namely, the risk to X of losing his life — is unreasonable, that is, out of all proportion to the injury done to A by the trespass, and A in firing at a trespasser is dearly using force, not for the purpose of self-defence, but for the purpose of defending his property. Both theories, again, are consistent with the elaborate and admitted rules which limit a person's right to wound or slay another even in defence of life or limb.37 The gist of these rules is
36 See Stephen, Commentaries (i4th ed.), i. p. 79; iii. p. 267; iv. pp. 42-46. "In the case of justifiable self-defence the injured party may repel force with force in defence of his person, habitation, or property, against one who manifestly intendeth and endeavoureth with violence or surprise to commit a known felony upon either. In these cases he is not obliged to retreat, but may pursue his adversary 'till he findeth himself out of danger, and if in a conflict between them he happeneth to kill, such killing is justifiable.
"Where a known felony is attempted upon the person, be it to rob or murder, here the party assaulted may repel force with force, and even his servant then attendant on him, or any other person present, may interpose for preventing mischief; and if death ensueth, the party so interposing will be justified. In this case nature and social duty co-operate." — Foster, DiscourseII. chap. iii. pp. 273, 274.
37 See Stephen, Criminal Digest (6th ed.), art. 221, but compare Commentaries (8th ed.), iv. pp. 54-56; and i Hale, P. C. 479. The authorities are not precisely in agreement as to the
that no man must slay or severly injure another until he has done everything he possibly can to avoid the use of extreme force. A is struck by a ruffian, X; A has a revolver in his pocket. He must not then and there fire upon X, but, to avoid crime, must first retreat as far as he can. X pursues; A is driven up against a wall. Then, and not till then, A, if he has no other means of repelling attack, may justifiably fire at X. Grant that, as has been suggested, the minute provisos as to the circumstances under which a man assaulted by a ruffian may turn upon his assailant, belong to a past state of society, and are more or less obsolete, the principle on which they rest is, nevertheless, dear and most important. It is, that a person attacked, even by a wrongdoer, may not in self-defence use force which is not "necessary," and that violence is not necessary when the person attacked can avoid the need for it by retreat; or, in other words, by the temporary surrender of his legal right to stand in a particular place — e.g. in a particular part of a public square, where he has a lawful right to stand.38 Both theories, in short, have reference to the use of "necessary" force, and neither countenances the use of any force which is more than is necessary for its purpose. A is assaulted by X, he can on neither theory justify the slaying or wounding of X, if A can provide for his own safety simply by locking a door on X. Both theories equally well explain how it is that as the intensity of an unlawful assault increases, so the amount of force legitimately to be used in self-defence increases also, and how defence of the lawful possession of property, and especially of a man's house, may easily turn into the lawful defence of a man's person. "A justification of a battery in
right of A to wound X before he has retreated as far as he can. But the general principle seems pretty clear. The rule as to the necessity for retreat by the person attacked must be always taken in combination with the acknowledged right and duty of every man to stop the commission of a felony, and with the fact that defence of a man's house seems to be looked upon by the law as nearly equivalent to the defence of his person. "If a thief assaults a true man, either abroad or in his house, to rob or kill him, the true man is not bound to give back, but may kill the assailant, and it is not felony." — i Hale, P. C. 481. See as to defence of house, i East, P. C. 287.
38 Stephen, Commentaries (i4th ed.), iv. pp. 42-46; compare i Hale, P. C. 481, 482, Stephen, Criminal Digest, art. 222; Foster, Discourse II. cap. iii. It should be noted that the rule enjoining that a man shall retreat from an assailant before he uses force, applies, it would appear, only to the use of such force as may inflict grievous bodily harm or death.
defence of possession, though it arose in defence of possession, yet in the end it is the defence of the person."39 This sentence contains the gist of the whole matter, but must be read in the light of the caution insisted upon by Blackstone, that the right of self-protection cannot be used as a justification for attack.40
Whether the two doctrines may not under conceivable circum-stances lead to different results, is an inquiry of great interest, but in the cases which generally come before the Courts, of no great importance. What usually requires determination is how far a man may lawfully use all the force necessary to repel an assault, and for this purpose it matters little whether the test of legitimate force be its "reasonableness" or its "self-defensive character." If, however, it be necessary to choose between the two theories, the safest course for an English lawyer is to assume that the use of force which inflicts or may inflict grievous bodily harm or death — of what, in short, may be called "extreme" force — is justifiable only for the purpose of strict self-defence.
This view of the right of self-defence, it may be objected, restricts too narrowly a citizen's power to protect himself against wrong.
The weight of this objection is diminished by two reflections.
For the advancement of public justice, in the first place, every man is legally justified in using, and indeed is often bound to use, force, which may under some circumstances amount to the infliction of death.
Hence a loyal citizen may lawfully interfere to put an end to a breach of the peace, which takes place in his presence, and use such force as is reasonably necessary for the purpose.41 Hence, too, any private person who is present when any felony is committed, is bound by law to arrest the felon, on pain of fine and imprisonment if he negligently permit him to escape.42
39 Rolle's Ab. Trespass, g. 8.
40 Blacks. Comm. iv. pp. 183, 184.
41 See Timothy v. Simpson, i C. M. & R. 757.
42 Stephen, Commentaries (i4th ed.), iv. p. 309; Hawkins, P. C. bookii. cap. 12.
Where a felony is committed and the felon flyeth from justice, or a dangerous wound is given, it is the duty of every man to use his best endeavours for preventing an escape. And if in the pursuit the party flying is killed, where he cannot otherwise be overtaken, this will be deemed justifiable homicide. For the pursuit was not barely warrantable; it is what the law requireth, and will punish the wilful neglect of.43
No doubt the use of such extreme force is justifiable only in the case of felony, or for the hindrance of crimes of violence. But
such homicide as is committed for the prevention of any forcible and atrocious crime, is justifiable ... by the law of England ... as it stands at the present day. If any person attempts the robbery or murder of another, or attempts to break open a house in the night-time, and shall be killed in such attempt, either by the party assaulted, or the owner of the house, or the servant attendant upon either, or by any other person, and interposing to prevent mischief, the slayer shall be acquitted and discharged. This reaches not to any crime unaccompanied with force — as, for example, the picking of pockets; nor to the breaking open of a house in the day-time, unless such entry carries with it an attempt of robbery, arson, murder, or the like.44
Acts therefore which would not be justifiable in protection of a person's own property, may often be justified as the necessary means, either of stopping the commission of a crime, or of arresting a felon. Burglars robe's house, they are escaping over his garden wall, carrying off A's jewels with them. A is in no peril of his life, but he pursues the gang, calls upon them to surrender, and having no other means of preventing their escape, knocks down one of them, X, who dies of the blow; A, it would seem, if Foster's authority may be trusted, not only is innocent of guilt, but has also discharged a public duty.45
43 Foster, Discourse II. of Homicide, pp. 271, 272, and compare pp. 273, 274.
"The intentional infliction of death is not a crime when it is done by any person ... in order to arrest a traitor, felon, or pirate, or keep in lawful custody a traitor, felon, or pirate, who has escaped, or is about to escape from such custody, although such traitor, felon, or pirate, offers no violence to any person." — Stephen, Digest (6th ed.), art. 222.
44 Stephen, Commentaries (8th ed.), iv. pp. 49, 50, and compare 14th ed. p. 40.
45 A story told of the eminent man and very learned judge, Mr. Justice Willes, and related by an ear-witness, is to the following effect: — Mr. Justice Willes was asked: "If I look into my drawing-room, and see a burglar packing up the clock, and he cannot see me, what ought I to do?" Willes replied, as nearly as may be: "My advice to you, which I give as a
Let it be added that where A may lawfully inflict grievous bodily harm upon X — e.g. in arresting him — X acts unlawfully in resisting A, and is responsible for the injury caused to A by X's resistance.46
Every man, in the second place, acts lawfully as long as he merely exercises his legal rights, and he may use such moderate force as in effect is employed simply in the exercise of such rights.
A is walking along a public path on his way home, X tries to stop him; A pushes X aside, X has a fall and is hurt. A has done no wrong; he has stood merely on the defensive and repelled an attempt to interfere with his right to go along a public way. X thereupon draws a sword and attacks A again. It is dear that if A can in no other way protect himself — e.g. by running away from X, or by knocking X down — he may use any amount of force necessary for his self-defence. He may stun X, or fire at X.
Here, however, comes into view the question of real difficulty. How far is A bound to give up the exercise of his rights, in this particular instance the right to walk along a particular path, rather than risk the maiming or the killing of X?
Suppose, for example, that A knows perfectly well that X claims, though without any legal ground, a right to dose the particular footpath, and also knows that, if A turns down another road which will also bring him home, though at the cost of a slightly longer walk, he will avoid all danger of an assault by X, or of being driven, in so-called self-defence, to inflict grievous bodily harm upon X.
Of course the case for A's right to use any force necessary for his purpose may be put in this way. A has a right to push X aside. As X's violence grows greater, A has a right to repel it. He may thus turn a scuffle over a right of way into a struggle for the defence of A's life, and so justify the infliction even of death upon X. But this manner of
man, as a lawyer, and as an English judge, is as follows: In the supposed circumstance this is what you have a right to do, and I am by no means sure that it is not your duty to do it. Take a double-barrelled gun, carefully load both barrels, and then, without attracting the burglar's attention, aim steadily at his heart and shoot him dead." See Saturday Review, Nov. 11, 1893, p. 534. 46 Foster, DiscourseII. p. 272.
looking at the matter is unsound. Before A is justified in, say, firing at X or stabbing X, he must show distinctly that he comes within one at least of the two principles which justify the use of extreme force against an assailant. But if he can avoid X's violence by going a few yards out of his way, he cannot justify his conduct under either of these prindples. The firing atX is not "reasonable," for the damage inflicted by A upon X in wounding him is out of all proportion to the mischief to A which it is intended to prevent — namely, his being forced to go a few yards out of his way on his road home. The firing at X, again, is not done in strict self-defence, for A could have avoided all danger by turning into another path. A uses force, not for the defence of his life, but for the vindication of his right to walk along a particular pathway. That this is the true view of A's position is pretty dearly shown by the old rules enjoining a person assaulted to retreat as far as he can before he grievously wounds his assailant.
Reg. v. Hewlett, a case tried as late as 1858, contains judidal doctrine pointing in the same direction. A was struck by X, A thereupon drew a knife and stabbed X. The judge laid down that "unless the prisoner [A] apprehended robbery or some similar offence, or danger to life, or serious bodily danger (not simply being knocked down), he would not be justified in using the knife in self-defence."47 The essence of this dictum is, that the force used by A was not justifiable, because, though it did ward off danger to A — namely, the peril of being knocked down — it was not necessary for the defence of A's life or limb, or property. The case is a particularly strong one, because X was not a person asserting a supposed right, but a simple wrongdoer.
Let the last case be a little varied. Let X be not a ruffian but a policeman, who, acting under the orders of the Commissioner of Police, tries to prevent A from entering the Park at the Marble Arch. Let it further be supposed that the Commissioner has taken an erroneous view of his authority, and that therefore the attempt to hinder A from going into Hyde Park at the particular entrance does not
47 Foster & Finlason, 91, per Crowder J.
admit of legal justification. X, under these circumstances, is therefore legally in the wrong, and A may, it would seem,48 push by X. But is there any reason for saying that if A cannot simply push X aside he can lawfully use the force necessary — e.g. by stabbing X — to effect an entrance? There dearly is none. The stabbing of X is neither a reasonable nor a self-defensive employment of force.
A dispute, in short, as to legal rights must be settled by legal tribunals, "for the King and his Courts are thevindices injuriarum, and will give to the party wronged all the satisfaction he deserves";49 no one is allowed to vindicate the strength of his disputed rights by the force of his arm. Legal controversies are not to be settled by blows. A bishop who in the last century attempted, by means of riot and assault, to make good his claim to remove a deputy registrar, was admonished from the Bench that his view of the law was erroneous, and was saved from the condemnation of the jury only by the rhetoric and the fallacies of Erskine.50
From whatever point therefore the matter be approached, we come round to the same conclusion. The only undoubted justification for the use of extreme force in the assertion of a man's rights is, subject to the exceptions or limitations already mentioned, to be found in, as it is limited by, the necessities of strict self-defence.
NoteV
QUESTIONS CONNECTED WITH THE RIGHT OF PUBLIC MEETING
Four important questions connected with the right of public meeting require consideration.
These inquiries are: first, whether there exist any general right of meeting in public places? secondly, what is the meaning of the term
48 It is of course assumed in this imaginary case that Acts of Parliament are not in force empowering the Commissioner of Police to regulate the use of the right to enter into the Park. It is not my intention to discuss the effect of the Metropolitan Police Acts, or to intimate any opinion as to the powers of the Commissioner of Police.
49 Stephen, Commentaries (i4th ed.), iv. p. 44.
50 The Bishop ofBangor's Case, 26 St. Tr. 463.
"an unlawful assembly"? thirdly, what are the rights of the Crown or its servants in dealing with an unlawful assembly? and fourthly, what are the rights possessed by the members of a lawful assembly when the meeting is interfered with or dispersed by force?
For the proper understanding of the matters under discussion, it is necessary to grasp firmly the truth and the bearing of two indisputable but often neglected observations.
The first is that English law does not recognise any special right of public meeting either for a political or for any other purpose.51
The right of assembling is nothing more than the result of the view taken by our Courts of individual liberty of person and individual liberty of speech.
Interference therefore with a lawful meeting is not an invasion of a public right, but an attack upon the individual rights of A or B, and must generally resolve itself into a number of assaults upon definite persons, members of the meeting. A wrongdoer who disperses a crowd is not indicted or sued for breaking up a meeting, but is liable (if at all) to a prosecution or an action for assaulting A, a definite member of the crowd.52 Hence further the answer to the question how far persons present at a lawful meeting may resist any attempt to disperse the assembly, depends at bottom on a determination of the methods prescribed by law to a given citizen A, for punishing or repelling an assault.
The second of these preliminary observations is that the most serious of the obscurities which beset the law of public meetings arise from the difficulty of determining how far a citizen is legally justified in using force for the protection of his person, liberty, or property, or, if we may use the word "self-defence" in its widest sense, from uncertainty as to the true principles which govern the right of self-defence.53
The dose connection of these introductory remarks with the questions to be considered will become apparent as we proceed.
51 See chap, vii., ante.
52 SeeRedford v. Birley, i St. Tr. (n. s.) 1017.
53 See Note IV., ante.
DOES THERE EXIST ANY GENERAL RIGHT OF MEETING IN PUBLIC PLACES?
The answer is easy. No such right is known to the law of England.
Englishmen, it is true, meet together for political as well as for other purposes, in parks, on commons, and in other open spaces accessible to all the world. It is also true that in England meetings held in the open air are not subject, as they are in other countries — for instance, Belgium — to special restrictions. A crowd gathered together in a public place, whether they assemble for amusement or discussion, to see an acrobat perform his somersaults or to hear a statesman explain his tergiversations, stand in the same position as a meeting held for the same purpose in a hall or a drawing-room. An assembly convened, in short, for a lawful object, assembled in a place which the meeting has a right to occupy, and acting in a peaceable manner which inspires no sensible person with fear, is a lawful assembly, whether it be held in Exeter Hall, in the Grounds of Hatfield or Blenheim, or in the London parks. With such a meeting no man has a right to interfere, and for attending it no man incurs legal penalites.
But the law which does not prohibit open-air meetings does not, speaking generally, provide that there shall be spaces where the public can meet in the open air, either for political discussion or for amusement. There may of course be, and indeed there are, special localities which by statute, by custom or otherwise, are so dedicated to the use of the public as to be available for the purpose of public meetings. But speaking in general terms, the Courts do not recognise certain spaces as set aside for that end. In this respect, again, a crowd of a thousand people stand in the same position as an individual person. If A wants to deliver a lecture, to make a speech, or to exhibit a show, he must obtain some room or field which he can legally use for his purpose. He must not invade the rights of private property — i.e. commit a trespass. He must not interfere with the convenience of the public — i.e. create a nuisance.
The notion that there is such a thing as a right of meeting in public places arises from more than one confusion or erroneous assumption. The right of public meeting — that is, the right of all men to come
together in a place where they may lawfully assemble for any lawful purpose, and especially for political discussion — is confounded with the totally different and falsely alleged right of every man to use for the purpose of holding a meeting any place which in any sense is open to the public. The two rights, did they both exist, are essentially different, and in many countries are regulated by totally different rules. It is assumed again that squares, streets, or roads, which every man may lawfully use, are necessarily available for the holding of a meeting. The assumption is false. A crowd blocking up a highway will probably be a nuisance in the legal, no less than in the popular, sense of the term, for they interfere with the ordinary citizen's right to use the locality in the way permitted to him by law. Highways, indeed, are dedicated to the public use, but they must be used for passing and going along them,54 and the legal mode of use negatives the claim of politicians to use a highway as a forum, just as it excludes the claim of actors to turn it into an open-air theatre. The crowd who collect, and the persons who cause a crowd, for whatever purpose, to collect in a street, create a nuisance.55 The claim on the part of persons so minded to assemble in any numbers and for so long a time as they please, to remain assembled "to the detriment of others having equal rights, is in its nature irreconcilable with the right of free passage, and there is, so far as we have been able to ascertain, no authority whatever in favour of it."56 The general public cannot make out a right to hold meetings even on a common.57 The ground of popular delusions as to the right of public meeting in open places is at bottom the prevalent notion that the law favours meetings held for the sake of political discussion or agitation, combined with the tacit assumption that when the law allows a right it provides the means for its exercise. No ideas can be more unfounded. English law no more favours or provides for the holding of political meetings than for the giving of public concerts. A man has a right to hear an orator
54 Dauaston v. Payne, 2Hy. Bl. 527.
55 Rex v. Carlile, 6 C. & P. 628, 636; the Tramways Case, The Times, 7* September 1888.
56 Ex parte Lewis, 21Q. B. D. 191, 197; per Curiam.
57 Bailey v. Williamson, L. R. 8Q. B. 118; De Morgan v. Metropolitan Board of Works, 5Q. B. D. 155.
as he has a right to hear a band, or to eat a bun. But each right must be exercised subject to the laws against trespass, against the creation of nuisances, against theft.
