HC Deb 08 March 1867 vol 185 cc1550-73

said, he rose to call the attention of the House to the uncertainty as to the position of the Volunteers, as to whether they could or could not be called upon to aid the Civil Force in the repression of disturbances; and to ask the Government what steps, if any, they intend to take to remove this uncertainty. There was much doubt in the country with regard to the position of Volunteers in the event of disturbances, and to what extent they were liable to be called upon to aid the civil power upon such emergencies; and it was obviously necessary that those doubts should be removed. The doubt had arisen in consequence of what passed at Chester on a recent occasion; but before referring to this he desired briefly to explain the position of the Volunteer force according to the Act under which they were enrolled. The Volunteer Bill of 1863 originally contained the following clause:— Whenever a Volunteer corps, with the approval of one of Her Majesty's Principal Secretaries of State, voluntarily assembles on being called upon by the Lieutenant of the county to which the corps belongs to act within that county or the adjacent counties for the suppression of riots or tumults, every Officer and Volunteer shall, for the purpose of this Act, be deemed on actual military service. Actual military service was defined by a subsequent clause, as follows:— Such actual military service being defined by Clause 23, that 'Officers and Volunteers shall be subject to the Mutiny Act, and shall also be entitled to the benefits thereof in all respects as the officers and soldiers of Her Majesty's army for the time being are, and as if the Volunteer force belonged to and formed part of Her Majesty's army, subject only to this variation, that a court martial shall be composed of Officers of the Volunteer force only.' If, therefore, the Bill had passed in its original form, Volunteers would have been liable to be called out by the lord-lieutenant, with the sanction of the Home Secretary, for the suppression of disturbances. They might, indeed, have pleased themselves whether they responded or not; but if they came out they were to be under military discipline, and in exactly the same position as regular soldiers. A Motion, however, was brought forward by his hon. Friend the Member for Oldham (Mr. Hibbert), and there was a general feeling in the House that it would be unwise and inexpedient to rely upon or employ Volunteers in aid of the civil power. The clause was accordingly struck out. He was aware that a very large proportion of the present members of the force were enrolled prior to the passing of the Bill, and that they were, therefore, originally under the old Yeomanry Act, and might have been called out by the lord-lieutenant without the sanction of the Home Secretary; but he believed the great majority of them were ignorant of that liability, and joined the force under the belief that they would not be called upon for such a purpose. The movement, indeed, was solely intended for the protection of the country against any external danger, and it would not have attained the point which it reached within a year or two if there had been any thought of employing it in aid of the civil power. Lord Herbert, in a circular letter which he had addressed in 1861 to the lords-lieutenant of counties, had used these words— I have also learnt that, in some cases, Volunteer corps have been called out in aid of the civil power on the occurrence of local disturbances, and I have therefore to point out to you, that, as the Volunteer force is not intended to be employed in this manner, it is inexpedient to assemble it on any such occasion. So strong, indeed, was the impression that the Volunteers could not he so employed, that the hon. and gallant Member for Beverley (Sir Henry Edwards), speaking on the second reading of the Bill on the 14th of May, 1863, expressed his gratification at its being contemplated to make an alteration and to put them in the same position as the Yeomanry. The hon. and gallant Colonel, on the second reading of the Volunteer Bill, said— Up to the present moment the services of the Volunteer corps were only available in the event of invasion; but he was happy to learn that it was contemplated in the Bill before the House to place them on the same footing as the Yeomanry Cavalry. As far as he could understand, they would in future be equally liable with the Yeomanry to be assembled for duty by the Commander-in-Chief, at the request of the lord-lieutenant, in support of the civil power in the suppression of riots."—[3 Hansard, clxx. 1700.] That was the impression of the Volunteers and the condition on which the force was framed. What had happened recently at Chester had, however, altered the state of the case. He was one of those who thought the affair at Chester a most serious business. In the language of the noble Lord (Lord Naas), it was as mysterious as it was unaccountable. The action of the Volunteers there had been characterized by promptitude, energy, and courage, and every Volunteer in the kingdom must feel proud that they had so well responded to the call made upon them. Major Humberston who had formerly been a Member of that House, and who was in command of the Chester Volunteers, had acted with coolness as well as energy. It appeared from his report to the lord-lieutenant that between five and six o'clock on the morning of Monday, February 11, he was informed of an intended attempt by Fenians to seize the arms at Chester Castle. The first thing he did was to remove the Volunteer arms to Chester Castle. A little later, being informed that from 80 to 100 Fenians had arrived at Chester station, he summoned the Volunteers, and in about two hours 150 had assembled. He did not arm them, and a telegram was sent to the Home Office to inquire how far the Volunteers were authorized to act. The reply received from the right hon. Gentleman the Home Secretary was as follows:— Volunteers ought not to be employed in their military capacity in quelling disturbances; but in point of law they would be justified in acting as individuals in aid of the civil power, and in a serious emergency they might use their anus if necessary. In the meantime the Volunteers had been sworn in as special constables. On the arrival of the telegram from the Home Office, Major Humberston armed them, and they remained under arms all night at the Castle. He wished the House to consider the position in which this telegram had placed the whole Volunteer force. They might be called upon by the magistrates to act, but not under military discipline or under the orders of their officers, although they might meet in uniform, with power to use the Government arms. They were in the position of an armed force assembling at the instigation rather than under the orders of the magistrates, and using their arms at their own discretion. This was a state of things not without danger to the peace of the country, and unfair to the Volunteers themselves. Let the House consider what might be the result. The Mayor of Chester and Major Humberston both acted with coolness and discretion, and no harm was done. But elsewhere there might be a frightened magistrate, who might call out a body of Volunteers. Any one of them might fire his rifle, and there might be a battle in the streets before any officers or soldiers of Her Majesty's army would be engaged. If a body of Volunteers should fire in a premature manner upon a crowd in one of our large towns, the so-called massacre of Peterloo might be as nothing in comparison. The law, as laid down by the right hon. Gentleman, had excited a good deal of anxiety among the Volunteer force, and the matter had been discussed in "another place." The Under Secretary of State (the Earl of Belmore) said— As civilians acting as special constables, Volunteers may be called upon to aid the civil power in quelling disturbances, and in cases of emergency there would be no objection to their using their arms."