Lords Sitting of 25 February 1867

MINUTES.
PUBLIC BILLS—Second Reading—Habeas Corpus Suspension (Ireland) Act Continuance, read 2a, Committee negatived,read 3a and passed (24); Alimony Arrears * (17).
Committee—Masters and Operatives (3); Lis Pendens * (C); Sale of Land by Auction * (10).
Report—Lis Pendens* (6); Sale of Land by Auction * (10); British North America *(9).

AGRICULTURAL GANGS.—QUESTION.
THE EARL OF SHAFTESBURY: As I see the noble Lord the Under Secretary for the Home Department in his place, I will take this opportunity of asking him a Question. It will be in the recollection of your Lordships that about a year and a half ago I moved in this House an Address praying that the inquiry of the Commission appointed to inquire into the employment of children and young persons in trades and manufactures not already regulated by law might be extended to an abuse of which we had heard a great deal, called agricultural gangs, it appearing that gangs of children were hired out to work like slaves in the county of Lincoln and other counties adjacent. I am anxious to know, Whether the Report of the Commission has been made; and, if so, whether it will soon be presented to the House? I understand the Report will contain facts which will throw much light upon the question as to whether the principle of the Factory Acts may not, with certain modifications, be applied to the children in the agricultural districts. This matter is of great importance at the present time, in consequence of a measure for the extension of the Factory Acts having been introduced in the House of Commons.
THE EARL OF BELMORE: In reply to the noble Earl, I have to state that the Report has not yet been received at the Home Office; but I have made inquiries on the subject, and have ascertained that there is every reason to expect that it will be received very shortly. The delay has occurred in consequence of the nature of the inquiry and the extensive field over which it ranged.

PRIVATE BILLS—CHURCH YARDS AND CEMETERIES.

  STANDING ORDER 182. AMENDED.
  THE EARL OF BELMORE,in moving an addition to the Standing Order No. 182, said, it would be necessary for him to make some explanation of the circumstances under which it became necessary to make the proposed alteration. In 1862–3 the Midland Railway Company obtained an Act to extend their line into London, and by that Act they were empowered to construct a bridge over a part of the churchyard of St. Pancras. In 1864 they obtained another Act, empowering them to construct a tunnel under St. Pancras

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  churchyard, on condition, however, that the top of the tunnel should be twelve feet at least from the surface of the ground. In the course of last year the attention of the then Secretary of State was called to the method in which the Midland Railway Company were exercising their powers. A complaint was made that there had been a great disturbance of remains in the churchyard of St. Giles which was situated in the parish of St. Pancras. A memorial on the subject was also presented to the Board of Health. A gentleman also complained that his late father-in-law's grave, which was sixteen feet deep, was in that part of the churchyard of St. Pancras under which the tunnel was to be made, and as the top of the tunnel was to be within twelve feet of the surface of ground, the grave would be cut away from below. Sir George Grey had caused an inspection to be made, and from the Inspector's Report it appeared that the Company's engineer was in consultation with the advisers of the Bishop of London and the officer of the Health of the District, as to the safest mode of procedure to be adopted. In the month of December complaint was again made by an hon. Member of the House of Commons that the Company were making an open cutting in excess of their powers through St. Pancras churchyard, thereby disturbing a large number of bodies, and remains of bodies, and which he estimated at 10,000. Mr. Walpole caused another inspection to be made, and the Inspector (Mr. Holland) reported that a very great disturbance of remains had no doubt taken place—probably more than was contemplated by the Select Committee of the House of Commons; and that the Company were advised that they were not acting in excess of their powers. Under the circumstances, perhaps the method by which they were proceeding was less dangerous than that originally proposed; and he went on to say—
  "The Incumbent, who was naturally very indignant at the indecent manner in which the navvies, who were at first employed, were hacking the coffins to pieces and throwing the bones about, now expresses himself quite satisfied at the respectful manner with which the remains of the dead are treated, and with the great pains taken to do a very improper thing with as little impropriety as possible; and Dr. Hillier and his assistants say that the officers of the company are not merely willing, but most anxious, to do everything he had suggested, both to guard against danger and avoid exciting alarm or giving cause for complaint."
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  Now, it might be very necessary that in some instances a railway should be made through a burial ground; but it was a matter of great delicacy, and it therefore appeared to be desirable that Committees in granting such a power should have the fullest information before them. The machinery for obtaining that information without much expense existed at the Home Office, and Mr. Walpole therefore had concluded that, with that object in view, an addition to the Standing Order should be proposed in both Houses of Parliament. He therefore moved—
  That Standing Order CLXXXII. be amended by adding the following Words; viz.,
  Where in any Bill Application is made for Powers to take any Churchyard, Burial Ground, or Cemetery, or to disturb the Bodies interred therein, there shall be deposited at the Office of the Secretary of State for the Home Department a Copy of all Plans, Sections, and Books of Reference required by the Orders of the House to be deposited in the Office of the Clerk of the Parliaments, so far as such Plans, Sections, and Books of Reference relate to the Churchyard, Burial Ground, or Cemetery to be so taken, together with a Copy of the Notice published in the Gazette of the intended Application to Parliament; and also a printed Copy of the Bill at the same Times when such Plans, Sections, Books of Reference, and Notice and such Bill are required to be deposited in the Office of the Clerk of the Parliaments; and any Report made under the Authority of the said Secretary of State shall stand referred to the Committee on the Bill.—(The Earl of Belmore.)
  Agreed to; and Standing Order, as amended, to be printed and published, (No. 26.)