The want of a so-called forum may, it will be said, prevent ten thousand worthy citizens from making a lawful demonstration of their political wishes. The remark is true, but, from a lawyer's point of view, irrelevant. Every man has a right to see a Punch show, but if Punch is exhibiting in a theatre for money, no man can see him who cannot provide the necessary shilling. Every man has a right to hear a band, but if there be no place where a band can perform without causing a nuisance, then thousands of excellent citizens must forgo their right to hear music. Every man has a right to worship God after his own fashion, but if all the landowners of a parish refuse ground for the building of a Wesleyan chapel, parishioners must forgo attendance at a Methodist place of worship.
WHAT IS THE MEANING OF THE TERM "AN UNLAWFUL ASSEMBLY"?
The expression "unlawful assembly" does not signify any meeting of which the purpose is unlawful. If, for example, five cheats meet in one room to concoct a fraud, to indite a libel, or to forge a bank-note, or to work out a scheme of perjury, they assemble for an unlawful purpose, but they can hardly be said to constitute an "unlawful assembly." These words are, in English law, a term of art. This term has a more or less limited and definite signification, and has from time to time been defined by different authorities58 with varying degrees of precision. The definitions vary, for the most part, rather in words than in substance. Such differences as exist have, however, a twofold importance. They show, in the first place, that the circumstances which may render a meeting an unlawful assembly have not been
58 See Hawkins, P. C. book i. cap. 65, ss. 9, 11; Blackstone, iv. p. 146; Stephen, Commentaries (i4th ed.), iv. p. 174; Stephen, Criminal Digest, art. 75; Criminal Code Bill Commission, Draft Code, sec. 84, p. 80; Rex v. Pinney, 5 C. & P. 254; Rex v. Hunt, i St. Tr. (n. s.) 171; Redford v. Birley, ibid. 1071; Rex v. Morris, ibid, 521; Reg. v. Vincent, 3 St. Tr. (n. s.) 1037, 1082; Beatty v. Gillbanks, 9 Q. B. D. 308; Reg. v. M'Naughton (Irish), 14 Cox, C. C. 576; O'Kelly v. Harvey (Irish), 15 Cox, C. C. 435.
absolutely determined, and that some important questions with regard to the necessary characteristics of such an assembly are open to discussion. They show, in the second place, that the rules defining the right of public meeting are the result of judicial legislation, and that the law which has been created may be further developed by the judges, and hence that any lawyer bent on determining the character of a given meeting must consider carefully the tendency, as well as the words, of reported judgments.
The general and prominent characteristic of an unlawful assembly (however defined) is, to any one who candidly studies the authorities, dear enough. It is a meeting of persons who either intend to commit or do commit, or who lead others to entertain a reasonable fear that the meeting will commit, a breach of the peace. This actual or threatened breach of the peace is, so to speak, the essential characteristic or "property" connoted by the term "unlawful assembly." A careful examination, however, of received descriptions or definitions and of the authoritative statements contained in Sir James Stephen's Digest and in the Draft Code drawn by the Criminal Code Commissioners, enables an inquirer to frame a more or less accurate definition of an "unlawful assembly."
It may (it is submitted) be defined as any meeting of three or more persons who
1. Assemble to commit, or, when assembled do commit, a breach of
the peace; or
2. Assemble with intent to commit a crime by open force; or
3. Assemble for any common purpose, whether lawful or unlawful,
in such a manner as to give firm and courageous persons in the neighbourhood of the assembly reasonable cause to fear a breach of the peace, in consequence of the assembly; or
4. Assemble with intent to incite disaffection among the Crown's
subjects, to bring the Constitution and Government of the realm, as by law established, into contempt, and generally to carry out, or prepare for carrying out, a public conspiracy.59
59 O'Kelly v. Harvey (Irish), 15 Cox, C. C. 435. The portion of this definition contained in brackets must perhaps be considered as, in England, of doubtful authority (see, however, Reg. v. Ernest Jones, 6 St. Tr. (n. s.) 783, 816, 817, summing up of Wilde, C. }., and Reg. v.
The following points require notice:
1. A meeting is an unlawful assembly which either disturbs the peace, or inspires reasonable persons in its neighbourhood with a fear that it will cause a breach of the peace.
Hence the state of public feeling under which a meeting is convened, the class and the number of the persons who come together, the mode in which they meet (whether, for instance, they do or do not carry arms), the place of their meeting (whether, for instance, they assemble on an open common or in the midst of a populous city), and various other circumstances, must all be taken into account in determining whether a given meeting is an unlawful assembly or not.
2. A meeting need not be the less an unlawful assembly because it meets for a legal object.
A crowd collected to petition for the release of a prisoner or to see an acrobatic performance, though meeting for a lawful object, may easily be, or turn into, an unlawful assembly. The lawfulness of the aim with which a hundred thousand people assemble may affect the reasonableness of fearing that a breach of the peace will ensue. But the lawfulness of their object does not of itself make the meeting lawful.
3. A meeting for an unlawful purpose is not, as already pointed out, necessarily an unlawful assembly.
The test of the character of the assembly is whether the meeting does or does not contemplate the use of unlawful force, or does or does not inspire others with reasonable fear that unlawful force will be used — i.e. that the King's peace will be broken.
4. There is some authority for the suggestion that a meeting for the purpose of spreading sedition, of exciting class against class, or of bringing the constitution of the country into contempt, is ipso facto an unlawful assembly,60 and that a meeting to promote an unlawful
Fussell, ibid. 723, 764, summing up of Wilde, C. J.), but would, it is conceived, certainly hold good if the circumstances of the time were such that the seditious proceedings at the meeting would be likely to endanger the public peace.
60 SeeRedford v. Birley, i St. Tr. (n. s.) 1071; Rex v. Hunt, ibid. 171; Rex v. Morris, ibid. 521; Reg. v. M'Naughton (Irish), 14 Cox. C. C. 572; O'Kelly v. Harvey (Irish), 15 Cox, C. C. 435; Reg. v. Bums, id Cox, C. C. 355; Reg. v. Ernest Jones, 6 St. Tr. (n. s.) 783; Reg. v. Fussell, ibid. 723.
conspiracy of a public character, even though it does not directly menace a breach of the peace, is also an unlawful assembly.
This is a matter on which it is prudent to speak with reserve and hesitation, and to maintain a suspended judgment until the point suggested has come fairly before the English Courts. The true rule (possibly) may be, that a meeting assembled for the promotion of a purpose which is not only criminal, but also if carried out will promote a breach of the peace, is itself an unlawful assembly.
5. Two questions certainly remain open for decision.
Is a meeting an unlawful assembly because, though the meeting itself is peaceable enough, it excites reasonable dread of future disturbance to the peace of the realm; as where political leaders address a meeting in terms which it is reasonably supposed may, after the meeting has broken up, excite insurrection?
The answer to this inquiry is doubtful.61
Need again the breach of the peace, or fear thereof, which gives a meeting the character of illegality, be a breach caused by the members of the meeting?
To this inquiry an answer has already been given in the body of this treatise.62
The reply is, in general terms, that, on the one hand, a meeting which, as regards its object and the conduct of the members of it, is perfectly lawful, does not become an unlawful assembly from the mere fact that possibly or probably it may cause wrongdoers who dislike the meeting to break the peace,63 but, on the other hand, a
61 See Rex v. Hunt, i St. Tr. (n. s.) 171; Rex v. Dewhurst, ibid. 530, 599. "Upon the subject of terror, there may be cases in which, from the general appearance of the meeting, there could be no fear of immediate mischief produced before that assembly should disperse; and I am rather disposed to think that the probability or likelihood of immediate terror before the meeting should disperse is necessary in order to fix the charge upon that second count to which I have drawn your attention. But if the evidence satisfies you there was a present fear produced of future rising, which future rising would be a terror and alarm to the neighbourhood, 1 should then desire that you would present that as your finding in the shape of what I should then take it to be, a special verdict": per Bailey, J. See also Reg. v. Ernest Jones, 6 St. Tr. (n. s.) 783; Reg. v. Fussell, ibid. 723.
62 See chap, vii., ante.
63 Beatty v. Citibanks, 9 Q. B. D. 308; Reg. v. Justices of Londonderry, 28 L. R. Ir. 440, pp. 461, 462, judgment of Holmes, J.
meeting which, though perhaps not in strictness an unlawful assembly, does from some illegality in its object, or in the conduct of its members, cause a breach of the peace by persons opposed to the meeting, may thereby become an unlawful assembly,64 and a meeting which, though in every way perfectly lawful, if it in fact causes a breach of the peace on the part of wrongdoers who dislike the meeting may, if the peace can be restored by no other means, be required by the magistrates or other persons in authority to break up, and on the members of the meeting refusing to disperse, becomes an unlawful assembly.65
WHAT ARE THE RIGHTS OF THE CROWN OR ITS SERVANTS IN DEALING WITH AN UNLAWFUL ASSEMBLY?
\. Every person who takes part in an unlawful assembly is guilty of a misdemeanour, and the Crown may therefore prosecute every such person for his offence.
Whether a given man A, who is present at a particular meeting, does thereby incur the guilt of "taking part" in an unlawful assembly, is in each case a question of fact.
A, though present, may not be a member of the meeting; he may be there accidentally; he may know nothing of its character; the crowd may originally have assembled for a lawful purpose; the circumstances, e.g. the production of arms, or the outbreak of a riot, which render the meeting unlawful, may have taken place after it began, and in these transactions A may have taken no part. Hence the importance of an official notice, e.g. by a Secretary of State, or by a magistrate, that a meeting is convened for a criminal object. A citizen after reading the notice or proclamation, goes to the meeting at his peril. If it turns out in fact an unlawful assembly, he cannot plead ignorance of its character as a defence against the charge of taking part in the meeting.66
64 Wise v. Dunning [1902], i K. B. 167.
65 On this point see especially Humphries v. Connor, 17 Ir. C. L. R. i.
66 Rex v. Fursey, 6 C. & P. 81; 3 St. Tr. (n. s.) 543.
2. Magistrates, policemen, and all loyal citizens not only are entitled, but indeed are bound to disperse an unlawful assembly, and, if necessary, to do so by the use of force; and it is a gross error to suppose that they are bound to wait until a riot has occurred, or until the Riot Act has been read.67 The prevalence of this delusion was the cause, during the Gordon Riots, of London being for days in the hands of the mob. The mode of dispersing a crowd when unlawfully assembled, and the extent of force which it is reasonable to use, differ according to the circumstances of each case.
3. If any assembly becomes a riot — i.e. has begun to act in a tumultuous manner to the disturbance of the peace — a magistrate on being informed that twelve or more persons are unlawfully, riotously, and tumultuously assembled together to the disturbance of the public peace, is bound to make the short statutable proclamation which is popularly known as "reading the Riot Act."68
The consequences are as follows: first, that any twelve rioters who do not disperse within an hour thereafter, are guilty of felony; and, secondly, that the magistrate and those acting with him may, after such hour, arrest the rioters and disperse the meeting by the employment of any amount of force necessary for the purpose, and are protected from liability for hurt inflicted or death caused in dispersing the meeting. The magistrates are, in short, empowered by the Riot Act to read the proclamation before referred to, and thereupon, after waiting for an hour, to order troops and constables to fire upon the rioters, or charge them sword in hand.69 It is particularly to be noticed that the powers given to magistrates for dealing with riots under the Riot Act in no way lessen the common law right of a magistrate, and indeed of every citizen, to put an end to a breach of the peace, and hence to disperse an unlawful assembly.70
67 Reg. v. Neale, 9 C. & P. 431; Burdet v. Abbot, 4 Taunt. 401, 449. See pp. 285, 286, ante.
68 iGeo. I. stat. 2, cap. 5, s. 2.
69 See Stephen, Hist. Crim. Law, i. 203; Criminal Code Bill Commission, Draft Code, ss.! 99-
70 Rex v. Fursey, 6 C. & P. 81; 3 St. Tr. (n. s.) 543.
WHAT ARE THE RIGHTS POSSESSED BY
THE MEMBERS OF A LAWFUL ASSEMBLY WHEN
THE MEETING IS INTERFERED WITH
OR DISPERSED BY FORCE?
The Salvation Army assemble in a place where they have a right to meet, say an open piece of land placed at their disposal by the owner, and for a lawful purpose, namely, to hear a sermon. Certain persons who think the meeting either objectionable or illegal attempt to break it up, or do break it up, by force. What, under these circumstances, are the rights of the Salvationists who have come to listen to a preacher? This in a concrete form is the problem for consideration.71
An attempt, whether successful or not, to disperse a lawful assembly involves assaults of more or less violence upon the persons A, B, and C who have met together. The wrong thus done by the assailants is, as already pointed out, a wrong done, not to the meeting — a body which has legally no collective rights — but to A, B, or C, an individual pushed, hustled, struck, or otherwise assaulted.
Our problem is, then, in substance — What are the rights of A, the member of a meeting, when unlawfully assaulted? And this inquiry, in its turn, embraces two different questions, which, for clearness sake, ought to be carefully kept apart from each other.
First, what are the remedies of A for the wrong done to him by the assault?
The answer is easy. A has the right to take civil, or (subject to one reservation) criminal proceedings against any person, be he an officer, a soldier, a commissioner of police, a magistrate, a policeman, or a private ruffian, who is responsible for the assault upon A. If, moreover, A be killed, the person or persons by whom his death has been caused may be indicted, according to circumstances, for manslaughter or murder.
71 For the sake of convenience, I have taken a meeting of the Salvation Army as a typical instance of a lawful public meeting. It should, however, be constantly remembered that the rights of the Salvationists are neither more nor less than those of any other crowd lawfully collected together — e.g. to hear a band of music.
This statement as to A's rights or (what is, however, the same thing from another point of view) as to the liabilities of A's assailants, is made subject to one reservation. There exists considerable doubt as to the degree and kind of liability of soldiers (or possibly of policemen) who, under the orders of a superior, do some act (e.g. arrest A or fire at A) which is not on the face of it unlawful, but which turns out to be unlawful because of some circumstance of which the subordinate was not in a position to judge, as, for example, because the meeting was not technically an unlawful assembly, or because the officer giving the order had in some way exceeded his authority.
I hope [says Willes, J. ] I may never have to determine that difficult question, how far the orders of a superior officer are a justification. Were I compelled to determine that question, I should probably hold that the orders are an absolute justification in time of actual war — at all events, as regards enemies or foreigners — and, I should think, even with regard to English-born subjects of the Crown, unless the orders were such as could not legally be given. I believe that the better opinion is, that an officer or soldier, acting under the orders of his superior — not being necessarily or manifestly illegal — would be justified by his orders.72
A critic were rash who questioned the suggestion of a jurist whose dicta are more weighty than most considered judgments. The words, moreover, of Mr. Justice Willes enounce a principle which is in itself pre-eminently reasonable. If its validity be not admitted, results follow as absurd as they are unjust: every soldier is called upon to determine on the spur of the moment legal subtleties which, after a lengthy consultation, might still perplex experienced lawyers, and the private ordered by his commanding officer to take part in the suppression of a riot runs the risk, if he disobeys, of being shot by order of a court-martial, and, if he obeys, of being hanged under the sentence of a judge. Let it further be carefully noted that the doctrine of Mr. Justice Willes, which is approved of by the Criminal Code Commissioners,73 applies, it would seem, to criminal liability only.
72 Keighly v. Bell, 4 F. & F. 763, 790, per Willes, J. See also Note VI. p. 512, post, Duty of Soldiers called upon to disperse an Unlawful Assembly.
73 See C. C. B. Commission, Draft Code, ss. 49-53.
The soldier or policeman who, without full legal justification, assaults or arrests A incurs (it is submitted), even though acting under orders, full civil liability.
Secondly, how far is A entitled to maintain by force against all assailants his right to take part in a lawful public meeting, or, in other words, his right to stand in a place where he lawfully may stand — e.g. ground opened to A by the owner, for a purpose which is in itself lawful — e.g. the hearing of an address from a captain of the Salvation Army?
In order to obtain a correct answer to this inquiry we should bear in mind the principles which regulate the right of self-defence,74 and should further consider what may be the different circumstances under which an attempt may be made without legal warrant to disperse a meeting of the Salvation Army. The attack upon the meeting, or in other words upon A, may be made either by mere wrongdoers, or by persons who believe, however mistakenly, that they are acting in exercise of a legal right or in discharge of a legal duty. Let each of these cases be examined separately.
Let us suppose, in the first place, that the Salvationists, and A among them, are attacked by the so-called Skeleton Army or other roughs, and let it further be supposed that the object of the assault is simply to break up the meeting, and that therefore, if A and others disperse, they are in no peril of damage to life or limb.
