The Earl of Glengall
said, that seeing a noble and learned Lord in his place, he rose to put a question, arising out of an observation made by that noble Lord, on a late occasion, relative to the employment of the Yeomanry force in Ireland. It would be in the recollection of the House, that, some time since, the noble Viscount, the Secretary of State for the Home Department, admitted that a Magistrate had the power of calling out the Yeomanry; and, from all that he heard in that debate, he supposed the rule was settled; but, to his astonishment, he heard the noble and learned Lord express his opinion, that it was illegal for the Magistracy of Ireland to call out the Yeomanry. Now, it was most desirable, in the present unsettled state of the country, that a distinct understanding should be come to on this important subject. By the 43rd of George 3rd, the militia of England and Ireland were put on an assimilated footing or basis; and his object in rising now was, to have this question settled before the separation of Parliament, and ascertain from the Lord Chancellor of Ireland, upon the authority of what Act of Parliament did he found the opinion he had uttered on a former occasion, that the Magistrates in Ireland were not empowered to call out the Yeomanry in a case of emergency.
, after remarking that this application to himself personally, and more particularly as he had received no previous intimation of such an intention on the part of the noble Lord, was not according to the general usage or courtesy of their Lordships' proceedings, regretted that he had no previous opportunity of referring to authorities on that subject, or of making preparation, because it might be possible he had not all the information to give the noble Lord on the subject which that noble Lord might have desired to obtain. The opinion delivered before by him on this subject was that which had been held by the law-officers of the Crown in Ireland. It was in effect this—that the Magistrates in Ireland had, neither by the Common Law nor Statute, a right to call out the Yeomanry, as such. He was certainly of that opinion, though he agreed that a man, by entering into the Yeomanry, or even 165 military, lost none of the civil rights he before possessed; so that, were a riot to take place, such persons, though Yeomanry or soldiers, might be called on by the Magistrates to assist in putting down a tumult or disturbance, and preserving the peace. But this appeared to him very different from calling out the Yeomanry or military as such. It was a power vested, by the common law, in the Magistrate, to call on them in their individual capacity. It would have been more fair, in discussing this question, that the noble Lord should not have put this question to him, but that he should have demanded of that noble Lord, by what Statute did he make the affirmative of the proposition appear? Yet he would, out of courtesy to the noble Lord, state what the assimilation of the Yeomanry and militia of England and Ireland consisted in; or rather, in what respects they were in a dissimilar situation as to the power of being called out. By the 52nd George 3rd, the right of the Lord lieutenant of counties, and, in his absence or under certain circumstances, of the Sheriff, to call out the Yeomanry, or Militia, was recognized; and that Act provided, that the Yeomanry or Militia, so called out, should be entitled to their pay. The Act, as applicable to the Yeomanry force, or Militia, in Ireland, only recognised the power of the Lord Lieutenant of Ireland to call out this description of force, as being the better and safer judge of the necessity for their assembling or being embodied. There was a decided distinction between the circumstances under which the latter would be placed, and the other, if called out by any other mode; for, if the English Yeomanry were called out, they would be immediately under military control, whereas the Irish Yeomanry would be under no such control. As Ireland was now situated, it would be attended with great danger, if a force of this kind were to be called out uncontrolled by proper authority.
§ The Duke of Wellington
was of opinion, that the whole of the difficulty which the noble and learned Lord seemed to experience in answering the question of the noble Earl, had arisen from the manner in which the question had been put. To call out the Yeomanry, usually meant to call them out for service, and to pay them, and that no Magistrate in England or Ireland, but a superior authority, was entitled to do. But any man, he did not care who he was, or whether he belonged to the Yeomanry or the military, in England or Ireland, was liable, in the case of a riot or a disturbance, 166 to be called out by a Magistrate to preserve the peace.
said, that he never questioned the liability of all persons, according to the common law, of being called out as the noble Duke had stated; but what he questioned was, the power of a Magistrate in Ireland calling out the Yeomanry, as such. With respect to the particular case of Captain Graham, to which this question had special reference, he had no hesitation in saying, that the act done by Captain Graham was illegal. Captain Graham, apprehending that a riot would take place on a certain Monday, sent, on the Saturday preceding, round to the commanders of the different corps of Yeomanry in the neighbourhood, calling on them, as military bodies, to be in attendance to suppress it. Now, he had no hesitation whatever in saying that that was an illegal act on the part of Captain Graham.
The Earl of Glengall
contended, that there still remained a material difference between the statements made by the noble and learned Lord, and the noble Viscount (Melbourne) on this subject, which required further elucidation.
§ Earl Grey
apprehended that a question of this nature could not be settled even by a resolution of that House, much less by the expressed opinions of any individual Peer; and that the difficulties which had arisen with regard to it could only be settled, if necessary, by a declaratory Act of Parliament. He concurred with the noble Duke in thinking, that much of the difficulty in answering the question of the noble Earl had arisen from the manner in which that question was put. He believed there was no doubt that, neither here nor in Ireland, could Magistrates call out the Yeomanry, as a military body, for maintaining the preservation of the public peace—that power was given to the Lord lieutenants of counties, and Sheriffs, in England, and was exclusively confined to the Lord Lieutenant in Ireland. Of course, every individual was liable to be called on to discharge those duties which devolved upon every British subject; and, though he might not be liable to be called upon by a Magistrate as the member of a Yeomanry corps, or of any military body, to preserve the peace, still he was liable to be called upon as an individual member of society to do so. He did not impugn or deny the statement of the noble Duke to that effect, but he would submit to their Lordships, whether a question, involving considerations of a very important and delicate nature, connected 167 with military discipline, which was already sufficiently understood, was one that ought to be debated, or agitated, at present; and he begged to intimate to the noble Earl, if he wished to press this matter further, that it could only be settled, if any doubts existed with regard to it, by a declaratory Act upon the subject.
§ Lord Wynford
concurred in a great portion of the law laid down by the noble and learned Lord opposite; but, with respect to the case of Captain Graham, he must say, that, judging from the letters on the subject. Captain Graham had been guilty of nothing that was illegal. However, he hoped that a declaratory Act would be brought in to settle all doubts on such an important subject as this.
The Marquess of Londonderry
wished to know, whether any fresh instructions had been transmitted by his Majesty's Government to the Lord Lieutenant of Ireland on this subject, and whether, if so, there would be any objection to lay them before the House.
The Marquess of Clanricarde
hoped that no answer would be given to the question of the noble Marquess, on a subject which could be only settled by a declaratory Act. When the Yeomanry were called out in England by the Lord lieutenants of counties, or Sheriffs, they were under martiallaw; but, if called out by a Magistrate in Ireland, they would be under no such law; and if the noble Marquess, as the commander of a corps of Yeomanry, under such circumstances, should attempt to cut a member of the corps for running away, he would be liable to be punished for the act. He hoped that some declaratory law would be introduced to put an end to all doubts on this subject.
The Marquess of Londonderry
said, that, having a stake in the country, he wished to know, from the best authority, what was the law on the subject.
§ Viscount Melbourne
said, that there was no diversity of opinion on this subject between him and his noble friend near him, or any other member of his Majesty's Government. His opinion, as he had formerly stated it, was founded on that principle of the common law, as explained by his noble and learned friend—namely, that any man was liable to be called upon to preserve the peace, and that Magistrates could call upon the members of Yeomanry corps, as well as other individuals, for that purpose.