HABEAS CORPUS SUSPENSION (IRELAND) ACT CONTINUANCE BILL—(No. 24.)
(The Earl of Derby.)
HABEAS CORPUS SUSPENSION (IRELAND) ACT CONTINUANCE BILL—(No. 24.)

  SECOND READING. THIRD READING.
  Order of the Day for the Second Reading read.
  THE EARL OF DERBY: My Lords, in moving the second reading of this Bill I do not feel it necessary to enter at any very considerable length into the reasons which make it necessary for Her Majesty's Government to apply to Parliament for a continuance of the extraordinary powers with which the Executive is now invested. The state of affairs in Ireland is so well known, and the circumstances have been so plainly brought before us by recent events, that I feel I ought rather to make an apology to your Lordships for the Government having held out in the Speech

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  from the Throne the delusive hope that we should have been able at an early period during the present Session to return to the ordinary course of the law. In asking your Lordships to renew the Habeas Corpus Suspension Act in Ireland, we ask to continue a policy which was adopted by the late Government, which was accepted unanimously by Parliament, which has been continued now for nearly a year, and of which, under recent events, we feel it an imperative duty to propose the continuance for the shortest possible period, during which you will be able to judge whether it will be necessary to continue it for a further period. I am sure your Lordships will agree with the Motion I have to make, and not refuse the Government a power which in the present state of Ireland they believe to be necessary. Indeed, it is hardly necessary to apologize for the Bill, inasmuch as the House of Commons unanimously—without a single dissentient voice—have agreed to the continuance of the Suspension of the Habeas Corpus Act. It is, no doubt, my duty to show to your Lordships that the powers given to us under the Bill of last year have not been exercised in an arbitrary or oppressive manner. On the contrary, it has I been the object of the Government to relax as much as possible the severity of these powers; and I may add that, so far from the measure being regarded as arbitrary and oppressive by well-disposed persons they look upon it as one which affords them a protection, of which they stand in the greatest need, and a relief from very serious difficulties. If we had to deal with the native resident population of Ireland, a measure of this kind would be absolutely unnecessary; for, although they are easily prejudiced—although they will listen to anything that holds out a prospect of excitement—I believe that in the main they are thoroughly and entirely loyal. I will take the opportunity of quoting a very remarkable charge addressed a few days ago to the Grand Jury of the county of Limerick by Mr. Justice Fitzgerald. The learned Judge said—
  "I may congratulate you on the fact that this county, with its quarter of a million of inhabitants, may compare advantageously as regards crime with any other in Her Majesty's dominions. None of the cases which are to be submitted to you call for any special observations from me. It seems, therefore, that the county is in a most peaceful state, life is secure, property is respected, and the law is enforced against offenders. Under ordinary circumstances it would be
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  my pleasing duty to dismiss you with the congratulation I have addressed to you on the peaceful state of the county. It is, however, my duty further to observe that it has been found necessary by the Government to propose a further extension of the extraordinary powers with which Parliament has in its wisdom invested the Executive. You may agree with me in thinking that there is no cause for real apprehension for the safety of the country; but it is difficult to exaggerate the evils that the state of insecurity which has been produced by the acts of foreign incendiaries has brought upon the country. The great mass of the population is loyal at heart, but there is a feeling of insecurity—property is impaired in value, industry of all kinds is discouraged, and people are flying from the country, we may think without any just cause. I hope, gentlemen, that I am not exceeding the duties of my position when I say that, though the Government may employ repressive measures, yet the preventive and curative remedies are in your hands. The law which with its ordinary powers is administered by you as magistrates can do a great deal towards curing the ills of the country. You can do much by your magic presence. There should be no panic; each magistrate should stay at his post, and do his duty in his own neighbourhood. The clergy of all denominations are with us. The hierarchy of all Churches have denounced this insane and wretched movement. Every owner of property, every man of education or intelligence, every representative of industry, and even every small farmer is opposed to it. I failed to perceive, when I was judicially engaged in those matters, that anyone belonging to any of those classes was engaged in the conspiracy—none but men who have nothing to lose, aided by foreign incendiaries. Of course, when I alluded to the extraordinary powers which have been conferred upon the Government, I referred to the Suspension of the Habeas Corups Act, which I, for one, regard with approval, while I sincerely regret the circumstances which have rendered necessary a measure so at variance with the principles on which our Constitution is founded. All classes in the country are deeply interested in the preservation of peace and order, and in the removal of the circumstances which have made us a byword in Europe, and I have endeavoured to show that this result must be attained by our own exertions. I may conclude by saying that I believe that this Fenian conspiracy is really as abortive and unsubstantial as the ridiculous attempt at an insurrection which has recently taken place in an adjoining county."
  Now, my Lords, there is not a single word of that address, coming as it docs from so impartial a quarter, to which I do not give my hearty and entire concurrence. It has been asked how is it, if the people of Ireland are so loyal as they are represented to he—if they have so little sympathy with the parties to this miserable insurrection—that none of the persons engaged in this rising have been arrested and brought to justice by the peasantry? I think the answer is very simple. The noble Earl opposite (the Earl of Kimberley) and other