A and his friends may legally, it would seem, stand their ground, and use such moderate force as amounts to simple assertion of the right to remain where they are. A and his companions may further give individual members of the Skeleton Army in charge for a breach of the peace. It may, however, happen that the roughs are in large numbers, and press upon the Salvationists so that they cannot keep their ground without the use of firearms or other weapons. The use of such force is in one sense necessary, for the Salvationists cannot hold their meeting without employing it. Is the use of such force legal? The strongest way of putting the case in favour of A and his friends is that, in firing upon their opponents, they are using force to
74 See Note IV. p. 341, ante.
put down a breach of the peace. On the whole, however, there can, it is submitted, be no doubt that the use of firearms or other deadly weapons, to maintain their right of meeting, is under the circumstances not legally justifiable. The principle on which extreme acts of self-defence against a lawless assailant cannot be justified until the person assaulted has retreated as far as he can, is applicable to A, B, C, etc., just as it would be to A singly. Each of the Salvationists is defending, under the supposed circumstances, not his life, but his right to stand on a given plot of ground.
Next, suppose that the attempt to disperse the Salvationists is made, not by the Skeleton Army, but by the police, who act under the order of magistrates who hold bond fide, though mistakenly,75 that a notice from the Home Secretary forbidding the Army to meet, makes its meeting an unlawful assembly.
Under these circumstances, the police are dearly in the wrong. A policeman who assaults A, B, or C, does an act not admitting of legal justification. Nor is it easy to maintain that the mere fact of the police acting as servants of the Crown in supposed discharge of their duty makes it of itself incumbent upon A to leave the meeting.
The position, however, of the police differs in two important respects from that of mere wrongdoers. Policeman X, when he tells A to move on, and compels him to do so, does not put A in peril of life or limb, for A knows for certain that, if he leaves the meeting, he will not be further molested, or that if he allows himself to be peaceably arrested, he has nothing to dread but temporary imprisonment and appearance before a magistrate who will deal with his rights in accordance with law. Policeman X, further, asserts bona fide a supposed legal right to make A withdraw from a place where X believes A has no right to stand; there is a dispute between A and X as to a matter of law. This being the state of affairs, it is at any rate fairly arguable that A, B, and C have a right to stand simply on the defensive,76 and
75 SeeBeattyv. Citibanks, gQ. B. D. 308.
76 The legality, however, of even this amount of resistance to the police is doubtful. "Any man who advises a public assembly when the police come there to disperse them, to stand their ground shoulder by shoulder, if that means to resist the police, although it might not mean to resist by striking them; yet if it meant to resist the police and not to disperse, that
remain where they are as long as they can do so without inflicting grievous bodily harm upon X and other policemen. Suppose, however, as is likely to be the fact, that, under the pressure of a large body of constables, tine Salvationists cannot maintain their meeting without making use of arms — e.g., using bludgeons, swords, pistols, or the like. They have dearly no right to make use of this kind of force. A and his friends are not in peril of their lives, and to kill a policeman in order to secure A the right of standing in a particular place is to inflict a mischief out of all proportion to the importance of the mischief to A which he wishes to avert.77 A, therefore, if he stabs or stuns X, can on no theory plead the right of self-defence. A and X further are, as already pointed out, at variance on a question of legal rights. This is a matter to be determined not by arms, but by an action at law.
Let it further be noted that the supposed case is the most unfavourable for the police which can be imagined. They may well, though engaged in hindering what turns out to be a lawful meeting, stand in a much better situation than that of assailants. The police may, under orders, have fully occupied and filled up the ground which the Salvationists intend to use. When the Salvationists begin arriving, they find there is no place where they can meet. Nothing but the use of force, and indeed of extreme force, can drive the police away. This force the Salvation Army cannot use; if they did, they would be using violence not on any show of self-defence, but to obtain possession of a particular piece of land. Their only proper course is the vindication of their rights by proceedings in Court.
was illegal advice. If the police had interfered with them, they were not at liberty to resist in any such circumstances; they ought to have dispersed by law, and have sought their remedy against any unjust interference afterwards. . . . This is a body of police acting under the responsibility of the law, acting under the orders of those who would be responsible for the orders which they gave, charged with the public peace, and who would have authority to disperse when they received those orders, leaving those who should give them a deep responsibility if they should improperly interfere with the exercise of any such public duties. . . . Gentlemen, the peaceable citizens are not in the performance of their duty if they stand shoulder to shoulder, and when the police come and order the assembly to disperse, they do not disperse, but insist on remaining, they are not in the peaceable execution of any right or duty, but the contrary, and from that moment they become an illegal assembly." — Reg. v. Ernest Jones, 6 St. Tr. (n. s.) 783, 811, summing up of Wilde, C. J. 77 Rex v. Fursey, 6 C. & P. 81; 3 St. Tr. (n. s.) 543.
Of the older cases, which deal with the question how far it is justifiable to resist by violence an arrest made by an officer of justice without due authority, it is difficult to make much use for the elucidation of the question under consideration,78 for in these cases the matter discussed seems often to have been not whether A's resistance was justifiable, but whether it amounted to murder or only to manslaughter. There are, however, one or two more or less recent decisions which have a real bearing on the right of the members of a public meeting to resist by force attempts to disperse it. And these cases are, on the whole, when properly understood, not inconsistent with the inferences already drawn from general principles. The doctrine laid down in Reg. v. Hewlett,79 that A ought not to inflict grievous bodily harm even upon X a wrongdoer unless in the strictest self-defence, is of the highest importance. Rex v. Fursey,80 a decision of 1833, has direct reference to the right of meeting. At a public meeting held that year in London, A carried an American flag which was snatched from him by X, a policeman, whereupon A stabbed X. He was subsequently indicted under 9 Geo. I. c. 31, s. 12, and it appears to have been laid down by the judge that though, if the meeting was a legal one, X had no right to snatch away A's flag, still that even on the supposition that the meeting was a lawful assembly, A, if X had died of his wound, would have been guilty either of manslaughter, or very possibly of murder. Quite in keeping with Rex v. Fursey is the recent case of Reg. v. Harrison.81 Some of the expressions attributed, in a very compressed newspaper report, to the learned judge who tried the case, may be open to criticism, but the principle involved in the defendant's conviction, namely, that a ruffian cannot assert his alleged right to walk down a particular street by stunning or braining a policeman, or a good citizen who is helping the policeman, is good law no less than good sense.82
78 See, e.g., Dixon's Case, i East, P. C. 313; Borthwick's Case, ibid.; Wither's Case, i East, P. C. 233, 309; Tooley's Case, 2 Lord Raymond, 1296.
79 iF. &F. 91.
80 3 St. Tr. (n. s.) 543, and compare Criminal Code Commission Report, pp. 43, 44.
81 The Times, igth December 1887.
82 "Well, if any heads are broken before [after?] men are ordered [by the police] to disperse
Nor does the claim to assert legal rights by recourse to pistols or bludgeons receive countenance from two decisions occasionally adduced in its support.
The one is Beatty v. Gillbanks.83 This case merely shows that a lawful meeting is not rendered an unlawful assembly simply because ruffians try to break it up, and, in short, that the breach of the peace which renders a meeting unlawful must, in general,84 be a breach caused by the members of the meeting, and not by wrongdoers who wish to prevent its being held.85
The second is M'Clenaghan v. Waters.86 The case may certainly be so explained as to lay down the doctrine that the police when engaged under orders in dispersing a lawful meeting are not engaged in the "execution of their duty," and that therefore the members of the meeting may persist in holding it in spite of the opposition of the police. Whether this doctrine be absolutely sound is open to debate. It does not necessarily, however, mean more than that a man may exercise a right, even though he has to use a moderate amount of force, against a person who attempts to hinder the exercise of the right. Bui M'Clenaghan v. Waters certainly does not decide that the member of a lawful assembly may exercise whatever amount of force is necessary to prevent its being dispersed, and falls far short of justifying the proceedings of a Salvationist who brains a policeman rather than surrender the so-called right of public meeting. It is, however, doubtful whether M'Clenaghan v. Waters really supports even the doctrine that moderate resistance to the police is justifiable in order to prevent the dispersing of a lawful assembly. The case
and refuse to disperse, those who break their heads will find their own heads in a very bad situation if they are brought into a court of law to answer for it. No jury would hesitate to convict, and no court would hesitate to punish." — Reg. v. Ernest Jones, 6 St. Tr. (n. s.) 783, 811, 812, summing up of Wilde. C. J. 8390.6.0.308.
84 Seep. 356,ante.
85 As already pointed out, the principle maintained in Beatty v. Gillbanks is itself open to some criticism.
86 The Times, i8th July 1882.
purports to follow Beatty v. Gillbanks, and therefore the Court cannot be taken as intentionally going beyond the principle laid down in that case. The question for the opinion of the Court, moreover, in M'Clanaghan v. Waters was, "whether upon the facts stated the police at the time of their being assaulted by the appellants (Salvationists) were legally justified in interfering to prevent the procession from taking place"; or, in other words, whether the meeting of the Salvationists was a lawful assembly? To this question, in the face of Beatty v. Gillbanks, but one reply was possible. This answer the Court gave: they determined "that in taking part in a procession the appellants were doing only an act strictly lawful, and the fact that that act was believed likely to cause others to commit such as were unlawful, was no justification for interfering with them." Whether the Court determined anything more is at least open to doubt, and if they did determine, as alleged, that the amount of the resistance offered to the police was lawful, this determination is, to say the least, not inconsistent with the stern punishment of acts like that committed by the prisoner Harrison.
No one, however, can dispute that the line between the forcible exercise of a right in the face of opposition, and an unjustifiable assault on those who oppose its exercise, is a fine one, and that many nice problems concerning the degree of resistance which the members of a lawful meeting may offer to persons who wish to break it up are at present unsolved. The next patriot or ruffian who kills or maims a policeman rather than compromise the right of public meeting will try what, from a speculative point of view, may be considered a valuable legal experiment which promises results most interesting to jurists. The experiment will, however, almost certainly be tried at the cost, according to the vigour of his proceedings, of either his freedom or his life.87
87 The whole summing up of Wilde, C. J., in Reg. v. Ernestines, 6 St. Tr. (n. s.) 783, 807-816, merits particular attention. His language is extremely strong and if it be taken as a perfectly correct exposition of the law, negatives the right to resist by force policemen who with the bona fide intention to discharge their duty, disperse an assembly which may ultimately turn out not to have been an unlawful assembly.
Note VI
DUTY OF SOLDIERS CALLED UPON TO DISPERSE AN UNLAWFUL ASSEMBLY
On /th September 1893 Captain Barker and a small number of soldiers were placed in the Ackton Colliery, in order to defend it from the attack of a mob. A body of rioters armed with sticks and cudgels entered the colliery yard, and with threats demanded the withdrawal of the soldiers. The mob gradually increased, and broke the windows of the building in which the troops were stationed and threw stones at them. Attempts were made to burn the building, and timber was actually set on fire. The soldiers retreated, but were at last surrounded by a mob of 2000 persons. The crowd was called upon to disperse, and the Riot Act read. More stones were hurled at the troops, and it was necessary to protect the colliery. At last, before an hour from the reading of the Riot Act, and on the crowd refusing to disperse, Captin Barker gave orders to fire. The mob dispersed, but one or two bystanders were killed who were not taking an active part in the riot. Commissioners, including Lord Justice Bowen, afterwards Lord Bowen, were appointed to report on the conduct of the troops. The following passage from the report is an almost judicial statement of the law as to the duty of soldiers when called upon to disperse a mob:
We pass next to the consideration of the all-important question whether the conduct of the troops in firing on the crowd was justifiable; and it becomes essential, for the sake of clearness, to state succinctly what the law is which bears upon the subject. By the law of this country every one is bound to aid in the suppression of riotous assemblages. The degree of force, however, which may lawfully be used in their suppression depends on the nature of each riot, for the force used must always be moderated and proportioned to the circumstances of the case and to the end to be attained.
The taking of life can only be justified by the necessity for protecting persons or property against various forms of violent crime, or by the necessity of dispersing a riotous crowd which is dangerous unless dispersed, or in the case of persons whose conduct has become felonious through disobedience to the provisions of the Riot Act, and who resist the attempt to disperse or apprehend them. The riotous crowd at the Ackton Hall Colliery was one
whose danger consisted in its manifest design violently to set fire and do serious damage to the colliery property, and in pursuit of that object to assault those upon the colliery premises. It was a crowd accordingly which threatened serious outrage, amounting to felony, to property and persons, and it became the duty of all peaceable subjects to assist in preventing this. The necessary prevention of such outrage on person and property justifies the guardians of the peace in the employment against a riotous crowd of even deadly weapons.
Officers and soldiers are under no special privileges and subject to no special responsibilities as regards this principle of the law. A soldier for the purpose of establishing civil order is only a citizen armed in a particular manner. He cannot because he is a soldier excuse himself if without necessity he takes human life. The duty of magistrates and peace officers to summon or to abstain from summoning the assistance of the military depends in like manner on the necessities of the case. A soldier can only act by using his arms. The weapons he carries are deadly. They cannot be employed at all without danger to life and limb, and in these days of improved rifles and perfected ammunition, without some risk of injuring distant and possibly innocent bystanders. To call for assistance against rioters from those who can only interpose under such grave conditions ought, of course, to be the last expedient of the civil authorities. But when the call for help is made, and a necessity for assistance from the military has arisen, to refuse such assistance is in law a misdemeanour.
The whole action of the military when once called in ought, from first to last, to be based on the principle of doing, and doing without fear, that which is absolutely necessary to prevent serious crime, and of exercising all care and skill with regard to what is done. No set of rules exists which governs every instance or defines beforehand every contingency that may arise. One salutary practice is that a magistrate should accompany the troops. The presence of a magistrate on such occasions, although not a legal obligation, is a matter of the highest importance. The military come, it may be, from a distance. They know nothing, probably, of the locality, or of the special circumstances. They find themselves introduced suddenly on a field of action, and they need the counsel of the local justice, who is presumably familiar with the details of the case. But, although the magistrate's presence is of the highest value and moment, his absence does not alter the duty of the soldier, nor ought it to paralyse his conduct, but only to render him doubly careful as to the proper steps to be taken. No officer is justified by English law in standing by and allowing felonious outrage to be committed merely because of a magistrate's absence.
The question whether, on any occasion, the moment has come for firing upon a mob of rioters, depends, as we have said, on the necessities of the case. Such firing, to be lawful, must, in the case of a riot like the present, be necessary to stop or prevent such serious and violent crime as we have alluded to; and it must be conducted without recklessness or negligence.
When the need is clear, the soldier's duty is to fire with all reasonable caution, so as to produce no further injury than what is absolutely wanted for the purpose of protecting person and property. An order from the magistrate who is present is required by military regulations, and wisdom and discretion are entirely in favour of the observance of such a practice. But the order of the magistrate has at law no legal effect. Its presence does not justify the firing if the magistrate is wrong. Its absence does not excuse the officer for declining to fire when the necessity exists.
With the above doctrines of English law the Riot Act does not interfere. Its effect is only to make the failure of a crowd to disperse for a whole hour after the proclamation has been read a felony; and on this ground to afford a statutory justification for dispersing a felonious assemblage, even at the risk of taking life. In the case of the Ackton Hall Colliery, an hour had not elapsed after what is popularly called the reading of the Riot Act, before the military fired. No justification for their firing can therefore be rested on the provisions of the Riot Act itself, the further consideration of which may indeed be here dismissed from the case. But the fact that an hour had not expired since its reading did not incapacitate the troops from acting when outrage had to be prevented. All their common law duty as citizens and soldiers remained in full force. The justification of Captain Barker and his men must stand or fall entirely by the common law. Was what they did necessary, and no more than was necessary, to put a stop to or prevent felonious crime? In doing it, did they exercise all ordinary skill and caution, so as to do no more harm than could be reasonably avoided?
If these two conditions are made out, the fact that innocent people have suffered does not involve the troops in legal responsibility. A guilty ringleader who under such conditions is shot dead, dies by justifiable homicide. An innocent person killed under such conditions, where no negligence has occurred, dies by an accidental death. The legal reason is not that the innocent person has to thank himself for what has happened, for it is conceivable (though not often likely) that he may have been unconscious of any danger and innocent of all imprudence. The reason is that the soldier who fired has done nothing except what was his strict legal duty.
In measuring with the aid of subsequent evidence the exact necessities of the case as they existed at the time at Ackton Hall Colliery, we have formed a clear view that the troops were in a position of great embarrassment. The withdrawal of half their original force to Nostell Colliery had reduced them to so small a number as to render it difficult for them to defend the colliery premises effectively at nighttime. The crowd for some hours had been familiarised with their presence, and had grown defiant. All efforts at conciliation had failed. Darkness had meanwhile supervened, and it was difficult for Captain Barker to estimate the exact number of his assailants, or to what extent he was being surrounded and outflanked. Six or seven appeals had been made by the magistrate to the crowd. The Riot Act had been read without result. A charge had been made without avail. Much valuable col-
liery property was already blazing, and the troops were with difficulty keeping at bay a mob armed with sticks and bludgeons, which was refusing to disperse, pressing where it could into the colliery premises, stoning the fire-engine on its arrival, and keeping up volleys of missiles. To prevent the colliery from being overrun and themselves surrounded, it was essential for them to remain as dose as possible to the Green Lane entrance. Otherwise, the rioters would, under cover of the darkness, have been able to enter in force. To withdraw from their position was, as we have already intimated, to abandon the colliery offices in the rear to arson and violence. To hold the position was not possible, except at the risk of the men being seriously hurt and their force crippled. Assaulted by missiles on all sides, we think that, in the events which had happened, Captain Barker and his troops had no alternative left but to fire, and it seems to us that Mr. Hartley was bound to require them to do so.
