Fordham Law School FLASH: The Fordham Law Archive of Scholarship and History Faculty Scholarship 1997 Freedom of Assembly and the Right to Passage in Modern English Legal History Rachel Vorspan Fordham University School of Law, [email protected] Follow this and additional works at: http://ir.lawnet.fordham.edu/faculty_scholarship Part of the Civil Law Commons, Law and Society Commons, and the Public Law and Legal Theory Commons Recommended Citation Rachel Vorspan, Freedom of Assembly and the Right to Passage in Modern English Legal History , 34 San Diego L. Review 921 (1997) Available at: http://ir.lawnet.fordham.edu/faculty_scholarship/208 This Article is brought to you for free and open access by FLASH: The orF dham Law Archive of Scholarship and History. It has been accepted for inclusion in Faculty Scholarship by an authorized administrator of FLASH: The orF dham Law Archive of Scholarship and History. For more information, please contact [email protected]. "Freedom of Assembly" and the Right to Passage in Modern English Legal History RACHEL VORSPAN* TABLE OF CONTENTS I. THE RIGHT TO PASSAGE IN ENGLISH LAW .................... 927 A. Origins of the Right ............................... 927 B. Doctrinal Content of the Right ........................ 929 C. Enforcement of the Right ............................ 932 II. HIGHIvAY OBSTRUCTION AND THE LAW OF PUBLIC ORDER IN THE EARLY AND MID-NINETEENTH CENTURY .................. 935 A. Early Doctrinal Development: R. v. Carlile ............... 936 B. The Emerging "Habitof Public Meeting".................. 938 C. The Legal Status of Street Meetings .................... 940 III. SOCIETAL CONFLICT AND THE FORGING OF LEGAL DOCTRINE: THE SALVATION ARMY, THE SOCIALISTS, AND THE SUFFRAGETTES ... 942 A. Obstruction and Salvation ........................... 943 1. The Suppression of SalvationistStreet Meetings ......... 944 2. Beatty v. Gillbanks and the Law ofProcessions ......... 950 3. Local Acts and Bylaws: Drawingthe Line on PriorRestraints ............................... 956 B. The Socialists, the Unemployed, and the Road to TrafalgarSquare ................................. 962 * Associate Professor of Law, Fordham University. A.B. 1967, U. C., Berkeley; M.A. 1968, Ph.D. 1975, Columbia University (English History); J.D. 1979, Harvard Law School. I wish to thank Martin Flaherty, James E. Fleming, Bruce A. Green, Jill Heitler, Vivienne Hodges, Robert J. Kaczorowski, James Kainen, Barbara Wilcie Kern, James Oldham, Edward A. Purcell, Jr., Julie Singer, and William Treanor for their encouragement and assistance. 1. The Suppression of Socialist Street Meetings ........... 962 2. The Battle for TrafalgarSquare .................... 966 C. The Doctrinal Resolution of the 1880s .................. 976 D. Congruence of Policy and Doctrine: The Suffragette Campaign ...................................... 982 IV. DISSONANCE AND REORIENTATION: THE RIGHT OF PASSAGE FROM THE 1930S TO THE PRESENT ............................. 990 A. Communism and Fascism in the 1930s .................. 991 1. The Street Meetings of the NUWM: Use and Abuse of Obstruction Law ........................ 992 2. Processions and Nationalized Controls: The Public Order Act 1936 .......................... 997 B. The 1960s: Revitalizing the Resolution of the 1880s ......... 1000 1. New Left Meetings: Strengthened Controls ............ 1002 2. Processions in the 1960s: Continuing Forbearance ...... 1010 C. The Triumph of Functionalism: From Red Lion Square to the Public Order Act 1986 ......................... 1012 1. The Rhetoric of Balanced Rights: Intellectual Precursors in the 1970s .......................... 1013 2. The 1980s: Reconceiving the Resolution of the 1880s .... 1017 a. The New Reasonableness of Meetings ............. 1020 b. The New Unreasonablenessof Processions ......... 1024 c. Legislative Functionalism: The Public Order Act 1986 ................................. 1028 V. HIGHWAY OBSTRUCTION AND FREEDOM OF ASSEMBLY ............ 1035 VI. CONCLUSION ........................................ 1042 It is a commonplace of the Anglo-American legal system that the law of nuisance protects a landowner's enjoyment of an interest in land' as well as the public's exercise of common rights to health, safety, comfort, and morality.2 In contrast, the regulation of popular protest activity has 1. The essence of private nuisance has traditionally been interference with an owner's or occupier's use and enjoyment of land. See, e.g., CLERK & LINDSELL ON TORTS 24-01 (16th ed. 1989); W.V.H. ROGERS, WINFIELD & JOLOWICZ ON TORT 372- 73 (11th ed. 1979); F.H. Newark, The Boundaries of Nuisance, 65 LAW Q. REV. 480, 482 (1949); J.R. Spencer, PublicNuisance-A CriticalExamination, 48 CAMBRIDGE L.J. 55, 57. 