LIMITS OF TL1E RIGHT OF PUBLIC ASSEMBLY. No. III.
THE Examiner objects to the doctrine that the tendency of meet- ings should be a test of their allowableness- " Who is to judge of the tendency? The power, forsooth, to which the meetings are obnoxious is to be justified in suppressing them. What allegation is so easy as that of tendency ? What would be the state of things if in- dividuals, like assemblages of men, could be dealt with on simple averments of mischievous tendencies= you have done no wrong, it's true, but there is discerned in you a tendency to wrong requiring restraint.'"
Here the writer changes the meaning of the word "tendency," in order to make a point. The tendency of an action, or of a public meeting, means its fitness to produce certain ulterior con- sequences. In the phrase "there is discerned in you a tendency to wrong requiring restraint," " tendency " implies merely a dis- position to do wrong, not necessarily accompanied by any overt act. When men are required to find bail that they will not break the peace,.they are put under restraint for having "a tendency to wrong" in this sense; and when cab-men and omnibus-men are punished for furious driving, they are punished for committing an act which has a "dangerous tendency."
The Examiner calls to its aid the authority of the late Mr. JAMES MILL ; who, it thinks, has "broadly defined the bounds to the right of assemblies of the people" in his article on the Liberty of the Press in the Encyclopedia Britannica. Now we remark, first, that Mr. Mu.0 says nothing about the rights of public as- sembly, in the passage quoted ; and secondly, that what he says respecting the press is in favour of our conclusion- " The application of physical force to resist the pvernment in applying to the execution of the laws the physical force placed at its disposal by the law, is such an obstruction of the operations of government, as would, if frequent, render it inadequate to the ends it is provided to secure. This application of force, therefore, must be treated as an uffence; and any thing proceeding from the press tending directly to produce it, as a similar offence."
If this is sound doctrine (and to us it appears such) when ap- plied to the press as an instrument for exciting the public mind, how much more must it be so when applied to public meetings, which are calculated to exercise a more powerful contagious in- fluence over blind passion ?
Mr. MILL goes on to illustrate the kind of physical force which he considers criminal-
" The application of physical force which is here described and treated as an evil, is clearly distinguishable from that resistance of government which is the last security of the many against the misconduct of the few. This is an ap- plication of physical force to obstiuct the government in detail: the pro. ceedings, for example, of a court of justice ; the proceedings of the legis- lative organ ; or the proceedings of any of the administrative functionaries in the execution of the duties with which they are charged. This is not that species of resistance which is necessary in the last resort to secure the people against the abuse of the powers of government. This last is not a resistance to the power of government in detail. It is a resistance to all the powers of government at once, either to withdraw them from the bands in which they blare hitherto been deposited, or greatly to modify the terms upon which they are held."
The Examiner's gloss upon this passage is- " According to this doctrine, it may be said, if none of the operations for the administration of the laws and defence of rights are interfered with, govern- ment must look on till meetings throw off the mask of peaceful agitations, and take the character of insurrections. And we confess that we see no danger in such a forbearance, as insurrections in such a form would be precisely the in- surrections most easily to be dealt with," &c.
The doctrine of Mr. MILL implies nothing of the kind. In the passage quoted, he merely describes what distinguishes a riot from a revolution—a criminal act from the exercise of a people's in- alienable right. But he never so much as alludes to the right of pub- lic assembly. From what he says, however, of the press, in the paragraph immediately preceding, we may infer what he would have said of public meetings : "any thing proceeding from the press, tend- ing directly to produce it, U. e. "the application of physical force to resist the government,") must be treated as a similar offence." If publications issuing from the press and having a tendency to stimu- late resistance to government by physical force be punishable, a fortiori speeches and the congregating of large numbers having a similar tendency in a greater degree must be punishable. But the Examiner would seem to say that government has only
the right to punish, not to prevent such acts. Government must look on till meetings throw off the mask of peaceful agitations." Referring especially to the Chartist meetings it says-
" We approved of repressing violence and putting down riot. We main- tained the right of the people to meet for the purpose of discussion, and that the interference of government should only commence when they passed to acts of violence. We observed, that without a general interference with liberty, it was impossible to guard completely against outbreaks, hut that the turbulent would be deterred from outbreaks by discovering their weakness in the en- counter with the bulk of society interested in the preservation of peace and order."
