HC Deb 15 March 1821 vol 4 cc1247-57
Mr. James

rose to bring forward his promised motion on this subject. It was a subject, he said, which involved not merely the rights of his constituents, but the rights of the British people. The fate of his motion would decide whether elections for members were or were not to be violated at the will or caprice of one or more country magistrates; whether, in fact, they were in future to be regulated at the point of the bayonet? It would be recollected that during the last session, he had presented a petition from the freemen of Carlisle, complaining of the conduct of three magistrates, who introduced a military force, when the freeholders were peaceably assembled, for the purpose of electing a member to serve in parliament. The question, it was clear, affected the very essence of the constitution: if, indeed, the constitution was not wholly to be dissolved, such conduct could not pass without reprehension. He would remind the House, that a noble lord, the member for Westmorland (lord Lowther) had stated that the charges in the petition were unfounded calumnies.*The noble * See Vol. 2, p. 143. lord had since visited the scene of action, and be had now an opportunity of correcting himself. He had no hesitation in saying, that the facts stated in the petition were true to the fullest extent. The facts were these: The late election for Carlisle had been unusually long, and much party feeling (which always existed in that place) was called into action during the progress of the election. On the first day, a scuffle took place in consequence of two bands of music coming in contact; it was however, nothing more than electioneering affray, and did not last for ten minutes. The agents of Sir P. Musgrave took that opportunity of applying to the mayor for military force, which the mayor refused. Here he would ask, how did it happen that during the election the military should have been permitted to remain in Carlisle? The law was clear on the point. Sir W. Blackstone had said in his Commentaries, that it was essential to the very being of an election, that it should be free, and that when the time and place of the election was once fixed, the soldiers should be removed from the place appointed for holding the election, the day before the commencement of the election, and that they should not be permitted to return until the day after the polling had closed. The mayor, though he had refused to comply with the call for military aid, had yet assured those who had applied to him, that if any impediment should be thrown in the way of the voters of sir P. Musgrave, he would himself lead them to the poll, he would call in a constitutional force Sufficient to conduct them there. This offer, however, was refused by some of sir P. Musgrave's friends. In fact there was no necessity whatever that the military should be called out. In the course of the morning some other trifling scuffles took place, and another application was made for the military. The officer who commanded the military had never felt himself called upon to perform a more painful duty. It was an unnatural employment of a soldier to be called upon to apprehend for trial before a civil magistrate. What! were the military to be employed as constables? Surely it was not necessary to kill a man in order to apprehend him. One wretched man, of the name of Crosby, had been marched off to the Castle, and committed under a pretence of having assaulted one of the magistrates. He had been afterwards committed to take his trial for felony; but having remained in gaol from 24th of May to 12th of August, he was liberated without any prosecution or trial. It would be said that he was entitled to an action for damages. Yes, he knew that there was ground for such an action; but the fact showed the extravagant extent to which magistrates conceived themselves entitled to proceed. The magistrates could not have been ignorant of the law of the land; but they had been wilfully perverse. They had endeavoured to carry by violence and intimidation what they found they could not effect by fair means. This was an illustration of the consequences to be expected from the large military establishments which were required. This House had been wont to resist, with extreme jealousy and indignation, the slightest interference of the military beyond their constitutional limits; but modern politicians relied for every great exploit on the bayonets of hired troops. The parliament now directed its attention to any thing rather than to the relief of the distresses of a brave, a loyal, and a faithful people. The country was oppressed with barracks, and the petitions of the people were answered only by the sword. This state of things would, ere long, terminate in the total subversion of all civil order and of all law, or it would terminate in what some considered the best possible result—the calm despotism of a military government. But be the result the calm despotism of the sword, or the agitations of an outraged people, he, humble as he was, would ever strenuously contend against the wanton introduction of military violence into a peaceable assembly of the people. The hon. gentleman then moved, "That the said petition be referred to the Committee of Privileges."

Sir P. Musgrave

opposed the motion. He said, that there was much rioting, that the civil power was quite unable to keep the peace, that the mayor was treated with the greatest contempt, that three of his own voters were so intimidated, that they thought it prudent not to give their votes at that time, and that the military were not called in until the necessity for their interference was clearly established. The hon. baronet read some letters and depositions to substantiate his positions, but so inaudibly, that a great part of the House itself could not have understood their contents.

