MR. JUSTICE STEPHEN AND THE POLICE.
TEE advocates of anarchy in London are getting on. There was some room for curiosity as to the way in which they would take Mr. Justice Stephen's sentence on Harrison, the man convicted of wounding policemen with an oyster-knife, a piece of iron gas-piping, and a poker. Oar own impression was that they would throw him over. Stab- bing, though it is unfortunately very well known among us, has not yet got rid of the imputation of being " un-English," and on this ground it seemed likely that Harrison would be solemnly told that he had disgraced the noble creed which he professed. That creed may be thus summarised :—All ways of injuring a policeman are morally good, but it is not expedient to employ those that involve the use of knives or firearms. In this expectation we frankly admit we did the anarchists an injustice. They have risen far above these narrow distinctions between one method of attack and another. It is the object assaulted that determines the pro- priety of an assault. So long as that object is a policeman, it is immaterial whether he is stabbed or only stunned. If Harrison had been sentenced to penal servitude for simply striking a policeman with his open hand, the indignation of his political allies could not have burned more fiercely. That he used weapons which might easily have caused death, they regard as immaterial. What, if directed against a civilian, would be a stab, becomes, when directed against a policeman, a case of simple "hitting." It is not even necessary that the policeman should be in uniform, so that the hero should know whom he is hitting. To assault a policeman is meritorious, ex opere operalo. Harrison applied his iron gas-pipe to a constable who, being in plain clothes, was in appearance a civilian. Had he been so in fact, nothing probably would have been said on the assailant'rbehalf. It was the presence under- neath the civilian's dress of the universal enemy that made the blow a just and necessary vindication of personal liberty.
It is not the severity of the sentence merely that arouses the wrath of the defenders of anarchy. Bad as a case of individual oppression may be, it becomes worse when it is based upon a principle of universal application. The essence of Mr. Justice Stephen's crime lies in the pernicious doctrine he lays down. That doctrine is that, whenever the police give notice that a particular proceeding is not to take place, it is the duty of the parties concerned to obey the notice, and then to take any remedy which the law may give them in the event of its being found to be illegal. The Pall Mall Gazette not only denies that what this unjust Judge has the " effrontery " to lay down as English law is really so, but bases its denial on a ruling of the Queen's Bench Division. " In a famous case," it seems, in which three processionists had been sent to gaol for a month for assaulting the police, who had prohibited a procession, " the Court quashed the sentence on the ground of the illegality of the order, liberated the prisoners, and gave costs against the Justices." This decision certainly looks as though it bore out the contention of the Pall Mall Gazette. Certain Magistrates forbid a proces-
sion, just as Sir Charles Warren forbade the procession on the 13th of last month. Three of the processionists assault the police in consequence, and are thereupon sent to gaol for a' month. The Queen's Bench Division determines that the Magistrates had no power to forbid the procession, and quash
the conviction. The name of the case is not given by the Pail Mall Gazette, but on turning to Mr. Dicey's "Law of the Con- stitution "—a book which, though it has the misfortune to be
written by a Liberal Unionist, has been a good deal appealed to by both sides in this controversy—we find a case the cir- cumstances of which so closely resemble the one quoted, that we cannot doubt that they are identical. It is a case of " Beatty v.
Gillbanks," in which a Salvation Army procession was forbidden by the local Magistrates, on the ground that the Skeleton Army had announced their intention of opposing them. " The Salva- tionists, however, assembled, were met by the police and told to obey the notice. X., one of the members, declined to obey, and was arrested. He was subsequently, with others, con- victed by the Magistrates of holding an unlawful assembly," and liberated on appeal by the Queen's Bench Division, on the
ground that the prohibition of the procession was ultra viva. As thus stated, there is nothing in the decision of the Queen's Bench Division that in the least conflicts with Mr. Justine Stephen's doctrine. X. and his companions were convicted., not for assaulting the police, but for holding an unlawful, •
assembly ; Harrison was convicted not for holding an unlawful assembly, but for assaulting the police. In the first case, the validity of the order forbidding the meeting was necessarily in
issue. The meeting only became unlawful by reason of the prohibition ; if the prohibition was ultra sires, the meeting was lawful. Supposing Harrison had been tried for the Same offence, his counsel would have raised the same plea, and Mr. Justice Stephen would have had to tell the jury whether Sir Charles Warren's order was legal. In the same way, if X. had been convicted of assaulting the police, the Queen's Bench. Division would not have had the validity of the order for-• bidding the procession before them, but simply the fact of the assault ; and there is no reason whatever to suppose that the conviction would have been interfered with. The alleged. contradiction between Mr. Justice Stephen's law and the law of the Queen's Bench Division exists only in the fervid imagination of the Pall Mall Gazette.
