§ LORD ST. LEONARDS
, in rising to call the Attention of the House to the Employment of the Volunteers in case of Riots or Attacks by Fenians, said, that his motives in bringing forward this subject were the difference of opinion that existed, and in order that the Volunteers of this country and the public at large might distinctly understand what their duty was in connection with the suppression of riots and tumults. In our old law books it was laid down that the sheriff was entitled to summon all the people of the county to attend him on such occasions—to call out the posse comitatus, as it was termed—and by a Statute of Henry V. the neglect to attend such summons was punishable by fine and imprisonment. But with reference to the case of soldiers and Volunteers he would deal more particularly; and, without going back to 1715 or 1745, he would call their Lordships' attention to a speech delivered in that House by Lord Mansfield in reference to the Lord George Gordon riots of 1780. Lord Mansfield said—It appears most clearly to me that not only every man may legally interfere to suppress a riot, much more prevent acts of felony, treason, and rebellion, in his private capacity, but he is bound to do it as an act of duty, and, if called upon by a magistrate, is punishable in case of refusal. What any single individual may lawfully do, so may any number assembled for a lawful purpose; which the suppression of riots, tumults, and insurrections certainly is. It would be needless to endeavour to prove that what a private man may undertake to perform may be performed by a magistrate, who is specially authorized by law for the purpose of keeping the peace. It is the peculiar business of all constables to apprehend rioters, and to endeavour to disperse all unlawful assemblies; to apprehend the persons so offending, and in case of resistance to attack, wound, nay, kill those who shall continue to resist.920 There was evidently a mistake in the next sentence of the speech, but the meaning was clear—The very act of apprehending in arms the person, with every necessary power for the effectual performance of the duty prescribed by the law, and consequently every person acting in support of the law is justifiable respecting such acts, such acts as may arise in consequence of a faithful and proper discharge of the duties annexed to his office, if he does not abuse the power legally vested in him, which may, according to the circumstances accompanying the transaction, degenerate into an illegal act, though professedly committed under the colour or pretext of law. These several positions I take to be incontrovertible, with all the possible consequences which can flow from them, and to be the true foundation for calling in of the military power to assist in quelling the late riots. The persons who assisted in the suppression of those riots and tumults in contemplation of law are to be considered as mere private individuals acting according to law, and upon any abuse of the legal power with which they were invested are amenable to the laws of their country.The military have been called in, and very wisely called in, not as soldiers but as citizens; no matter whether their coats be red or brown, they have been called in aid of the laws, not to subvert them or overturn the Constitution, but to preserve both."—[Hansard, Parl. History, xxi. 695.]In a later debate, Lord Mansfield said—When a felony was committing or committed, and no justice or constable present, men were undoubtedly to exert themselves, and if they could not apprehend they were justifiable in putting the perpetrators to death. This justification, however, depended on the circumstances of the case."—[Hansard, Parl. History, xxi. 746.]That eminent Judge laid down the doctrine in that House, which had never been disputed, that soldiers acting on such occasions were acting as civilians, and were liable to the consequences of all illegal acts, even though committed by order of their officers. But, although a soldier, by such a rule, must necessarily incur serious liabilities by disobeying his officer, and might render himself liable to unpleasant consequences by his disobedience, there could be no doubt that if a soldier, in doing an illegal act, simply and honestly fulfilled an order given to him by his commanding officer, such conduct would not be attended with any harm to himself. Upon the debate on the 21st of June, 1780, on the Duke of Richmond's Motion respecting the conduct of the military in disarming the citizens of London during the riots—which was negatived without a division—the Lord Chancellor, Lord Thurlow, spoke in the highest terms of Lord Mansfield's speech. He said— 921The learned Lord had left him little to add on the subject. Most clearly in all cases of felony it was the duty of every man, let his professional character be what it might, to aid and assist in apprehending the felon. In cases of public outrages and tumult it was the duty of all to assist in quelling it, to apprehend the rioters, and to deliver them over to the officers of justice; and in case of resistance, or on finding that they could not stop the outrage by any other means, after it had got to the length of pulling down houses, &c, or assaulting or wounding His Majesty's peaceable subjects, then all present were warranted to proceed to extremity, and use such weapons as they were furnished with for the destruction of the rioters. Every man had a right to oppose force to force on that first principle of the law of nature as well as the law of the land, self-defence; so the military, when present, individually as