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  noble Lords who are listening to me know that if there be one feeling in the Irish mind stronger than another it is hatred of the name of informer, and however atrocious the crime, however great the delinquency may be, the notion of the people is that if they came forward, brought the guilty to justice, and gave evidence in support of the law, they would be taunted with the name of "informer." They confound the two opposite characters—that of a person who comes forward to give evidence against those with whom he has been associated, and that of a person who appears as one of the public to bear testimony against a criminal in a court of justice. That is a singular feeling no doubt; but it is an universal one throughout Ireland; and therefore the fact that the people do not assist in bringing disaffected persons to justice does not prove they are themselves disloyal. Now with regard to the expectations held out in the Queen's Speech, as to our being able to dispense with these extraordinary powers. I will quote a few figures to show that the course of proceedings had been tending to a general restoration of tranquillity. When Her Majesty's Government came into office the number of prisoners in confinement under the Suspension Act was 330; by the 1st of September the number was reduced to 286, and subsequently it fell to seventy-three. The warrants issued for arrests were in September one, in October one, and in November five. But at the end of November fresh excitement was manifested. There was a collapse of Fenianism in the United States, and I presume it was apprehended that the imposture would soon come to an end, that the dupes were beginning to be disabused, and that it was necessary for the lenders to take some active steps to replenish the Fenian exchequer by drawing more money out of the ignorant and credulous Irish people. Every day there were reports of the landing of Stephens and the setting out of an invading army which was to come from America, and it was held out that before Christmas arrived Ireland would be in a state of general insurrection. These mendacious assertions had their effect upon the minds of excitable and credulous persons; so that in December it was found necessary to issue ninety-seven warrants; which were followed by seventeen in January, and nine in February, making a total of 130 from the month of September. The renewal of excitement led to an universal outburst
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  of loyalty throughout the country, Magistrates, gentlemen, farmers, and persons of all opinions came forward, expressing their readiness and determination to assist the Government in putting down any outbreak in case persons were insane enough to attempt it. The Lord Lieutenant, of course, accepted with thanks those offers of assistance in case the Government were unable to maintain their own; but, at the same time, expressed, on the part of the Government, his conviction that the powers with which the law armed them would prove sufficient, without the active co-operation of the loyal inhabitants. Fortified by these strongly-expressed sentiments of disapproval and disgust of the attempts made to disturb the tranquillity of the country, Lord Naas, on returning to town before Christmas, did express a strong opinion that we should be able to do what we all unanimously regarded as desirable—namely, to allow the Suspension Act to expire, and to rely upon the ordinary law for preserving the peace in Ireland. Whether, owing to the expectations created by the announcement of the speedy expiring of the Act, or to a belief that the Act had actually expired, certain it is that immediately after that declaration there was a renewal of excitement. Your Lordships need not be reminded of what took place at Chester—an absurd attempt, but it undoubtedly did give a certain stimulus to the disaffected in Ireland. Then came that most ridiculous rising at Cahirciveen; which was, nevertheless, sufficient to throw the whole country into confusion, to disturb its tranquillity, and to render necessary movements of troops and constabulary. But the moment that the movement showed such a front as the Government could deal with, it collapsed into the absurd and ridiculous position from which it never ought to have emerged. There is not the smallest doubt that the Government have ample powers under the ordinary law to deal with any attempt at an outbreak; but, at the same time, there are, as we know, a number of persons from foreign countries—and I am sorry to say a number of persons from this country also—who are endeavouring by every means to stimulate their dupes in Ireland, and who occasionally go over to that country and venture their own persons in furtherance of that object. It is to protect the Irish people against the inroads and assaults of these persons that we propose what in ordinary cases would be considered an arbitary measure; but