It cannot be expected that this view should be adopted by many of the crowd in Green Lane who were taking no active part in the riotous proceedings. Such persons had not, at the time, the means of judging of the danger in which the troops and the colliery stood. But no sympathy felt by us for the injured bystanders, no sense which we entertain of regret that, owing to the smallness of the military force at Featherstone and the prolonged absence of a magistrate, matters had drifted to such a pass, can blind us to the fact that, as things stood at the supreme moment when the soldiers fired, their action was necessary. We feel it right to express our sense of the steadiness and discipline of the soldiers in the circumstances. We can find no ground for any suggestion that the firing, if it was in fact necessary, was conducted with other than reasonable skill and care. The darkness rendered it impossible to take more precaution than had been already employed to discriminate between the lawless and the peaceable, and it is to be observed that even the first shots fired produced little or no effect upon the crowd in inducing them to withdraw. If our conclusions on these points be, as we believe them to be, correct, it follows that the action of the troops was justified in law.88
NoteVH
THE MEANING OF AN "UNCONSTITUTIONAL" LAW
The expression "unconstitutional" has, as applied to a law, at least three different meanings varying according to the nature of the constitution with reference to which it is used:
88 Report of the committee appointed to inquire into the circumstances connected with the disturbances at Featherstone on the 7th of September 1893 [C. — 7234].
1. The expression, as applied to an English Act of Parliament, means simply that the Act in question, as, for instance, the Irish Church Act, 1869, is, in the opinion of the speaker, opposed to the spirit of the English constitution; it cannot mean that the Act is either a breach of law or is void.
2. The expression, as applied to a law passed by the French Parliament, means that the law, e.g. extending the length of the President's tenure of office, is opposed to the articles of the constitution. The expression does not necessarily mean that the law in question is void, for it is by no means certain that any French Court will refuse to enforce a law because it is unconstitutional. The word would probably, though not of necessity, be, when employed by a Frenchman, a term of censure.
3. The expression, as applied to an Act of Congress, means simply that the Act is one beyond the power of Congress, and is therefore void. The word does not in this case necessarily import any censure whatever. An American might, without any inconsistency, say that an Act of Congress was a good law, that is, a law calculated in his opinion to benefit the country, but that unfortunately it was "unconstitutional," that is to say, ultra vires and void.
NoteVTfl
SWISS FEDERALISM89
The Swiss Federal Constitution may appear to a superficial observer to be a copy in miniature of the Constitution of the United States; and there is no doubt that the Swiss statesmen of 1848 did in one or two points, and notably in the formation of the Council of States or Senate, intentionally follow American precedents. But for all this, Swiss Federalism is the natural outgrowth of Swiss history, and bears a peculiar character of its own that well repays careful study.
Three ideas underlie the institutions of modern Switzerland.
89 See Lowell, Governments and Parties in Continental Europe, ii., Switzerland, pp. 180 — 336; Orelli, Das Staatsrecht der Schweizerischen Eidgenossenschaft; Marquardsen'sHandbuch des Oef-fentlichen Rechts, iv. i. 2.
The first is the uncontested and direct sovereignty of the nation.
In Switzerland the will of the people, when expressed in the mode provided by the Constitution, is admittedly supreme. This supremacy is not disputed by any political party or by any section of the community. No one dreams of changing the democratic basis of the national institutions. There does not exist in Switzerland any faction which, like the reactionists in France, meditates the overthrow of the Republic. There does not exist any section of the community which, like the Bohemians in Austria, or like the French in Alsace, is, or may be supposed to be, disloyal to the central government. But in Switzerland not only the supremacy but the direct authority of the nation is, practically as well as theoretically, acknowledged. The old idea of the opposition between the government and the people has vanished. All parts of the government, including in that term not only the Executive but also the Legislative bodies, are the recognised agents of the nation, and the people intervene directly in all important acts of legislation. In Switzerland, in short, the nation is sovereign in the sense in which a powerful king or queen was sovereign in the time when monarchy was a predominant power in European countries, and we shall best understand the attitude of the Swiss nation towards its representatives, whether in the Executive or in Parliament, by considering that the Swiss people occupies a position not unlike that held, for example, by Elizabeth of England. However great the Queen's authority, she was not a tyrant, but she really in the last resort governed the country, and her ministers were her servants and carried out her policy. The Queen did not directly legislate, but by her veto and by other means she controlled all important legislation. Such is, speaking roughly, the position of the Swiss people. The Federal Executive and the Federal Parliament pursue the lines of policy approved by the people. Under the name of the Referendum there is exercised a popular veto on laws passed by the Legislature, and of recent years, under the name of the Initiative, an attempt has been made at more or less direct legislation by the people. Whatever be the merits of Swiss institutions, the idea which governs them is obvious. The nation is monarch, the Executive and the members of the Legislature are the people's agents or ministers.
The second idea to which Swiss institutions give expression is that politics are a matter of business. The system of Swiss government is business-like. The affairs of the nation are transacted by men of capacity, who give effect to the will of the nation.
The last and most original Swiss conception is one which it is not easy for foreigners bred up under other constitutional systems to grasp. It is that the existence of political parties does not necessitate the adoption of party government.
These are the principles or conceptions embodied in Swiss institutions; they are closely inter-connected, they pervade and to a great extent explain the operation of the different parts of the Swiss Constitution. Many of its features are of course common to all the federal governments, but its special characteristics are due to the predominance of the three ideas to which the reader's attention has been directed. That this is so will be seen if we examine the different parts of the Swiss Constitution.
THE FEDERAL COUNCIL
This body, which we should in England call the Ministry, consists of seven persons elected at their first meeting by the two Chambers which make up the Swiss Federal Assembly or Congress, and for this purpose sit together. The Councillors hold office for three years, and being elected after the first meeting of the Assembly, which itself is elected for three years, keep their places till the next Federal Assembly meets, when a new election takes place. The Councillors need not be, but in fact are, elected from among the members of the Federal Assembly, and though they lose their seats on election, yet, as they can take part in the debates of each House, may for practical purposes be considered members of the Assembly or Parliament. The powers confided to the Council are wide. The Council is the Executive of the Confederacy and possesses the authority naturally belonging to the national government. It discharges also, strange as this may appear to Englishmen or Americans, many judicial functions. To the Council are in many cases referred questions of "administrative law," and also certain classes of what Englishmen or Americans consider strictly legal questions. Thus the Council in effect determined some years
ago what were the rights as to meeting in public of the Salvation Army, and whether and to what extent Cantonal legislation could prohibit or regulate their meetings. The Council again gives the required sanction to the Constitutions or to alterations in the Constitutions of the Cantons, and determines whether clauses in such Constitutions are, or are not, inconsistent with the articles of the Federal Constitution. The Council is in fact the centre of the whole Swiss Federal system; it is called upon to keep up good relations between the Cantons and the Federal or National government, and generally to provide for the preservation of order, and ultimately for the maintenance of the law throughout the whole country. All foreign affairs fall under the Coundl's supervision, and the conduct of foreign relations must, under the circumstances of Switzerland, always form a most important and difficult part of the duties of the government.
Though the Councillors are elected they are not dismissible by the Assembly, and in so far the Council may be considered an independent body; but from another point of view the Council has no independence. It is expected to carry out, and does carry out, the policy of the Assembly, and ultimately the policy of the nation, just as a good man of business is expected to carry out the orders of his employer. Many matters which are practically determined by the Council might constitutionally be decided by the Assembly itself, which, however, as a rule leaves the transaction of affairs in the hands of the Council. But the Council makes reports to the Assembly, and were the Assembly to express a distinct resolution on any subject, effect would be given to it. Nor is it expected that either the Council or individual Councillors should go out of office because proposals or laws presented by them to the Assembly are rejected, or because a law passed, with the approval of the Council, by the Chambers, is vetoed on being referred to the people. The Council, further, though as the members thereof, being elected by the Federal Assembly, must in general agree with the sentiments of that body, does not represent a Parliamentary majority as does an English or a French Ministry. The Councillors, though elected for a term of three years, are re-eligible, and as a rule are re-elected. The consequence is that a man may hold
office for sixteen years or more, and that the character of the Council changes but slowly; and there have, it is said, been cases in which the majority of the Parliament belonged to one party and the majority of the Council to another, and this want of harmony in general political views between the Parliament and the Government did not lead to inconvenience. In truth the Council is not a Cabinet but a Board for the management of business, of which Board the so-called President of the Confederation, who is annually elected from among the members of the Council, is merely the chairman. It may fairly be compared to a Board of Directors chosen by the members of a large joint-stock company. In one sense the Board has no independent power. The majority of the shareholders, did they choose to do so, could always control its action or reverse its policy. In another sense, as we all know, a Board is almost free from control. As long as things are well, or even tolerably, managed, the shareholders have neither the wish nor practically the power to interfere. They know that the directors possess knowledge and experience which the shareholders lack, and that to interfere with the Board's management would imperil the welfare of the association. So it is with the Federal Council. Its dependence is the source of its strength. It does not come into conflict with the Assembly; it therefore is a permanent body, which carries on, and carries on with marked success, the administration of public affairs. It is a body of men of business who transact the business of the State.
It is worth while to dwell at some length on the constitution and character of the Swiss Council or Board, because it gives us a kind of Executive differing both from the Cabinet government of England or France, and from the Presidential government of America. The Council does not, like an English Cabinet, represent, at any rate directly and immediately, a predominant political party. It is not liable to be at any moment dismissed from office. Its members keep their seats for a period longer than the time during which either an English Ministry or an American President can hope to retain office. But the Council, though differing greatly from a Cabinet, is a Parliamentary or semi-Parliamentary Executive.90 It has not, like an
90 See Note III. p. 331, ante.
American President, an independent authority of its own which, being derived from popular election, may transcend, and even be opposed to, the authority of the Legislature. The constitutional history of Switzerland since 1848 has exhibited none of those conflicts between the Executive and the legislative body which have occurred more than once in the United States. The position of the Council may, if we seek for an historical parallel, be compared with that of the Council of State under the Cromwellian Instrument of Government, and indeed occupies very nearly the position which the Council of State would have held had the Instrument of Government been, in accordance with the wishes of the Parliamentary Opposition, so modified as to allow of the frequent re-election by Parliament of the members of the Council.91 If we desire a modern parallel we may perhaps find it in the English Civil Service. The members of the Council are, like the permanent heads of the English Government offices, officials who have a permanent tenure of office, who are in strictness the servants of the State, and who are expected to carry out, and do carry out, measures which they may not have framed, and the policies of which they may not approve. This comparison is the more instructive, because in the absence of the elaborate Civil Service the members of the Council do in effect discharge rather the duties of permanent civil servants than of ministers.
THE FEDERAL ASSEMBLY
This Parliament is certainly modelled to a certain extent on the American Congress. For several purposes, however, the two chambers of which it consists sit together. As already pointed out, when thus combined they elect the Federal Council or Ministry. The Assembly, moreover, is, unlike any representative assembly to which the English people are accustomed, on certain administrative matters a final Court of Appeal from the Council. The main function, however, of the Assembly is to receive reports from the Council and to legislate. It sits but for a short period each year, and confines itself pretty closely to the transaction of business. Laws passed by it may,
91 See the "Constitutional Bill of the First Parliament of the Protectorate," cap, 39; Gardiner, Constitutional Documents of the Puritan Revolution, pp. 366, 367.
when referred to the people, be vetoed. Its members are pretty constantly re-elected, and it is apparently one of the most orderly and business-like of Parliaments.
The Assembly consists of two chambers or houses.
The Council of States, or, as we may more conveniently call it, the Senate, represents the Cantons, each of which as a rule sends two members to it.
The National Council, like the American House of Representatives, directly represents the citizens. It varies in numbers with the growth of the population, and each Canton is represented in proportion to its population.
In one important respect the Federal Assembly differs from the American Congress. In the United States the Senate has hitherto been the more influential of the two Houses. In Switzerland the Council of States was expected by the founders of the Constitution to wield the sort of authority which belongs to the American Senate. This expectation has been disappointed. The Council of States has played quite a secondary part in the working of the Constitution, and possesses much less power than the National Council. The reasons given for this are various. The members of the Council are paid by the Cantons which they represent. The time for which they hold office is regulated by each Canton, and has generally been short. The Council has no special functions such as has the American Senate, and the general result has been that leading statesmen have sought for seats not in the Council of State, but in the National Council. One cause of the failure on the part of the Council of States to fulfil the expectations of its creators seems to have escaped Swiss attention. The position and functions of the Federal Council or Ministry, its permanence and its relation to the Federal Parliament, make it impossible for the chamber which represents the Cantons to fill the place which is occupied in America by the House which represents the States. The inferior position of the Swiss Council of States deserves notice. It is one of the parts of the Constitution which was suggested by the experience of a foreign country, and for this very reason has, it may be suspected, not fitted in with the native institutions of Switzerland.
THE FEDERAL TRIBUNAL92
This Court was constituted by statesmen who knew the weight and authority which belongs to the Supreme Court of the United States; but the Federal Tribunal was from the beginning, and is still, a very different body from, and a much less powerful body than, the American Supreme Court. It is composed of fourteen judges, and as many substitutes elected for six years by the Federal Assembly, which also designates the President and the Vice-President of the Court for two years at a time. It possesses .criminal jurisdiction in cases of high treason, and in regard to what we may term high crimes and misdemeanours, though its powers as a criminal Court are rarely put into operation. It has jurisdiction as regards suits between the Confederation and the Cantons, and between the Cantons themselves, and generally in all suits in which the Confederation or a Canton is a party. It also determines all matters of public law, and has by degrees, in consequence of federal legislation, been made virtually a general Court of Appeal from the Cantonal tribunals in all cases arising under federal laws where the amount in dispute exceeds 3000 francs. Add to this that the Court entertains complaints of the violation of the constitutional rights of citizens, and this whether the right alleged to be violated is guaranteed by a Federal or by a Cantonal constitution. The primary object for which the Court was constituted was the giving decisions, or rather the making of judicial declarations where points of public law are in dispute; and its civil jurisdiction has, under the stress of circumstances, been increased beyond the limits within which the founders of the Swiss Constitution intended it to be restrained. But the Federal Tribunal, though possessed of a wide and somewhat indefinite jurisdiction, wields nothing like the power possessed by the Supreme Court of the United States. It has no jurisdiction whatever in controversies with reference to "administrative law"; these are reserved for the Federal Council, and ultimately for the Federal Assembly,93 and the term "administrative controversies" has been given a very extensive signification, so that the Court has
92 Lowell, ii. p. 214; Orelli, pp. 38-44.
93 See Swiss Constitution, Art. 85, s. 12, and Art. 113.
been excluded "from the consideration of a long list of subjects, such as the right to carry on a trade, commercial treaties, consumption taxes, game laws, certificates of professional capacity, factory acts, bank-notes, weights and measures, primary public schools, sanitary police, and the validity of cantonal elections,"94 which would prima fade seem to fall within its competence. The Tribunal, moreover, though it can treat cantonal laws as unconstitutional, and therefore invalid, is bound by the Constitution to treat all federal legislation as valid.95
The judges of the Federal Tribunal are appointed by the Federal Assembly, and for short terms. The Tribunal stands alone, instead of being at the head of a national judicial system. It has further no officials of its own for the enforcement of its judgments. They are executed primarily by the cantonal authorities, and ultimately, if the cantonal authorities fail in their duty, by the Federal Council.96 The control, moreover, exerted by the Federal Tribunal over the acts of Federal officials is incomplete. Any citizen may sue an official, but, as already pointed out, administrative controversies are excluded from the Court's jurisdiction, and in case there is a conflict of jurisdiction between the Federal Council and the Federal Tribunal, it is decided not by the Court but by the Federal Assembly, which one would expect to support the authority of the Council. The Federal Tribunal, at any rate, cannot as regards such disputes fix the limits of its own competence.97 Under these circumstances it is not surprising that the Tribunal exercises less authority than the Supreme Court of the United States. What may excite some surprise is that, from the very nature of federalism the jurisdiction of the Federal Tribunal has, in spite of all disadvantages under which the Court suffers, year by year increased. Thus until 1893 questions relating to religious liberty, and the rights of different sects, were reserved for the decision of the Federal Assembly. Since that date they have been transferred to the
94 Lowell, p. 218.
95 See Swiss Constitution, Art. 113; Brinton Coxe, Judicial Power and Unconstitutional Legislation, p. 86.
96 See Adams, Swiss Confederation, pp. 74, 75.
97 See Lowell, p. 220.
jurisdiction of the Federal Tribunal. This very transfer, and the whole relation of the Tribunal, the Council, and the Assembly respectively, to questions which would in England or the United States be necessarily decided by a law court, serve to remind the reader of the imperfect recognition in Switzerland of the "rule of law," as it is understood in England, and of the separation of powers as that doctrine is understood in many continental countries.98
THE REFERENDUM99
If in the constitution of the Federal Tribunal and of the Council of States we can trace the influence of American examples, the referendum, as it exists in Switzerland, is an institution of native growth, which has received there a far more complete and extensive development than in any other country. If we omit all details, and deal with the referendum as it in fact exists under the Swiss Federal Constitution, we may describe it as an arrangement by which no alteration or amendment in the Constitution, and no federal law which any large number of Swiss citizens think of importance, comes finally into force until it has been submitted to the vote of the citizens, and has been sanctioned by a majority of the citizens who actually vote. It may be added that a change in the Constitution thus referred to the people for sanction cannot come into force unless it is approved of both by a majority of the citizens who vote, and by a majority of the Cantons. It must further be noted that the referendum in different forms exists in all but one of the Swiss Cantons, and may therefore now be considered an essential feature of Swiss constitutionalism. The referendum is therefore in effect a nation's veto. It gives to the citizens of Switzerland exactly that power of arresting legislation which is still in theory and was in the time, for example, of Elizabeth actually possessed by an English monarch. A bill could not finally become a law until it had obtained the consent of the Crown. In
98 Lowell, pp. 218, 219.
99 See Lowell, ii. chap, xii.; Adams, Swiss Confederation, chap. vi. The referendum, though not under that name, exists for many purposes in the different States of the American Union. There is no trace of it, or of any institution corresponding to it, in the Constitution of the United States. Compare Oberholtzer, Referendum in America.
popular language, the Crown, in case the monarch dissented, might be said to veto the bill. A more accurate way of describing the Crown's action is to say that the King threw out or rejected the bill just as did the House of Lords or the House of Commons when either body refused to pass a bill. This is in substance the position occupied by the citizens of Switzerland when a law passed by the Federal Assembly is submitted to them for their approbation or rejection. If they give their assent it becomes the law of the land; if they refuse their assent it is vetoed, or, speaking more accurately, the proposed law is not allowed to pass, i.e. to become in reality a law.