—[3 Hansard, clxxxv. 372.] On the other hand, Lord Malmesbury, who had had much experience as a Volunteer officer, expressed an opinion almost pre- cisely the opposite. He said, that he believed the Volunteers were liable to be sworn in as special constables, and, "when so sworn in, would naturally be armed as special constables usually were armed." Lord Malmesbury added— I, as a Volunteer officer, should refuse to give up the Government arms at the request of a magistrate."—[3 Hansard, clxxxv. 377.] This, also, was the opinion of Earl De Grey and Ripon, who, in a letter to The Times, said— 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 persons, and with the same duties and liabilities; but since the passing of the Volunteer Act of 1863 it has never, as I believe, been understood 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. The subject had also boon discussed by the chief legal authorities in the other House, where opinions were equally contradicting. Lord St. Leonards, one of the highest authorities in the country, and an ex-Lord Chancellor, expressing one view, while the present Lord Chancellor expressed another. The Volunteers were thus unable to know what they were to do. No doubt the right hon. Gentleman had communicated with the Law Advisers of the Crown; but this was a matter for the Executive rather than for the Law Officers. The House might anticipate that the law laid down would be similar to that explained by Lord Mansfield in the Lord George Gordon riots—that the magistrates might call upon any man, soldier, or civilian to assist in keeping the peace, and more than this, that any man who saw the peace broken might help to keep it, and act as he thought best for that purpose. If, however, death should ensue, he was responsible to the laws of his country for the exercise of his discretion. It was very unfair to tempt the Volunteers to use their discretion and not to guarantee them against the consequences. The right hon. Gentleman the Home Secretary, in his Chester I telegram, said that in a serious emergency the Volunteers "might use their arms if necessary." But suppose they should use their arms, and it should turn out that it was not necessary, they would then be responsible to the civil power, and they might be tried for their lives. The Duke of Cambridge, in the debate to which he had referred, stated that the officer in command of the few regular troops at Chester was placed in a most awkward position. He did not know, the Duke added, whether if he had availed himself of the assistance of the Volunteers he might not have committed an illegal act. If death had ensued he might have made himself amenable to the laws of his country, and might have been tried for his life. Captain Evans, who commanded the Artillery Volunteers at Chester, had written a letter to The Times, in which he stated— If the Volunteers were there as civilians, which is not only Mr. Walpole's, but doubtless, the dry legal view of the matter, then their mustering in a body with arms, involved the somewhat formidable principle that the inhabitants of a place, threatened as Chester was on Monday last, may assemble, either collectively (though, as simple civilians, under no responsible command) or individually, and use their firearms against rioters or invaders at their own discretion. It would not be difficult to show the alarming consequences which such a licence might involve, unless a very clear line indeed were drawn by law to distinguish the precise emergency in which firearms were or were not lawfully available in the hands of civilians. He added— Although the Volunteers would all most readily accept a 'special' retainer in plain clothes, they will, I am sure, be excused if they feel some repugnance at being utilized as special constables in uniform, and armed with rifles and carbines which they dare not fire without the risk of out-stepping the law. He trusted that the Government would come to the decision that exact regultions ought to be issued by the Home Office to the magistracy, and by the War Office to the officers of Volunteers, containing information on the following questions:—First, how Volunteers were to protect their arms? He imagined that upon this point the law would be clear, and that Volunteer officers might protect their arms in the same way that every private gentleman might protect his house. If this was the law it ought to be clearly laid down. The next question was whether, as the law stood, they might act in their military capacity in quelling disturbances? He supposed that they could not. Another important question which the Government would have to answer was this—Should the Volunteers as individuals act in uniform, and should they use the Government arms? He himself thought the answer to that question ought to be clearly in the negative. If they encouraged the Volunteers, not in a military capacity, not under discipline, and act- ing just as they pleased, at their own discretion to use firearms against their fellow-citizens, the most lamentable consequences might ensue. A further important question was this—Should the law be altered in any way so as to enable them to act in a military capacity, and under discipline, in the same manner as the Yeomanry now acted and as the Volunteers themselves might have acted up to 1863? He hoped the Government would seriously consider before they brought in a Bill for any such purpose. At a recent meeting of almost all the commanding officers of the various London Volunteer corps, a resolution, moved by the noble Lord the Member for Haddingtonshire (Lord Elcho), was passed, to the following effect:— That it is desirable that the legal position of Volunteers, in the matter of suppressing riots and tumults, should be clearly defined, for the guidance alike of civil authorities and Volunteers; and, while learning with satisfaction that those subjects are engaging the attention of the Government, it is further the opinion of this meeting that it would not be desirable to renew the provision of the old Volunteer Act, under which Volunteers were liable to be called out for the suppression of riots and tumults. But the following paragraph was added to the Resolution on the motion of the noble Lord the Member for Chester (Earl Grosvenor):— But that on any great emergency or raid, supposed, upon good information, to be fomented by foreign or external influence, and to affect Her Majesty's Supremacy, and in all cases of any threatened attack upon armouries or magazines, Volunteers may be called upon to act in their military capacity. The first objection to that declaration