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  which, on the present occasion, is regarded by all the well-disposed as a necessary precaution against the attempts of persona who really have no interest in the country, and whose only object is to create disturbance for the sake of disturbance, or are actuated by still baser motives. I believe that the late outbreak, inconsiderable and trivial as it was, might have been more serious but for the information we had previously received, and for the means which we possessed under the Habeas Corpus Suspension Act of arresting at once the leaders of the intended outbreak. It is in the power which it confers of arresting these leaders, and thus of checking a movement before it can produce any effect upon the population, that the benefits of the Habeas Corpus Suspension principally exists. Under the noble Marquess now at the head of the Irish Government (the Marquess of Abercorn), I am confident that this power will be administered—as it was administered by the noble Earl lately at the head of that Government—with discretion and firmness, and, at the same time, with temper and moderation. I believe the proposed renewal for a short time of this Act will be hailed in Ireland with all but unanimous approval, as it has been already received in the House of Commons. I hope your Lordships will confirm the decision at which that House has arrived, by assenting unanimously to the second reading of this measure.
  Moved, "That the Bill be now read 2a"—(The Early of Derby.)
  EARL RUSSELL: My Lords, I am quite ready to give my cordial concurrence to the proposal of the noble Earl. That Her Majesty's Government were reluctant to propose the renewal of these powers is evident from the passage in the Queen's Speech upon the subject. But the facts which have lately occurred are not only sufficient to justify, they have made it incumbent on Her Majesty's Government to take this course. Whatever may be the present state of the law, and whatever may be the future improvements made in that law, the first duty of the Government is to give security to life and property; and without this security neither the present nor improved laws can promote the prosperity of Ireland. The noble Earl has stated, and it is quite true, that speculation has been practised on the credulity of the people of Ireland; that this is not a spontaneous outbreak, but has been excited by those
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  who came from abroad. I must say I have arrived at the conclusion that there never were baser motives on the part of any persons undertaking to be rebels and insurgents than those which impelled the instigators of the late outbreak. In the United States of America, more especially, great sums have been collected on the pretence that Ireland was about to be freed, and that the Irish Republic was about to be established; and advantage is taken of the panic created, at one time in Ireland, at another time in Canada, to make fresh demands upon the unfortunate dupes who have given their money, hoping that this great revolution is about to be accomplished, but in reality only for the purpose of filling the pockets of those who practise on their credulity. It would appear, from a passage in the Message of the President of the United States, that the Government of that country have gone even beyond what international duty prompts, and have endeavoured to interfere with the course of justice in the case of persons participating in these insurrectionary movements. For I find the President using this language—
  "Some of our citizens who, it was alleged, were engaged in the expedition, were captured, and have been brought to trial, as for a capital offence, in the province of Canada. Judgment and sentence of death have been pronounced against some, while others have been acquitted. Fully believing the maxim of Government, that severity of civil punishment for misguided persons who have engaged in revolutionary attempts which have disastrously failed is unsound and unwise, such representations have been made to the British Government, in behalf of the convicted persons, as, being sustained by an enlightened and humane judgment, will, it is hoped, induce in their cases an exercise of clemency and a judicious amnesty of all who were engaged in the movement. Counsel has been employed by the Government to defend the citizens of the United States on trial for capital offences in Canada; and a discontinuance of the prosecutions which were instituted in the courts of the United States against those who took part in the expedition has been directed."
  My Lord, it will be quite right to show mercy and to exercise clemency whenever those qualities can properly and wisely be exhibited. But I do not think that any foreign Government should put forward appeals for mercy and clemency on behalf of those who have made it evident that a mercenary expedition was their only object in venturing to Ireland with a view of exciting the subjects of Her Majesty, who are loyal, to rise in rebellion against her throne, to disturb all the rela-

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  tions of society, and to break out into open rebellion. Her Majesty's Government, in awarding punishment, will, no doubt, take into consideration the degrees of guilt on the part of those who may be convicted, and in applying to each case its measure of punishment will extend such mercy as they feel can safely be done. But I must say that there never was more misplaced sympathy, there never was a more unjustifiable demand upon the Government of one country by another than to extend a complete amnesty to men who, having left their native land, and obtained a settlement and a means of succeeding by their industry in another country, returned with these detestable notions to invade Her Majesty's dominions. The noble Earl opposite touched on one subject which was rather painful—namely, the disposition which exists, and has existed for a very long time, among the people of Ireland always to give their sympathies against the law, and not in favour of the law—not, as in this country, to confide in the just administration of the law by those charged with that duty, but rather to sympathize with those placed at the bar as defendants, and to refuse to give evidence to convict those persons of the crimes of which they have been guilty. This is a very painful consideration. I do not wish to discuss the matter now; but whenever the time comes that the Government think it wise that this Act should expire, the consideration, of course, is one that will not be overlooked by them. In the present instance, as I have said, the first duty of the Government is to give security to life and property, and I do not doubt they will exercise the powers now asked for with discretion, and will consent to dispense with them as soon as possible. I therefore support the Motion of the noble Earl.
  THE EARL OF KIMBERLEY: My Lords, before the Bill is read a second time I wish to make one or two observations. I fully agree with what the noble Earl (Earl Russell) has just stated, that, however painful the necessity may be, it is absolutely necessary to continue the Suspension of the Habeas Corpus Act in Ireland. I should possibly not have troubled your Lordships with any remarks but that, allusion having been made to the advice which was given to the Queen as to the non-renewal of the Habeas Corpus Suspension Act, I desire to call the noble Earl's attention to a statement made by the Irish
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  Attorney General on the occasion of his election for Galway, which I confess somewhat diminishes my confidence in the advice which was tendered upon that question. It is quite possible that the right hon. and learned Gentleman may have been misrepresented, and, if so, I desire that my remarks may be considered as inapplicable to him. But in the report, which I take from The Freeman's Journal, I find these words—
  "He came before them as Her Majesty's Attorney General in this kingdom, and he was proud to announce that upon his advice and responsibility the Executive of this country had come to the conclusion it was safe—that it was more than safe—that the people of Ireland should live under a free Constitution; and that measures which he supposed were necessary for the public welfare, although personally he might have had his doubt even of that—were no longer needed—that the time had now come when it could go forth that the loyalty and conduct of the preponderating majority of the people of Ireland were such that they were not to be kept at the mercy of a suspended Constitution."
  The point to which I wish to call attention is that the Irish Attorney General, holding a position of peculiar responsibility with regard to matters of this kind, should have stated—if he did so state—in public that he had his doubts as to the advisability of previous suspensions of the Habeas Corpus Act. I venture to think that whatever difference of opinion there may be now upon the subject, at the time the suspension of the Act was resolved upon Parliament was almost, if not quite, unanimous in that resolution. A gentleman, holding the position of Attorney General for Ireland, must necessarily be held more strictly responsible for the words he uses than if he were merely an independent Member of Parliament; and, knowing something of the Irish people, I must say that I think the observations which I have quoted would have anything but a good effect. The Attorney General went on to speak of the number of persons arrested and released; but without wishing to detract from the credit due to the present Irish Government in having been able to release a number of prisoners, I must say that many of those originally arrested were released before the late Government left office. 756 persons had been arrested up to the time that I left Ireland, and 330 or 339 were in custody when the present Government came into office; so that no less than 417 had been released under my direction. Therefore, though the present Government have acted very wisely in continuing the process

