Part II. placed in the hands of whatever power was supreme in France the means of enforcing official surveillance of literature. Hence the censorship (to speak of no other modes of checking the liberty of the press) has been on the whole in keeping with the general action of French governments and with the average sentiment of the nation, whilst there has never been wanting appropriate machinery by which to carry the censorship into effect.

No doubt there were heard throughout the eighteenth century, and have been heard ever since, vigorous protests against the censorship, as against other forms of administrative arbitrariness; and at the beginning of the Great Revolution, as at other periods since, efforts were made in favour of free discussion. Hence flowed the abolition of the censorship, but this attempt to limit the powers of the government in one particular direction was quite out of harmony with the general reverence for the authority of the state. As long, moreover, as the whole scheme of French administration was left in force, the government, in whatever hands it was placed, always retained the means of resuming its control over the press, whenever popular feeling should for a moment favour the repression of free speech. Hence arose the constantly recurring restoration of the abolished censorship or of restraints, which though not called by the unpopular name of la censure, were more stringent than has ever been any Licensing Act. Restrictions, in short, on what Englishmen understand by the liberty of the press have continued to exist in France and are hardly now abolished, because the exercise of preventive and discretionary authority on the part of

VI.

the executive harmonises with the general spirit of Chapter French law, and because the administrative machinery which is the creation of that spirit, has always placed (as it still places) in the hands of the executive the proper means for enforcing discretionary authority.

In England, on the other hand, the attempt made by the Crown during the sixteenth and seventeenth centuries to form a strong central administration, though it was for a time attended with success, because it met some of the needs of the age, was at bottom repugnant to the manners and traditions of the country, and even at a time when the people wished the Crown to be strong, they hardly liked the means by which the Crown exerted its strength.

Hundreds of Englishmen who hated toleration and cared little for freedom of speech, entertained a keen jealousy of arbitrary power, and a fixed determination to be ruled in accordance with the law of the land.1 These sentiments abolished the Star Chamber in 1641, and made the re-establishment of the hated Court impossible even for the frantic loyalty of 1660. But the destruction of the Star Chamber meant much more than the abolition of an unpopular tribunal; it meant the rooting up from its foundations of the whole of the administrative system which had been erected by the Tudors and extended by the Stuarts. This overthrow of a form of administration which contradicted the legal habits of Englishmen had no direct connection with any desire for the uncontrolled expression of opinion. The Parliament which would

1 See Selden's remarks on the illegality of the decrees of the Star Chamber, cited Gardiner, History of England, vii. p. 51.

Part II not restore the Star Chamber or the Court of High Commission passed the Licensing Act, and this statute, which in fact establishes the censorship, was, as we have seen, continued in force for some years after the Revolution. The passing, however, of the statute, though not a triumph of toleration, was a triumph of legality. The power of licensing depended henceforward, not on any idea of inherent executive authority, but on the statute law. The right of licensing was left in the hands of the government, but this power was regulated by the words of a statute; and what was of more consequence, breaches of the Act could be punished only by proceedings in the ordinary Courts. The fall of the Star Chamber deprived the executive of the means for exercising arbitrary power. Hence the refusal of the House of Commons in 1695 to continue the Licensing Act was something very different from the proclamation of freedom of thought contained in the French Declaration of Rights, or from any of the laws which have abolished the censorship in France. To abolish the right of the government to control the press, was, in England, simply to do away with an exceptional authority, which was opposed to the general tendency of the law, and the abolition was final, because the executive had already lost the means by which the control of opinion could be effectively enforced.

To sum the whole matter up, the censorship though constantly abolished has been constantly revived in France, because the exertion of discretionary powers by the government has been and still is in harmony with French laws and institutions. The abolition of the censorship was final in England,

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because the exercise of discretionary power by the Chapter Crown was inconsistent with our system of administration and with the ideas of English law. The contrast is made the more striking by the paradoxical fact that the statesmen who tried with little success to establish the liberty of the press in France really intended to proclaim freedom of opinion, whilst the statesmen who would not pass the Licensing Act, and thereby founded the liberty of the press in England, held theories of toleration which fell far short of favouring unrestricted liberty of discussion. This contrast is not only striking in itself, but also affords the strongest illustration that can be found of English conceptions of the rule of law.

CHAPTER VII

THE RIGHT OF PUBLIC MEETING

Part II. THE law of Belgium1 with regard to public meetings is contained in the nineteenth article of the constitution, which is probably intended in the main to reproduce the law of England and runs as follows:

Right of public meeting.

Rules of Belgian constitution.

Principles

of English

right of public

meeting.

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"Art. 19. Les Belges ont le droit de s'assembler paisiblement et sans armes, en se conformant aux lois, qui peuvent régler l'exercice de ce droit, sans néanmoins le soumettre à une autorisation préalable. "Cette disposition ne s'applique point aux ras"semblements en plein air, qui restent entièrement "soumis aux lois de police."

The restrictions on the practice of public meeting law as to appear to be more stringent in Belgium than in England, for the police have with us no special authority to control open-air assemblies. Yet just as it cannot with strict accuracy be asserted that English law recognises the liberty of the press, so it can hardly be said that our constitution knows of such a thing as any specific right of public meeting. No better

1 See Law Quarterly Review, iv. p. 159. See also as to right of public meeting in Italy, Ibid., p. 78; in France, Ibid., p. 165; in Switzerland, Ibid., p. 169; in United States, Ibid., p. 257. See Appendix, Note 4, Questions connected with the Right of Public Meeting.

2 Constitution de la Belgique, art. 19.