Sir J. Mackintosh

wished to make a few observations on the facts which had been stated by the hon. baronet. If he did any injustice to those facts, he hoped it would not be imputed to intention, not having so distinctly heard the statement just made as he could have wished. As far, however, as he heard the hon. baronet's luminous statement, he was inclined to believe that he justified the interference of the military, on account of the expression of popular feeling between the friends of the respective candidates. If this ground of military interference was conclusive, parliament ought immediately to repeal the laws regarding elections, and put them at once under military protection. All popular elections in the kingdom would call for the same interference as that which had been exercised at Carlisle, and the country ought therefore to transfer its confidence from the magistrates, who were the constitutional protectors of the peace—from the laws, which were the defence of privilege as well as power—to a military force which ought to be constituted the guardian of the right of election. By the hon. baronet's account, as far as he could understand it, the riot was said to have arisen from the violent conduct of an outrageous mob. Now, there were two species of language used by candidates at elections, according as they were successful or unsuccessful. That which was called a mob by him who saw through the eyes of a disappointed candidate, would appear to his more happy rival as an honest, spirited, and independent body of the citizens of Carlisle, enjoying the natural triumph of their constitutional exertions. But he (sir J. M.), who was more impartial than either, must say, that if the facts stated warranted the calling out of the military, there never was, or could be, a popular election which would not require military interference. Soldiers must be called, out on all such occasions, as the exultation of the friends of the successful candidates were sure to be designated by his disappointed competitor as the conduct of an outrageous mob. There was, no doubt, a fact of great importance stated by the hon. baronet; it was, that no less than three of his voters had been so intimidated by the opposite party, that they thought it prudent to postpone their votes to a more quiet time. But what did this charge of intimidation amount to? He never saw a popular election in which some day did not occur upon which those voters who were fastidious of the right of voting under the most tranquil circumstances, might not choose a quiet season. The case, in fact, came to this, that either the military interference on such an occasion ought to be corrected, or the laws of election should be repealed, which guarded the subject in the exercise of his invaluable and sacred right of choosing representatives from armed dictation. He understood the hon. baronet to say, that the law of election justified the calling out the military, because the act which removed the military from the place of election, had a clause in favour of the troops in castles and fortresses, who were permitted to remain, and in this case, the troops which were called upon to suppress the scuffle among the electors of Carlisle, were marched out of the Castle of that town. But, the legal necessity for their interference should be established, as the exception in the clause was not made in order to facilitate the marching of troops upon the places of election, and to introduce armed men to sway the exercise of the most important rights of free citizens, but was merely made in favour of those castles and fortresses, that the troops might remain in and keep possession of them, notwithstanding an election in the neighbourhood. This clause did not endanger much the right of election; because there were very few garrisoned castles and fortresses in England; and therefore, if, where troops remained in such places during the time of an election, they were there to keep the peace, then the law must have provided for keeping the peace in places of comparative insignificance, and left those of the first importance unprovided for. In this case Liverpool must have been left exposed to popular disturbance, Bristol must have been left exposed—and other towns of the first character, while such inferior places as Carlisle were put under the rigorous guardianship of. the military power. To introduce the military power on such occasions, without the last necessity, was a violence done not only to the letter but to the whole spirit of the constitution, and to the election laws in particular, which did not by any exception' facilitate the marching of troops upon places of election, but only enabled the king's forces to keep possession of fortresses, notwithstanding the occurrence of elections in the neighbourhood. As far as he could hear the hon. baronet, his facts did not establish any material contradiction to those stated by the hon. mover. The hon. mover had stated his case with singular ability, and had convinced him of the propriety of calling on the House to refer the petition to a committee, in order to ascertain, whether a great outrage had been committed against one of the most valuable privileges of the constitution.