was its vagueness, and if a Bill was framed to meet the case, it must be upon the terms of the Bill of 1863, empowering the lord-lieutenant to call out the Volunteers. He supposed the words, "fomented by external influences," referred to some such movement as that which lately took place at Chester. He presumed that if there were any real danger in England all the Volunteers, like everybody else, must help the civil power; but it would be most unwise to anticipate such an emergency by making provision for it by Act of Parliament. The Volunteers ought to be used as the very last resort in such a case. They ought first to use the police, the special constables, and the regular troops of Her Majesty; they ought even first to use the Yeomanry, and for this reason—that much more serious consequences would ensue from the fire of a company of Volunteers with Enfield rifles than from the action of the Yeomanry Cavalry. If any great emergency arose it would be the duty of the Government to come to Parliament, and pass a Bill with the greatest expedition enabling them to make use of the Volunteers. He thought the Government must take on themselves the responsibility of such an emergency, and if they found that the bringing in of a Bill was necessary for meeting it the House would probably pass it with due expedition. He believed the Volunteer movement had done great good. It had put an end to the panics which arose from a sense of a weakness in the country. There was much talk about an army of reserve; but they must look on the Volunteer force as their reserve. Working men and, indeed, men of all classes and political opinions were brought together by, and joined in, the Volunteer movement. But if once such a Bill as he had referred to were passed, instead of a national movement it would become a class movement; many would leave it because of their class and of their political opinions, and, what was still more dangerous, many might remain in it because of their class and of their political opinions. Thus the force would be ruined as a means of national defence.


In consequence of the quotation just made by the hon. Member for Bradford, from a speech of his delivered in 1863, when the late Secretary at War introduced his Bill for the regulation of the Volunteer Force, he begged to observe that, in common with many others who sat on the same side of the House, he bad gathered the impression that the noble Lord was feeling the pulse of the House as to whether the Volunteers should be permanently placed on the same footing with the Yeomanry Cavalry, and for the future be liable to be called out in support of the civil power to quell riots and disturbances in the country. Finding, however, on subsequent explanation, that he had misconstrued the noble Lord's meaning, he took the first opportunity of communicating his mistake to the House.


said, he agreed with the hon. Member for Bradford (Mr. W. E. Forster) that the most melancholy results might accrue from the employment of the Volunteer force under ordinary circumstances. But he could not help feeling that but for the presence of the Volunteers lately at Chester the most melancholy re- sults might have ensued, and he had no doubt it was very much owing to their action on that occasion that a disaster was prevented. The military force in the Castle was very weak at the time; it was only one company, though another came in the middle of the day on Monday, and another arrived later. The Volunteers, however numbering 300 men, were on the spot, and that, he must say, affected materially the plots of the Fenians. He understood the hon. Member for Bradford to say it would have been better to have called out the Yeomanry; but that could not have been done so easily or so expeditiously. The Serjeant Major was away on business in the country, and difficulties might have occurred before they got the troop together which would not probably have been till Tuesday, or twenty-four hours after the danger arose. He would read to the House a letter from Major Humberston, the Volunteer officer concerned, and lately a Member of that House, who had behaved in the manner which might have been expected from him. That gentleman said— Dear Lord Grosvenor,—I send you a copy of the letter I wrote to the lord-lieutenant, which details the proceedings of the Volunteers on the 11th of February. When first I decided to call out the Volunteers nothing was said about their acting as special constables. I told the magistrates that I considered an attack upon the Castle would be levying war upon the Queen, and therefore that we should be justified in acting. I never felt any doubt that if we were to meet armed Fenians the Volunteers must act with their arms; but I did not parade them with arms during the day, as the arms were at hand in the Castle, and I thought it better not to make any unnecessary display. I believe considerable objection was felt by the Volunteers—indeed, some objection was expressed, to being sworn in as special constables; but the magistrates having made the request, and no reply then having been received by them from Mr. Walpole whether the Volunteers might act, I thought it might be misinterpreted, and would be setting a bad example if the Volunteers refused. I therefore asked the Volunteers to be sworn in, and they at once complied. There was a good deal of discussion on their being sworn in whether they should act in uniform and in military formation or in plain clothes; and it was agreed they should re-assemble in uniform. My intention throughout was they should act with arms unless the most stringent prohibitory orders were received from head-quarters. We therefore never decided how we should act in case we had to act as special constables with staves. On our re-assembling and marching up to the Castle at seven o'clock the arms were immediately delivered out to the Volunteers. No ball-cartridge was served out, but I had three kegs of ammunition placed ready, and would have served out ten rounds to each man without a moment's delay. I spoke to the Volunteers at our general parade last night, and the conclusion I came to is that Parliament must not convert Volunteers into policemen; that Volunteers must not be called out to quell ordinary disturbances; that they might be called out to quell extraordinary disturbances (such as the Fenians at Chester) if such extraordinary disturbances can be defined. Great credit was due to the Volunteers for the manner in which they acted under Major Humberston; because, though the Fenians came by railway from all parts of the country, and the homes of the Volunteers were very much at their mercy, the latter, instead of remaining to defend their homes, assembled at Chester Castle and were ready to defend the public property of the country. When the Bill was brought in in 1863 the general feeling was that the Volunteers should not be called out under circumstances of ordinary riot; but it was not then foreseen that such an emergency might arise as a Fenian invasion of a quiet town in England. The question was discussed the other day at a meeting of the commanding officers of Volunteers in the metropolis, when the resolution which the hon. Member for Bradford had read to the House was proposed, and was carried, he thought, unanimously, or nearly so, together with the addition which he himself had the honour to move. There might be some difficulty in embodying that addition in an Act of Parliament; but the House would, he thought, agree with him in the opinion that it was deserving of consideration. If the Volunteers had not been prepared to act at Chester great loss of life would in all probability have taken place. He, under those circumstances, hoped that the Government would direct their attention to the subject, and, if they found that the law required amendment, that they would not fail to make a proposal to the House with a view to its alteration.