Mr. Labouchere, who is not troubled by any weak desire to have authority on his side, is wise enough to leave "Beatty v. Gillbanks " alone. He is his own " eminent legist," and in - that capacity he pronounces Mr. Justice Stephen's doctrine "abject, vile, slavish, and scandalous." Yet, at first sight, Mr.
Labouchere's doctrine seems indistinguishable from Mr.
Justice Stephen's. " Government," says Mr. Labouchere, "has no right to go one inch beyond the law." Granted ; but Mr. Justice Stephen would say the same. " If it does, it may and ought to be resisted." Granted ; but Mr. Justice Stephen would say the same. It is only when we come to ask how Government is to be resisted when it goes beyond the law, that a difference appears between these two great authorities. Mr. Justice Stephen holds that the resistance should be peace- able, and such as can be offered in a Court of Law. Mr. Labouchere holds that it should be violent, and such as can be offered by assault and battery. Am I bound, he asks, to obey the orders of the police if I happen to think them illegal ?
No. If because I do not obey them they beat me, am I bound to submit. No ; I may defend myself with any weapon I may have at hand. Consequently, on Mr. Labouchere's reading of the law, Harrison was only vindicating the rights of a free- born Englishman. The police ordered• a procession to stop when it came into a street leading to Trafalgar Square. Harrison thought the order illegal, and went on. The police tried to atop him, and he forthwith laid about him with the weapons he had at hand,—a poker, a piece of gas-piping, and a double-edged, sharp-pointed oyster-knife. Government,. in fact, had gone beyond the law, and Harrison was doing his duty in resisting it.
It will be seen that Mr. Labouchere has done his own doctrine the injustice of understating it. What he really teaches is not merely that Government may not go beyond the law, but that it may not go beyond what the person resisting chooses to think is the law. If Mr. Labouchere were crossing a crowded street, would be be on the side of the driver of a hansom who disregarded the order of the policeman placed there to regulate the traffic ? We fancy not. Yet wherein lies the difference between this case and the case of Harrison, who equally disregarded the orders of the police in the same character of regulators of traffic V Probably Mr. Labouchere
would answer that the policeman is empowered by Act of Parliament to make the carriages stop from time to time, to let foot-passengers cross the road, whereas there is no Act of Parliament empowering Sir Charles Warren to atop pro- cessions. But that is exactly the point in dispute. Sir Charles Warren thinks the two cases run on all-fours, and that in both the police are only executing a statutory authority. Possibly Mr. Labouchere would answer, but I think differently, and until the law has spoken, I have as much right to hold my opinion as the policeman has to hold his. It is here that the real inconvenience of Mr. Labouchere's theory comes into sight. When two men claim opposite rights, one a right to forbid a thing to be done, the other a right to do it in spite of its being forbidden, one or other must have the ad interim right to go on until the other has shown him to be in the wrong. That is the only right we claim for the police ; and anything short of this would make any police force in the world useless. What is the good of a policeman if he cannot enforce a single order, so long as those to whom it is given choose to contest its legality For any present purpose that he serves, he may as well be withdrawn, since every order he gives may be challenged, and if after challenge he proceeds to enforce it, he may be knocked down with any weapon that happens to be at hand. Police orders would, on that supposition, become strictly provisional ; they would represent not what the police intended people to do, but merely what the police proposed to ask the Courts to say ought to be done. The confusion produced by such a state of things as this, would make it better to get rid of the police altogether. That, possibly, is what Mr. Labouchere wishes ; but in that case he should have the courage to proclaim his con- victions.
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