« PreviousContinue »
THE RULE OF LAW: ITS APPLICATIONS.
I. The Right to Personal Freedom. II. The Right to Freedom
of Discussion. III. The Right of Public Meeting.
In my last lecture I have attempted to define Lecture the different meanings of that rule of law which is a marked characteristic of our constitution. General propositions however as to the nature of the rule of law carry us but a very little way. If we want to
a understand what that principle in all its different aspects and developments really means, we must try to trace its influence throughout some of the main provisions of the constitution. The best mode of doing this is to examine with some care into the manner in which the law of England deals with the following topics, namely, the right to personal freedom; the right to (so-called) freedom of discussion ; the right of public meeting; the use of martial law; the rights and duties of the army; the collection and expenditure of the public revenue; and the responsibility of Ministers. In this and the next lecture I shall treat of each of these topics in their due order.
Lecture My object, however, is not to give you minute infor
mation, e.g. as to the Habeas Corpus Acts, or other enactments protecting the liberty of the subject; but simply to show that these leading heads of constitutional law, these "articles,” so to speak, of the constitution, are both governed by and afford illustrations of the supremacy throughout our institutions of the law of the land. If at some future day the law of the constitution should be codified, each of the topics I have mentioned would be dealt with by the sections of the code. Many of these subjects are actually dealt with in the written constitutions of foreign countries, and notably in the articles of the Belgian constitution, which, as I have before noticed, makes an admirable summary of the leading maxims of English constitutionalism. It will therefore often be a convenient method of illustrating our topic to take the article of the Belgian, or it may be of some other constitution, which bears on the matter in hand, as for example the right to personal freedom, and to consider how far the principle therein embodied is recognised by the law of England; and if it be so recognised, what are the means by which it is maintained or enforced by our Courts. One reason why the law of the constitution is imperfectly understood is, that we too rarely put it side by side with the constitutional provisions of other countries. Here,
as elsewhere, comparison is essential to recognition. Right to I. Right to personal freedom. The seventh article freedom of the constitution establishes in Belgium principles
which have long prevailed in England, its terms so
curiously illustrate by way of contrast some marked Lecture features of English constitutional law as to be worth quotation.
“ Art. 7. La liberté individuelle est garantie.
“ Nul ne peut être poursuivi que dans les cas prévus “ par la loi, et dans la forme qu'elle prescrit.
“ Hors le cas de flagrant délit, nul ne peut être arrêté qu'en vertu de l'ordonnance motivée du juge, qui doit être signifiée au moment de l'arrestation, ou “au plus tard dans les vingt-quatre heures ?."
The security which an Englishman enjoys for per- How sesonal freedom does not really depend upon or originate England. in any general proposition contained in any written document. The nearest approach which our statutebook presents to the statement contained in the seventh article of the Belgian constitution is the celebrated thirty-ninth article 2 of the Magna Carta : “ Nullus liber homo capiatur, vel imprisonetur, aut “dissaisiatur, aut utlagetur, aut exuletur, aut aliquo “ modo destruatur, nec super eum ibimus, nec super eum “ mittemus, nisi per legale judicium parium suorum ) “ vel per legem terrae," which should be read in combination with the declarations of the Petition of Right. And these enactments (if such they can be called) are rather records of the existence of a right than statutes which confer it. The expression again,
guaranteed,” is, as I have already pointed out, extremely significant; it suggests the notion that personal liberty is a special privilege insured to
Constitution de la Belgique, Art. 7. ? See Stubbs, Charters, p. 301.
Lecture Belgians by some power above the ordinary law of
the land. This is an idea utterly alien to English modes of thought, since with us freedom of person is not a special privilege but the outcome of the ordinary law of the land enforced by the Courts. Here, in short, we may observe the application to a particular case of the general principle that with us individual rights are the basis not the result of the law of the constitution.
The proclamation in a constitution or charter of the right to personal freedom, or indeed of
other right, gives of itself but slight security that the right has more than a nominal existence, and students who wish to know how far the right to freedom of person is in reality part of the law of the constitution must consider both what is the meaning of the right and, a matter of even more consequence, what are the legal methods by which its exercise is secured.
The right to personal liberty as understood in England means in substance a person's right not to be subjected to imprisonment, arrest, or other physical coercion in any manner that does not admit of legal justification. That anybody should suffer physical restraint is in England prima facie illegal, and can be justified (speaking in very general terms) on two grounds only, that is to say, either because the prisoner or person suffering restraint is accused of some offence and must be brought before the Courts to stand his trial, or because he has been duly convicted of some offence and must suffer punishment for it. Now personal
freedom in this sense of the term is secured in Eng- Lecture land by the strict maintenance of the principle that no man can be arrested or imprisoned except in due course of law, i.e. (speaking again in very general terms indeed) under some legal warrant or authority', and, what is of far more consequence, it is secured by the provision of adequate legal means for the enforcement of this principle. These methods are two-fold; namely, redress for unlawful arrest or imprisonment by means of a prosecution or an action, and deliverance from unlawful imprisonment by means of the writ of habeas corpus. Let us examine the general character of each of these remedies.
i. Redress for Arrest. If we use the term re- Proceeddress in a wide sense, we may say that a person wrongful
ings for who has suffered a wrong obtains redress either when arrest. he gets the wrongdoer punished or when he obtains compensation for the damage inflicted upon him by the wrong.
Each of these forms of redress is in England open to every one whose personal freedom has been in any way unlawfully interfered with. Suppose, for example, that X without legal justification assaults A, by knocking him down, or deprives A of his freedomas the technical expression goes, “ imprisons” himwhether it be for a length of time, or only for five minutes; A has two courses open to him. He can have X convicted of an assault and thus cause
See as to arrests, Stephen, Commentaries, iv. (8th ed.), pp. 340-349.