Part II. in which they are conducted. This is certainly a singular instance of the way in which adherence to the principle that the proper function of the state is the punishment, not the prevention, of crimes, deprives the executive of discretionary authority.1

Meeting may be lawful

A meeting, lastly, may be perfectly lawful which nevertheless any wise or public-spirited person would though its hesitate to convene. For A, B, and C may have the

holding

contrary to public interest.

right to hold a meeting, although their doing so will
as a matter of fact certainly excite others to deeds of
violence, and may probably produce bloodshed. Sup-
pose that a zealous Protestant were to convene a
meeting for the purpose of denouncing the evils of
the confessional, and were to choose as the scene of
the gathering the midst of a large town filled with a
population of Roman Catholic poor. The meeting

would be lawful, but no one can doubt that it would
provoke violence. Neither the government, however,
nor the magistrates, could prohibit it.
Wise men
might condemn, but the law would sanction an ex-
treme exercise of the right of public meeting which
would probably not be tolerated in any other
European country. Of the policy or impolicy of
denying to the highest authorities in the state the
power to take precautionary measures against the
evils which may flow from the injudicious exercise of
legal rights it is unnecessary here to say anything.
The matter which is worth notice is the way in which

1 Recent events in Switzerland suggest that the officials of a democratic Republic claim, whether rightly or not, an authority in regard to the restraint of public meetings which is not conceded in England to the Crown or its servants. This curiously illustrates the remarks cited from De Tocqueville, pp. 172-174, ante, in reference to the nonexistence in Switzerland of a spirit of legality.

2 See, however, the Irish cases referred to, p. 258, note 2, ante.

VII.

the rules as to the right of public meeting illustrate Chapter both the legal spirit of our institutions and the process by which the decisions of the Courts as to the rights of individuals have in effect made the right of public meeting a part of the law of the constitution.1

1 See generally as to the right of meeting, Stephen, Commentaries, iv. 213-217, and Stephen, History of Criminal Law, i. pp. 202-205. See Appendix, note 4, Questions connected with the Right of Public Meeting.

CHAPTER VIII

No sharp line can

be drawn between rules of private law or of

law and constitu

tional law.

MARTIAL LAW

Part II. THE rights already treated of in the foregoing chapter, as for example the right to personal freedom or the right to free expression of opinion, do not, it may be suggested, properly belong to the province of constitutional law at all, but form part either of private law criminal strictly so called, or of the ordinary criminal law. Thus A's right to personal freedom is, it may be said, only the right of A not to be assaulted, or imprisoned, by X, or (to look at the same thing from another point of view) is nothing else than the right of A, if assaulted by X, to bring an action against X, or to have X punished as a criminal for the assault. Now in this suggestion there lies an element of important truth, yet it is also undoubted that the right to personal freedom, the right to free discussion, and the like, appear in the forefront of many written constitutions, and are in fact the chief advantages which citizens hope to gain by the change from a despotic to a constitutional form of government.

The truth is that these rights may be looked upon from two points of view. They may be considered simply parts of private or, it may be, of criminal law;

1

VIII.

thus the right to personal freedom may, as already Chapter
pointed out, be looked at as the right of A not to have
the control of his body interfered with by X. But in
so far as these rights hold good against the governing
body in the state, or, in other words, in so far as these
rights determine the relation of individual citizens
towards the executive, they are part, and a most im-
portant part, of the law of the constitution.

Now the noticeable point is that in England the
rights of citizens as against each other are (speaking
generally) the same as the rights of citizens against
any servant of the Crown. This is the significance of
the assertion that in this country the law of the con-
stitution is part of the ordinary law of the land. The
fact that a Secretary of State cannot at his discretion
and for reasons of state arrest, imprison, or punish any
man, except of course where special powers are con-
ferred upon him by statute, as by an Alien Act or by
an Extradition Act, is simply a result of the principle
that a Secretary of State is governed in his official as
in his private conduct by the ordinary law of the
realm. Were the Home Secretary to assault Mr.
Parnell in a fit of anger, or were he to arrest Mr.
Parnell in England because he thought the Home
Rule leader's freedom dangerous to the state, the
Secretary of State would in either case be liable to an
action, and all other penalties to which a person ex-
poses himself by committing an assault. The fact
that Mr. Parnell's arrest was a strictly administrative
act would afford no defence to the Minister, or to the
constables who obeyed his orders.

The subjects treated of in this chapter and in the next three chapters clearly belong to the field of

Part II. constitutional law, and no one would think of objecting to their treatment in a work on the law of the constitution that they are really part of private law. Yet, if the matter be looked at carefully, it will be found that, just as rules which at first sight seem to belong to the domain of private law are in reality the foundation, of constitutional principles, so topics which appear to belong manifestly to the law of the constitution depend with us at bottom on the principles of private or of criminal law. Thus the position of a soldier is in England governed, as we shall see, by the principle, that though a soldier is subject to special liabilities in his military capacity, he remains while in the ranks as he was when out of them, subject to all the liabilities of an ordinary citizen. So, in a legal point of view, ministerial responsibility is simply one application of the doctrine which pervades English law,' that no one can plead the command of a superior, were it the order of the Crown itself, in defence of conduct otherwise not justified by law.

Turn the matter which way you will, you come back to the all-important consideration on which we have already dwelt, that whereas under many foreign constitutions the rights of individuals flow, or appear to flow, from the articles of the constitution, in England the law of the constitution is the result not the source of the rights of individuals. It becomes, too, more and more apparent that the means by which the Courts have maintained the law of the constitution have been the strict insistence upon the two principles, first of "equality before the law," which negatives

1 See Mommsen, Romische Staatsrecht, p. 672, for the existence of what seems to have been a similar principle in early Roman law.