Lord Castlereagh

said, that the troops had not been kept in Carlisle for the purpose of interfering with the election. The cavalry had been withdrawn and sent to a town in the neighbourhood; but sir John Byng, not knowing how to dispose of the infantry, had ordered the Castle to be shut upon them during the election. This order had been complied with, and no soldiers would have been allowed to go beyond the gates, unless they had been called for by the civil power. Though the law prohibited the presence of troops at elections, yet it recognized, and committees of that House had acknowledged, the interference of the military to protect the privileges of electors. The commanding officer, in this case, had brought out the troops at the request of three magistrates, after the riot act had been read. The three magistrates had called upon the officer to recall the cavalry who had been sent out of town; but the officer refused to do so without the order of the mayor; and the mayor having declined to order it, the cavalry were directed not to come. It was after the election that the two companies had been called out to quell a riot, after great care had been taken that there should be no military in the town during the election. It was plain that there was a very great riot. ["No riot whatever," from Mr. James.] Certainly it might be a question of privilege, but he was sure that it would be found that neither the magistrates nor the government wished to excite an unfounded alarm to justify the use of the military. If there was no cause for the alarm, upon which the magistrates called out the military, they must have acted erroneously; but he was convinced they had no designs hostile to the free exercise of the right of election. If they wished to overawe the freemen of Carlisle, they would have called out the military before or during the time of the election; but it appeared that the troops were not sent for until the polling was over, at least for that evening. However jealous the House ought to be of their privileges, he did not think there was a case to go before the committee of privileges.

Lord Lowther

maintained that there had been a most malignant riot, calling for the interference of the military power to quell it, which military power was not introduced into the town until after the close of the election. The inquiries he had made led him to the conclusion that the magistrates had done no more than their duty. No case had been made out against them, and he entirely denied that the military had been resorted to with a view of overawing the voters and influencing the election. He would therefore move the previous question.

Mr. Curwen

observed, that this was not a question between certain individuals of the town of Carlisle, but one which affected the privileges of that House and the rights of all the people. He maintained that there had been no riot, and not even as much blood shed as would cover the point of a pin. If there had been any riot, some person, he should suppose, must have been indicted by the magistrates in justification of their own conduct. But was that the case? One man, who asked the magistrates whether the Riot act was read, had, indeed, been committed, but had not been prosecuted. They had, indeed, wished to turn him out of the prison without any further proceedings against him; but the man had refused to go, stating that a gross violation of the law had been committed in his case, and that he would not stir, unless he was discharged by law. He was of opinion that if the House failed to notice the conduct of the magistrates, there never could be a case in which it could again interfere in vindication of its privileges. He should certainly vote for inquiry; and thought that if the magistrates were convinced of the rectitude of their conduct, they, more than any other persons, ought to wish it to be instituted.

Mr. Wynn

observed, that the present was a subject which the House always regarded with the greatest jealousy. Unquestionably, that House was the tribunal before which all complaints of an infringement of the rights of the people, as respected the election of their representatives, ought to be brought. To call in the military during an election was an infringement of those rights, which nothing but the clearest necessity could justify. What had that House been in the practice of doing in cases of a similar nature? When, in 1741, the members for the city of Westminster called witnesses to the bar to prove that the church-yard, in the neighbourhood of the hustings, had been taken possession of before the commencement of the election by a body of armed soldiers, the House came to a re solution, "That it was a high infringement of the liberties of the subject, a manifest violation of the freedom of elections, and an open defiance of the laws and constitution of this kingdom." He would also read a short extract from the observations of one of the most eminent individuals who ever sat in the chair of that House—he meant Mr. Speaker Onslow, when—in compliance with the instructions of the House, he reprimanded the magistrates who had called in the military on that occasion. The hon. gentleman here read the extract to which he alluded. After citing the resolution, it proceeded—"It is impossible, if you well consider the terms of this resolution, but that you must have felt in your breasts the deepest sorrow and remorse for this rash act of yours, which, if it had not been animadverted upon, might have given the most dangerous wound to the constitution of this free country, that perhaps it had ever felt: this country, free, because this House is so; which this House can never be, but from the freedom of elections to it; and amidst the too many ways for violating that, none can be more pernicious, because none more quick, decisive and permanent, than what you might un happily have set a precedent for and which might have grown to an extremity, under the specious and ready pretences of fears and necessity, that supersede all law." It concluded by saying, "what you have done, is against one of the most essential parts of the law of the kingdom."* He should be ashamed to add a single word, after reading this quotation, which so clearly laid down the rule that the interference of the military on such an occasion was justifiable only on the clearest necessity. Undoubtedly, there might have been such a necessity in the present case; but that was a question which ought to be investigated, and he therefore thought the hon. member perfectly right in calling for an inquiry * New Parl. Hist. Vol. 12, p. 328. by that House, which was bound to defend the privileges of the people.

