HC Deb 08 April 1853 vol 125 cc888-99

said, that he felt some difficulty in bringing forward a subject which had so lately come under the consideration of the House; but as it was of great importance to the profession to which he belonged, and as he wished to have the point elucidated as to the duty of soldiers on occasions like the one to which his Motion had reference, he must trespass on the House for a short time. He believed he was echoing the sentiments of his profession when he said that they would gladly be released from acting in the disagreeable office of preserving the peace on such occasions; but if police rates were so economically provided, and if the inhabitants of the manufacturing districts were so little disposed to adopt the bright doctrines of peace, the military, when called out to preserve tranquillity, ought to be placed in the same position as the police. He might be told that a Judge's charge ought not to be made the subject of comment in that House; but in these days, when every grievance was brought before the House of Commons, he did not think it unbecoming in him to submit to the con- sideration of the House the charge of a Judge which was preposterous in the opinion of all men of sense. ["Oh, oh!"] Some hon. Gentlemen were pleased to receive that statement with a derisive cheer; but a leading law journal in Ireland, the Irish Jurist, had described the charge as the most utter folly ever delivered from the bench, and a burlesque on the sacred name of justice. That was an opinion which he believed coincided with that of every right-thinking Englishman, and of a great proportion of the public in Ireland. Well, he was fortified with the opinion of Mr. Burke in reference to comments in that House on a Judge's charge, which surely would not be objected to. Mr. Burke said that he had always understood that the superintendence of the doctrine and proceedings of Courts of Justice came within the province and functions of the House of Commons. The former debate on this subject was carried on entirely by members of the legal profession, except the right hon. Baronet the Secretary for Ireland (Sir J. Young); but the profession to which he (Lord A. Vane) belonged had a right to know the opinions of the leading members of the Government, and he now appealed to the noble Lord the Secretary of State for the Home Department, who had always been distinguished for high honour, candour, and chivalrous feeling, to say whether he considered that equal justice had been meted out to the soldiers and to the instigators of the disturbances at Six-mile Bridge. He appealed, also, to the right hon. Gentleman the Secretary at War, who, from his official situation, must take an interest in this question, whether the Army ought to be left in the anomalous position in which the judgment of Mr. Justice Perrin placed them; for if that judgment was correct, neither the troops nor their officers could be called upon to protect or guard life or property entrusted to their charge. The hon. and learned Member for Ennis (Mr. J. D. Fitzgerald) had warmly eulogised the police force, and, no doubt, they deserved all his commendations; but were not the police protected in the execution of their duty? and when they were interfered with were not the parties who interfered with them, whether they were rich or poor, punished for their misconduct? Not so, however, was it with the military, when called upon to escort a party of voters. They were to be enfiladed from behind and before, and to be stoned; and if the House wished to know what stoning was, he would refer them to the authority of the right hon. and learned Attorney General for Ireland, who had said that there were twenty cases of direct murder through stoning to be tried at the assizes to which he was going. It was then only common justice and fairness to give the military the same protection in the execution of their duty as they gave to the police. Instead of that, however, the soldiers were arraigned for murder—for having, at the last extremity only, adopted the measures which they were called upon to do, alike by the rules of their duty and the right of self-defence; whilst the rioters and their instigators—the priests—were suffered to escape, with their conduct uncensured and uninquired into. He believed, therefore, that his profession had a right to demand a clear exposition of the law upon this subject. To show how differently an Irish jury treated a ball from a red coat and a ball from a blue coat, he might remark that while the Six-mile Bridge jury found a verdict of wilful murder against the soldiers, in a case at Taghadoe, near Celbridge, in Kildare, where a constable with about twelve men went out to arrest a burglar, who was armed with a blunderbuss—he believed not loaded—fired on him, and killed him without a word of warning. No doubt the constable did quite right; but what did they think was the verdict of the coroner's jury? Why, that the constable was justified in shooting the man Smith; and they also bore testimony to "his humane, and at the same time firm conduct." So that the officer who went with a party to arrest a single man and shot him, was not only justified in taking his life, but complimented for his firmness and his humanity. But the hon. and learned Member for Ennis said that the soldiers ought not to attempt to defend themselves with any weapons until there was full and actual proof that their lives were in danger. Now, though he bad considerable respect for the legal acquirements of the hon. and learned Member for Ennis, he very much doubted if he found himself getting stoned from both sides of a road in Tipperary, whether that learned Gentleman would be able satisfactorily to determine the exact point when his life came to be danger. Yet when he (Lord A. Vane) put what he deemed a courteous question a few nights since to the hon. and learned Attorney General, he was met with what he must call a flippant answer, that gentlemen of the legal