private persons, or collectively under military command, if they were insulted and assaulted by being pelted with brickbats, stones, &c, had a right to repel the violence and defend themselves. And in doing so the military did nothing but what every man else was warranted by law to do; because the military in every part of their conduct, in such cases as he had stated, were bound to obey the law.Lord Thurlow proceeded to show—That the military, individually, and the private citizen were equally liable to the same exercise of the civil power, and bound to pay it the same subordination, by discharging the duties imposed on them with equal punctuality and faithfulness. Lord Thurlow then entered into a very copious discussion of the power of the sheriff in regard to the calling out of the posse comitatus, which comprehended in it every individual male of the county capable of bearing arms, the sheriff having it at his option to give weapons fit for the occasion to such of them as he thought proper. In proof of what he had asserted, he stated that soldiers, when not employed on military duty, were obliged, if at quarters or elsewhere in the county, to obey the sheriff's summons whenever he called out the posse comitatus, and to attend in person to receive and obey the orders of the sheriff."—[Hansard, Parliamentary History, xxi. 7–18.]Lord Chief Justice Tindal, in his charge on the occasion of the trials of the rioters at Bristol, in 1832, stated that it was—The duty and right of every private person of his own authority to suppress a riot by every means in his power. And the law acknowledges no distinction in this respect between the soldier and the private individual. The soldier is still a citizen, lying under the same obligation, and invested with the same authority, to preserve the peace of the King as any other subject. If the one is bound to attend the call of the civil magistrate, so also is the other; if the one may interfere for that purpose when the occasion demands it, without the requisition of the magistrate, so may the other also; if the one may employ arms for that purpose, when arms are necessary, the soldier may do the same.With reference to the debates in that House on the Duke of Richmond's Motion it might be useful to call their Lordships' attention 922 to what passed between the City and the Government as to the right of the citizens to carry and use their arms. The correspondence would be found in the Appendix to the Chronicle in The Annual Register of 1780, from which it appeared that the Government pressed upon the Lord Mayor "not to omit any legal exertion of the civil power which might contribute upon that occasion to preserve the public peace." The inhabitants of the City proposed to arm themselves for their protection against the rioters, The plan was to have a battalion company of fifty of the opulent part of the inhabitants, armed, clothed, and taught the manual and platoon exercise at their own expense, and not to do duty out of their own ward. Lord Amherst, then at the head of the army, wholly disapproved this intention, on the ground that "no person could bear arms in this country but under officers having the King's commission." He gave directions to the officer commanding the troops in the City—If any arms were found in the hands of persons except they were of the City Militia, or were persons authorized by the King to be armed, to order the arms to be delivered up to him to be safely kept until further order.The Government and the king did not think it expedient that any personShould be permitted to use arms otherwise than for the immediate defence of their houses, or being under the command of persons receiving commissions from the King.This order leading to an unpleasant correspondence between the City authorities and the Government, the latter ultimately explained that in a time like that—Of real danger from riots, tumults, and rebellious insurrections, a reasonable number of inhabitants armed, according to the nature and circumstances of the case, might attend the police officers as assistants to them, for the preservation of the public peace until the danger was over; but although His Majesty's Protestant subjects might carry arms for their defence suitable for their conditions, and as allowed by law, yet they could not by law assemble in bodies armed, and be mustered and arrayed without the authority of His Majesty.The noble Earl opposite (Earl De Grey and Ripon) had addressed a letter to The Times newspaper. It concluded in the following terms:—The law clearly confers no power of calling out Volunteer corps to aid in the suppression of riots. In such cases Volunteers can only act as private individuals; they may be sworn in as special constables, but only in the same manner as any other person, and with the same duties and liabilities; but since the passing of the Volunteer Act of 1863 it has never, as I believe, been under- 923 stood hitherto that Volunteers so sworn in were to be armed with their Government rifles and ammunition, and to be employed, as might then be the case, rather as troops than as special constables. Such an employment of Volunteers seemed to me to be a matter requiring serious consideration, and I therefore thought it most desirable that the views of the Government should be clearly stated upon the point, in respect to which the opinion expressed by the Under Secretary for the Home Department left room for considerable doubt.He would now state to their Lordships how in his opinion the law as stated by the authorities referred to ought to be applied. The Volunteers could not, as