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  of release initiated by us, I think it right to state that the Attorney General has not stated the case quite accurately. With respect to the recent most ridiculous outbreaks, I wish to say that I rejoice exceedingly that my anticipations of widespread sympathy with the leaders of any outbreak have been falsified. I trust that the total break-down of the scheme will open the eyes of the infatuated people who have recklessly spent their money and endangered their liberty in a perfectly futile attempt to upset the Queen's Government in Ireland. Before quitting this subject it would be unjust not to give due credit to the present Irish Government and the local authorities for the promptness and vigour which they showed upon the first signs of a disturbance; their conduct will, no doubt, have a marked effect upon the disaffected, and clearly show them the fruitlessness of attempting to carry out their designs. I am glad to find that a clause has been inserted in the present Bill providing that those apprehended on the warrant of the Lord Lieutenant shall be treated as untried prisoners. This is an extremely just and necessary provision; but it must not be supposed that cither the late or present Government, as far as I know, have neglected their duty in this respect. It is true that when the Act was first suspended a large number of apprehensions immediately took place, and for a short time prisoners were not all treated in certain local prisons in the way we approved; but as soon as any fact of the kind came to my knowledge, I took immediate steps to remedy the evil of removing these prisoners, and in Mountjoy Prison, which is under the direct control of the Government, their treatment was quite satisfactory.
  THE EARL OF DERBY: The noble Earl (the Earl of Kimberley) was good enough to give me notice of his intention to ask the question he has put with reference to the Attorney General for Ireland, and I felt it my duty to ascertain from him how far the report of his address was correct. The learned Gentleman, in reply, states that the report in The Freeman's Journal was written in the third person, and therefore naturally conveyed a less perfect report of what was actually said than if it had been given in the first person. The Attorney General informs me that the language reported in the Irish Times or some other paper was more accurate, and he states that in congratulating the country upon the probability of being
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  able to dispense with the operation of this Act, he certainly said, "Personally, I may have had my doubts as to the necessity of that measure." The learned Gentleman says that this observation referred to a conversation he had with the noble Earl opposite at the time of the first introduction of the measure, when he sat in the other House as a private Member for Galway, The noble Earl having consulted him with regard to the state of the country, he said that, as far as he knew, no disloyalty existed in the district with which he was connected, and that he did not think at that time the measure was needed. I believe he expressed this opinion very freely to the noble Earl; and he thinks that opinion, so far as the western districts of Ireland were concerned, was perfectly just, for out of the 752 persons arrested, only twenty of them were farmers and thirty-five of them farmers' sons, while 441 were tradesmen, shopkeepers, clerks, and commercial assistants; and his opinion he considers to be confirmed by the charge of Mr. Justice Fitzgerald at Limerick. It is evident from this that the Attorney General wished to convey that at that time the general character of the county of Galway was not such as to need the suspension of the Habeas Corpus Act in Ireland, whatever the rest of the country might require. Of course, he did not wish it to be inferred that, in his opinion, the Act had not proved beneficial; he simply desired to express his great satisfaction at the probability of being able to dispense with it on an early day. Unfortunately, that speech was delivered a few days before the outbreaks at Chester and Kells had taken place; otherwise I think his remarks would not have been mistaken for anything more important than the record of an opinion he had previously expressed to the noble Earl who had done him the honour to consult him. With regard to the remarks made upon the Message of the President of the United States, I regret that I am obliged to discuss the subject. The Correspondence on that subject will, as soon as it is printed, be laid upon the table of the House, and noble Lords will see that while we have not disputed what can fairly be claimed by the Government of the United States, we at the same time have not admitted the right of any foreign Government to interfere with the principles which guide us in the administra-

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  tion of justice; and that while, on the one hand, the just wishes of the United States have not been neglected, the independence and the honour of the tribunals of this country have not been in the slightest degree sacrificed.
  Motion agreed to; Bill read 2a accordingly: Committee negatived;Standing Orders Nos. 37. and 38. considered(according to Order), and dispensed with; Bill read 3aa, and passed.