The referendum has a purely negative effect. It is in many of the Cantonal Constitutions, and in the Federal Constitution to a certain extent, supplemented by what is called the Initiative — that is, a device by which a certain number of citizens can propose a law and require a popular vote upon it in spite of the refusal of the legislature to adopt their views. 10° The Initiative has, under the Federal Constitution at any rate, received as yet but little trial. Whether it can be under any circumstances a successful mode of legislation may be doubted. All that need here be noted is that while the introduction of the Initiative is neither in theory nor in fact a necessary consequence of the maintenance of the referendum, both institutions are examples of the way in which in Switzerland the citizens take a direct part in legislation.
The referendum, taken in combination with the other provisions of the Constitution, and with the general character of Swiss federalism, tends, it is conceived, to produce two effects.
It alters, in the first place, the position both of the Legislature and of the Executive. The Assembly and the Federal Council become obviously the agents of the Swiss people. This state of things, while it decreases the power, may also increase the freedom of Swiss statesmen. A member of the Council, or the Council itself, proposes a law which is passed by the Legislature. It is, we will suppose, as has often happened, referred to the people for approval and then rejected. The Council and the Assembly bow without any discredit to the popular
100 Lowell, p. 280.
decision. There is no reason why the members either of the Council or of the Legislature should resign their seats; it has frequently happened that the electors, whilst disapproving of certain laws submitted for their acceptance by the Federal Assembly, have re-elected the very men whose legislation they have refused to accept. Individual politicians, on the other hand, who advocate particular measures just because the failure to pass these measures into law does not involve resignation or expulsion from office, can openly express their political views even if these views differ from the opinions of the people. The referendum, in the second place, discourages the growth of party government. The electors do not feel it necessary that the Council, or even the Assembly, should strictly represent one party. Where the citizens themselves can veto legislation which they disapprove, it matters comparatively little that some of their representatives should entertain political opinions which do not at the moment commend themselves to the majority of the electorate. The habit, moreover, acquired of taking part in legislation must probably accustom Swiss citizens to consider any proposed law more or less on its merits. They are at any rate less prone than are the voters of most countries to support a party programme which possibly does not as to every one of its provisions command the assent of any one voter. It may, of course, on the other hand, be maintained that it is the incomplete development of party government in Switzerland which favours the adoption of the referendum. However this may be, there can be little doubt that the existence of the most peculiar of Swiss institutions has a dose connection with the condition of Swiss parties.
Swiss Federalism has been, as we have already pointed out, considerably influenced by American Federalism, and it is almost impossible for an intelligent student not to compare the most successful federal and democratic government of the New World with the most successful federal and democratic government of Europe, for the history and the institutions of America and of Switzerland exhibit just that kind of likeness and unlikeness which excites comparison.
The United States and Switzerland are both by nature federations; neither country could, it is pretty dear, prosper under any but a federal constitution; both countries are, at the present day at any rate,
by nature democracies. In each country the States or Cantons have existed before the federation. In each country state patriotism was originally a far stronger sentiment than the feeling of national unity. In America and in Switzerland national unity has been the growth of necessity. It is also probable that the sentiment of national unity, now that it has been once evoked, will in the long run triumph over the feeling of State rights or State sovereignty. In a very rough manner, moreover, there is a certain likeness between what may be called the federal history of both countries. In America and in Switzerland there existed for a long time causes which prevented and threatened finally to arrest the progress towards national unity. Slavery played in the United States a part which resembled at any rate the part played in Swiss history by religious divisions. In America and in Switzerland a less progressive, but united and warlike, minority of States held for a long time in check the influence of the richer, the more civilised, and the less united States. Constant disputes as to the area of slavery bore at any rate an analogy to the disputes about the common territories which at one time divided the Catholic and Protestant Cantons. Secession was anticipated by the Sonderbund, and the triumph of Grant was not more complete than the triumph of Dufour. Nor is it at all certain that the military genius of the American was greater than the military genius of the Swiss general. The War of Secession and the War of the Sonderbund had this further quality in common. They each absolutely concluded the controversies out of which they had arisen; they each so ended that victors and vanquished alike soon became the loyal citizens of the same Republic. Each country, lastly, may attribute its prosperity, with plausibility at least, to its institutions, and these institutions bear in their general features a marked similarity.
The unlikeness, however, between American and Swiss Federalism is at least as remarkable as the likeness. America is the largest as Switzerland is the smallest of Confederations; more than one American State exceeds in size and population the whole of the Swiss Confederacy. The American Union is from every point of view a modern state; the heroic age of Switzerland, as far as military glory is concerned, had dosed before a single European had set foot in
America, and the independence of Switzerland was acknowledged by Europe more than a century before the United States began their political existence. American institutions are the direct outgrowth of English ideas, and in the main of the English ideas which prevailed in England during the democratic movement of the seventeenth century; American society was never under the influence of feudalism. The democracy of Switzerland is imbued in many respects with continental ideas of government, and till the time of the great French Revolution, Swiss society was filled with inequalities originating in feudal ideas. The United States is made up of States which have always been used to representative institutions; the Cantons of Switzerland have been mainly accustomed to non-representative, aristocratic or democratic government. Under these circumstances, it is naturally to be expected that even institutions which possess a certain formal similarity should display an essentially different character in countries which differ so widely as the United States and Switzerland.
These differences may be thus roughly summed up: American Federalism is strong where Swiss Federalism is weak; where American Federalism is weak, Swiss Federalism is strong.
The Senate and the Judiciary of the United States have rightly excited more admiration than any other part of the American Constitution. They have each been, to a certain extent, imitated by the founders of the existing Swiss Republic. But in neither instance has the imitation been a complete success. The Council of States has not the authority of the Senate; the Federal Tribunal, though its power appears to be on the increase, cannot stand comparison with the Supreme Court. The judicial arrangements of Switzerland would appear, at any rate to a foreign critic, to be the least satisfactory of Swiss institutions, and the exercise by the Federal Council and the Federal Assembly of judicial powers is not in unison with the best modern ideas as to the due administration of justice.
The features in American institutions which receive very qualified approval, if not actual censure even from favourable critics, are the mode in which the President is appointed, the relation of the Executive Government to the Houses of Congress, the disastrous de-
velopment of party organisation, and the waste or corruption which are the consequence of the predominance of party managers or wirepullers.
The Federal Council, on the other hand, forms as good an Executive as is possessed by any country in the world. It would appear to a foreign observer (though on such a matter foreign critics are singularly liable to delusion) to combine in a rare degree the advantages of a Parliamentary and of a non-Parliamentary government. It acts in uniform harmony with the elected representatives of the people, but though appointed by the legislature, it enjoys a permanent tenure of office unknown to Parliamentary Cabinets or to elected Presidents. Though parties, again, exist, and party spirit occasionally runs high in Switzerland, party government is not found there to be a necessity. The evils, at any rate, attributed to government by party are either greatly diminished or entirely averted. The Caucus and the "Machine" are all but unknown. The country is freed from the unwholesome excitement of a Presidential election, or even of a general election, which, as in England, determines which party shall have possession of the government. There is no notion of spoils, and no one apparently even hints at corruption.
Note IX
AUSTRALIAN FEDERALISM W1
The aim of Australian statesmen has been to combine in the Constitution of the Commonwealth ideas borrowed from the federal and republican constitutionalism of the United States, or, to a certain extent, of Switzerland, with ideas derived from the Unitarian102 and monarchical constitutionalism of England. They have also created for the Commonwealth itself, and retained for each of the several States thereof, the relation which has for years existed between England and the self-governing colonies of Australia.
101 The Commonwealth of Australia Constitution Act, 63 & 64 Viet. c. 12. Quick and Garran, The Annotated Constitution of the Australian Commonwealth. Moore, The Commonwealth of Australia. Bryce, i. Studies in History and Jurisprudence, Essay VIII.
102 See pp. 73 — 74, ante.
Hence the Commonwealth exhibits four main characteristics: first, a Federal form of Government; secondly, a Parliamentary Executive; thirdly, an effective Method for amending the Constitution; fourthly, the maintenance of the Relation which exists between the United Kingdom and a self-governing colony.
FEDERAL GOVERNMENT
The Commonwealth is in the strictest sense a federal government. It owes its birth to the desire for national unity which pervades the whole of Australia, combined103 with the determination on the part of the several colonies to retain as States of the Commonwealth as large a measure of independence as may be found compatible with the recognition of Australian nationality. The creation of a true federal government has been achieved mainly by following, without however copying in any servile spirit, the fundamental principles of American federalism. As in the United States so in the Australian Commonwealth the Constitution is (subject of course to the sovereign power of the Imperial Parliament) the supreme law of the land;104 the Constitution itself in the Australian Commonwealth, as in the United States, fixes and limits the spheres of the federal or national government and of the States respectively, and moreover defines these spheres in accordance with the principle that, while the powers of the national or federal government, including in the term government both the Executive and the Parliament of the Commonwealth, are, though wide, definite and limited, the powers of the separate States are indefinite, so that any power not assigned by the Constitution to the federal government remains vested in each of the several States, or, more accurately, in the Parliament of each State.105 In this point Australian statesmen have followed the example, not of Canada, but of the United States and of Switzerland. The methods again for keeping the government of the Commonwealth on the one side, and the States on the other, within their proper spheres have
103 See pp. 75-76, ante.
104 Constitution ss. 51, 108.
105 Ibid. ss. 106, 107.
been suggested in the main by American experience. The Parliament of the Commonwealth is so constituted as to guarantee within reasonable limits the maintenance of State rights. For whilst the House of Representatives represents numbers, the Senate represents the States of the Commonwealth, and each of the Original States is entitled, irrespective of its size and population, to an equal number of senators.106 The Constitution, further, is so framed as to secure respect for the Senate; the longer term for which the Senators are elected and the scheme of retirement by rotation, which will, in general, protect the Senate from a dissolution, are intended to make the Senate a more permanent, and therefore a more experienced, body than the House of Representatives, which can under no circumstances exist for more than three years, and may very well be dissolved before that period has elapsed; then too the senators will, as the Constitution now stands, represent the whole of the State for which they sit.107 The States, again, retain a large amount of legislative independence. Neither the Executive nor the Parliament of the Commonwealth can either directly or indirectly veto the legislation, e.g., of the Victorian Parliament. Lastly, the law Courts, and especially the Federal Supreme Court, are, as in the United States, the guardians of the Constitution, for the Courts are called upon, in any case which comes before them for decision, to pass judgment, should the point be raised, upon the constitutionality, or, in other words, upon the validity under the Constitution of any Act passed either by the Parliament of that Commonwealth or by the Parliament of, e.g., Victoria. That this duty is laid upon the Courts is not indeed expressly stated in the Constitution of the Commonwealth, any more than in the Constitution of the United States; but no English lawyer can doubt that the Courts, and ultimately the Federal Supreme Court, are intended to be the interpreters, and in this sense the protectors of the Constitution. They are, be it noted, in no way
106 Ibid. s. 7. Such experience however as can be supplied by the events of eight years shows, it is said, that the Senate is absolutely hostile to the maintenance of State rights, and far more so than the House of Representatives.
107 Ibid. s. 7.
bound, as is the Swiss Federal tribunal, to assume the constitutionality of laws passed by the federal legislature.
The founders, then, of the Commonwealth have, guided in the main by the example of the United States, created a true federal government; but they have, we shall find, as far as is compatible with the existence of federalism, imported into the Constitution ideas borrowed, or rather inherited, from England. This is specially visible in
THE PARLIAMENTARY EXECUTIVE
The Executive of the Commonwealth is a parliamentary Cabinet, such as has long existed in England, and as exists in all the self-governing British colonies. The authors indeed of the Australian Constitution have, true to English precedent, never made use of the word cabinet; they have not even in so many words enacted that the executive shall be a body of ministers responsible to the federal Parliament; but no one who has the least acquaintance with the history of the English constitution, or of the working of the constitutions which have been conferred upon the self-governing colonies of Australia, can doubt that the federal executive is intended to be, as it in fact is, a parliamentary ministry, which, though nominally appointed by the Governor-General, will owe its power to the support of a parliamentary majority, and will therefore, speaking broadly, consist in general of the leaders of the most powerful parliamentary party of the day. This cabinet possesses the most peculiar among the attributes of an English ministry, namely, the power, in many cases at any rate, to dissolve Parliament, and thus appeal from the body by whom the ministry was created to the people, or in other words to the electors, of the Commonwealth. We should here also observe that the powers of the Australian executive exceed in one respect the authority of an English ministry; an English cabinet may often dissolve the House of Commons, but can never dissolve the House of Lords. But an Australian cabinet can under certain circumstances cause, indirectly at any rate, the dissolution of the Senate. In studying indeed the Constitution of the Commonwealth great attention should be paid to this
existence of the right or power to dissolve Parliament; it is not possessed by the President of the United States or by the Executive Council of the Swiss Confederation, and it is granted under the constitution of the existing French Republic only in a very limited degree to the French President; nor is there anything to make it certain that the President, even if being sure of the assent of the Senate he has the power to dissolve the Chamber of Deputies, will exert his authority at the request of the ministry.108 The point to be specially noted is that the Federalists of Australia have almost as a matter of course placed the executive power in the hands of a parliamentary cabinet; they have neither adopted the American plan of an elected President, whereby the administration of affairs is placed in the hands of a non-parliamentary executive, or the Swiss scheme of creating a semi-parliamentary executive, which, while elected by the federal Parliament, cannot be dismissed by it. It is true that it might have been found difficult to adjust the relations between a non-parliamentary or a semi-parliamentary executive and the English cabinet or the Imperial Parliament. But the difficulty is not one which need necessarily be insuperable. The true reason, it may be conjectured, why Australia has decisively adhered to the system of cabinet government is that a Parliamentary cabinet is the only form of executive to which the statesmen either of Australia or of England are accustomed. In one point, indeed, the executive of Australia may appear to bear an even more parliamentary character than does an English cabinet, for whilst, in theory at least, a statesman might be the member of an English ministry, though he were not a member of either House of Parliament, no Australian minister can hold office, i.e. in effect be a member of the cabinet for more than three months, unless he becomes a Senator, or a member of the House of Representatives.109 But here Australian statesmanship has followed the conventions rather than the law of the English constitution, for in practice an English cabinet always consists of men who are members or will become members either of the House of Lords or of the House of
108 Esmein, Droit Constitutionnel, pp. 555-563.
109 Constitution, s. 64.
Commons. Indeed it is worth remark that in several instances where the Australian Constitution deviates from that of England, the deviation is caused by the desire to follow the spirit of modern English constitutionalism. Thus the elaborate and ingenious plan for avoiding in case of disagreement between the two Houses a parliamentary deadlock110 is simply an attempt to ensure by law that deference for the voice of the electorate which in England constitutional conventions enforce in the long run upon both Houses of the Imperial Parliament.
AMENDMENT OF THE CONSTITUTION
A federal constitution must of necessity be a "rigid" constitution; but the constitutions of each of the Australian self-governing colonies, e.g. of Victoria, have been in substance "flexible" constitutions of which the colonial Parliament could change the articles as easily, or nearly as easily, as any other law. Now the people of Australia have, we may safely assume, no desire to forego the advantages of a flexible constitution or to adopt a federal polity which should lend itself as little to amendment as does the Constitution of the United States, or should, like the Constitution of the Canadian Dominion, be amendable only by the action of the Imperial Parliament. Hence Australian Federalists were forced to solve the problem of giving to the Constitution of the Commonwealth as much rigidity as is required by the nature of a federal government, and at the same time such flexibility as should secure to the people of Australia the free exercise of legislative authority, even as regards articles of the Constitution.
Their solution of this problem is ingenious.
The Constitution of the Commonwealth is, looked at as a whole, a rigid constitution, since it cannot be fundamentally altered by the ordinary method of parliamentary legislation.
But this rigidity of the constitution is tempered in three different ways.
First, the Parliament of the Commonwealth is endowed with very wide legislative authority; thus it can legislate on many topics which
no Constitution, s. 57.
lie beyond the competence of the Congress of the United States, and on some topics which lie beyond the competence of the Parliament of the Canadian Dominion;111 and it is here worth notice that the extension of the powers of the Commonwealth Parliament is facilitated by the fact that on many topics the federal legislature and the State Parliaments have concurrent legislative authority, though of course where a law of the Commonwealth conflicts with, the law of a State, the federal law, if within the competence of the Commonwealth Parliament, prevails.112
Secondly, a large number of the articles of the constitution remain in force only "until Parliament otherwise provides"; they can therefore be changed like any other law by an Act of Parliament passed in the ordinary manner; in other words, the constitution is as to many of its provisions flexible.113
Thirdly, the constitution provides the means for its own alteration114 and embodies the principle, though not the name, of the Swiss institution known as the referendum. The process of constitutional amendment is broadly and normally as follows: A law changing the constitution must be passed by an absolute majority of each House of Parliament; it must then be submitted to the electors of the Commonwealth for their approval; if in a majority of the States a majority of the electors voting approve the law and also a majority of all the electors voting approve the law, it must be submitted to the Governor-General for the King's assent, and on receiving the due assent becomes, like any other bill, an Act of Parliament. The principle of the whole proceeding is that the constitution can be changed by a vote of the federal Parliament, ratified by the approval both of the majority of the States and of the majority of the Commonwealth electorate.