such, be called out, or go out as a body to quell riots or tumults; their services were confined to actual or apprehended invasion, and they were not then to be called out until the Crown had communicated with both Houses of Parliament, or, if Parliament were not sitting, with the Privy Council, and a notification by proclamation. The Volunteers were not released from their duties as citizens except in being exempted from serving in the militia, nor had they lost any of their rights as citizens. Therefore, they might be compelled to act as special constables, or they might, like other citizens, assist in putting down riots, tumults, and felonies, without being so sworn, although, of course, when special constables were being sworn in every man meaning to serve his country would attend to be sworn in specially. They might be armed according to the discretion of the magistrates, or, if acting as citizens, without such authority, according to their own discretion. This must depend on circumstances. In the case of an ordinary riot or tumult the staff would be the proper weapon. If the rioters had weapons and arms, of course the citizens, whether acting as special constables or not, should have like weapons of offence. Volunteers, as such, should never interfere in riots, and, therefore, if acting as special constables or as citizens not sworn in they should not appear in uniform, or assemble or act as a corps, but should as individuals join with other loyal subjects in putting down the riots or tumults. They might use the Government arms in this service to their country. Take the case of a Fenian outbreak; of course, those who opposed them must be armed. Very many of our Volunteers were permitted by their commanders to take their rifles home with them, and, perhaps, that was the safest place for them during a riot or tumult. Clearly they might arm when necessary. 924 Why might they not use the Government arms in their custody? Of course, the general body of arms in store could not be used without the permission of the commander, and this, where necessary, he would be at liberty to grant. There was no law prohibiting this. The subject was doing the duty he is compellable to perform as a loyal subject, and he was entitled to be armed. The King's arms, therefore, were the fitting ones to be employed in the King's service. To seek arms elsewhere and leave the body of the arms open to the attacks of the rioters would be simple folly. But though so armed they ought not and need not be employed as troops, but only as special constables.
THE LORD CHANCELLOR
My Lords, the subject to which my noble and learned Friend has directed your Lordships' attention is one which, under present circumstances, becomes of considerable importance. We have found by recent experience that the public tranquillity and safety may be suddenly endangered, and it may become necessary to take prompt and decisive steps to meet any similar difficulties that may occur, and to put down all disturbers of the public peace with a strong hand. It is most desirable that a magistrate should perfectly well understand upon such an emergency arising what are the powers to which he may have recourse. It is clear that it is unlawful to call out and employ the Volunteers as a military force for the purpose of repressing disturbances of the peace. The Volunteer Act of 1863 enables Her Majesty, in case of an actual or apprehended invasion, to direct the lords-lieutenant of counties to call out the Volunteer corps in their counties for actual military service, and as the Act of Parliament has specified the instances in which the Volunteers may be employed as a military body, it is obvious that by necessary implication every other occasion is altogether excluded. A Volunteer, therefore, in acting at all in the suppression of riots, is exactly in the condition of any other of Her Majesty's subjects. He can act to the extent that they can act, and his obligations are precisely the same as theirs. Now, it is most important that every subject of Her Majesty should understand what are his obligations and duties in the event of any sudden riot or tumult or disturbance taking place. I would, however, infinitely prefer to give your Lordships the law on the subject, and to explain the duty of Her Majesty's sub- 925 jects on occasions of this kind, on authority much better than my own. In the year 1801 the late Lord Ellenborough, who was then Attorney General, upon a case being laid before him, gave this opinion—In case of sudden riot and disturbance any of Her Majesty's subjects, without the presence of a peace officer of any description, may arm themselves, and of course may use ordinary means of force to suppress such riot and disturbance; and what Her Majesty's subjects may do they also ought to do for the suppression of public tumult when an exigency may require that such means be resorted to.Now, of course, this obligation becomes more peremptory in cases where the magistrate requires the assistance of any of Her Majesty's subjects in order to put down any disturbance of the peace; and to that Lord Chief Justice Tindal referred, in the charge to which my noble and learned Friend has alluded, and which was delivered to the grand jury upon the Special Commission for the trial of the Bristol rioters. The Lord Chief Justice expressed in the clearest language what was the duty of Her Majesty's subjects on such occasions. He said—and he spoke most emphatically—And here I most distinctly observe that it is not left to the choice or will of the subject (as some have erroneously supposed) to attend or not to the