EMPLOYMENT OF VOLUNTEERS IN CIVIL DISTURBANCES.

  OBSERVATIONS.
  LORD ST. LEONARDS, in rising to call the Attention of the House to the Employment of the Volunteers in case of Riots or Attacks by Fenians, said, that his motives in bringing forward this subject were the difference of opinion that existed, and in order that the Volunteers of this country and the public at large might distinctly understand what their duty was in connection with the suppression of riots and tumults. In our old law books it was laid down that the sheriff was entitled to summon all the people of the county to attend him on such occasions—to call out the posse comitatus, as it was termed—and by a Statute of Henry V. the neglect to attend such summons was punishable by fine and imprisonment. But with reference to the case of soldiers and Volunteers he would deal more particularly; and, without going back to 1715 or 1745, he would call their Lordships' attention to a speech delivered in that House by Lord Mansfield in reference to the Lord George Gordon riots of 1780. Lord Mansfield said—
  "It appears most clearly to me that not only every man may legally interfere to suppress a riot, much more prevent acts of felony, treason, and rebellion, in his private capacity, but he is bound to do it as an act of duty, and, if called upon by a magistrate, is punishable in case of refusal. What any single individual may lawfully do, so may any number assembled for a lawful purpose; which the suppression of riots, tumults, and insurrections certainly is. It would be needless to endeavour to prove that what a private man may undertake to perform may be performed by a magistrate, who is specially authorized by law for the purpose of keeping the peace. It is the peculiar business of all constables to apprehend rioters, and to endeavour to disperse all unlawful assemblies; to apprehend the persons so offending, and in case of resistance to attack, wound, nay, kill those who shall continue to resist."
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  There was evidently a mistake in the next sentence of the speech, but the meaning was clear—
  "The very act of apprehending in arms the person, with every necessary power for the effectual performance of the duty prescribed by the law, and consequently every person acting in support of the law is justifiable respecting such acts, such acts as may arise in consequence of a faithful and proper discharge of the duties annexed to his office, if he does not abuse the power legally vested in him, which may, according to the circumstances accompanying the transaction, degenerate into an illegal act, though professedly committed under the colour or pretext of law. These several positions I take to be incontrovertible, with all the possible consequences which can flow from them, and to be the true foundation for calling in of the military power to assist in quelling the late riots. The persons who assisted in the suppression of those riots and tumults in contemplation of law are to be considered as mere private individuals acting according to law, and upon any abuse of the legal power with which they were invested are amenable to the laws of their country."
  "The military have been called in, and very wisely called in, not as soldiers but as citizens; no matter whether their coats be red or brown, they have been called in aid of the laws, not to subvert them or overturn the Constitution, but to preserve both."—[Hansard, Parl. History, xxi. 695.]
  In a later debate, Lord Mansfield said—
  "When a felony was committing or committed, and no justice or constable present, men were undoubtedly to exert themselves, and if they could not apprehend they were justifiable in putting the perpetrators to death. This justification, however, depended on the circumstances of the case."—[Hansard, Parl. History, xxi. 746.]
  That eminent Judge laid down the doctrine in that House, which had never been disputed, that soldiers acting on such occasions were acting as civilians, and were liable to the consequences of all illegal acts, even though committed by order of their officers. But, although a soldier, by such a rule, must necessarily incur serious liabilities by disobeying his officer, and might render himself liable to unpleasant consequences by his disobedience, there could be no doubt that if a soldier, in doing an illegal act, simply and honestly fulfilled an order given to him by his commanding officer, such conduct would not be attended with any harm to himself. Upon the debate on the 21st of June, 1780, on the Duke of Richmond's Motion respecting the conduct of the military in disarming the citizens of London during the riots—which was negatived without a division—the Lord Chancellor, Lord Thurlow, spoke in the highest terms of Lord Mansfield's speech. He said—