It should, however, be noted that under certain circumstances a law for changing the constitution which has been passed by an ab-
111 Compare Commonwealth Constitution, ss. 51, 52, with Constitution of U. S., art. i, ss. i and 8, and British North America Act, 1867 (30 & 31 Viet. c. 3), ss. 91, 92.
112 See Constitution, s. 109.
113 Ibid. s. 51, sub. s. xxxvi. compared e.g. with ss. 3, 29, 31, etc.
114 Ibid. s. 128.
solute majority of one House of Parliament only, and either is rejected by the other House or not passed by an absolute majority thereof, must be submitted to the electors for their approval, and if approved in the manner already stated, becomes, on the assent of the Crown being duly given, an Act of Parliament.
Add to this that there are a few changes, e.g. an alteration diminishing the proportionate representation in any State in either House of Parliament, which cannot be carried through unless the majority of the electors voting in that State approve of the change.11S
What may be the working of new institutions no one will venture confidently to predict; but a critic of constitutions may entertain the hope that Australian statesmanship has accomplished the feat of framing a polity which shall have the merits both of a rigid and of a flexible constitution, which cannot hastily be changed, but yet admits of easy amendment, whenever alteration or reform is demanded by the deliberate voice of the nation.
MAINTENANCE OF THE RELATION WITH THE UNITED KINGDOM
The founders of the Commonwealth have admittedly been influenced at once by a growing sense of Australian nationality, and by enduring, or even increasing loyalty to the mother-country. The one sentiment has been satisfied by the union of the Australian colonies under a federal government which secures to the people of Australia as complete power of self-government as is compatible with the position of a colony that desires to form part of the British Empire. The other sentiment has been satisfied by placing the Commonwealth itself as regards the mother-country in the position of a self-governing colony, and also by leaving the relation between each State of the Commonwealth and the United Kingdom as little disturbed as is compatible with the creation of the Australian Commonwealth. Each point is worth notice.
The Commonwealth of Australia itself is, as regards the Crown and the Imperial Parliament, nothing but a large self-governing colony.
115 Constitution, s. 28.
Thus the Governor-General is appointed by the Crown, i.e. by the English ministry, and fills substantially the same position as, before the formation of the Commonwealth, was occupied by the Governor, e.g., of Victoria. A bill passed by the Parliament of the Commonwealth, whether it be an ordinary law or a law which, because it affects the constitution, has been submitted to the electors for their approval, requires in order that it may become an Act the assent of the Crown,116 and the Crown can negative or veto bills passed by the Parliament of the Commonwealth just as it could, and still can, veto bills passed by the Parliament, e.g., of Victoria. The Imperial Parliament, again, has the admitted right, though it is a right which, except at the wish of the Australian people, would most rarely be exercised, to legislate for Australia, or even to modify the constitution of the Australian Commonwealth. An appeal further lies on most subjects from the decisions of the federal Supreme Court to the English Privy Council, and even the limitations placed on such appeals when certain questions as to the Commonwealth constitution are raised are themselves subject to some qualifications.m The broad result therefore is that as regards the Commonwealth the connection with the United Kingdom is retained, and the sovereignty of the Imperial Parliament is untouched.
The position of any State of the Commonwealth in regard to the United Kingdom remains pretty much what it was when the State, e.g. Victoria, was still merely a self-governing colony. The Governor of Victoria is now, as then, appointed by the Crown, i.e. by the English ministry. A bill passed by the Victorian Parliament still, in order that it may become an Act, requires the assent of the Crown. The Government of the Commonwealth possesses no power of putting a veto on bills passed by the Victorian Parliament. The right of appeal from a Court of Victoria to the English Privy Council stands, in most matters at any rate, substantially where it did before the passing of the Australian Commonwealth Act, except indeed that there is an alternative right of appeal to the High Court of Australia, for "the
116 Constitution, ss. i, 58, 59, and 128.
117 See Constitution, ss. 71, 73, 74.
Constitution grants a new right of appeal from the State Courts to the High Court, but does not take away the existing right of appeal from the State Courts to the Privy Council, which therefore remains unimpaired."118
The peculiarities of Australian federalism receive illustration from a comparison between the constitution of the Canadian Dominion119 and the constitution of the Australian Commonwealth.
The Dominion is from one point of view more, and from another point of view less, directly subject to the control of the Imperial Parliament than is the Commonwealth. The Dominion is more completely subject than the Commonwealth, because the greater part of the Canadian constitution120 can be amended only by an Act of the Imperial Parliament, whilst the Australian constitution can be amended by the people of the Commonwealth; this distinction, it is well to add, sounds more important than it is in reality, since we may feel morally certain that the Imperial Parliament would introduce any amendment into the constitution of the Dominion which was deliberately desired by the majority at once of the people and of the
118 Quick and Garran, Annotated Constitution, p. 738. Thus an appeal lies from the Supreme Court of each of the States to the Privy Council from any decision of their Courts; as of right in circumstances defined in the several instruments constituting the Courts; by special leave from the Privy Council in all cases without exception. This rule applies to the exercise of any jurisdiction, whether State or federal, vested in the State Courts, but the State Courts have not full federal jurisdiction. From their power are excepted all cases involving the relation inter se of the States, and the States and the Commonwealth.
Appeals lie also from the State Courts to the High Court of Australia in matters both of State and federal jurisdiction on terms defined in the Judicature Act, 1903, of the Commonwealth Parliament. The appellant has of course the choice of appeal. There is nothing to prevent an appeal from such Courts to decide whether any particular case falls under sec. 74 of the constitution or not. Nor is there any mode of preventing contradictory decisions on matters other than questions arising as to the limits inter se of the constitutional powers of the Commonwealth and those of any State or States, or to the limits inter se of the constitutional powers of any two or more States which cannot reach the Privy Council. The High Court further is not bound to accept the rulings of the Privy Council as superior to its own except in those cases where an actual appeal is successfully brought not from the Superior Court of a State, but from the High Court to the Privy Council.
119 See Munro, Constitution of Canada.
120 But certain important though limited powers are under the constitution itself, i.e. the British North America Act, 1867, given to the Dominion Parliament and to the Provincial legislatures, enabling them from time to time to amend their constitutions (Munro, Constitution of Canada, p. 229). See e.g. B. N. A. Act, 1867, ss. 35, 41, 45, 78, 83, 84.
provinces of the Dominion. The Dominion of Canada, on the other hand, is less subject to the Imperial Parliament than is the Commonwealth, because the Provinces of the Dominion are in a sense less directly connected with the Imperial Government and Parliament than are the States of the Commonwealth.
Here however we come across the most important distinction between Canadian federalism and Australian federalism, namely, the difference of the relation of the federal power to the States, or, as in the case of Canada they are called, the Provinces, of the federation. The Dominion possesses all the residuary powers which are not under the Constitution conferred exclusively upon the Provinces; the Commonwealth possesses only those powers which are conferred upon it by the Constitution, whilst all the residuary powers not conferred upon the Commonwealth belong to the States.
The government of the Dominion, again, can exercise very considerable control over the legislation of the Provincial legislatures and over the administration of the Provinces; the government of the Dominion can in all cases put a veto upon laws passed by the Provincial Parliaments; the government of the Dominion appoints the judges of the State Courts; the government of the Dominion, lastly, can appoint and dismiss the Lieu tenant-Governor of any Province, who therefore is neither an Imperial official nor a Provincial official, but a Dominion official.
NoteX
MARITAL LAW IN ENGLAND DURING TIME OF WAR OR INSURRECTION121
The question for our consideration is, on what principle, and within what limits, does armed resistance to the authority of the Crown, either on the part of an invading army, or on the part of
121 See Law Quarterly Review, xviii., Holdsworfh, Martial Law Historically Considered, pp. 117-132; Richards, Martial Law, ibid. pp. 133-142; Pollock, What is Martial Law? ibid. pp. 152-158; Dodd, TI-ieCaseofMarais, ibid, pp. 143-151. The Case of Ship Money, 381. Tr. 826; Wall's Case, 28 St. Tr. 51; Ex parte D. F. Marais [1902], A. C. 109; Forsyth, Cases and Opinions, ch. vi. p. 188; Clode, Military Forces of the Crown, ii. ch. xviii.
rebels or rioters, afford a legal justification for acts done in England by the Crown, its servants, or loyal citizens, which, but for the existence of war or insurrection, would be breaches of law?
In considering this question two preliminary observations must be borne in mind.
The first is that this note does not treat of several topics which are often brought within the vague term, martial law. It does not refer to Military Law, i.e. the rules contained in the Army Act and the Articles of War for the government of the Army and of all persons included within the term "persons subject to military law"; it has no reference to the laws that govern the action of an English General and his soldiers when carrying on war in a foreign country, or in their treatment of foreign invaders of England; it has no reference to transactions taking place out of England, or to the law of any other country than England. It does not refer, e.g., to the law of Scotland or of Jersey.
The second observation is that, in regard to the subject of this note, we must constantly bear in mind the broad and fundamental principle of English law that a British subject must be presumed to possess at all times in England his ordinary common-law rights, and especially his right to personal freedom, unless it can be conclusively shown, as it often may, that he is under given circumstances deprived of them, either by Act of Parliament or by some well-established principle of law. This presumption in favour of legality is an essential part of that rule of law122 which is the leading feature of English institutions. Hence, if any one contends that the existence of a war in England deprives Englishmen of any of their common-law rights, e.g. by establishing a state of martial law, or by exempting military officers from the jurisdiction of the civil Courts, the burden of proof falls distinctly upon the person putting forward this contention.
Ex parte Milligan (Am.), 4 Wall. 2, and Thayer, Cases on Constitutional Law, ii. p. 2376. This, and the other American cases on martial law, though not authorities in an English Court, contain an expostion of the common law in regard to martial law which deserves the most careful attention.
See also Note IV., Right of Self-Defence; Note V., Right of Public Meeting; Note VI., Soldiers and Unlawful Meeting, ante. 122 See chap, iv., ante.
Our topic may be considered under three heads; first, the nature of martial law; secondly, the inferences which may be drawn from the nature of martial law; thirdly, certain doctrines with regard to martial law which are inconsistent with the view propounded in this note.
NATURE OF MARTIAL LAW
"Martial law," in the sense in which the expression is here used, means the power, right, or duty of the Crown and its servants, or, in other words, of the Government, to maintain public order, or, in technical language, the King's peace, at whatever cost of blood or property may be in strictness necessary for that purpose. Hence martial law comes into existence in times of invasion or insurrection when, where, and in so far as the King's peace cannot be maintained by ordinary means, and owes its existence to urgent and paramount necessity.123 This power to maintain the peace by the exertion of any amount of force strictly necessary for the purpose is sometimes described as the prerogative of the Crown, but it may more correctly be considered, not only as a power necessarily possessed by the Crown, but also as the power, right, or duty possessed by, or incumbent upon, every loyal citizen of preserving or restoring the King's peace in the case, whether of invasion or of rebellion or generally of armed opposition to the law, by the use of any amount of force whatever necessary to preserve or restore the peace. This power or right arises from the very nature of things. No man, whatever his opinions as to the limits of the prerogative, can question the duty of loyal subjects to aid, subject to the command of the Crown, in resistance, by all necessary means, to an invading army.124 Nor can it be denied that acts, otherwise tortious, are lawful when necessary for the resistance of invaders.125
123 See Kent, Comm. i. p. 341, and opinion of Sir John Campbell and Sir R. M. Rolfe, Forsyth, Opinions on Constitutional Law, pp. 198, 199.
124 See especially the Case of Ship Money, 3 St. Tr. 860, 905, 974, 975, 1011-1013, 1:[34' ™49, 1162, and 1214.
125 See i Dyer, 3$).
When enemies come against the realm to the sea coast, it is lawful to come upon my land adjoining to the same coast, to make trenches or bulwarks for the defence of the realm, for every subject hath benefit by it. And, therefore, by the common law, every man may come upon my land for the defence of the realm, as appears 8 Ed. IV. 23. And in such case or such extremity they may dig for gravel for the making of bulwarks: for this is for the public, and every one hath benefit by it. ... And in this case the rule is true, Princeps et respublica exjusta causa possunt rem meam auferre.126
So to the same effect counsel for the defence in the Case of Ship Money.
My Lords, in these times of war I shall admit not only His Majesty, but likewise every man that hath power in his hands, may take the goods of any within the realm, pull down their houses, or burn their corn, to cut off victuals from the enemy, and do all other things that conduce to the safety of the kingdom, without respect had to any man's property.127
And though these authorities refer, as is worth noticing, to interferences with rights of property and not to interferences with personal freedom, between which there exist considerable differences, it will not (it is submitted) be disputed that, in case of invasion, a general and his soldiers acting under the authority of the Crown may lawfully do acts which would otherwise be an interference with the personal liberty, or even, under conceivable circumstances, which may cause the death of British subjects, if these acts are a necessary part of military operations. The point to be borne in mind is that the power to exercise martial law, which is not ill-described by an expression known to the American Courts, viz. the "war power," as it originates in, so it is limited by, the necessity of the case.128
On this matter note the opinion of Sir J. Campbell and Sir R. M. Rolfe that "martial law is merely a cessation from necessity of all
126 12 Rep. 12.
127 Case of Ship Money, 3 St. Tr. 826, 906. Compare especially the language of Holborne in the same case at p. 975, and language of Buller, J., in British Cast Plate Manufacturers v. Meredith, 4!. R. at p. 797.
128 See especially opinion of Henley and Yorke, Forsyth, pp. 188, 189; opinion of Hargrave, ibid. pp. 189, 190; opinion of Sir John Campbell and Sir R. M. Rolfe, ibid. pp. 198, 199.
municipal law, and what necessity requires it justifies";129 and this description of the circumstances which justify martial law also implies the limits within which it is justifiable; these have been stated with truth, if not with the precise accuracy of legal argument, by Sir James Mackintosh.
The only principle on which the law of England tolerates what is called Martial Law is necessity; its introduction can be justified only by necessity; its continuance requires precisely the same justification of necessity; and if it survives the necessity on which alone it rests for a single minute, it becomes instantly a mere exercise of lawless violence. When foreign invasion or Civil War renders it impossible for Courts of Law to sit, or to enforce the execution of their judgments, it becomes necessary to find some rude substitute for them, and to employ for that purpose the Military, which is the only remaining Force in the community. While the laws are silenced by the noise of arms, the rulers of the Armed Force must punish, as equitably as they can, those crimes which threaten their own safety and that of society; but no longer. 13°
The existence of martial law thus understood, taken in combination with the rules of the common law as to the duty of loyal subjects, gives very wide authority in England to all persons, and of course above all to a general engaged in repelling an invasion. He holds the armed forces completely under his control; they are governed by military law;131 so too are all citizens who, though not in strictness soldiers, are persons subject to military law; and in this connection it must be remembered that the King and his servants have a right to call for the help of every loyal subject in resisting an invasion,132 whence it follows that the number of persons subject to military law may be greatly, indeed almost indefinitely, increased. A general again is dearly entitled to use or occupy any land which he requires for the purpose of military operations and may, if he see fit, erect fortifications thereon, and generally he has the right to use land or any other property which is required for the conduct of the war. It is
129 Forsyth, p. 201.
130 Cited Qode,Mi7< tory Forces oftheCrown, ii.p. 486.
131 See chaps, viii. and ix., ante.
132 See Case of Ship Money, 3 St. Tr. 826, 975.
again his right, and indeed his duty, when the necessity arises, to inflict instant punishment upon, and even, if need be, put to death, persons aiding and abetting the enemy or refusing such aid to the English army as can fairly be required of them. It is indeed difficult to picture to one's self any legitimate warlike operation or measure which, while war is raging in England, a general cannot carry out without any breach of the law whatever. Let it too be noted that what is true of a general holds good of every loyal subject according to his situation and the authority which he derives from it, e.g. of a subordinate officer, of a magistrate, or even of a private citizen who is helping to resist an invader. Real obvious necessity in this case not only compels but justifies conduct which would otherwise be wrongful or criminal. To this add the consideration, which has been strongly insisted upon by several able writers, that the conditions of modern warfare, such as the existence of the telegraph, whereby acts done, e.g., in London may affect military operations, e.g., in Northumberland, greatly extend the area of necessity, and may, conceivably at least, make it legally allowable, when war or armed insurrection exists in the north of England, to interfere summarily and without waiting for legal process with the freedom of persons residing in London or Bristol. However this may be, it is dear that the existence of the necessity which justifies the use of so-called martial law must depend on the circumstances of each case.