profession were in the habit of receiving the law from the Judges. Now, he must say he thought that, considering that hon. and learned Gentleman's well-earned position in his profession, he would immediately have disowned the preposterous folly of Justice Perrin; for certainly his right hon. and learned Colleague the Attorney General for Ireland had disowned it, having declared that the troops were justified in defending themselves. Justice Perrin, in his judgment, said that the soldiers were called in to act as a safeguard to certain voters. Now, he (Lord A. Vane) had looked for the meaning of the word "safeguard" in every dictionary, and found it was defined to be a protection, a defence, a guard, and other things, with which he would not trouble the House. Judge Perrin said that the soldiers had no right to force their way through the crowd by violence, or the use of arms; and that they had no right to repel a trespass upon themselves, or upon the party they were escorting, by firing or mortally wounding. Why, Mr. Gilpin's pamphlet on peace and non-resistance contained nothing more absurd than this declaration of Judge Perrin. That Judge further said, that if a soldier became so provoked as to lose his temper and use deadly weapons, the law, considering the weakness of human nature, would reduce the crime which would otherwise be murder to simple manslaughter. How different all this was from the doctrine of Blackstone, who laid it down that it was justifiable homicide to prevent forcible crime by the use of arms; and although the Government had not suffered the whole of the evidence to come before the public, because they had refused to prosecute the instigators of the riot, he (Lord A. Vane) was prepared to prove from the evidence adduced at the inquest, that the soldiers were in danger of being robbed of their arms, and also in danger of being murdered. A charge delivered by the late Chief Justice Tindal, in 1832, which asserted the law of the land for the guidance of the civil and military forces, declared that the law of England held riotous assemblages in the greatest abhorrence. This was rather opposed to the new doctrine of those who emphatically described riotous conduct as the mere ebullition of excited political feeling, and who, like the right hon. Gentleman the Secretary for Ireland, attributed these unfortunate occurrences to the candidates who contested the election for a borough without a chance of being returned. Mr. Justice Tindal declared that every person having the sanction or warrant of a magistrate, might lawfully suppress a riot by every means in his power—that he might disperse, or assist to disperse, a tumultuous assemblage; and if the riot became general and dangerous, he might arm himself against the evildoers to preserve the peace. Again, it was the duty of every subject to act upon his own responsibility in suppressing riots and tumultuous assemblies, and whenever that was honestly done by him, he would be justified and supported by the common law. Again, the military subjects of the Sovereign, like the civil subjects, were bound to do their utmost to prevent the perpetration of outrage, to put down riot and tumult, and to preserve the lives and property of the people. He believed he had succeeded in showing that Judge Perrin's charge was contrary to the law of the land, as it was received up to the time when he delivered that extraordinary charge. It was laid down also by the late Lord Ellenborough, that whatever other classes of subjects were called upon to do, the military were called upon to do; that the presence of a magistrate was desirable, but that in cases of emergency the military, like all other individuals, might act with out the authority of a magistrate. He would not go through all the clauses of the Mutiny Act at that late hour, but would call attention to the opinion of the right hon. and learned Attorney General for Ireland, who had said that the greatest offence a soldier could be charged with was to be robbed of his arms. The right hon. and learned Gentleman had also said that the greatest offence that could be committed upon a military party was to attempt to force their line; but that was not only attempted at Six-mile Bridge, but was done over and over again, and the soldiers wounded and knocked down before they fired. He begged to call attention to the opinion delivered on oath by Lieutenant Colonel Douglas, the adjutant general in Limerick, respecting the duty of a soldier. He swore it was the duty of the escort to protect the people confided to their charge, and that if the officer had allowed any of them to be taken away by force, or injured, he would be liable to the most serious charge that could be brought against him as a military man, and he could be tried by a court-martial for gross dereliction of duty. That was the military law, and it was quite antagonistic to Judge Perrin's law. The statement he had made would support, he believed, his first Resolution; and by his second Resolution he asked the House to sanction the opinion of the right hon. and learned Attorney General for Ireland, that the soldiers under circumstances were justified in their conduct. As a proof of the consequences that had been produced by the verdict at the inquest, he called attention to the fact that shortly afterwards some of the soldiers of the 31st Regiment were attacked by a crowd of persons in the public streets, who called them "The Six-mile Bridge murderers;" and two of them were seriously injured. That was caused by the opinion that after the verdict of wilful murder in the Six-mile Bridge case, any person who desired to do so might attack soldiers with impunity. He had now performed the duty he had undertaken; and if no other object was attained, the attention of the Government and of the right hon. Secretary at War was called to the subject, and he trusted that justice would be done to the military whenever they might be called upon to act in support of the law.