said, the question which had been raised was one which was of the utmost importance, not only to the public, but to the Volunteer force itself. It was of importance to the Volunteer force; because when they undertook to defend their country against invasion they little thought, he believed, that in cases of civil disturbance they would be called upon to act against their fellow-citizens. Upon the decision which was arrived at on that point the stability of the Force, in his opinion, in a great measure depended. He quite concurred with the noble Lord who had just spoken, that the Volunteers, when their services were put in requisition at Chester, showed a determination to do their duty, on which reliance might be placed by the country, whenever their assistance was needed. He would say further, that no body of men would more faithfully defend their country. The real point at issue, however, was whether it was desirable that they should in ordinary times be called upon to act in their military capacity; and he maintained that it would be a fatal mistake to require them to take up arms except in case of invasion. It could not be too distinctly understood that a Volunteer was a Volunteer merely for that purpose. That for all other purposes he was a simple civilian, and that he was not in times of riot to turn out with his arms or in uniform. He might, of course, turn out as other civilians did, and act as a special constable, whenever the necessity for doing so arose. The Volunteers, indeed, might defend the Government arms placed in their armoury as any other property might be defended. If there were any doubt on the matter it would be well to introduce a Bill to that effect. But it was the sole occasion, save that of invasion, in which they ought to be at liberty to act as a military force. Entertaining those views, he would urge on his right hon. Friend the Secretary for the Home Department the expediency of bringing in a Bill defining the limits within which the Volunteers might act, so that there should be no doubt about the matter for the future. He quite admitted that the resolution as proposed by the noble Lord might in many cases operate wisely; but then it was vague and indefinite, and might, under ordinary circumstances, be productive of very great perplexity. It would be most unfortunate if the Volunteer force did not clearly understand their position, respecting which there ought to exist no doubt or difficulty whatever.


Sir, my noble Friend the Member for Chester (Earl Grosvenor) having alluded to what took place in the discussion on the Volunteer movement in 1863 during the time I was Secretary of State, I wish for a moment to refer to the course which was on that occasion adopted by the late Government. In preparing the Bill upon the subject my noble Friend, who was then at the head of the War Department (Earl De Grey), had before him the law as it stood with regard to the Yeomanry and Volunteers, which allowed those forces to be called out at the discretion of the lord lieutenant of the county. The Government having considered the matter, proposed that the law should for the future be assimilated to the existing law, with this additional provision—that the Volunteers should never be called out to suppress any riotous proceedings except with the sanction of the Secretary of State. We did not then contemplate that any local authority, on such a sudden emergency as that which arose the other day at Chester, should summon them to its aid; but it was proposed that the lord-lieutenant might make a statement to the Government of the facts in any particular case in which serious disturbance was apprehended, and that the Volunteers might then, with the assent of the Secretary of State, if he thought fit to give it, be required to lend their aid in quelling the disturbance. It was further provided that if the Volunteers served under arms they should serve upon the same conditions as any other military force, and should be subject to the orders of their commanding officer and the provisions of the Mutiny Act. In the discussion, however, which took place on the subject the feeling of the House was clearly expressed as to the inexpediency of at all calling out a force so constituted as an armed military force in cases of internal riot, being of opinion that its services should be available solely to resist foreign invasion. The Government acquiesced in that opinion; the clause containing the provisions which I have mentioned was expunged, and the law as to the liability of Volunteers as such to be called out in aid of the local authorities in the suppression of riots was left clear and distinct, the principle being established that neither with nor without the assent of the Secretary of State were they to be made available for that purpose. The Volunteers, however, were still left liable to all those obligations which exist in the case of other subjects of Her Majesty. They remained liable to be called upon by the local authority to serve as special constables in aid of the ordinary police force. Then came the question whether in the fulfilment of those obligations they were to assume a semi-military character, and to appear in uniform, carrying their arms? The emergency which arose at Chester was no doubt a very serious one, and I do not blame the right hon. Gentleman opposite (Mr. Walpole) for the orders which he issued on that occasion. I must at the same time say that I think it would, as a general rule, be clearly wrong that the Volunteers should be required to act as special constables under conditions different from those enforced in the case of their fellow-citizens. It would, in my opinion, be extremely undesirable to leave it to any local authority to determine whether they ought to carry arms with them to use at their own discretion, while they were not liable to the ordinary control to which soldiers are subjected. With regard to the protection of armouries, he did not see that the law required alteration. As was pointed out by the hon. and gallant Gentleman opposite (Colonel Barttelot), the Volunteers might, like any other persons, resist lawless attack on a place like Chester Castle, containing their own arms or other military stores, using the Volunteer arms or any other arms for the purpose. I cannot, under these circumstances, see that the law requires any amendment. It appears to me to be clear that the omission of the clause to which I have already alluded in 1863 indicated distinctly the intention of Parliament that there should be no power to call out the Volunteers to put down a riot. There is the less necessity for giving that power, because of the rapid manner in which troops can now be moved from one part of the country to I another. Besides, we have a force which I has been, I think, referred to by the right hon. and gallant Gentleman the Member for Huntingdon (General Peel)—the force of pensioners, consisting of old soldiers accustomed to military discipline, who may, with the sanction of the Secretary of State, he called upon to act, as has been often done, in aid of the civil force without any of the inconvenience likely to arise from the employment of the Volunteers. I trust, therefore, my right hon. Friend opposite will be able to issue I instructions which will remove all doubt on the subject, and prevent any possible I inconvenience from the want of a clear I understanding of the law in regard to it.