The fact that necessity is the sole justification for martial law or, in other words, for a temporary suspension of the ordinary rights of English citizens during a period of war or insurrection, does however place a very real limit of the lawful exerdse of force by the Crown or by its servants. The presence of a foreign army or the outbreak of an insurrection in the north of England, may conceivably so affect the state of the whole country as to justify measures of extra-legal force in every part of England, but neither war nor insurrection in one part of the country prima fade suspends the action of the law in other parts thereof. The fact that the Pretender's army had advanced with unbroken success to Derby did not deprive the citizens of London of the ordinary rights of British subjects. No one has ever suggested that it would have justified the summary execution at Tyburn of an Eng-
lishman there found guilty of treason by a court-martial. It is not easy to believe that, without a breach of the law of England, an Englishman imprisoned in London on a charge of high treason could have been taken to a part of the country where in 1745 war was raging, in order that he might there be tried and executed under the authority of a court-martial.133 Nor does the consideration that the summary execution of rebels, whose crimes could be punished by the ordinary course of law, may check the spread of treason, show that their execution is necessary or legal. We need not, moreover, confine our observation to cases of punishment. It is easy to imagine circumstances under which the arrest and imprisonment on suspicion of persons who are not guilty, or cannot be proved guilty of crime, may be salutary and expedient, but such arrest or imprisonment cannot be legally justified unless it be a matter of necessity.134 If it be urged, that the respect due in England to the ordinary law of the land places restrictions which may be inconvenient or even noxious on the exercise of the authority of the Crown and its servants, the truth of the observation may be admitted. The reply to it is twofold: first, that the maintenance of the legal rights of citizens is itself a matter of the highest expediency; secondly, that whenever at a period of national danger a breach of law is demanded, if not by absolute necessity, yet by considerations of political expediency, the lawbreaker, whether he be a general, or any other servant of the Crown, who acts bona fide and solely with a view to the public interest, may confidently count on the protection of an Act of Indemnity.
Nor is it irrelevant at this point to note the striking analogy between the right of an individual to exercise force, even to the extent of causing death, in self-defence, and the right of a general or other loyal citizen to exercise any force whatever necessary for the defence of the realm. In either case the right arises from necessity. An indi-
133 If the language in the Charge of Blackburn, J., Reg. v. Eyre, p. 84, be cited in support of the possible legality of such a transaction, it must be remembered that Blackburn's hypothetical apology for Governor Eyre was based on certain statutes passed by the legislature of Jamaica, and that the whole tendency of the Charge of Cockburn, C. J., in Reg. v. Nelson, is to show that the execution of Gordon was illegal.
134 See specially language of Holborne, Case of Ship Money, 3 St. Tr. p. 975.
vidual may use any amount of force necessary to avert death or grievous bodily harm at the hands of a wrongdoer,135 but, if he kills a ruffian, he must to justify his conduct show the necessity for the force employed in self-protection. So a general, who under martial law imprisons or kills British subjects in England, must, if he is to escape punishment, justify his conduct by proving its necessity. The analogy between the two cases is not absolutely complete, but it is suggestive and full of instruction.
Observe, further, that the principle which determines the limits of martial law is the principle which also determines the rights and duties of magistrates, of constables, and of loyal citizens generally when called upon to disperse or prevent unlawful assemblies or to suppress a riot. No doubt the degree and the area of the authority exercised by a general when resisting an invading army is far greater than the degree and the area of the authority exercised by a mayor, a magistrate, or a constable when called upon to restore the peace of a town disturbed by riot, but the authority though differing in degree has the same object and has the same source. It is exercised for the maintenance of the King's peace; it is justified by necessity. So true is this, that, when you need to fix the limits of martial law, you are compelled to study the case otRex v. Pinney,136 which refers not to the power and authority of a general in command of soldiers, but to the duty of the Mayor of Bristol to suppress a riot.
In every case in which the legal right or duty arises to maintain the King's peace by the use of force, there will be found to exist two common features. The legal right, e.g. of a general or of a mayor, to override the ordinary law of the land is, in the first place, always correlative to his legal duty to do so. Such legal right or duty, in the second place, always lasts so long, and so long only, as the circumstances exist which necessitate the use of force. Martial law exists only during time of war; the right of a mayor to use force in putting an end to a riot ceases when order is restored, just as it only begins when a breach of the peace is threatened or has actually taken place.
135 See App., Note IV., The Right of Self-Defence, p. 341, ante.
136 3 St. Tr. (n. s.) 11, with which compare Blackburn's Charge in R. v. Eyre, pp. 58, 59.
The justification and the source of the exercise in England of extraordinary or, as it may be termed, extra-legal power, is always the necessity for the preservation or restoration of the King's peace.
CONCLUSIONS
From the nature of martial law137 follow four conclusions: —
First, martial law cannot exist in time of peace.
This is on all hands admitted.138
What, then, is the test for determining whether a state of peace exists at a given time, in a given part of England, say London?
The answer is that no unfailing test is to be found; the existence of a state of peace is a question of fact to be determined in any case before the Courts in the same way as any other such question.139
According, indeed, to a number of old and respectable authorities, a state of war cannot exist, or, in other words, a state of peace always does exist when and where the ordinary Courts are open. But this rule cannot, it would seem, be laid down as anything like an absolute principle of law, for the fact that for some purposes some tribunals have been permitted to pursue their ordinary course in a district in which martial law has been proclaimed, is not conclusive proof that war is not there raging. 14° Yet the old maxim, though not to be accepted as a rigid rule, suggests, it is submitted, a sound principle. At a time and place where the ordinary civil Courts are open, and fully and freely exercise their ordinary jurisdiction, there exists, presumably, a state of peace, and where there is peace there cannot be martial law.
If, in foreign invasion or civil war, the Courts are actually closed, and it is impossible to administer criminal justice according to law, then, on the theatre of active military operations, where war really prevails, there is a necessity to furnish a substitute for the civil authority, thus overthrown, to preserve the safety of the army and society; and as no power is left but the
137 Cockburn's Charge, Reg. v. Nelson, p. 85.
138 Compare Ex parte D. F. Marais [1902], A. C. 109; Ex parte Milligan, 4 Wall. 2 (Am.).
139 Whether the Courts may not take judicial notice of the existence of a state of war?
140 Ex parte D. F. Marais [1902], A. C. 109.
military, it is allowed to govern by martial rule until the laws can have their free course. As necessity creates the rule, so it limits its duration; for, if this government is continued after the Courts are reinstated, it is a gross usurpation of power. Martial rule can never exist where the Courts are open, and in the proper and unobstructed exercise of their jurisdiction. It is also confined to the locality of actual war.141
Secondly, the existence of martial law does not in any way depend upon the proclamation of martial law.
The proclamation of martial law does not, unless under some statutory provision, add to the power or right inherent in the Government to use force for the repression of disorder, or for resistance to invasion. It does not confer upon the Government any power which the Government would not have possessed without it. The object and the effect of the proclamation can only be to give notice, to the inhabitants of the place with regard to which martial law is proclaimed, of the course which the Government is obliged to adopt for the purpose of defending the country, or of restoring tranquillity.142
Thirdly, the Courts have, at any rate in time of peace, jurisdiction in respect of acts which have been done by military authorities and others during a state of war.143
"The justification of any particular act done in a state of war is ultimately examinable in the ordinary Courts, and the prior question, whether there was a state of war at a given time and place, is a question of fact."144
The truth of this statement of the law is almost self-evident. A sues X in the High Court for assault and for false imprisonment; X justifies the alleged assault on the ground that X was at the time of the act complained of the colonel of a regiment, and that the alleged assault was the arrest and imprisonment of A by X under the orders, say, of the Commander-in-chief, during a time of war and after the proclamation of martial law. The defence may or may not be good, but it is
141 Ex parte Milligan, 4 Wall. 2; Thayer, Cases on Constitutional Law, partiv. p. 2390.
142 See opinion of Campbell and Rolfe, Forsyth, p. 198.
143 See Cockburn's Charge, Reg. v. Nelson; Blackburn's Charge, Reg. v. Eyre; Ex parte Milligan, 4 Wall, 2; and compare Wall's Case, 28 St. Tr. 51. Wright v. Fitzgerald, 27 St. Tr. 759.
144 Sir F. Pollock, What is Martial Law? L. Q. R. xviii. pp. 156, 157.
certain that the Courts have, at any rate after the restoration of peace, jurisdiction to inquire into the facts of the case, and that one of the necessary inquiries is whether a state of war did exist at the time when A was arrested, though it is quite possible that the existence of a state of war may be a fact of which the Courts take judicial notice. Expressions, indeed, have been used in a recent case145 which, if taken alone, might seem to assert that the ordinary Courts have no jurisdiction in respect of acts which have been done by military authorities in time of war. But the very width of the language used by the Privy Council in Ex parte D. F. Marais warns us that it must be limited to the circumstances of the particular case. It does not necessarily assert more, and as regards transactions taking place in England, cannot be taken to mean more than that the Courts will not, as indeed they in strictness cannot, interfere with actual military operations, or, whilst war is actually raging, entertain proceedings against military men and others for acts done under so-called martial law. The judgment of the Privy Council, in short, whatever the application of its principles to England, asserts nothing as to the jurisdiction of the Courts when peace is restored in respect of acts done during time of war, and eminent lawyers have held that even in time of war the exercise of jurisdiction by the ordinary Courts is rather rendered impossible than superseded.
The question, how far martial law, when in force, supersedes the ordinary tribunals, can never . . . arise. Martial law is stated by Lord Hale to be in truth no law, but something rather indulged than allowed as a law, and it can only be tolerated because, by reason of open rebellion, the enforcing of any other law has become impossible. It cannot be said in strictness to supersede the ordinary tribunals, inasmuch as it only exists by reason of those tribunals having been already practically superseded.146
Fourthly, the protection of military men and others against actions or persecutions in respect of unlawful acts done during a time of war, bona fide, and in the service of the country, is an Act of Indemnity.147
145 Exparte D. F. Marais [1902,] A. C. 109, 114, 115, judgment of Privy Council.
146 Joint opinion of Sir J. Campbell and Sir R. M. Rolfe, cited Forsyth, p. 199.
147 See pp. 10, 142, ante.
An Act of Indemnity is a statute the object of which is to make legal transactions which, when they took place, were illegal, or to free individuals to whom the statute applies from liability for having broken the law. Statutes of this description have been invariably, or almost invariably, passed after the determination of a period of civil war or disturbance, e.g. after the Rebellions of 1715 and of 1745,148 and their very object has been to protect officials and others who, in the interest of the country, have in a time of danger pursued an illegal course of conduct, e.g. have imprisoned citizens whom they had no legal authority to imprison. For our present purpose it is absolutely essential to appreciate the true character of an Act of Indemnity. Such a statute has no application to conduct which, however severe, is strictly lawful. A magistrate who, under proper circumstances, causes an unlawful assembly to be dispersed by force, or an officer who, under proper circumstances, orders his troops to fire on a mob and thereby, in dispersing the mob, wounds or kills some of the crowd, neither of them require to be indemnified. They are sufficiently protected by the common-law justification that in discharge of their duty they used the force, and no more than the force necessary to maintain the King's peace. A general, an officer, a magistrate, or a constable, on the other hand, who, whether in time of war or in time of peace, does without distinct legal justification, any act which injures the property or interferes with the liberty of an Englishman, incurs the penalties to which every man is liable who commits a breach of the law. The law-breaker's motives may be in the highest degree patriotic, his conduct may be politically sagacious, and may confer great benefit on the public, but all this will not, in the absence of legal justification, save him from liability to an action, or, it may be, to a prosecution; he needs for his protection an Act of Indemnity. On this point note the words of a judge of the highest reputation, who was by no means inclined to minimise the authority of the Crown and its servants.
Where the inquiry is, whether an officer is guilty of misdemeanour from an excess beyond his duty, the principle is very much the same, or rather it is
148 See Qode, Military Forces of the Crown, ii. pp. 164, 165; iGeo. I. St. 2, c. 39, and igGeo. II. c. 20.
the complement of that laid down in the case of Rex v. Pinney. If the officer does some act altogether beyond the power conferred upon him by law, so that it could never under any state of circumstances have been his duty to do it, he is responsible according to the quality of that act; and even if the doing of that illegal act was the salvation of the country, that, though it might be a good ground for the Legislature afterwards passing an Act of Indemnity, would be no bar in law to a criminal prosecution; that is, if he has done something clearly beyond his power. But if the act which he has done is one which, in a proper state of circumstances, the officer was authorised to do, so that in an extreme case, on the principle laid down in R. v. Pinney, he might be criminally punished for failure of duty for not doing it, then the case becomes very different.149
This passage from Blackburn's charge suggests further the proper answer to an objection which is sometimes raised against the view of martial law maintained in this treatise.
How, it is urged, can it be reasonable that a man should be liable to punishment, and therefore need an indemnity for having done an act (e.g. having by the use of force dispersed the mob) which it was his duty to do, and for the omission to do which he might have incurred severe punishment?
The answer is, that the supposed difficulty or dilemma cannot in reality arise. The apparent or alleged unreasonableness of the law is created by the ambiguity of the word duty, and by confusing a man's "legal duty" with his "moral duty." Now, for the non-performance of a man's legal duty, he may, of course, be punished, but for the performance of a legal duty he needs no Act of Indemnity. For the performance, on the other hand, of any moral duty, which is not a legal duty, a man may undoubtedly, if he thereby infringes upon the rights of his fellow-citizens, expose himself to punishment of one kind or another, and may therefore need an Act of Indemnity to protect him from the consequences of having done what is legally wrong, though, under the peculiar circumstances of the case, morally right. But then, for the non-performance of a merely moral duty, he will not incur the risk of punishment. If the Mayor of Bristol omits, by the use of the necessary force, to put down a riot, this omission undoubtedly exposes him to punishment, since he neglects to per-
149 Blackburn's Charge, Reg. v. Eyre, p. 58.
form a legal duty; but if he does perform his duty, and by the use of a proper amount of force puts down the riot, he incurs no legal liability to punishment, and needs no Act of Indemnity for his protection. If, on the other hand, at a period of threatened invasion or rebellion, a magistrate, without any legal authority, arrests and imprisons on suspicion a number of persons whom he holds to be disloyal, he may be performing a moral duty, and, if his view of the state of things turns out right, may have rendered a great service to the country; but he assuredly needs an Act of Indemnity to protect him from actions for false imprisonment. But, and this is the point to note, if our magistrate be a man of more prudence than energy, and omits to arrest men whom ex hypothesi he has no legal right to arrest, his conduct may incur the blame of patriots, but cannot bring him before the Courts. A man, in short, may be punished for having omitted to do an act which it is his legal duty to perform, but needs no Act of Indemnity for having done his legal duty. A man, on the other hand, who does a legal wrong, whilst performing a moral which is not a legal duty does require an Act of Indemnity for his protection, but then a man will never incur punishment for the simple omission to perform a merely moral duty.
OTHER DOCTRINES WITH REGARD TO
MARTIAL LAW
In opposition to the view of martial law upheld in this treatise, which may conveniently be termed the "doctrine of immediate necessity," three other doctrines are, or have been maintained. Of these the first bases the use of martial law on the royal prerogative; the second on the immunity of soldiers from liability to proceedings in the civil Courts as contrasted with the military Courts for any act bond fide done in the carrying out of military operations; and the third (which extends very widely the meaning of the term necessity) on political necessity or expediency.
The Doctrine of the Prerogative
It is sometimes alleged, or implied, that the Crown may, by virtue of the prerogative, in time of war proclaim martial law, and suspend
or override the ordinary law of the land, and this view is supposed to derive support from the consideration that the Petition of Right does not condemn martial law in time of war.
The fatal objection to this doctrine, in so far as it means anything more than the admitted right of the Crown and its servants to use any amount of force necessary for the maintenance of the peace or for repelling invasion, is that it utterly lacks legal authority, whilst to the inference suggested from the language of the Petition of Right no better reply can be given than that supplied by the words of Blackburn, namely, "It would be an exceedingly wrong presumption to say that the Petition of Right, by not condemning martial law in time of war, sanctioned it," though, as he cautiously adds, "it did not in terms condemn it."150
The Doctrine of Immunity151
This doctrine, it is conceived, may be thus stated. An officer in command of an army must of necessity, in carrying out military operations against an invader, override ordinary rights whether of property or of personal liberty. Decisive authorities may be produced152 in support of the proposition that he may lawfully violate rights of property, e.g. can, without incurring any legal liability, do acts which amount to trespass. But all legal rights stand on the same level; and if an officer can lawfully occupy an Englishman's land, or destroy his property, he can also lawfully, whilst bona fide carrying on war against a public enemy, imprison Englishmen, inflict punishment upon them, or even deprive them of life, and, in short, interfere with any of the rights of Englishmen in so far as is required for the carrying out of military operations. The soundness of this view is, it is urged, confirmed by the admitted inability of a civil Court to judge of the due discharge of military duties, and by the consideration that no
150 Blackburn's Charge, R. v. Eyre, p. 73, with which should be read pp. 69-73, which suggest the reasons why the authors of the Petition of Right may have omitted all reference to martial law in time of war.
151 See for a very able statement of the theory here criticised, H. Erie Richards' Martial Law, L. Q. R. xviii. p. 133.
152 See pp. 399, 400, ante.
Court would, or in fact could, during a period of warfare interfere with a general's mode of conducting the war, or with any act done by him or by soldiers acting under his orders, whence, as it is alleged, it follows that acts bona fide done in the course of military operations fall outside the jurisdiction of the ordinary Courts, not only during war time, but also after the restoration of peace.153 To put this doctrine of immunity in what appears to me to be its most plausible form, the outbreak of war is to be regarded as a suspension of the ordinary law of the land, as regards, at any rate, officers in command of troops and engaged in resisting invaders. On this view a general would occupy, during the conduct of war, a position analogous to that of a judge when engaged in the discharge of his judicial functions, and no action or other proceeding in the Courts of Common Law would lie against an officer for acts bona fide done as a part of a military operation, just as no action lies against a judge for acts done in discharge of his official duties.
This doctrine of immunity is, however, open, it is submitted, to the very strongest objections. Most of the undoubted facts on which it rests, e.g. the right of a general when resisting an invasion to use freely the land or other property of Englishmen, are merely applications of the principle that a loyal citizen may do any act necessary for the maintenance of the King's peace, and especially for the defeat of an invading army. But for the broad inferences based on this fact and similar facts there appears to exist no sufficient ground.