seconded the Motion. He said he must express his great disappointment at not seeing some gallant officer of commanding station in that House follow the example set by a noble Peer and gallant officer in another place (the Earl of Cardigan) in the course he took upon this question. He (Sir W. Verner) submitted that Her Majesty's soldiers had a right to be protected, and protected against the power claimed by an Irish Judge of passing sentence, perhaps, of death upon men for doing that which a Lord Chief Justice of England had stated they were perfectly justified in doing. On such an occasion as the one in question, nothing was more simple than the duty of soldiers. Those soldiers who had formed the escort were ordered to protect certain persons to a given point; while discharging their duty they were set upon by an infuriated mob, headed by two persons who were known to have great influence; they were attacked with stones with such violence that scarcely one of the soldiers escaped unhurt, and one or two of them had suffered so severely that it was stated they never could recover. Every effort was made by the lawless body of rioters to rescue the persons they were protecting from their charge; the cars upon which they were proceeding were smashed to atoms, and the gun of one of the soldiers was laid hold of by some of the most furious of the assailants. Now, when arms were placed in the hands of soldiers to make use of when it was deemed necessary, why should they be censured for using them when their lives were perilled? If they were not to use their arms on such an occasion, he wished to ask, why were those arms placed in their hands? No more desperate weapon than a stone could be placed in the hands of him who knew how to make use of it. The magistrate who had accompanied the escort recollected the Carrickshock affair, in which the officer in command had unfortunately permitted his party to be surrounded by a mob, who murdered every man composing the body of police that were then proceeding in the discharge of their duty. Twenty of the police were then stoned to death. He must say the position of the soldier appeared to be rather a hard one—if he did not discharge his duty as a soldier, he was liable to be shot for disobedience of orders; and if he did, Judge Perrin would sentence him to be hanged. Chief Justice Tindal, in his charge to the grand jury of Bristol, laid down the law respecting the duty of soldiers in cases of riots. That charge had been transmitted to the Commander-in-Chief in Ireland, and sent by him to the commanding officers of regiments for their guidance. In that charge Chief Justice Tindal said, the law acknowledged no distinction between a soldier and a private individual in this respect. The soldier was still a citizen, invested with authority to preserve the peace, and he was not to use his arms except where the danger was pressing and immediate, or where a felony had actually been committed. He (Sir W. Verner) maintained that the soldiers were fully justified in everything they did on that occasion by the charge of Chief Justice Tindal. He thought, at the same time, that for the sanguinary instructions of Judge Perrin, it was the bounden duty of Her Majesty's Government to call him to order, and to reprimand him.