Sir, before I refer to the subject brought under our notice, I wish to state that since this discussion commenced I have received another telegram with respect to the state of affairs in Ireland which I think it right that I should communicate to the House at once. It is as follows:— Accounts since morning have come in stating that in the counties of Clare and Limerick a great number of farm-houses have been entered in the dark for the last two days, and the arms taken by small parties. Uneasiness in the South has not subsided. [An hon. MEMBER: At what hour was that telegram sent?] The hour is not given. With regard to the question which has been put to me to-night by the hon. Member for Bradford, I may remark that in his own observations, as well as in the observations of the other hon. Gentlemen who have addressed the House, not even excluding my right hon. Friend who has just sat down, there is a misapprehension in reference to the employment and the movements of the Volunteers at Chester which ought to be at once removed. My hon. and gallant Friend behind me (Colonel Barttelot) especially has proceeded on the assumption that the Volunteers were required to act and did act on that occasion in a manner not contemplated by the law of the land. There is a mistake in supposing that such was the case, which will be made apparent at once by the statement that on that occasion there was no employment of Volunteers as a Volunteer force in their military character. With respect to that part of the hon. Member's question, which points to the uncertainty of the position of the Volunteers, there is only uncertainty in it in the same way as there is uncertainty with respect to special constables; so far as I am aware, there is no other uncertainty in the law. Allow me to explain the matter as briefly as I can. We have to consider three things—first, the circumstances under which the Volunteers appeared at Chester and were prepared to resist, in aid of the civil power, any movement against the castle; secondly, the general law of the land applicable to all classes of Her Majesty's subjects in such a case; and thirdly, the peculiar application of that law to Volunteers. With respect to the first point, the facts of the case are simple. There is no doubt that this was not a riot in the ordinary sense of the word. I need not say that a riot is totally distinct from insurrection. The facts show that it was an intended insurrection against the town of Chester, and that the felonious intention was entertained of taking Chester Castle. There was therefore something more than an ordinary riot contemplated. There was an insurrectionary movement, which had to be met as such, and the question is, what force the civil power may bring to boar in resisting a movement of that character? The general law with respect to such a case has been laid down clearly and distinctly, not only by the older, but by the more modern authorities. Take the case of Lord George Gordon's riots, which came before the Lord Chief Justice Mansfield, and the equally important case of the Bristol riots, tried before Chief Justice Tindal. The law, as laid down by those two learned Judges, is now so clearly, distinctly, and definitely settled, that no uncertainty can exist. I will read a few passages from the expositions of the law given by those Judges, and in accordance with those passages you must apply the law to Volunteers, acting, not in their military capacity, but as subjects of the Queen. 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.…A private man, if he sees a person committing an unlawful act, more particularly an act amounting to a violent breach of the peace, felony, or treason, may apprehend the offender, and in his attempt to apprehend him may use force to compel him, not to submit to him, but to the law. What a private man may do a magistrate or peace officer may clearly undertake, and according to the necessity of the case, arising from the danger to be apprehended, any number of men assembled or called together for the purpose are justified to perform. This doctrine I take to be clear and indisputable, with all the possible consequences which can flow from it, and to be the true foundation for calling in of the military power to assist in quelling the late riots."—[Hansard, Parl. History, xxi. 695.] These words were uttered by Lord Mansfield in the House of Lords. On the trial, Lord Mansfield said— The common law and several statutes have invested justices of the peace with great powers to quell riots, because, if not suppressed, they tend to endanger the constitution of the country; and as they may assemble all the King's subjects, it is clear they may call in the soldiers, who are subjects, and may act as such; but this should be done with great caution. It is well understood that the magistrates may call in the military. It would be a strange doctrine if, in an insurrection rising to a rebellion every subject had not the power to act when they possess the power in a case of a mere breach of the peace. Chief Justice Tindal confirmed these opinions, and expressed himself in a manner which ought to be generally well known and understood, because it puts the law with respect to the subject in the clearest light. He said— And while I am stating the obligation imposed by the law on every subject of the realm, I wish to observe that 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 too; if the one may employ arms for that purpose when arms are necessary, the soldier may do the same. Undoubtedly, the same exercise of discretion which requires the private subject to act in subordination to and in aid of the magistrate, rather than upon his own authority, before recourse is had to arms, ought to operate in a still stronger degree with a military force.