call of the magistrate as he thinks proper, but every man is bound, when called upon, under pain of fine and imprisonment, to yield a ready and implicit obedience to the call of the magistrate, and to do his utmost to assist him to suppress any tumultuous assembly.The Lord Chief Justice then explains the mode in which the assistance of Her Majesty's subjects were usually demanded in cases of this kind—In later times the course has been for the magistrate, on occasions of actual riot and confusion, to call in the aid of such persons as he thought necessary, and to swear them as special constables; and, in order to prevent any doubt (if doubt could exist) as to his power to command their assistance by way of precaution, the Act 1&2 Will. IV. c. 41 has invested the magistrate with that power in direct and express terms, when tumult, riot, or felony was only likely to take place, or might reasonably be apprehended.Now, a Volunteer is not exempt from serving as a special constable. The Yeomanry are exempt, but a Volunteer has no such privilege, and therefore if called on to be sworn in as a special constable, he is bound to obey. Now, my Lords, if I understand my noble and learned Friend (Lord St. Leonards) correctly, he seemed to think that when 926 Volunteers were called out as special constables they were not at liberty to employ any organization which they may have received to enable them to act more efficiently as special constables. If that is my noble and learned Friend's opinion, I beg leave most respectfully to differ from him. I think that, if called out as special constables, they are not to be organized as if acting as Volunteers; but that each may join with others, and take advantage of his previous organization in order to enable him to act more efficiently as a special constable. I apprehend, also, that a Volunteer may, if called out, take his arms with him, just as any other subject of Her Majesty, if he thinks that they are necessary for his protection in the discharge of his duty. Whether when the arms of the Volunteers are collected in one place the local magistrate may order those arms to be distributed among the Volunteers for the purpose of enabling them to assist in putting down riot and tumult, is a matter on which I think it is impossible to lay down any rule. If the riot and tumult are of a dangerous description, I apprehend the magistrate may, on his own responsibility, direct that arms be put in the hands of those special constables. Of course, he must take care that he exercises that discretion with caution and prudence; but if be honestly, faithfully, and firmly exercises his discretion, I apprehend he will be protected by law in placing arms in the hands of special constables where the tumult and riot are of a dangerous description, and it is absolutely necessary that the utmost force should be used. I do not think it necessary that I should enter more fully into the matter; because my right hon. Friend the Secretary for the Home Department, believing that the law on the subject should be clearly laid down, has determined to take the opinion of the Law Officers, with the view of obtaining such instructions for magistrates that, on the general question, no one will have any difficulty in coming to a right conclusion. But still a great deal must be left to the discretion of the magistrate. I am, however, convinced that if the magistrate should show the determination which the occasion may require, and act honestly, fearlessly, and faithfully, he will be protected by the law.
EARL DE GREY AND RIPON
must say, after the discussion which had just taken place, that the question was not in a satisfactory position. It had been laid down 927 that local magistrates, on their own responsibility, in certain cases, might not only call on individual Volunteers to serve as special constables, and direct them to be armed as any other sworn constable, but might go further and on their own responsibility have them armed with arms and furnished with ammunition not the property of the Volunteers but the property of the Government. Whether these arms were kept by the Volunteers in their own homes or were all collected at a depot, they were equally the property of the Government. He must say, too, that he thought the distinction between a body of Volunteers acting as Volunteers, and a body of Volunteers acting as special constables, but armed with Enfield rifles and Government ammunition, was too fine a one. If Volunteers were to be employed to aid in putting down riots and tumult, it would be better that power should be taken to call them out under the Mutiny Act, as had been the case under the old law. If they were called out under the Mutiny Act, we should have them under better discipline. At the same time, he was bound to say he entertained very serious doubts as to the advisability of employing Volunteers for such purposes, except in the same way as all other persons who served as special constables were employed. The employment of Volunteers in civil tumults under any other circumstances seemed to him to require very grave consideration. The other House of Parliament had deliberately decided that they were not to be employed in that way. It was that determination on the part of the House of Commons which had led to the striking out of a particular clause in the Bill of 1863. It appeared to him that it was only in such a case as a general arming of the whole population that the Volunteers should be employed to quell any disturbances; but certainly, the matter was not one which should be left to the discretion of local magistrates.