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  "The learned Lord had left him little to add on the subject. Most clearly in all cases of felony it was the duty of every man, let his professional character be what it might, to aid and assist in apprehending the felon. In cases of public outrages and tumult it was the duty of all to assist in quelling it, to apprehend the rioters, and to deliver them over to the officers of justice; and in case of resistance, or on finding that they could not stop the outrage by any other means, after it had got to the length of pulling down houses, &c, or assaulting or wounding His Majesty's peaceable subjects, then all present were warranted to proceed to extremity, and use such weapons as they were furnished with for the destruction of the rioters. Every man had a right to oppose force to force on that first principle of the law of nature as well as the law of the land, self-defence; so the military, when present, individually as private persons, or collectively under military command, if they were insulted and assaulted by being pelted with brickbats, stones, &c, had a right to repel the violence and defend themselves. And in doing so the military did nothing but what every man else was warranted by law to do; because the military in every part of their conduct, in such cases as he had stated, were bound to obey the law."
  Lord Thurlow proceeded to show—
  "That the military, individually, and the private citizen were equally liable to the same exercise of the civil power, and bound to pay it the same subordination, by discharging the duties imposed on them with equal punctuality and faithfulness. Lord Thurlow then entered into a very copious discussion of the power of the sheriff in regard to the calling out of the posse comitatus, which comprehended in it every individual male of the county capable of bearing arms, the sheriff having it at his option to give weapons fit for the occasion to such of them as he thought proper. In proof of what he had asserted, he stated that soldiers, when not employed on military duty, were obliged, if at quarters or elsewhere in the county, to obey the sheriff's summons whenever he called out the posse comitatus, and to attend in person to receive and obey the orders of the sheriff."—[Hansard, Parliamentary History, xxi. 7–18.]
  Lord Chief Justice Tindal, in his charge on the occasion of the trials of the rioters at Bristol, in 1832, stated that it was—
  "The duty and right of every private person of his own authority to suppress a riot by every means in his power. And the law acknowledges no distinction in this respect between the soldier and the private individual. The soldier is still a citizen, lying under the same obligation, and invested with the same authority, to preserve the peace of the King as any other subject. If the one is bound to attend the call of the civil magistrate, so also is the other; if the one may interfere for that purpose when the occasion demands it, without the requisition of the magistrate, so may the other also; if the one may employ arms for that purpose, when arms are necessary, the soldier may do the same."
  With reference to the debates in that House on the Duke of Richmond's Motion it might be useful to call their Lordships' attention
  922
  to what passed between the City and the Government as to the right of the citizens to carry and use their arms. The correspondence would be found in the Appendix to the Chronicle in The Annual Register of 1780, from which it appeared that the Government pressed upon the Lord Mayor "not to omit any legal exertion of the civil power which might contribute upon that occasion to preserve the public peace." The inhabitants of the City proposed to arm themselves for their protection against the rioters, The plan was to have a battalion company of fifty of the opulent part of the inhabitants, armed, clothed, and taught the manual and platoon exercise at their own expense, and not to do duty out of their own ward. Lord Amherst, then at the head of the army, wholly disapproved this intention, on the ground that "no person could bear arms in this country but under officers having the King's commission." He gave directions to the officer commanding the troops in the City—
  "If any arms were found in the hands of persons except they were of the City Militia, or were persons authorized by the King to be armed, to order the arms to be delivered up to him to be safely kept until further order."
  The Government and the king did not think it expedient that any person
  "Should be permitted to use arms otherwise than for the immediate defence of their houses, or being under the command of persons receiving commissions from the King."
  This order leading to an unpleasant correspondence between the City authorities and the Government, the latter ultimately explained that in a time like that—
  "Of real danger from riots, tumults, and rebellious insurrections, a reasonable number of inhabitants armed, according to the nature and circumstances of the case, might attend the police officers as assistants to them, for the preservation of the public peace until the danger was over; but although His Majesty's Protestant subjects might carry arms for their defence suitable for their conditions, and as allowed by law, yet they could not by law assemble in bodies armed, and be mustered and arrayed without the authority of His Majesty."
  The noble Earl opposite (Earl De Grey and Ripon) had addressed a letter to The Times newspaper. It concluded in the following terms:—
  "The law clearly confers no power of calling out Volunteer corps to aid in the suppression of riots. In such cases Volunteers can only act as private individuals; they may be sworn in as special constables, but only in the same manner as any other person, and with the same duties and liabilities; but since the passing of the Volunteer Act of 1863 it has never, as I believe, been under-