…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 they think 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, Now, let the House observe that, by the general law of the land, it is the duty of every subject of the Crown, in the event of an insurrectionary movement, to aid the civil power, when called upon to do so, by such means as are within his reach. But, in applying the case to the position of the Volunteers, you unquestionably cannot consider them in the same light as a military body, bound to come out at the command of the civil authority; but you must consider them with reference to the Acts applicable to them, and in the same light as any other subjects of the Crown, so bound, but not serving in a military capacity. Besides the regular army there are four services of a quasi-military character: The Pensioners, the Yeomanry, the Militia, and the Volunteers. With respect to the Pensioners, they are bound by statute to aid the civil power in case of an insurrectionary movement. The Yeomanry, by the terms and conditions of their service, and the Militia, which may be embodied, are also bound, under certain circumstances, to aid the civil power in case of insurrection or rebellion. With respect to the Volunteers, it is unquestionably the case that, by statute, they cannot be called on and compelled to serve in their military capacity, because such are not the terms on which they entered upon that particular service. That being so, they are in the situation of any other subject of the Crown, who may be called on by the magistrates or civil authorities, when there is danger of tumult, riot, or felony. It was under these circumstances, then, and having reference to this, that I adverted to the state of the law, when I transmitted that succinct telegram sent to Chester in the middle of the day; but, succinct as that telegram is, nothing can be clearer than that telegram, and every one of its parts is strictly in accordance with the law. The first part stated that the Volunteers ought not to act in their military capacity. That was so stated, because the statute would not require them to come out in that character. The second part of the telegram declared that, in the event of disturbance, they would be justified in aiding the civil power in their individual capacity. That is strictly law. It is just what they can do and just what any subject of the Crown is bound to do, and what they must be prepared to do in the event of a dangerous insurrectionary movement. The third part of the telegram stated that, in the case of serious emergency, they would be justified in using their arms. So, I have no doubt, any other special constables would be, just in the same way as they would have been justified in 1831, and also in 1848, in case of need. But then comes the general question—ought they to be so employed? I have no doubt on that point. I can see no reason why Volunteers, acting as individuals, may not offer their services to the civil authorities, nor can I see any reason whatever why the civil authorities may not call on them in their individual capacity, just in the same manner as on other persons, to aid the civil power in the event of an emergency. Then comes the question—if they can volunteer their services in aid of the civil power, and if the civil authorities can require them to act as special constables, when tumult or felony is apprehended as likely to take place, ought they to act as an organized body, and so, more or less, appear in their military capacity? On this question in point of law I believe there is no doubt also. The Volunteers come out in their individual character, and coming out in that character they may be employed by the civil magistrate to quell civil disturbance in the manner most effective for the purpose. Since they have been accustomed to act and co-operate with each other, I can see no reason myself why, volunteering to aid the civil power, they may not place themselves side by side with their companions in resisting an aggression amounting to an insurrectionary movement. Then arises the question whether they can use their arms? To that I reply that they can do so, but only in the way, and in no other way, that other subjects of the Crown are justified in using arms in case of emergency. I see no reason in law, or on grounds of policy, why the Volunteers should not, in an extreme case, be justified in using their arms. Let it not be supposed for a single moment that I would have them use their arms in the case of an ordinary riot. But I would still less be disposed to deprive the civil authority, in the case of a serious insurrectionary movement, of the opportunity of availing themselves of the Volunteers, not in their military character, or as an organized body, but as subjects of the Crown at the disposal of the responsible civil authorities for the purpose of resisting any insurrectionary movement. This I believe to be the exact state of the law. They cannot be compelled to come out in their military capacity. But they may be called upon, or they may volunteer their services, like other subjects of the Crown, and so long as they only act as any other subjects of the Crown, no objection can be urged to their acting in any case of emergency. The hon. Member (Mr. W. E. Forster) asks whether that state of the law is so certain that some instructions ought not to be given to guide the civil and military authorities with reference to the use of the Volunteers? I have taken the opinion of the Law Officers of the Crown, and I believe I have stated nothing which will not turn out to be the law according to that opinion; but it is a matter of so much importance, and so much uncertainty appears to exist upon it, that I do think instructions ought to be carefully drawn up, and sent both to the civil and military authorities, defining as nearly as can be defined the circumstances under which the civil authorities may call upon military aid in any case, whether with regard to the regular military force or the other bodies which bear more or less a military character. At the same time I ought to state, in consequence of the observations of the hon. Member, that he will find it an utter impossibility to define and describe every case beforehand, in which the military may be brought out to assist the civil power. Some latitude must be left, and it can only be left to the civil and military authorities that are called on to act at the time, according to the circumstances of the particular case. I believe it will be utterly impossible, and it would be very unwise, to attempt by any iron-bound rule to state every case in which that action might or might not be required. One other observation. A question was addressed to me by the hon. Member for Bradford, as to whether I contemplated any alteration in the law. I contemplate none. I should be extremely sorry that the Volunteer force should ever be required to act as a general rule in cases of civil disturbance. That was not the purpose for which the Volunteer force was called into existence. At the same time, I must guard myself from saying that there are no cases in which the Volunteers may not usefully, of their own accord, and in cases of emergency even in co-operation with each other, act together in aid of the civil power, just as other subjects of the Crown may when such emergency occurs. I hope I have now adverted to all the points touched by the hon. Member for Bradford. The Mayor of Chester was authorized to call upon the Volunteers to prepare themselves for any emergency that might arise; having done that, the discretion would be left to them—and a very serious discretion for them to exercise—to determine the particular case in which they would be required to use their arms. The case in which they would be so required would be any insurrection amounting to an overt act of treason, and in such a case resistance on the part of the Volunteers, as well as on the part of any subject of the Crown, would be justified in point of law, and would be required on their part as good subjects to suppress the insurrection.


