Arrangement of chapters in this division.-Having thus traced in outline the several heads which make up that positive and substantial right called the liberty of speech and of the press, or, in other words, the security of thought, speech and character-one of the most valuable of all the rights possessed by man in any country and under any system of government, the mode in which these heads may be most systematically arranged will be as follows:-The liberty to think and speak about everything in public, which is the primary right, will be first considered. This, when more amply surveyed, consists of speaking and exchanging thoughts with numbers of fellowcitizens in public meetings, subject to no other restriction than the avoiding of any blasphemous, immoral, or seditious words. Treasonable matter may at present be left out of account as being too closely connected with the protection of the Sovereign, and therefore with that other division of the law entitled "Government." Free speech is exercised accordingly in public meetings, in lectures or addresses, and in petitioning the Crown and Parliament. Next comes the liberty of the press, that is to say, the reducing of speech or thought into writing or printing. It will be seen that the primary rule is here also the same, namely, that the press is free to all comers and on all topics. The subjects that may be discussed embrace everything that is of interest to mankind. But both free speech and a free press must not be abused to the extent of speaking or publishing what is blasphemous, immoral or seditious. Of these three limits, the more difficult and important is sedition, for that is the extreme limit about which a free press is most likely to go into excess, owing to the passions. excited by the current politics of the day. The right of comment on all the great functionaries of the State being the life and soul of a free press, this tendency to sedition assumes frequently the form of libels on the Sovereign, on Ministers of State, on the Constitution or the Parliament, or Courts of Justice. And in dealing with libels on Parliament the subject of Breach of Privilege to some extent brings on a collision between the jurisdiction of Parliament, and Courts of Law in certain vital points. The liberty of the press also includes the publishing of the debates of Parliament and the reports of trials and proceedings in Courts of Justice, as well as comments on all C matters of public interest. And, lastly, the right of the public to communicate with each other by means of posted letters, and to protection against interference is a part of freedom. These are the main heads which make up the positive right of free speech and thought, and the correlative excesses to which it is subject in relation to the public at large. But while the above are the more public portions of the right of free speech and thought, the abuse caused by the invasions of the character and reputation of individuals in the form of defamation creates many subdivisions and distinctions, and touches on a great variety of matters. After libel and its punishments, the next form which the right of free speech and thought assumes is that of a valuable property in the hands of the author who composes and publishes his thoughts. The subject of copyright embraces a great variety of details. And, lastly, the right of patent and trade mark is closely connected with the subject of copyright. When these topics are dealt with in their order, the details of this division of the law will be fully comprehended in all its completeness. This first part of that division of the law entitled the security of thought, speech, and character, therefore, will consist of the following chapters: CHAP. II.-Freedom of speech in public meetings, lectures, and petitions. III.-Freedom of the press and correspondence. V.-Abuse of free speech and the press by VI.-Right to publish debates of Parliament. VIII.-Abuse of speech by libelling another's IX. The characteristics of libel and of excusable libels. X.-The remedies for libel by criminal and civil proceedings. XI.-Copyright. XII. Patent right and trade mark. CHAPTER II. FREEDOM OF PUBLIC MEETINGS AND ADDRESSES AND Freedom of public meetings.-The ancient tyrants always feared any large congregation of men in towns, and endeavoured to find rustic occupations for them, so as to separate them and divert their minds; and it is said Peisistratus commenced the building of the Temple of Jupiter for some reason of this kind. The knowledge of human nature shown by Peisistratus has often been imitated by succeeding governors. In this country before public meetings were resorted to as an ordinary exercise of self-government, great looseness prevailed in the law, the theory apparently being, that free speech was a species of gift by the Sovereign to the people. In the time of Charles II. the judges were consulted whether the king could by proclamation shut up the coffee-houses, which at that time were the great centres of conversation, though they existed under licenses from Quarter Sessions then current; and it is said the judges were by no means agreed. At that period and long afterwards the common law was indefinite, but nevertheless the courts never went the length of laying down a positive rule of that law, that a public meeting could not be 12 Thirlw. Gr. 71. North's Exam. 139; Kennett, 337; Ralph, 297. The position of these houses at that era was said to be, that they were in the nature of a common assembly to discourse of matters of state, news, and great persons" and as they were nurseries of idleness and pragnaticalness, and hindered the expense of our native provisions, they might be thought common nuisances."