The Earl of Wicklow
presented a Petition from the Magistrates of the county of Wexford, complaining of the dismissal of Captain Graham from the Commission of the Peace, and praying the House to adopt such measures as it might see fit, to procure his restoration. He wished to avail himself of that opportunity of putting a question to the noble Lord opposite, the Secretary for the Home Department, respecting the conduct of the Yeomanry and Magistrates on such occasions. He wished to know whether the Yeomanry would be held by the Government to act justifiably in obeying the orders of the Magistrates, when called upon to preserve the public peace?
§ Lord Grantham
said, he did not want to create a discussion on this particular case; but, in consequence of the opinion expressed with regard to it on a late Debate, by some member of his Majesty's Government, having had considerable influence on several of the Yeomanry of England, he was anxious to obtain from the Secretary of State for the Home Department, a candid explanation of the view 280 taken by his Majesty's Government of the employment of that force. The Yeomanry had hitherto considered that they were compelled to act when called on by a Magistrate to do so; but, as it would appear now that, where lives were unfortunately lost, they were to be made responsible for obedience to the Magistrates' orders, they were desirous of ascertaining to what extent the doctrine was carried by the Administration of the country.
The Duke of Buckingham
said, that it was quite clear that not only had the Secretary of State for the Home Department the power to call out the military, but every Magistrate had the right, and the Yeomanry could not refuse obedience.
§ Viscount Melbourne
observed, it was not necessary to discuss now the case of Captain Graham, it having so lately engaged the attention of the House. He would only say, that nothing had occurred since to change the determination of the Irish Government with regard to that gentleman. With respect to the question put to him by the noble Earl, he doubted if it was prudent to discuss that point at present. It was not for him or any Member of his Majesty's Government to declare what the law of the country was. That was to depend on the decision of the Judges, and he presumed that each case was to be determined by the evidence connected with it. He was not aware that any change had taken place in the law, but still it was not for him to interfere with the Courts, and to decide upon it without authority.
§ The Earl of Harewood
said, the decision of the Irish Government with regard to Captain Graham had made a great impression on the Yeomanry of England, and though they found the law, and the practice of the law, open before them, still they were involved, in consequence of that case, in the greatest doubt, as to the extent of their duty and liability; he, therefore, thought the Government were called on distinctly to state what their construction of the law was, and not to leave a subject of so much importance liable to misconstruction. He was not satisfied with the explanation given by the noble Viscount. Was he not in a condition to state what was the law? If the noble Viscount were not acquainted with the law, then he was inclined to consider that the noble Viscount was not fitted for the high office which he held.
§ Viscount Melbourne
said, he had always considered there could be no doubt whatever upon the subject.
§ Several noble Lords called upon the noble Viscount to state the law.
The Duke of Buckingham
having taken part in the discussion, wished to have this question answered by the noble Viscount—viz., whether the Yeomanry were or were not justified in acting when called upon by a Magistrate, and desired by him to act?
The Marquess of Camden
said, it would be an extremely unpleasant situation for the Yeomen of the country to be placed in, if any doubt whatever existed as to the legality of their acting when called upon by a Magistrate.
§ The Duke of Richmond
observed that he had always understood—and he believed no doubt existed upon the subject—the Yeomanry were bound to obey the Magistrates, as well as any other individual, to preserve the public peace. But if the Magistrate called out the Yeomanry to do that which was an illegal act, then the Government had an undoubted right to remove such a Magistrate from the Commission of the Peace, in the same way that Captain Graham had been removed.
The Lord Chancellor
did not intend to go into any abstract question of the law as to the duties of Magistrates, or the duties of Yeomanry, or whether the Magistrates might call that force out, but he rose to protest against this most unheard-of course now pursued. It was indeed a most singular mode of proceeding. One noble Lord after another had thought fit to get up and put abstract questions as to the law of the country to his noble friend who was responsible, as Secretary of State, to his country and to his Sovereign, and from his situation was rendered liable to impeachment for his acts if he were to act wrong, but which office did not make him answerable and responsible to give an opinion upon abstract questions of law, which noble Lords in that House chose to put, and who, as legislators, ought to have known, that they were asking that which ought not to be asked of a person holding that situation. If any doubt existed upon a point of law, there were two ways of having it removed—either by the declara- 282 tion of an Act of Parliament, or an application to the Judges. He would ask, what pretence there was for that novel practice, now for the first time introduced within that House, of calling upon a Minister of the Executive Government—only because he was a Minister of that Executive Government; and he would here ask why a Minister so circumstanced was to be called upon more than any other Peer of Parliament to state what the law of the country was in the abstract upon a given subject? Let a case arise in which his noble friend had been a party to the dismissal of a Magistrate, and then his noble friend might fairly be called upon to defend his conduct, but he was not called upon to answer the abstract question which had been put to him. Although he (the Lord Chancellor) entertained no doubt upon the subject, and although he concurred in what his noble friend had asserted, yet he must be permitted to protest against the irregularity of the proceeding, and he wished that his noble friend had not answered the question which had been put to him.