The impression on my mind, after bearing the speech of the right hon. Gentleman, is, that he has not made the subject more clear than it was before. If I were to put his answer into a few words he seems to have said: The Volunteers may; and may not. This is the first time I have said a word in the House of Commons on the subject of the Volunteers; but I recollect very well when the force was first organized that it was one of the statements made expressly to the public, and so understood by the public, that this force would not, under any circumstances—which we then could ever conceive—be likely to be called upon to suppress internal tumults. It has been in all times hitherto possible to keep the peace, first by the general good sense of the nation; if that fails, by the police, by special constables, and by the regular military force. At this time the police is more numerous, better organized, and more efficient throughout the country I than at any former period. Special con-stables are not less likely to act than at any former period. A given number of the troops may be made more efficient now than in past times, for they can be moved more rapidly across the country. Therefore, if there was no necessity for any other force before the Volunteers were formed, there can be no need now that Volunteers should be called out for purposes of this nature. [Mr. WALPOLE: They were not so called out.] We are discussing whether they may be called out. There is one very strong reason why they should not be thus employed, because as a general rule they would be employed against their neighbours. And I hold that when you come to apply force that is intended to be used if necessary with fatal effect, it is much better that that force should come through the regular army than through your neighbours who are armed. I hope the right hon. Gentleman will adhere to one-half of his speech, and leave the other to have no effect. I think the statement of the right hon. Gentleman (Sir George Grey), with regard to what took place when the force was organized, seems to embody the opinion that prevails generally through the country, and that the declaration was at that time made to quiet some doubts on the part of the people and to prevent the force from being unpopular. The noble Lord (Earl Grosvenor) referred to what took place in the ancient city he represents, or rather to what did not take place. I should like to ask the Government and the Home Secretary if there has been any inquiry into what took place at Chester. I should consider it a painful and dangerous state of things if ten or twelve hundred persons should come from towns in Lancashire and Yorkshire to attempt to take and sack Chester Castle. Judging from the newspapers it does not appear that any of the men—said to be strangers—who were in Chester on that day were found to be in possession of arms. I have not heard that any one had a musket or a revolver. The answer given to that is, they did not think it necessary to take arms, because they expected to find them in Chester Castle. It is the first time I have heard that a castle in which troops are stationed was to be attacked by men who went there without arms, expecting to be supplied within. Speaking from what I have seen in the papers, and especially from what I have seen in a Liverpool paper, I find it is asserted positively that out of the whole number of those strangers in Chester only a portion, and that not the largest portion, of them were Irishmen. If it be true that of those engaged in this Fenian plot at Chester not one-half were Irishmen, it would seem that a portion of the English population in the North of England were infected with this disloyalty and have been led into treasonable practices of this nature. I confess I do not believe it. I have not been able to observe in the part of the country I live in any symptom of it. But if we are to believe in this insurrectionary movement at Chester as a real thing—that only one-half of those engaged in it are Irish, and that the other half is English—it would seem that discontent and treasonable intentions have spread amongst some portion of the English population. I suppose the right hon. Gentleman the Home Secretary believes the whole of the Chester story. I do not believe it. But if I were the Home Secretary, and believed it, I would send some person to Chester on the part of the Government, to find out if it be true. The Government can easily find out if it be true. In Ireland they get information from all parts of that country, because there is no insurrectionary movement that has not amongst its supporters some men who are traitors to the cause. I recollect Earl Russell saying some years ago that, during the Chartist movement, they had no occasion to employ spies at the Home Office, having more information than they required. I believe that now, as during the Chartist agitation, if there were a Fenian movement of an insurrectionary character in Chester, it would be possible for Government, by sending some judicious person to that district, to ascertain how it originated and the purposes of the men who went to Chester that day. It is very important we should know the fact. Stated as it is by the noble Lord—believed as it is by many Members of this House—it is one of the most unpleasant things that has happened at a most particular time; and it is the duty of the Government to search it to the bottom in order that they may know if there exists a dangerous condition of things based upon insurrectionary intentions. I hope with regard to the particular matter which my hon. Friend the Member for Bradford has introduced, that the House will adhere rigidly to the opinion that was generally held at the time the Volunteer force was formed, and which has been expressed to-night by the right hon. Gentleman (Sir George Grey), and by the hon. and gallant Gentleman opposite (Colonel Barttelot.)