2. In the nineteenth century Sir James Fitzjames Stephen defined public nuisance as "an act not warranted by law, or an omission to discharge a legal duty, that obstructed or inconvenienced the public in the exercise of rights common to all Her Majesty's subjects." JAMES F. STEPHEN, A DIGEST OF THE CRIMINAL LAW 105 (London, MacMillan 1877) [hereinafter STEPHEN, DIGEST]. He enumerated four varieties of public nuisance: 1) interference with public health or comfort, 2) acts dangerous to public safety, 3) acts against public morality, and 4) interference with public rights of passage. JAMES F. STEPHEN, 4 COMMErARIES ON THE LAW OF ENGLAND 150-51 (C.H.S. Fifoot ed., 19th ed. 1928). The definition of public nuisance is similar today. See, e.g., ARCHBOLD: PLEADING, EVIDENCE & PRACTICE IN CRIMINAL CASES § 3821 (Stephen Mitchell ed., 39th ed. 1976) (stating that a person is guilty of public nuisance who does 922 [VOL. 34: 921, 1997] Freedom of Assembly SAN DIEGO LAW REVIEW seemingly been entrusted to the traditional criminal law governing public order.3 This dichotomy, however, presents an incomplete and mislead- ing picture of the historical role of nuisance law, which during the past two centuries has served a critical function in controlling outdoor political activity. The central inquiry of this Article is to explore why, given the availability of specifically tailored public order offenses, the authorities nevertheless relied extensively on nuisance to regulate street assemblies during major periods of domestic disturbance in the nineteenth and twentieth centuries. A related undertaking is to unfold the consequences of the political uses of nuisance law for both evolving legal doctrine and popular attitudes toward the right of public assembly. A study of the political applications of nuisance leads ineluctably to the concept of the "right to passage." Residing at the core of nuisance doctrine in the public order context, it is arguably the only positive right recognized in English common law. Since the Middle Ages, the English legal system has been preoccupied with easing and facilitating movement along the "highway."' A vast network of nuisance offenses developed to preserve travel against obstruction, and for the past two centuries the right to passage has featured prominently in political and legal discourse.6 It was a curious right-literal, physical, indeed in all an act not warranted by law or omits to discharge a legal duty, "if the effect of the act or omission is to endanger the life, health, property, morals, or comfort of the public, or to obstruct the public in the exercise or enjoyment of rights common to all Her Majesty's subjects"). 3. The criminal law governing public order includes the common law offenses of riot, rout, unlawful assembly, affray, sedition, and public mischief as well as numerous statutory violations. See generally A.V. DICEY, INTRODUCTION TO THE LAW OF THE CONSTIrUrION (8th ed. 193 1); LEON RADzINOwlCz, A HISTORY OF ENGLISH CRuvNAL LAw AND ITS ADMInSTRATION FROM 1750 (4 vols., 1948); MICHAEL SUPPERSTONE, BROwNLE's LAW OF PUBLIC ORDER AND NATIONAL SECURITY (2d ed. 1981); DAVID WILLIAMS, KEEPING THE PEACE (1967). 4. See, e.g., SuPPERSTONE, supra note 3; PETER THORNTON, PUBLIC ORDER LAW 89 (1987). Other English positive rights are statutory. For a discussion of the constitutional status of the right to assemble, see infra notes 67-72 and accompanying text. 5. The term "highway" encompassed roads, streets, pavements, footpaths, churchways, alleys, lanes, carriageways, cartways, bridlepaths, rivers, bridges and tunnels, and the modes of protected passage included travel by foot, horse, wagon, carriage and (eventually) automobile. See Highways Act, 1835, 5 & 6 Will. 4, ch. 50, § 5; HAROLD PARRISH & GERALD PONSONBY, PRATT AND MACKENZIE'S LAW OF HIGHVAYS 3-14 (20th ed. 1962) [hereinafter PRATT AND MAcKENzIE]. 6. As an example of the importance of the subject, the basic treatise on highways law, Pratt and MacKenzie's Law of Highways, underwent 21 editions between 1836 and senses pedestrian-that simply protected travellers from annoyance, injury, inconvenience, or delay caused by physical impediments in the street. The right was, however, restricted to passing and repassing "for the purpose of legitimate travel' 7 in accordance with "reasonable and ordinary use, ' concepts that underwent considerable permutation and reinterpretation in response to changing historical circumstances. Obviously, a right implicating permissible uses of the streets could be critical to the regulation of popular protest activity, and beginning in the mid-nineteenth century outdoor meetings and processions became increasingly important forms of political expression. If applied restrictively, nuisance doctrines defining street