This is to maintain that society is not to prevent the commission of crime, but to wait till crime be committed and then punish. It may be known that meetings only wear "the mask of peaceful agitation "—are only "convened ostensibly for legal purposes "; the preparations for them may be of a kind that leave not the shadow of a doubt of their intention ; still, government and the peaceably-disposed citizens must wait for the actual "commission of a breach of the peace," before they can interfere. The police ought not to prevent an intended housebreaking of which they have notice, or a murder which they see about to be committed, but wait till the deed is done, and then arrest the perpetrator. The maxim "it is better to prevent crime than to punish," seems to us a safer one. If a mob assemble to prevent an execution, or to pull down the mill of an unpopular manufacturer, must the magistrates wait till it begin the attack before they read the Riot-act ? And if men be summoned to attend meetings, wearing not the mask but the mere name of peaceful agitation— for instance, under cloud of night with torches and fire-arms, or by daylight in military array—ought not government to prohibit beforehand such assemblies, at which there can be no discussion, and the evil tendency of which is un- equivocal ? The Examiner says that we were in error in supposing it to have blamed Sir ROBERT PEEL for not having checked the Repeal agitation soon enough. It blamed Sir ROBERT PEEL, it seems, in the first place for not having removed the just causes of discon- tent in Ireland; and in the second place, - - - - "for setting about the wrong thing in the worst way. We have argued throughout, that to coercion he must come if he neglected conciliation ; and that if coercion was to be the result at last, the longer the delay the worse must be the result. • * • We condemn the surgeon who determines on a dangerous operation when a cure might be effected by other means ; but be- sides this main objection to his treatment, we may blame him for having aggra- vated the disease and rendered the operation more difficult and dangerous, and in its results uncertain, by deferring the performance of it."
As to conciliation, (or more properly, justice, for mere "conci- liation" produces no lasting good,) we are agreed with the Exa- miner. The blame it attributes to Sir ROBERT PEEL for deferring coercion, in order, as the same writer on a former occasion cha- ritably inferred, to gain an excuse for making the coercion more stringent, locks rather ungracious in a journal which advocates the non-interference of government "until meetings throw off the mask of peaceful agitations, and take the character of insurrec- tions," on this humane ground—" We confess we see no danger in such a forbearance, as insurrection in such a form would be pre- cisely the insurrection most easily to be dealt with ; to get lazier- into masses being the great military object, and the common difficulty of troops in copinf with rebellion." If you prohibit, by proclamation, meetings which tend to promote insurrection, you may not be able to get the disaffected together in masses that your artillery can tell upon! Yet if there is to be absolutely no limit to the right of public assembly, this issue—the alternative to prevention—must some- times be inevitable. The question is, whether the crime-prevent- ing principle, beneficially applied in many branches of police,. might not also be beneficially applied to public meetings of the dangerous class ? That principle is in itself too wise and just, too self-evident, to admit of objection on its own merits. The reluc- tance to apply it in the case of public meetings springs from an undefined fear that it may be impossible to draw a sufficiently dis- tinct line of demarcation between those which ought and those which ought not to be permitted ; and that governments, taking advantage of this, may suppress all public meetings, and so crush the liberties of the people. The vague notions indicated by such fears as these are not to be wondered at. The matter has grown into practical importance within a comparatively short period. The writings even of JAMES Mus., clear and exhaustive as they are, will be searched in vain for any direct exposition of this point. Per- haps this may be accounted for on the hypothesis, that no public meetings in his day having exercised (or seemed to exercise) such an influence over the Legislature as those which were held at the time of the Reform Bill, the importance of prescribing limits to them, under a constitutional government, was not felt. For it is only under a constitutional govern- ment—a government which is held in check by popular privi- leges, and these not illusory—that the question can arise. And, always restricting our view to a real, effective, constitutional government, there are elements inherent in it able to counteract any danger which may arise from conceding to ministers a limited right of prohibiting meetings which they have good reason to be- lieve are intended or have a tendency to lead to riot or insurrection. The first of these elements is the representative legislature. The powers of impeachment and stopping the supplies are perhaps illusory, and unlikely to be exerted ; but the fear of being left in a minority, and consequently driven from office, will deter a minister from venturing on the extreme measure of preventing an innocent meeting merely to serve his own selfish ends. He knows the danger of thus exposing himself to well-grounded attacks in Par- liament. The second element alluded to is the free press. The press is a far more powerful instrument than large public meetings for producing that general diffusion of information and unanimity of will throughout a whole nation which it is the aim of these assem- blies to create, when they are really what they profess to be. It works upon the constituencies, and through them upon the legis- lature. There is no need of any preventive check upon the press ; for, from its addressing each member of the mass individually, and wanting the contagious influences of multitude, it is not fitted to excite sudden outbreaks of aimless destructive passion, like vast meetings. So long as a nation has an elective parliament and a free press, it may concede to government the power of prohibiting meetings to which there is good ground to attribute a dangerous tendency, without risking the suppression of innocent and useful popular assemblies. The superior importance of the press over public meetings, as a guardian of the people's liberties, has been ably demonstrated by Mr. MILL. In the essay on the Liberty of the Press, he comes to the conclusion, that " unless where the people can all meet in general assembly, there is no means of at- taining this [a check upon their rulers by public opinion] equal to the liberty of the press." And even where, as in the classic demo- cracies, all the people could meet in public assembly, he shows, in his essay upon Government, how rude and defective a mode of giving force to public opinion that was. " Where the assembly is numerous, so many persons desire to speak, and feelings by inflam- mation become so violent, that calm and effectual deliberation is almost impossible."
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