I wish, Sir, to be allowed a single word of explanation. No considerable number of arms was found. But on the morning following the Monday on which these people came to Chester great quantities of ball cartridges were found, not only in the town, but outside. Some of this ammunition was fished out of the ponds and canals. There were some arms found also, but I am not able to say what quantity.


said, after the discussion that had taken place he could not help congratulating himself that he had not been called upon to act as a Volunteer officer in a case of emergency such as had been alluded to, because he felt that he could have had no definite instructions to act upon. He had listened attentively to the right hon. Gentleman (Mr. Walpole), and he felt that he had really received no information as to what Volunteers ought to do under the circumstances. With regard to the observations that had just fallen from the hon. Member for Birmingham, he was afraid military men would not receive instructions from him on that point with the same reverence they might on other subjects. It was contended that when Volunteers were called out as special constables their military and volunteer capacity should be superseded; but he could not agree to such a proposition. If a man acquired, after patient training and instruction, certain habits, these could not be suppressed at a moment's notice. They might as well expect a man who tumbled into the water to suppress his knowledge of swimming, or a prize-fighter, who suddenly got into a row, to suppress the scientific knowledge he had acquired of how to use his fists. The same remark applied to the Volunteers. They having acquired a knowledge of military movements, and certain of the capabilities of the soldier, it was impossible to expect them, on short notice, to suppress those qualifications. Nor, if Volunteers could suppress their military character, did he think it desirable that they should, for his sympathies were altogether with the peaceful portion of Her Majesty's subjects, and not with those roughs who might be disposed to break the peace, perhaps at the instigation of foreigners. Supposing a riot occurred in a town, the magistrate would at once pro- ceed to call out the young men, and to swear them in as special constables; but these young men were for the most part Volunteers, and as they were well known to each other, had been drilled together under proper officers, and were practically acquainted with military duties, they would necessarily act as a military force, march as soldiers, and act in concert under their commanders. Going a step further, the right hon. Gentleman said it could easily be imagined that an emergency might arise which would justify a magistrate arming these young special constables, who also happened to be Volunteers. So that then, almost unintentionally, they would have armed Volunteers called out to assist the civil power. That being the case, was it to be expected that these men would not act together? They were not called out as Volunteers, but, being armed in their capacity of special constables, were they to suppress their acquirement of acting together? He thought it would be a most dangerous thing to allow Volunteers, as such, to go forth armed with their own arms unless they were under proper command and control. Training and discipline did a great deal. The military, for instance, were often called out to suppress riots; but even under the strongest provocation they invariably acted with the greatest forbearance. The same remark applied to the police. Now it was not because these bodies of men were any better, or were possessed of more kindly dispositions than other people, that they thus acted with moderation; but because they were under discipline. They were accustomed to act together and to obey commands. And so would it be in the case of the Volunteers if they also acted under military discipline. It was accordingly absolutely necessary, if they were called out, and if the magistrates saw fit to arm them with rifles, that they should be under command. If, therefore, the magistrates had the power to call them out as special constables and to arm them—[Cries of "No, no!"]—he had always understood that the legal authorities were of opinion that it was one of the privileges of Englishmen that every man in this country had a right in his own defence, and, if the emergency were sufficiently great, to carry arms. ["Yes!"] Well, was the right to be taken away from a man merely because he was a Volunteer? The Volunteers, then, had the same right as other Englishmen to carry and to use arms. Moreover, it was to be remembered that in many cases the arms which the Volunteers carried did not belong to the Government, but were their own. If, therefore, these arms were in their possession when called out they could certainly use them. But if they were to be allowed to use them the men must be placed under command, or calamities of the wildest and worst character would be occurring. Precise instructions should be forthwith issued to Volunteer officers. What occurred at Chester was a proof of the necessity of this. The hon. Member for Birmingham (Mr. Bright) did not believe that what had occurred at Chester was so serious as was stated. But he was not there to see. The noble Lord the Member for Chester (Earl Grosvenor) was there, and he reported that affairs had been very serious. The House could therefore easily decide who was the more likely to be the better informed on the point. He (Colonel Loyd Lindsay) ventured to submit to the Government that some such instruction as the following, if issued to Volunteers, would enable them easily to decide what course of action to pursue in cases of difficulty:— Volunteers are under precisely the same obligations as other private persons to suppress riots by every means in their power; and when properly constituted as special constables it is their duty to act so as to preserve the peace. Volunteers when so acting should be armed precisely as other special constables with staves. But should circumstances be of so grave a character as to warrant magistrates arming them with arms, in no case should Government arms be used by them except the men are under the command of the officers to whoso care the arms are intrusted.