Mr. Beckett

denied that the case of Westminster, and the present case were parallel. In the case of Westminster, the troops were placed near the hustings before the commencement of the election, and remained there the whole time. In the case under consideration, the military had not been called in until the poll had closed [No, no!]; at least, so it was stated in the petition. This was a very stale proceeding. If the conduct of the magistrate; of Carlisle had been blameable, why was it not sooner inquired into? But was it blameable? Had there not been a considerable riot?—had not several men been knocked down, and some of their legs broken?—had not the Riot act been read three times? Were not those of the mob who remained, guilty of felony? and were not the magistrates, who acted on their own responsibility, justified in, at length, calling in the military, to put an end to that which they could not put an end to without them? But even if the magistrates were wrong, had the hon. mover taken the proper course on the occasion? Ought he not rather to have moved, that the petition should be referred to the examination of a select committee, or rather, ought not the whole business to have been submitted to the court of King's-bench? The courts of law were open to any one who had to complain either of this or of any other act of the magistracy. For his own part, he must state it as his opinion, that if the hon. member had been influenced by better feelings, or had been better advised, he would rather have taken a course very different from that which he had thought it his duty to pursue.

Mr. Calcraft

said, he had never heard any question in which the clearest privileges of the House and the most valuable rights of the constituent body were implicated, treated, in the manner in which the present question had been treated by the right hon. gentleman who had spoken last. He was sorry that there should be any member in that House so lost to the love of liberty, so regardless of the privileges of that House, and so neglectful of the dearest rights of the subject, as that right hon. gentleman was on his own showing. The right hon. gentleman had said, that this complaint was now stale. Stale! A breach of the privilege of parliament, an interference of the military at the election of a member to sit in that House, was called stale: stale indeed; because it did not come in time to suit the palate of the right hon. gentleman, and therefore was to be neglected as unnecessary; or, if made out, was to be referred to the common-law courts, and to be decided by the common-law principles of riot. Was that the way in which infringements of the right of election were to be remedied? He regretted that a man who held sentiments so novel and so unconstitutional should hold a judicial situation of great consequence; and he believed that if the right hon. gentleman had ever ventured to express such sentiments before he had been appointed to that situation, he would not now have held it. To show that the military had been called in at all, was sufficient to justify inquiry. The right hon. gentleman had said, that the magistrates had caused the military to interfere upon their own responsibility; and the magistrates should be made to know that their responsibility would bring them to the bar of that House, if their conduct was complained of. That was the way in which he would advise the House to interfere in this question. He did not stand there to say that the magistrates could not be justified; but he did stand there to say that the House could not be justified if it did not examine into the conduct imputed to them. His hon. friend had moved that this complaint should be referred to a committee of privileges; perhaps it might have been better if he had moved that it should be referred to a select committee; but let it not be said, that when a party of magistrates caused the military to interfere with the rights of election, no redress could be obtained for the people, because the mode proposed to obtain it was not exactly the best possible.

Mr. Bennet

said, that a noble lord had declared that there never was a more malignant riot than at the election for Carlisle. Now he could assure the House, that he, for one, had seen a more malignant riot, and that at the noble lord's last election. He had there seen a slave dealer from Liverpool heading a body of bludgeon-men whom the noble lord kept in pay, and had seldom been more gratified than on seeing them routed and deprived of their spolia opima by the gallant peasantry.

Lord Lowther

observed, that it was easy to call special constables bludgeon- men, but not very fair to call the captain of a merchantman a slave-dealer, after he had long ceased to exercise that traffic. With regard to the interference of the military, the Whigs had found their assistance necessary not very long since at a Westminster election.

Lord Castlereagh

said, that finding there was a doubt on the point whether the military had been called in before or after the close of the poll, he certainly felt no longer any disposition to resist inquiry on the subject.

Sir J. Graham

maintained, that there had been a great riot on the occasion in question, of which fact, no less than seven affidavits had been made, and that it was on that ground that the magistrates had issued orders for the troops to interfere.

The previous question was withdrawn, and the original motion agreed to.

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