THE RIGHT TO RIOT.
THE right of persons so disposed, to meet in the public streets in order to enforce, by open conflict with the authority commissioned to maintain order in the Metropolis, what such persons happen to consider to be their lawful rights as regards the convening of assemblies and the formation of processions, has of late been debated with more than ordinary passion. It may be worth while, in view of the interest thus awakened in the minds of the public, to try and estimate generally, and not in connection with any particular case, the respective rights and duties of the public and the police in regard to assemblies, lawful and unlawful. As in all cases where public discussion takes place in England on a point of law, the contrast between the technical and strict meaning of words in the law, and their general and loose use in ordinary speech, produces an apparent confusion. As a result of this apparent confusion, the law seems perplexed and unintelligible, or, if just intelligible, contrary to natural reason. In the present case, it is alleged to be all these things. Yet, as a matter of fact, if we do but examine the law closely enough, it will be seen, as is often the case, to be nothing but ordinary common-sense. We propose, then, to state shortly here, and as untechnically as possible, what is the law relating to unlawful and riotous assemblies.
We presume that the following proposition will be universally admitted as good law and good common-sense :- The police have a right to prevent any persons whom they see, in the streets or public places, committing unlawful acts, from continuing to commit those acts.
If, then, it is admitted that there is such a thing as an unlawful assembly, which can hardly be denied, the police have a right to prevent persons whom they see committing the offence of unlawful assembly from continuing to commit it,—i.e., they may disperse unlawful assemblies. It must, therefore, be next asked, What is an unlawful assembly ? as on this depends the whole power of the police to disperse crowds. Fortu- nately, we have a most clear, full, and explicit definition of an unlawful assembly from an authoritative legal source, a defini- tion which has been again and again cited with approval and acted on in the Courts during the present century. The following is the definition of an unlawful assembly from Hawkins's "Pleas of the Crown," c. 65, sec. 9 :—"Any meeting whatsoever of great numbers of people with such circumstances of terror as cannot but endanger the public peace and raise fears and jealousies among the King's subjects, seems properly to be called an unlawful assembly; as where great numbers complaining of a common grievance meet together, armed in a warlike manner, in order to consult together concerning the most proper means for the recovering of their interests ; for no one can foresee what may be the event of such an assembly." To understand properly the law as it relates to unlawful assemblies, it is essential to notice that this definition says nothing whatever as to the object for which the assembly has come together. That is entirely immaterial. The object may be a perfectly lawful and legitimate one, and yet the assembly may be unlawful by reason of its demeanour. The lawfulness of the objects for which the assembly has been convened has nothing whatever to do with the lawfulness of assembly itself. This fact is even more clearly stated in the authoritative definition of riot—which is, in fact, an aggravated form of unlawful assembly—also given in Hawkins's "Pleas of the Crown," c. 65, sec. 1 :—" A riot seems to be a tumultuous disturbance of the peace, by three persons, or more, assembling together of their own authority, with an intent mutually to assist one another, .against any who shall oppose them, in the execution of some enterprise of a private nature, and afterwards actually executing the same in a violent mid turbulent manner, to the terror of the people, whether the act intended was of itself lawful or unlawful." • When, then, it is necessary to consider the respective rights and duties of the
police and the crowd in a case where a collision has occurred between them, and to determine whether the crowd was or was not an unlawful or a riotous assembly, the first thing that we must do is to banish from our minds all idea of making the answer depend upon whether the object for which the crowd was assembled was or was not a lawful one. Such considerations have nothing to do with the matter. All we are concerned to get from the facts is,—Was the assembly one which, irrespective of its object, was attended with such circumstances of terror as to endanger the public peace, or to raise fears and jealousies among
the King's subjects In answering this question, all the cir- cumstances of place and time (see notes to "Bedford n. Birley," 3 Stark, N.P., 76) may be taken into consideration. Thus, supposing soon after the Anarchist riots in Chicago, one of the Anarchists, fired on by the police, had died, and that the Anarchists had advertised a public meeting to take place at the funeral for the dead man. The object of that meeting, to assist to solemnise the funeral, would be a perfectly lawful one ; yet if the meeting was attended by such enormous numbers and by persons of such violent character as to cause terror (as it well might in view of recent events) to the ordinary peaceful citizens of Chicago, such a meeting would clearly be an un- lawful assembly which it would be the duty of the police to disperse. Again, to take another example in which the lawful intentions of a body of men may be quite powerless, in view of particular circumstances, to render their assembly lawful. Suppose a body of men intending to assist each other against any one who shall oppose them, determine to march to some public place and hold a meeting there, as they have in the abstract a perfect right to do, and when there find the ground occupied by another body of men, the police, who have also a perfect right to be there. The moment the former body begin to execute their object, though lawful, by assaulting the police, they commit the offence of riot. Before concluding our remarks on this point, it is worth while to quote the words Mr. Justice Littledale used in his judgment in the case of "Reg v. Neale" (9 C. and P. 431) :—" If there was a meeting attended with circum- stances calculated to excite alarm, that is an unlawful assembly. Whether there is an unlawful assembly may also depend on the resistance made to attempts to disperse it, and to prevent the persons remaining together; and it is not only in the power of Magistrates, and not only lawful for Magistrates to disperse any such meeting, but if they do not, and are guilty of criminal negligence in not putting down any unlawful assembly, they are liable to be prosecuted for a breach of their duty." Such we believe to be the true state of the law. A good deal, how- ever, has of late been said as to two cases concerning the Salvation Army, which are said to have been decided in con- travention of this view. A correspondent in our issue of January 7th shows how the second of them was practically unheard, and so cannot in the least be held to extend the decision in the first—that of "Beatty v. Gillbanks "—which, therefore, is the only one which need be commented on.