§ VISCOUNT HARDINGE
said, that great dissatisfaction was felt at the uncertain position of the question. The Volunteer force had been enrolled under the impression that they were never to be called out except in the case of invasion or apprehended invasion; and he doubted whether the Volunteers should be allowed to use their arms on the requisition of a magistrate. When the Volunteer Act passed their Lordships' House, it contained a clause providing that Volunteers, at the 928 discretion, not of the local magistrates, but of the Secretary of State, might be called out in case of tumult; it went down to the House of Commons, but after a sharp discussion there the Under Secretary for War withdrew the clause. Possibly some such arrangement as was then contemplated might now be made; but the question was one that was delicate and difficult to deal with, and it would be much to be regretted if, through the state of the law, any unpopularity attached to the Volunteers. Against the notion that Volunteers were to arm themselves with weapons belonging not to themselves, but to the Queen's Government, and act independently in the case of simple riot, he felt bound to protest. A small party of them might he cut off, the rifles wrested from their hands, and serious consequences might ensue. And there was another point to which it was necessary that attention should be directed. In rural districts Volunteers usually had leave to keep their rifles in their own houses; but in towns, where the arms of three or four battalions were collected together in a magazine, some measures ought to be taken to protect the armouries.
THE EARL OF LONGFORD
said, that as many Volunteer officers had expressed to the Government a desire for instructions for their guidance in future emergencies, the Government had directed their attention very seriously to the matter. It was, no doubt, contrary to the spirit of the Volunteer constitution that Volunteers should be called out in a general way to repress disturbances, or that magistrates should think that this force especially was at their disposal to be set in motion on such occasions, There could be no doubt that the same loyal spirit which prompted the Volunteers to place their services at the disposal of the Crown in case of invasion would lead them to act as special constables, under proper guidance and authority, if the magistrates require their services for the preservation of the public peace. Then this point suggested itself. Cases might arise where the Volunteers might be called on to come forward with arms in their hands to repel a public enemy, and there might be public enemies within as well as without, when it would be very desirable that the Volunteers should be called out as an armed body. In framing any instructions it was therefore very difficult to lay down any precise line; but, keeping in view those difficulties which 929 Volunteer officers had suggested, as well as others which had reached them from other quarters, the War Department had taken counsel with the proper authorities, and the result was that full instructions would be issued with as little delay as possible. The question of armouries being one that was supposed originally to be provided for by the Volunteers themselves, no military arrangements had been undertaken for their preservation; but the point had become one of importance, and with others would receive immediate consideration.
said, that the discussion that had taken place that night had placed the matter in a more satisfactory condition than it was before. He thought it clear that, except under the control of their officers, the Volunteers certainly ought not to come out with Government arms in their hands. It was highly undesirable that Volunteers should be brought into collision with the people; at the same time, circumstances might arise rendering such a course indispensable. For instance, if the 1,400 or 1,500 Fenians at Chester the other day had made an organized attack, thereby levying war upon the Government, the magistrates and officers in command of the troops would have been deserving of censure had they not armed the Volunteers and directed them to act against the insurgents. It was of the utmost importance that the law on the point should be clearly defined, because at present the position of an officer in command of Volunteers in case of a riot would be exceedingly trying and painful. He heard, therefore, with much satisfaction that the Government proposed to take the state of the law into consideration. He hoped when the matter was looked into some effort would be made to define how the Volunteer force might be employed under local authority; and, if they found it to be necessary, he hoped they would not shrink from introducing a short Bill for the amendment of the law.
§ EARL RUSSELL
said, he did not propose to say anything on the law of the case which, no doubt, had been laid down most carefully by the Lord Chancellor. The House of Commons while they provided for the Volunteers being called out in case of invasion, had negatived their being called out in cases of riot and tumult, and it appeared to him that it would be very dangerous to introduce any Bill on the subject which would give further powers for the interference of Volunteers. Their 930 Lordships were all aware that it had been necessary to call out the regular troops in many cases, and he did not remember a single instance in which they had not shown the utmost discretion and acted with the utmost forbearance, although exposed, perhaps, for hours to very trying circumstances. In the case of Volunteers, no doubt influenced by local feeling, or to some extent by party hostility, one could not be certain that they would act in all cases with the same forbearance as regular troops. As a matter of expediency, therefore, he hoped it would not be necessary to alter the law, or to attempt to call out Volunteers in a fashion more dangerous than the employment of regular troops—that was to say, without being under the control of their officers.
THE EARL OF BELMORE
said, there was one point in connection with this subject which could not be too clearly borne in mind, and that was the distinction between simple riot and insurrection. In circumstances such as those that had occurred at Wolverhampton the other day, it would be clearly unadvisable to employ the Volunteers; but at Chester, if what was contemplated had been carried into execution it would not have been a simple riot, but a levying of war against the authority of the Queen. In such a case as that, the employment of Volunteers would stand on a very different footing from an ordinary case of riot.