The Earl of Wicklow
begged to assure their Lordships that if he had thought this discussion would have arisen out of the few words which he had spoken on the presentation of the petition, he would certainly, have given the noble Secretary notice of his intention. But still, as the noble Lord Lieutenant of Ireland had stated his views as to the law with reference to this subject, and these had been contradicted by the noble and learned Earl (the Earl of Eldon), who might be regarded as the highest legal authority, he had thought it of very great importance that the Government should state explicitly what the law was as to the authority of the Magistrates, and the duty of the Yeomanry. Doubts had arisen, and darkness had been spread as to this question over the United Kingdom. The exertions of the Magistrates in the most disturbed parts of Ireland had been paralysed, and neither they nor the Yeomanry felt completely satisfied as to the extent of their authority and duty. They were afraid to act; the Yeomanry power was in the hands of the mob; confusion seemed to be at hand, and circumstances appeared to threaten a rebellion similar to that which had taken place in 1798. He was glad that the question had been put and answered. As to Captain Graham, he had been ill used.
§ The Earl of Harewood
said, notwithstanding the lecture which had been read to them by the noble and learned Lord on the Woolsack, he did not repent of the course which he had taken on the present occasion; and, even at the risk of being again reprimanded by the noble and learned Lord, he would ask, whether the reasons given by the noble Lord Lieutenant for Ireland were approved of and sanctioned by the Government?
The Lord Chancellor
would again ask their Lordships, whether anything could be more irregular and disorderly than to ask such a question, in this House or out of it. The question was, whether they sanctioned some reasons which had been given by a noble Peer about six weeks ago, without stating what those reasons were, and that, too, when the noble Peer in question was not present? Let the noble Earl state what the noble Marquess did say; let him state the reasons and all the circumstances to which these reasons referred. He hoped, as the noble Secretary had said, that there was no doubt, whatever about the law. But since a noble and learned Earl (Eldon) had been referred to, he would recommend that all further discussion on this point should be deferred till that noble Earl should be in his place.
The Earl of Roden
said, the noble Marquess at the head of the Irish Administration had stated two reasons; first, that Captain Graham had no property in the place where he was acting on the occasion alluded to; and secondly, that his calling out the Yeomanry at the time of the affair at Newtownbarry was illegal. That was the statement; but he was glad to hear it distinctly stated by the noble Secretary, that there was no doubt as to the power of the Magistrates to call out the Yeomanry, and no doubt as to the duty of the Yeomanry to obey. But then, that being so, no man could be more unjustly dealt with and persecuted than Captain Graham had been, who had only acted as he was bound by law to act, and had been the means of preventing much bloodshed. The only reason, he believed, for the dismissal of Captain Graham was, that he was favourably disposed towards the Protestant interests.
The Marquess of Clanricarde
must say, in favour of the noble Marquess (the Lord Lieutenant of Ireland), who was not here to speak for himself, that he did not admit the correctness of the version given 284 by the noble Earl of the reasons of the noble Marquess. The noble Marquess had stated other reasons, and it was not fair to fish out particular parts of a speech, even although they might be correctly stated, and then reason upon them without regard to other parts of the same speech. The whole must be taken together. But he did not mean, at this distance of time, to enter into any discussion on the subject. As to Captain Graham, he believed that he was a worthy man, but he doubted his qualifications for the magistracy, and therefore hoped that he would not be restored. But suppose his dismissal was wrong, that very dismissal showed that the Yeomanry had not been to blame in obeying the Magistrates.
The Marquess of Londonderry
was glad that the question had been put and answered; and he was only sorry that the noble and learned Lord on the Woolsack had thought proper to interpose, as he appeared to throw some doubt upon that which was otherwise clear. He rather believed that the noble and learned Lord had never been a Yeoman. It was fitting that the Yeomanry should know, that when they acted in aid of the police they were properly serving their King and country, and that this should be their consolation in case matters should come to bloodshed. Why, then, should any doubt on the subject be thrown out? But the question had now been set at rest by the answer of the noble Secretary, and he was glad that this discussion had taken place.
§ Petition to lie on the Table.