The case of " Beatty v. Gillbanks " (Queen's Bench Division, 315), we venture to declare, cannot, if taken properly, by any possibility be held to mean that the police have no right to disperse assemblies as long as they have lawful objects, or that men engaged on an enterprise with a lawful object have necessarily a right to attack the police who prevent them attaining that object. A reference to Mr. Justice Field's judgment will show that nothing of the kind was there decided. Mr. Justice Field, after quoting the definition of an unlawful assembly given above, shows that what happened in the case before him was quite different. There the Salvation Army, which confessedly was not likely in itself to frighten people, was set on by the Skeleton Army, with the natural result of a riot. The police, thereupon, instead of arresting the Skeleton leaders, arrested those of the Salvationists. In the words of the judgment,—" What has happened here is that an unlawful organisation has assumed to itself the right to prevent the appellants and others from lawfully assembling together." Naturally, the decision was against the police, who had arrested the victims of the riot, not the rioters. The case could not possibly be a precedent for the present issue, unless the Socialists were to attack a body of Conservative working men parading through London, and the police were to arrest the Conservative leaders in preference to those who attacked them. It must be added that in this ease the police issued a notice warning the Salvationists not to assemble. Such notice, however, was of course merely waste paper, if the actual facts would not bear out the allegation of unlawful assembly. Police notices as to riots are mere warnings, and
cannot make or alter the facts which alone can constitute unlawful assemblies.
We cannot leave the consideration of this question without saying something as to the criticisms that have been levelled at Mr. Justice Stephen's summing-up in the recent case of the rioter Harrison. It is difficult to deal directly with the learned Judge's own words, since it seems doubtful whether he was properly reported. Still, it may safely be said that those who declare that what he is reported to have said was bad law, have gone a great deal too far. If they have not, then our highways are, but for the forbearance of those who use them, about in the condition of the streets of Verona when Montagus and Capulets fought whenever they met. For the contention amounts to this. If A and Z in good faith both believe that they have a lawful right to do some conflicting act, they ought to determine the matter by a fight rather than by resort to the Courts. Surely this view is absurd. In considering all these cases, it must, however, be dis- tinctly borne in mind that the police, as police, have
no special privileges. Again, they have no special dis- abilities. There is no Common Law right, as certain amateur lawyers seem to assume, inherent in the ordinary citizen to break a policeman's head whenever he differs with him on a point of law. In practice, indeed, the police, by being always in the streets, performing the general duty of keeping order, have the privilege which belongs to being first in the field. Thus, in cases where there is opposition to them, their opponents are almost always forced to be the aggressors. Such aggression, however, is almost necessarily a breach of the peace, which at once gives the constables the right to arrest in- dividuals and disperse the crowd. The police, though in the abstract only privileged by special statute, are in practice generally in a position to insist that it shall be those who oppose them, not they themselves, who shall go home and then bring the matter before the Courts. That this is so, no reasonable person can well regard with disapprobation.
It is impossible to conclude any view of the relations of police to the public in connection with riot and unlawful assembly, without referring to Mr. Justice Littledale's excellent saying that in reality "you would have to say in each case whether, under the particular circumstances, the Magistrates were justified in resorting to the means they did." That, after all, is the best rule and the safest. Let the police do whatever they consider necessary to keep order, subject to a jury at the suit of any aggrieved person giving its verdict as to whether they were, on the whole, justified or not in their action. This gives quite a sufficient guarantee for liberty, and yet leaves the police with what is essential for the preservation of order, a practically free hand.
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