Amendment proposed— To leave out from the word 'That' to the end of the Question, in order to add the words the exposition of the Law set forth by Mr. Justice Perrin, in his Charge to the Grand Jury of the County of Clare, on the 22nd day of February, 1853, with reference to the duty of soldiers employed for the suppression of riots, or on emergencies, is at variance with the opinions of former Judges, opposed to the Rules up to the present time laid down for the instruction of Military and Civil Forces, and antagonistic to the principles and orders of the Mutiny Act and Queen's Regulations; and that it is the opinion of this House, That the conduct of the soldiers employed at Six-mile Bridge was thoroughly justifiable, and necessitated by the position they were placed in,' instead thereof.

Question proposed, "That the words proposed to be left out stand part of the Question."


said, that if the House would permit him, he was anxious in the first place to set himself right with the noble Lord opposite (Lord A. Vane), who had complained of an answer which had been given to him on a former evening, that he (the Attorney General) had, in that answer, treated him with some degree of flippancy. He begged to assure the noble Lord that nothing could be further from his intention than to treat him in any other way than with that courtesy which was due no less to his rank than to his position in his profession. But the question put to him on a former evening had placed him in a somewhat difficult position. The noble Lord asked him to pronounce a critical opinion on a charge or decision of a learned Judge. Now he did not think himself qualified to pronounce such an opinion. It would be a piece of arrgance on his part to do so; and his ground, therefore, for declining to give an answer to the noble Lord's question was, that being a member of a profession who took their law from the Judges, he was not entitled to pass an opinion. He trusted the House would not be led into a discussion on this matter, for he could conceive nothing snore inconvenient—nothing more unconstitutional or dangerous—than for that House to arrogate to itself the office of sitting in judgment on the decisions given by Judges when administering the law. If there was one thing more important than another, it was that Judges, in the exercise of their functions, should be perfectly independent. They had been made independent of the Crown, and it was well that they should be independent of that House. The House undoubtedly was the redressor of all wrongs; and if a Judge misconducted himself in the exercise of his judicial office, the House of Commons, the natural redressor of all popular wrongs, was the proper tribunal to which to refer the matter. But so long as a Judge honestly discharged his duty, and expounded the law to the best of his knowledge and ability, it had no right to interfere. Now they were asked to pass an opinion on the law as laid down by Judge Perrin. But did the noble Lord suppose that if Judge. Perrin had expounded the law according to the best of his ability and judgment, he would be swayed by a Resolution of the House of Commons? Not only could a Judge not take the law from a Resolution of that House, but it was contrary to his oath to do so. Nobody asserted that Judge Perrin had acted from corrupt motives, even supposing his law were wrong; and having honestly expounded the law, he would adhere to the law as he had laid it down, and would not accept the reading of a Resolution of that House as the law. What would be the consequence? That that House would be setting itself up to dispute the law with those whose duty it was to expound the law; and he could conceive nothing more calculated to lower the dignity of the House than such a course as that The noble Lord (Lord A. Vane) hardly did him (the Attorney General) justice when he said that he accepted Mr. Justice Perrin's reading of the law. He did not do so. Ho believed that the law laid down by Chief Justice Tindal was the true exposition of the law of the land; but they had not before them in any authentic shape the charge delivered by Mr. Justice Perrin. What did the noble Lord do? He brought forward, not any authentic charge, but a few isolated extracts from reports of the charge, but no authentic copy of a shorthand writer's notes.


said, he had compared the reports in three leading Dublin newspapers, and they were substantially the same.


said, he had not stated that the noble Lord had quoted garbled extracts. But it was well known that a Judge's charge, occupying a considerable time in the delivery, was necessarily much condensed in the newspapers, which were obliged to give the more salient points, neglecting sometimes those qualifying passages which gave a different complexion to the decision. Therefore he, for one, would not dream for an instant of passing judgment upon the charge and directions of a learned Judge, exercising the functions of his sacred office, on the evidence of such reports, and stigmatise him, and hold him guilty of "preposterous folly," as the noble Lord had expressed it three or four times, unless he had before him the entire charge from beginning to end. The noble Lord had used great diligence in getting up his law; but this was not the place to enter into legal arguments, nor did he think the Government should make an exposition of their views. If the law, as laid down by Judge Perrin, was at variance with other authorities, depend on it it would be speedily set aside by his brethren on the bench. If it were not the law it would be in the province of Parliament to alter it; but he (the Attorney General) protested against allowing that House to sit in judgment on the decisions of the judicial bench. He believed it was fully agreed on all sides that the soldiers were perfectly justified. However, that matter had been fully discussed on a former occasion by the right hon. and learned Member for the University of Dublin (Mr. Napier), and the hon. and learned Member for Enniskillen (Mr. Whiteside), and the question had indeed been debated usque ad nauseam. It would be a mere waste of time to go over that question again until the papers were before the House. The Motion now introduced was a very unfortunate one, and the sooner the discussion came to an end the better.