In support of the doctrine of immunity there can be produced no direct authority, whilst it appears to be absolutely inconsistent, not only with the charge of Cockburn, C.J., in Rex v. Nelson, but also with the principles or assumptions which are laid down or made in the charge of Blackburn,}., in Rex v. Eyre. The doctrine, further, is really inconsistent with the constant passing of Acts of Indemnity with a view to covering deeds done in the course of civil war or of rebellion. Nor is it easy to follow the line of reasoning by which it is assumed that if the Courts have no power to interfere with the acts of a general or his soldiers whilst war is raging, the Courts have no jurisdiction to
153 See L. Q. R. xviii. p. 140.
entertain during peace proceedings in respect of acts done by a general and his soldiers during a time of war. Here, at any rate, we apparently come into contradiction with some of the best known facts of legal history. The Courts, not only of England, but also of the United States, have never entertained the least doubt of their jurisdiction to inquire into the character of any act done during war time which was prima fade a breach of law.
The Doctrine of Political Necessity or Expediency154
The existence of war or invasion justifies — it is maintained by eminent lawyers, whose opinion is entitled to the highest respect — the use of what is called martial law to this extent, namely, that, e.g. during an invasion, a general, a mayor, a magistrate, or indeed any loyal citizen, is legally justified in doing any act, even though prima fade a tort or a crime, as to which he can prove to the satisfaction of a jury that he did it for the public service in good faith, and for reasonable and probable cause. This doctrine, which for the sake of convenience I term the doctrine of political expediency, manifestly justifies from a legal point of view many acts not dictated by immediate necessity. The scope thereof may be best understood from an example which I give in the words of its ablest and very learned advocate, Sir Frederick Pollock:
An enemy's army has landed in force in the north, and is marching on York. The peace is kept in London and Bristol, and the Courts are not closed. It is known that evil-disposed persons have agreed to land at several ports for the purpose of joining the enemy, and giving him valuable aid and information. Bristol is one of the suspected ports. What shall the Lord Mayor of Bristol do? I submit that it is his plain moral duty as a good citizen (putting aside for a moment the question of strict law) to prevent suspected persons from landing, or to arrest and detain them if found on shore; to assume control of the railway traffic, and forbid undesirable passengers to proceed northward, and to exercise a strict censorship and inquisitorial power over letters and telegrams. All these things are in themselves trespasses (except, probably, forbidding an alien to land); some of them may perhaps be justifiable under the statutory powers of the Postmaster-General, but summary restraint by way of prevention must be justified by a common law power
154 See Pollock, What is Martial Law? L.Q.R. xviii. p. 162.
arising from necessity, if at all. Observe that I say nothing for the present about trial or punishment. The popular (and sometimes official) notion that martial law necessarily means trial by court-martial has caused much confusion. Summary punishment may or may not be necessary. In that respect the Mayor's authority would be like that of the master of a ship.
Now, if the Lord Mayor of Bristol fails to do these things, he will surely find himself in as much trouble as his predecessor [Mr. Pinney] in the time of the Bristol riots. And I do not think he will improve his defence by pleading that the peace was still kept in Bristol, and the Courts were open, and therefore he thought he had no power to do anything beyond the ordinary process of law. Nor yet will he mend matters if he says that he was waiting for an Order in Council which was never issued, or never came to his knowledge. At best it will be a topic of slight mitigation.155
The objections to a view which at bottom differs essentially from what I have termed "the doctrine of immediate necessity" are these: The theory under consideration rests on little legal authority, except the case otRex v. Pinney;156 but that case, when its circumstances are examined, does not justify the inferences apparently grounded upon it. The charge against Mr. Pinney was in substance that, being the magistrate specially responsible for the maintenance of order in the town of Bristol, he neglected to take the proper steps to prevent the outbreak of a riot, and after the King's peace had been openly violated by rioters, the prison broken open, and the Bishop's Palace and other houses burned down, he did not take adequate steps to arrest offenders or to restore order. It is impossible to imagine a case under which there could exist a more urgent and stringent necessity for the use of force in the restoration of order. If the charges brought by the Crown could have been made out, Mr. Pinney would have been guilty of as patent a neglect of duty as could have been committed by any public official placed in a position of high authority. That he acted feebly can hardly be doubted; yet, in spite of this, he was, with the apparent approval of the Judge, held innocent of any crime. The point, however, specially to be noted is that, in Pinney's Case, no question whatever was raised as to the possible justification for acts which were prima fade tortious, but were done by a magistrate on
155 Pollock, What is Martial Law? L. Q. R. xviii. pp. 155, 156.
156 3 St. Tr. (n. s.) 11.
reasonable grounds of public expediency, though lying quite outside the scope of his ordinary authority. How, in short, the case of Mr. Pinney, which at most establishes only that a magistrate who fails to make due efforts to maintain the peace is guilty of a crime, can be supposed to justify the action of the imaginary Mayor of Bristol, who because an invasion is taking place feels it to be his right or his duty to override, in a town where peace prevails, all the ordinary rules of the common law, many lawyers will find it difficult to explain. Still harder will they find it to point out why a mayor, under the circumstances so graphically described by Sir Frederick Pollock, should fear that his failure to show despotic energy should expose him to the legal charges brought against Mr. Pinney. But if Pinney's case does not go far enough to sustain the doctrine of political expediency, I know of no other case which can be produced in its support.
This doctrine, however, is open to the further objection, of which its able advocate recognises the force, that it is inconsistent with the existence of Acts of Indemnity. Sir Frederick Pollock writes:
It may be objected that, if the view now propounded is correct, Acts of Indemnity are superfluous. But this is not so. An Act of Indemnity is a measure of prudence and grace. Its office is not to justify unlawful acts ex post facto, but to quiet doubts, to provide compensation for innocent persons in respect of damage inevitably caused by justifiable acts which would not have supported a legal claim.157
The attempt to meet this objection is ingenious, but the endeavour rests on a very inadequate description of an Act of Indemnity. Such a statute may no doubt be in part a measure of prudence and grace, but it is usually far more than this. The Indemnity Acts, whatever their formal language, which for a century or so protected Nonconformists from penalties incurred year by year through the deliberate breach of the Test and Corporation Acts, the Acts of Indemnity passed after the Rebellions of 1715 and of 1745, the Act of Indemnity passed by the Irish Parliament after the Rebellion of 1798 which was not wide
157 Pollock, What is Martial Law? L. Q. R. xviii. p. 157.
enough to protect Mr. T. Judkin Fitzgerald158 from actions for acts of cruelty done by him in the suppression of the Rebellion, the further Act finally passed which apparently was wide enough to place him beyond the reach of punishment, and the Act of the legislature of Jamaica which was successfully pleaded by the defendant in Phillips v. Eyre, were, it is submitted, all of them enactments intended to protect men from the consequences of a breach of the law. An Act of Indemnity in short is, as is insisted upon throughout this treatise, the legalisation of illegality, and is constantly intended to protect from legal penalties men who, though they have acted in the supposed, or even real discharge of a political duty, have broken the law of the land. This is a point on which it is necessary to insist strongly, for the determination of the question at issue between the supporters of the "doctrine of immediate necessity" and the advocates of the "doctrine of political necessity," turns upon the answer to the inquiry, What is the true nature of an Act of Indemnity? If such an Act is essentially the legalisation of illegality, the doctrine of political necessity or expediency falls, it is submitted, to the ground.
Two circumstances give an apparent but merely apparent impres-siveness to the doctrine of political expediency. The first is the paradox involved in the contention that action on behalf of the State which is morally right may be legally wrong, and., therefore, be the proper object of an Act of Indemnity. This paradox however is, as already pointed out, apparent only, and after all amounts merely to the assertion that a man's ordinary duty is to keep within the limits of the law, and that, if he is at any moment compelled, on grounds of public interest, to transgress these limits, he must obtain the condonation of the sovereign power, i.e. the King in Parliament. The second is the current idea that, at a great crisis, you cannot have too much energy. But this notion is a popular delusion. The fussy activity of a hundred mayors playing the part of public-spirited despots would increase tenfold the miseries and the dangers imposed upon the country by an invasion.
158 Wright v. Fitzgerald, 27 St. Tr. 759; Lecky, History of England in Eighteenth Century, viii. pp. 22-27.
Note XI
CONSTITUTION OF THE TRIBUNAL DBS CONFLITSls9
The Conflict Court consists of the following persons:
I. A President, the Minister of Justice (Garde des sceaux). 16° He rarely attends, though he may attend, preside, and vote.
II. Eight elected judges, namely: —
a. Three judges of the Court of Cassation (Conseillers a la Cour de Cassation) elected for three years by their colleagues, i.e. by the judges of the Court of Cassation.
b. Three members of the Council of State (Conseillers d'etat en service ordinaire)161 elected for three years by their colleagues (i.e. by the Conseillers d'etat en service ordinaire).
c. Two other persons elected by the foregoing six judges of the Conflict Court, enumerated under heads a and b.
These two other persons ought in strictness to be elected neither from the judges of the Court of Cassation nor from the members of the Council of State, but they are in general elected one from the Court of Cassation, the other from the Council of State.
These eight persons, who are re-eligible and usually re-elected, or, if we include the Minister of Justice, these nine persons, constitute the judges of the Conflict Court.
Then there are two substitutes (suppleants) elected by the judges coming under the heads a and b who act only when one of the judges of the Conflict Court cannot act.
There are further two so-called Commissioners of the Government (Commissaires du Gouvemement)162 appointed for a year by the Presi-
159 See Berthelemy, Traite Elementaire de Droit Administratif (5* ed.), pp. 880, 881; Chardon, UAdministration de la France, p. 411.
160 A Vice-President, who generally presides, is elected by and from the eight elected judges of the Conflict Court.
161 Conseillers d'etat en service ordinaire are permanent members of the Council of State. They are contrasted with Conseillers en service extraordinaire, who are temporary members of the Council, for the discharge of some special duty. See Berthelemy, p. 126.
162 The name may be misleading. These commissioners are, it is said, absolutely free from
dent of the Republic; the one for a year from the Masters of Requests (Maitres des requetes), who belong to the Council of State, the other from the class of public prosecutors, belonging to the Court of Cassation (avocats generaux a la Cour de Cassation).
NoteXII
PROCEEDINGS AGAINST THE CROWN
Technically it is impossible under English law to bring an action against the Crown, and this impossibility is often said to be based on the principle that the Crown can do no wrong. Hence well-informed foreign critics, and perhaps some Englishmen also, often think that there is in reality no remedy against the Crown, or in other words, against the Government, for injuries done to individuals by either,
1. The breach of a contract made with the Crown, or with a Government department, or
2. A wrong committed by the Crown, or rather by its servants. This idea is however in substance erroneous.
AS TO BREACH OF CONTRACT
For the breach of a contract made with a Government department on behalf of the Crown a Petition of Right will in general lie, which though in form a petition, and requiring the sanction of the Attorney-General (which is never refused), is in reality an action.
Many Government departments, further, such for instance as the Commissioners of Works, who have the general charge of public buildings, are corporate bodies, and can be sued as such.
Contracts made with Government departments or their representatives are made on the express or implied terms of payment out of monies to be provided by Parliament, but the risk of Parliament not providing the money is not one which any contractor takes into consideration.
pressure by the Government. They are representatives of the law, they are not strictly judges, the opinions which they express often disagree with the opinion of the representative of the Government, viz. the prefect, who has raised the conflict, i.e. has brought before the Court the question whether a judicial court has exceeded its jurisdiction by dealing with a question of administrative law.
AS TO WRONGS
Neither an action nor a Petition of Right lies against the Crown for a wrong committed by its servants.
The remedy open to a person injured by a servant of the Crown in the course of his service is an action against the person who has actually done or taken part in doing the wrongful act which has caused damage. But, speaking generally, no injustice results from this, for the Crown, i.e. the Government, usually pays damages awarded against a servant of the State for a wrong done in the course of his service. Actions, for instance, have been constantly brought against officers of the Royal Navy for damage done by collisions with other ships caused by the negligence of such officers. The damage recovered against the officer is almost invariably paid by the Admiralty.
It would be an amendment of the law to enact that a Petition of Right should lie against the Crown for torts committed by the servants of the Crown in the course of their service. But the technical immunity of the Crown in respect of such torts is not a subject of public complaint, and in practice works little, if any, injustice.
It should be further remembered that much business which in foreign countries is carried on by persons who are servants of the State is in England transacted by corporate bodies, e.g. railway companies, municipal corporations, and the like, which are legally fully responsible for the contracts made on their behalf or wrongs committed by their officials or servants in the course of their service.163
Note XIII
PARLIAMENT ACT, 1911
[t & 2 Geo. 5.01.13.]
An Act to make provision with respect to the powers of the House of Lords in relation to those of the House of Commons, and to limit the duration of Parliament.
[i8th August, 1911.]
163 See Lowell, The Government of England, ii. pp. 490 — 494.
Whereas it is expedient that provision should be made for regulating the relations between the two Houses of Parliament:
And whereas it is intended to substitute for the House of Lords as it at present exists a Second Chamber constituted on a popular instead of hereditary basis, but such substitution cannot be immediately brought into operation:
And whereas provision will require hereafter to be made by Parliament in a measure effecting such substitution for limiting and defining the powers of the new Second Chamber, but it is expedient to make such provision as in this Act appears for restricting the existing powers of the House of Lords:
Be it therefore enacted by the King's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows: —
i. — (i) If a Money Bill, having been passed by the House of Commons, and sent up to the House of Lords at least one month before the end of the session, is not passed by the House of Lords without amendment within one month after it is so sent up to that House, the Bill shall, unless the House of Commons direct to the contrary, be presented to His Majesty and become an Act of Parliament on the Royal Assent being signified, notwithstanding that the House of Lords have not consented to the Bill.
(2) A Money Bill means a Public Bill which in the opinion of the Speaker of the House of Commons contains only provisions dealing with all or any of the following subjects, namely, the imposition, repeal, remission, alteration, or regulation of taxation; the imposition for the payment of debt or other financial purposes of charges on the Consolidated Fund, or on money provided by Parliament, or the variation or repeal of any such charges; supply; the appropriation, receipt, custody, issue or audit of accounts of public money; the raising or guarantee of any loan or the repayment thereof; or subordinate matters incidental to those subjects or any of them. In this subsection the expressions "taxation," "public money," and "loan" respectively do not include any taxation, money, or loan raised by local authorities or bodies for local purposes.
(3) There shall be endorsed on every Money Bill when it is sent up to the House of Lords and when it is presented to His Majesty for assent the certificate of the Speaker of the House of Commons signed by him that it is a Money Bill. Before giving his certificate, the Speaker shall consult, if practicable, two members to be appointed from the Chairmen's Panel at the beginning of each Session by the Committee of Selection.
2. — (i) If any Public Bill (other than a Money Bill or a Bill containing any provision to extend the maximum duration of Parliament beyond five years) is passed by the House of Commons in three successive sessions (whether of the same Parliament or not), and, having sent up to the House of Lords at least one month before the end of the session, is rejected by the House of Lords in each of those sessions, that Bill shall, on its rejection for the third time by the House of Lords, unless the House of Commons direct to the contrary, be presented to His Majesty and become an Act of Parliament on the Royal Assent being signified thereto, notwithstanding that the House of Lords have not consented to the Bill: Provided that this provision shall not take effect unless two years have elapsed between the date of the second reading in the first of those sessions of the Bill in the House of Commons and the date on which it passes the House of Commons in the third of those sessions.
(2) When a Bill is presented to His Majesty for assent in pursuance of the provisions of this section, there shall be endorsed on the Bill the certificate of the Speaker of the House of Commons signed by him that the provisions of this section have been duly complied with.
(3) A Bill shall be deemed to be rejected by the House of Lords if it is not passed by the House of Lords either without amendment or with such amendments only as may be agreed to by both Houses.
(4) A Bill shall be deemed to be the same Bill as a former Bill sent up to the House of Lords in the preceding session if, when it is sent up to the House of Lords, it is identical with the former Bill or contains only such alterations as are certified by the Speaker of the House of Commons to be necessary owing to the time which has elapsed since the date of the former Bill, or to represent any amendments which have been made by the House of Lords in the former
Bill in the preceding session, and any amendments which are certified by the Speaker to have been made by the House of Lords in the third session and agreed to by the House of Commons shall be inserted in the Bill as presented for Royal Assent in pursuance of this section:
Provided that the House of Commons may, if they think fit, on the passage of such a Bill through the House in the second or third session, suggest any further amendments without inserting the amendments in the Bill, and any such suggested amendments shall be considered by the House of Lords, and, if agreed to by that House, shall be treated as amendments made by the House of Lords and agreed to by the House of Commons; but the exercise of this power by the House of Commons shall not affect the operation of this section in the event of the Bill being rejected by the House of Lords.
3. Any certificate of the Speaker of the House of Commons given under this Act shall be conclusive for all purposes, and shall not be questioned in any court of law.
4. — (i) In every Bill presented to His Majesty under the preceding provisions of this Act, the words of enactment shall be as follows, that is to say: —
"Be it enacted by the King's most Excellent Majesty, by and with the advice and consent of the Commons in this present Parliament assembled, in accordance with the provisions of the Parliament Act, 1911, and by authority of the same, as follows."
(2) Any alteration of a Bill necessary to give effect to this section shall not be deemed to be an amendment of the Bill.
5. In this Act the expression "Public Bill" does not include any Bill for confirming a Provisional Order.
6. Nothing in this Act shall diminish or qualify the existing rights and privileges of the House of Commons.
7. Five years shall be substituted for seven years as the time fixed for the maximum duration of Parliament under the Septennial Act, 1715.
8. This Act may be cited as the Parliament Act, 1911.
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