-North, Ex. 140. held without the license of some public functionary. The very first instance of a modern public meeting was said to be one held by the electors of Westminster in Westminster Hall on August 29, 1769, to adopt a petition for redress of grievances. The practice of holding such meetings for discussing public grievances seems to have been largely developed by the excitement consequent on the expulsion of Wilkes from the House of Commons in 1770. A law officer near the close of last century told the House of Commons, that England was the only country in the world where meetings to discuss grievances were allowed without the attendance of a magistrate, and that Ancient Rome, in the zenith of its liberty, never allowed the people to meet except in a regular body under official controul. And the Government of that day came to the conclusion, that the right of public meeting had been abused, and that no meeting should thereafter be allowed except it should be called by the lord lieutenant, sheriff or other official, and that a magistrate should be able to put an end to it at once if he thought it riotous.3 It was pointed out in answer to such a proposal, on the other hand, that public meetings ought not to be restricted; that they, and they alone, had contributed to put an end to the American War. Moreover, that it was mocking the understanding and feelings of mankind to tell them they were free out of the Houses of Parliament, so long as they could not meet for the purpose of expressing their sense of the public administration of the country, or of the calamities occasioned by a particular war then waged, and so long as any grievance or sentiment could not be declared without a magistrate considering it seditious and subjecting them to penalties. The proposal of the Government was carried out to a large extent about twenty years later." The Six Acts of 1819 were passed, only a few parts of which still are 5 2 1 2 Albemarle's Rockingh. 93; Lord Harrowby, H. L., 41 Parl. Deb. 1254; 3 Cooke's Hist. Party, 187. Mitford, S. G. A.D. 1795, 32 Parl. Hist. 308. 3 Ibid. 4 C. J. Fox, M.P., Ibid. 344. 5 C. J. Fox, M. P., 32 Parl. H 279. 6 In that year persons presumed to hold a convention and assume all the functions of Parliament. The Crown was advised to arrest them as conspirators.-A. D. 1795, 55 Parl. Deb. 1230. The culminating point was in 1819 when the long delay in the reform of Failiament began to irritate the people, and the Manchester in force, and one of them required, that no meeting of more than fifty persons should be held without a previous six days notice to a justice of the peace, and forbidding all but inhabitants of the county or parish to attend.' This last enactment was, however, limited to five years, and has not since been renewed. And now there is no restriction on the holding of public meetings at the call of any person whatever, subject only to this, that whoever utters blasphemy, gross immorality, or sedition, may be called to account. And if the assembly is turned into one which is illegal and riotous, that is a separate ground of punishment, owing to the terror caused, according to the turn taken in its progress. 3 Places of public meeting, how far restricted.-One great obstacle to the right of public meetings has always been the finding of a place of meeting large enough, and not too large, for the purpose of hearing and being heard. This, indeed, is a difficulty which more peculiarly affects the poorest portion of the community, it being always within the power of the wealthy to obtain by purchase or some valuable consideration access to a convenient place if they choose to undertake such preliminary expense. For those who are not provided with this ready means of access, and who are mere members of the public, there is no appointed or legal place of meeting provided by the common law or by statute, and hence the risk of an action of trespass or some cause of action accruing to an individual owner arises, if they invade his property for the purpose of meetings were held. In 1820 what was most complained of against Hunt was, that he, a stranger, convened a mob, but not under any constituted authority, to discuss public affairs. The magistrates of Manchester had circulated printed notices, that the meeting would be illegal, and they stationed constables in a line to be ready to put it down; but the mob chose a place of ineeting, which they closed in against the constables, and used exciting banners and large sticks. Hunt, with others, was indicted for an unlawful meeting to excite discontent and disaffection to the Government, and was found guilty. -L. Abinger, Mem. 249; R. v Hunt, 3 B. & Ald. 566. In that year, in consequence of these meetings, Lord Sidmouth, premier, complained that, according to the law up to that time, anybody could issue a mandate, summoning all the idle and curious part of the population to attend with martial music, flags, and banners. 1 60 Geo. III. c. 6. 2 See post as to these limits. 3 See 1 Pat. Com. (Pers.) 224. |