Part II. without bringing them to trial, a smaller or greater number of unlawful acts will be committed, if not by the members of the Ministry themselves, at any rate by their agents. We may even go further than this, and say that the unavowed object of a Habeas Corpus Suspension Act is to enable the government to do acts which, though politically expedient, may not be strictly legal. The Parliament which destroys one of the main guarantees for individual freedom must hold, whether wisely or not, that a crisis has arisen when the rights of individuals must be postponed to considerations of state. A Suspension Act would, in fact, fail of its main object, unless officials felt assured that, as long as they bona fide, and uninfluenced by malice or by corrupt motives, carried out the policy of which the Act was the visible sign, they would be protected from penalties for conduct which, though it might be technically a breach of law, was nothing more than the free exertion for the public good of that discretionary power which the suspension of the Habeas Corpus Act was intended to confer upon the executive. This assurance is derived from the expectation that, before the Suspension Act ceases to be in force, Parliament will pass an Act of Indemnity, protecting all persons who have acted, or have intended to act, under the powers given to the government by the statute. This expectation has not been disappointed. An Act suspending the Habeas Corpus Act, which has been continued for any length of time, has constantly been followed by an Act of Indemnity. Thus the Act to which reference has already been made, 34 Geo. III. c. 54, was continued in force by successive annual

66

V.

re-enactments for seven years, from 1794 to 1801. In Chapter the latter year an Act was passed, 41 Geo. III. cap. 66, "indemnifying such persons as since the first day of February, 1793, have acted in the apprehending, imprisoning, or detaining in custody in Great "Britain of persons suspected of high treason or "treasonable practices." It cannot be disputed that the so-called suspension of the Habeas Corpus Act, which every one knows will probably be followed by an Act of Indemnity, is, in reality, a far greater interference with personal freedom than would appear from the very limited effect, in a merely legal point of view, of suspending the right of persons accused of treason to demand a speedy trial. The Suspension Act, coupled with the prospect of an Indemnity Act, does in truth arm the executive with arbitrary powers. Still there are one or two considerations which limit the practical importance which can fairly be given to an expected Act of Indemnity. The relief to be obtained from it is prospective and uncertain. Any suspicion on the part of the public, that officials had grossly abused their powers, might make it difficult to obtain a Parliamentary indemnity for things done while the Habeas Corpus Act was suspended. As regards, again, the protection to be derived from the Act by men who have been guilty of irregular, illegal, oppressive, or cruel conduct, everything depends on the terms of the Act of Indemnity. These may be either narrow or wide. The Indemnity Act, for instance, of 1801, gives a very limited amount of protection to official wrongdoers. It provides indeed a defence against actions or prosecutions in respect of anything done, commanded, ordered, directed, or

Part II. advised to be done in Great Britain for apprehending, imprisoning, or detaining in custody any person charged with high treason or treasonable practices. And no doubt such a defence would cover any irregularity, or merely formal breach of the law, but there certainly could be imagined acts of spite or extortion, done under cover of the Suspension Act, which would expose the offender to actions or prosecutions, and could not be justified under the terms, of the Indemnity Act. Reckless cruelty to a political prisoner, or, still more certainly, the arbitrary punishment or the execution of a political prisoner, between 1793 and 1801, would, in spite of the Indemnity Act, have left every man concerned in the crime liable to suffer punishment. Whoever wishes to appreciate the moderate character of an ordinary Act of Indemnity passed by the British Parliament, should compare such an Act as 41 Geo. III. cap. 66, with the enactment whereby the Jamaica House of Assembly attempted to cover Governor Eyre from all liability for unlawful deeds done in suppressing rebellion during 1866. An Act of Indemnity again, though it is the legalisation of illegality, is also, it should be noted, itself a law. It is something in its essential character therefore very different from the proclamation of martial law, the establishment of a state of siege, or any other proceeding by which the executive government at its own will suspends the law of the land. It is no doubt an exercise of arbitrary sovereign power, but where the legal sovereign is a Parliamentary assembly even acts of state assume the form of regular legislation, and this fact of itself maintains in no small degree the real no less than the apparent supremacy of law.

1

CHAPTER VI

THE RIGHT TO FREEDOM OF DISCUSSION

VI.

THE Declaration of the Rights of Man' and the Chapter French Constitution of 1791 proclaim freedom of discussion and the liberty of the press in terms which Freedom of are still cited in text-books as embodying maxims of French jurisprudence.

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66

2

discussion.

laid down

"La libre communication des pensées et des Principles opinions est un des droits les plus précieux de in foreign l'homme; tout citoyen peut donc parler, écrire, constituimprimer librement, sauf à répondre de l'abus de cette liberté dans les cas déterminés par la loi." s

"La constitution garantit, comme droit naturel et civil . . . la liberté à tout homme de parler, d'écrire, d'imprimer et publier ses pensées, sans que ses écrits puissent être soumis à aucune censure ou inspection "avant leur publication.

66

Belgian law, again, treats the liberty of the press as a fundamental article of the constitution.

"Art. 18. La presse est libre; la censure ne

1 Plouard, Les Constitutions Françaises, p. 16.

2 Bourguignon, Éléments Généraux de Législation Française, p. 468. 3 Déclar, des droits, art. 11, Plouard, p. 16.

4 Constitution de 1791, Tit. 1; Plouard, Constitutions Françaises, P. 18.

tion.

Part II.

No princi

pourra jamais être établie: il ne peut être exigé "de cautionnement des écrivains, éditeurs ou imprimeurs.

Lorsque l'auteur est connu et domicilié en Bel"gique, l'éditeur, l'imprimeur ou le distributeur ne peut être poursuivi."

Both the revolutionists of France and the con

dom of stitutionalists of Belgium borrowed their ideas about discussion freedom of opinion and the liberty of the

recognised

law.

press

from

by English England, and most persons form such loose notions as to English law that the idea prevails in England itself that the right to the free expression of opinion, and especially that form of it which is known as the "liberty of the press," are fundamental doctrines of the law of England in the same sense in which they were part of the ephemeral constitution of 1791 and still are embodied in the articles of the existing Belgian constitution; and, further, that our Courts recognise the right of every man to say and write what he pleases, especially on social, political, or religious topics, without fear of legal penalties. Yet this notion, justified though it be, to a certain extent, by the habits of modern English life, is essentially false, and conceals from students the real attitude of English law towards what is called "freedom of thought," and is more accurately described as the "right to the free expression of opinion." As every lawyer knows, the phrases "freedom of discussion or "liberty of the press are not to be found in any part of the statute-book nor among the maxims of the common law. As terms of art they are indeed quite unknown to our Courts. At no time has there in

1 Constitution de la Belgique, art. 18.