The police may, under orders, have fully occupied and filled up the ground which the Salvationists intend to use. When the Salvationists begin arriving, they find there is no place where they can meet. Nothing but the use of force, and indeed of extreme force, can drive the police away. This force the Salvation Army cannot use; if they did, they would be using violence not on any show of self-defence, but to obtain possession of a particular piece of land. Their only proper course is the vindication of their rights by proceedings in Court.

Of the older cases, which deal with the question how far it is justifiable to resist by violence an arrest made by an officer of justice without due authority, it is difficult to make much use for the elucidation of the question under consideration,1 for in these cases the matter discussed seems often to have been not whether A's resistance was justifiable, but whether it amounted to murder or only to manslaughter. There are, however, one or two more or less recent decisions which have a real bearing on the right of the members of a public meeting to resist by force attempts to disperse it. And these cases are, on the whole, when properly understood, not inconsistent with the inferences already drawn from general principles. The doctrine laid down. in Reg. v. Hewlett,2 that A ought not to inflict grievous bodily harm even upon X a wrongdoer unless in the strictest selfdefence, is of the highest importance. Rex v. Fursey,3 a decision of 1833, has direct reference to the right of meeting. At a public meeting held that year in London, A carried an American flag which was snatched from him by X, a policeman, whereupon A stabbed X. He was subsequently indicted under 9 Geo. I. c. 31, s. 12, and it appears to have been laid down by the judge that though, if the meeting was a legal one, X had no right to snatch away A's flag, still that even on the supposition that the meeting was a lawful assembly, A, if X had died of his wound, would have been guilty either of manslaughter, or very possibly of murder. Quite in keeping with Rex v. Fursey is the recent case of Reg. v. Harrison. Some of the expressions attributed, in a very compressed newspaper report, to the learned judge who tried the case, may be open to criticism, but the principle involved in the defendant's conviction, namely, that a ruffian cannot assert his alleged right to walk down a particular street

1 See, e.g. Dixon's Case, 1 East, P. C. 313; Borthwick's Case, ibid.; Wither's Case, 1 East, P. C. 233, 309; Tooley's Case, 2 Lord Raymond, 1296.

21 F. and F. 91.

36 C. and P. 81, 86, 87, summing up of Gaselee, J., and compare Criminal Code Commission Report, pp. 43, 44.

The Times, 19th December 1887.

by stunning or braining a policeman, or a good citizen who is helping the policeman, is good law no less than good sense.

Nor does the claim to assert legal rights by recourse to pistols or bludgeons receive countenance from two decisions occasionally adduced in its support.

The one is Beatty v. Gillbanks. This case merely shows that a lawful meeting is not rendered an unlawful assembly simply because ruffians try to break it up, and, in short, that the breach of the peace which renders a meeting unlawful must be a breach caused by the members of the meeting, and not by wrongdoers who wish to prevent its being held.2

The case may

The second is M'Clenaghan v. Waters.3 certainly be so explained as to lay down the doctrine that the police when engaged under orders in dispersing a lawful meeting are not engaged in the "execution of their duty," and that therefore the members of the meeting may persist in holding it in spite of the opposition of the police. Whether this doctrine be absolutely sound is open to debate. It does not necessarily, however, mean more than that a man may exercise a right, even though he has to use a moderate amount of force, against a person who attempts to hinder the exercise of the right. But M'Clenaghan v. Waters certainly does not decide that the member of a lawful assembly may exercise whatever amount of force is necessary to prevent its being dispersed, and falls far short of justifying the proceedings of a Salvationist who brains a policeman rather than surrender the so-called right of public meeting. It is, however, doubtful whether M'Clenaghan v. Waters really supports even the doctrine that moderate resistance to the police is justifiable in order to prevent the dispersing of a lawful assembly. The case purports to follow Beatty v. Gillbanks, and therefore the Court cannot be taken as intentionally going beyond the principle laid down in that case. The question for the opinion of the Court, moreover, in MClenaghan v. Waters was, "whether upon the facts stated the police at the time of "their being assaulted by the appellants (Salvationists) were "legally justified in interfering to prevent the procession from "taking place;" or, in other words, whether the meeting of the Salvationists was a lawful assembly? To this question, in the face of Beatty v. Gillbanks, but one reply was possible. This answer the Court gave: they determined "that in taking part "in a procession the appellants were doing only an act strictly lawful, and the fact that that act was believed likely to cause 9 Q. B. D. 308.

66

2 As already pointed out, the principle maintained in Beatty v. Gillbanks is itself open to some criticism. 3 The Times, 18th July 1882.

"others to commit such as were unlawful, was no justification for "interfering with them." Whether the Court determined anything more is at least open to doubt, and if they did determine, as alleged, that the amount of the resistance offered to the police was lawful, this determination is, to say the least, not inconsistent with the stern punishment of acts like that committed by the prisoner Harrison.

No one, however, can dispute that the line between the forcible exercise of a right in the face of opposition, and an unjustifiable assault on those who oppose its exercise, is a fine one, and that many nice problems concerning the degree of resistance which the members of a lawful meeting may offer to persons who wish to break it up are at present unsolved. The next patriot or ruffian who kills or maims a policeman rather than compromise the right of public meeting will try what, from a speculative point of view, may be considered a valuable legal experiment which promises results most interesting to jurists. The experiment will, however, almost certainly be tried at the cost, according to the vigour of his proceedings, of either his freedom or his life.

THE expression "unconstitutional" has, as applied to a law, at least three different meanings varying according to the nature of the constitution with reference to which it is used:

(i.) The expression as applied to an English Act of Parliament, means simply that the Act in question, as, for instance, the Irish Church Act, 1869, is, in the opinion of the speaker, opposed to the spirit of the English constitution; it cannot mean that the Act is either a breach of law or is void.

(ii.) The expression as applied to a law passed by the French Parliament, means that the law, e.g. extending the length of the President's tenure of office, is opposed to the articles of the constitution. The expression does not necessarily mean that the law in question is void, for it is by no means certain that any French Court will refuse to enforce a law because it is unconstitutional. The word would probably,

though not of necessity, be, when employed by a Frenchman, a term of censure.

(iii.) The expression, as applied to an Act of Congress, means simply that the Act is one beyond the power of Congress, and is therefore void. The word does not in this case necessarily import any censure whatever. An American might, without any inconsistency, say that an Act of Congress was a good law, that is, a law calculated in his opinion to benefit the country, but that unfortunately it was "unconstitutional," that is to say, ultra vires and void.

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