said, he could not agree with the hon. and learned Gentleman (the Attorney General) that justice had been done to the soldiers. He thought that they deserved the highest praise for their conduct in the most important and delicate business which had been entrusted to them. Every precaution had been taken by those in command of the detachment to prevent any collision between the soldiers and the peasantry; and the soldiers showed the utmost forbearance under the circumstances, and could not with fairness be charged with any want of discipline. He must complain of the statement which had been made by the hon. and learned Member for Ennis (Mr. J. D. Fitzgerald), that every obstacle was thrown by the military in conducting the inquiry before the coroner's inquest. On the contrary, orders had been given by the military authorities that every facility should be given to the progress of the inquiry, and those orders had been fully carried out. He also must complain that in the course of the former debate no Member of Her Majesty's Government had risen to say a word in defence of the Army. He certainly had expected that the right hon. Gentleman the Secretary at War would not have allowed the debate to pass over without rising to defend the conduct of the soldiers. It was the opinion of every member of the Army that on this occasion they had been deserted by Her Majesty's Government.


said, that if the Motion were pressed to a division, he should feel himself placed in a very embarrassing position, because on a former occassion he had distinctly disclaimed the propriety of bringing the charge of any learned Judge under the consideration of that House. He entirely concurred with the hon. and learned Attorney General for England as to the view which should be taken by that House in forming an opinion upon the conduct of a Judge, and for that reason he could not support the first Resolution. As to the second Resolution, having moved for papers upon that very subject, and those papers having been ordered, he did not think that he could with propriety, in the interim, support a Resolution of that nature. He suggested, therefore, to the noble Lord that he should press his Amendment.


said, that he must trouble the House with a very few words in defence of the learned Judge whose conduct had been impugned, and for whom he had the highest respect and reverence. He had said on a former occasion, and he repeated it, that there had been shuffling, and something nearly approaching to trickery, on the part of the military authorities at the inquest. He did not know whether they then acted under the advice of counsel or not, but he was himself present when the coroner had to threaten to issue his warrant and send a party of constabulary into the camp, to take out the forty-two men who formed the escort, if they were not produced by the officers; and it was only under that threat that the officers, after having refused, did at last produce them. He had no idea because men wore red coats and received the public pay that they should act in such a manner. There did not exist, while he was at the bar, a lawyer who enjoyed a higher reputation for his knowledge of constitutional law than Mr. Justice Perrin; and ever since his elevation to the bench, now nearly twenty years ago, he had always maintained the character of an able, wise, impartial, and upright magistrate; and, notwithstanding the censure of the noble Lord, the reputation of that learned Judge would not be in the slightest degree sullied by anything that had fallen from him. So far was the charge of Mr. Justice Perrin from being "opposed to the opinions of former Judges," that it was distinctly based upon the opinions of three of the most eminent Judges who had ever adorned the English bench—Lord Chief Justice Holt, Lord Chief Justice Mansfield, and Lord Thurlow—who had in similar circumstances used language almost identical with that employed by the learned Judge whose charge was now impugned. The misfortune which had occurred at Six-mile Bridge could not now be rectified, and he trusted that the House would hear no more of it, and would strive to forget the affair.


said, he would not, under the circumstances, press his Amendment to a division.

Main Question put, and agreed to.

Supply considered in Committee; Committee report progress; to sit again on Monday next.

The House adjourned at One o'clock till Monday next.