  923
  stood hitherto that Volunteers so sworn in were to be armed with their Government rifles and ammunition, and to be employed, as might then be the case, rather as troops than as special constables. Such an employment of Volunteers seemed to me to be a matter requiring serious consideration, and I therefore thought it most desirable that the views of the Government should be clearly stated upon the point, in respect to which the opinion expressed by the Under Secretary for the Home Department left room for considerable doubt."
  He would now state to their Lordships how in his opinion the law as stated by the authorities referred to ought to be applied. The Volunteers could not, as such, be called out, or go out as a body to quell riots or tumults; their services were confined to actual or apprehended invasion, and they were not then to be called out until the Crown had communicated with both Houses of Parliament, or, if Parliament were not sitting, with the Privy Council, and a notification by proclamation. The Volunteers were not released from their duties as citizens except in being exempted from serving in the militia, nor had they lost any of their rights as citizens. Therefore, they might be compelled to act as special constables, or they might, like other citizens, assist in putting down riots, tumults, and felonies, without being so sworn, although, of course, when special constables were being sworn in every man meaning to serve his country would attend to be sworn in specially. They might be armed according to the discretion of the magistrates, or, if acting as citizens, without such authority, according to their own discretion. This must depend on circumstances. In the case of an ordinary riot or tumult the staff would be the proper weapon. If the rioters had weapons and arms, of course the citizens, whether acting as special constables or not, should have like weapons of offence. Volunteers, as such, should never interfere in riots, and, therefore, if acting as special constables or as citizens not sworn in they should not appear in uniform, or assemble or act as a corps, but should as individuals join with other loyal subjects in putting down the riots or tumults. They might use the Government arms in this service to their country. Take the case of a Fenian outbreak; of course, those who opposed them must be armed. Very many of our Volunteers were permitted by their commanders to take their rifles home with them, and, perhaps, that was the safest place for them during a riot or tumult. Clearly they might arm when necessary.
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  Why might they not use the Government arms in their custody? Of course, the general body of arms in store could not be used without the permission of the commander, and this, where necessary, he would be at liberty to grant. There was no law prohibiting this. The subject was doing the duty he is compellable to perform as a loyal subject, and he was entitled to be armed. The King's arms, therefore, were the fitting ones to be employed in the King's service. To seek arms elsewhere and leave the body of the arms open to the attacks of the rioters would be simple folly. But though so armed they ought not and need not be employed as troops, but only as special constables.
  THE LORD CHANCELLOR: My Lords, the subject to which my noble and learned Friend has directed your Lordships' attention is one which, under present circumstances, becomes of considerable importance. We have found by recent experience that the public tranquillity and safety may be suddenly endangered, and it may become necessary to take prompt and decisive steps to meet any similar difficulties that may occur, and to put down all disturbers of the public peace with a strong hand. It is most desirable that a magistrate should perfectly well understand upon such an emergency arising what are the powers to which he may have recourse. It is clear that it is unlawful to call out and employ the Volunteers as a military force for the purpose of repressing disturbances of the peace. The Volunteer Act of 1863 enables Her Majesty, in case of an actual or apprehended invasion, to direct the lords-lieutenant of counties to call out the Volunteer corps in their counties for actual military service, and as the Act of Parliament has specified the instances in which the Volunteers may be employed as a military body, it is obvious that by necessary implication every other occasion is altogether excluded. A Volunteer, therefore, in acting at all in the suppression of riots, is exactly in the condition of any other of Her Majesty's subjects. He can act to the extent that they can act, and his obligations are precisely the same as theirs. Now, it is most important that every subject of Her Majesty should understand what are his obligations and duties in the event of any sudden riot or tumult or disturbance taking place. I would, however, infinitely prefer to give your Lordships the law on the subject, and to explain the duty of Her Majesty's sub-

  925
  jects on occasions of this kind, on authority much better than my own. In the year 1801 the late Lord Ellenborough, who was then Attorney General, upon a case being laid before him, gave this opinion—
  "In case of sudden riot and disturbance any of Her Majesty's subjects, without the presence of a peace officer of any description, may arm themselves, and of course may use ordinary means of force to suppress such riot and disturbance; and what Her Majesty's subjects may do they also ought to do for the suppression of public tumult when an exigency may require that such means be resorted to."
  Now, of course, this obligation becomes more peremptory in cases where the magistrate requires the assistance of any of Her Majesty's subjects in order to put down any disturbance of the peace; and to that Lord Chief Justice Tindal referred, in the charge to which my noble and learned Friend has alluded, and which was delivered to the grand jury upon the Special Commission for the trial of the Bristol rioters. The Lord Chief Justice expressed in the clearest language what was the duty of Her Majesty's subjects on such occasions. He said—and he spoke most emphatically—
  "And here I most distinctly observe that it is not left to the choice or will of the subject (as some have erroneously supposed) to attend or not to the call of the magistrate as he thinks proper, but every man is bound, when called upon, under pain of fine and imprisonment, to yield a ready and implicit obedience to the call of the magistrate, and to do his utmost to assist him to suppress any tumultuous assembly."
  The Lord Chief Justice then explains the mode in which the assistance of Her Majesty's subjects were usually demanded in cases of this kind—
  "In later times the course has been for the magistrate, on occasions of actual riot and confusion, to call in the aid of such persons as he thought necessary, and to swear them as special constables; and, in order to prevent any doubt (if doubt could exist) as to his power to command their assistance by way of precaution, the Act 1&2 Will. IV. c. 41 has invested the magistrate with that power in direct and express terms, when tumult, riot, or felony was only likely to take place, or might reasonably be apprehended."
  Now, a Volunteer is not exempt from serving as a special constable. The Yeomanry are exempt, but a Volunteer has no such privilege, and therefore if called on to be sworn in as a special constable, he is bound to obey. Now, my Lords, if I understand my noble and learned Friend (Lord St. Leonards) correctly, he seemed to think that when
  926
  Volunteers were called out as special constables they were not at liberty to employ any organization which they may have received to enable them to act more efficiently as special constables. If that is my noble and learned Friend's opinion, I beg leave most respectfully to differ from him. I think that, if called out as special constables, they are not to be organized as if acting as Volunteers; but that each may join with others, and take advantage of his previous organization in order to enable him to act more efficiently as a special constable. I apprehend, also, that a Volunteer may, if called out, take his arms with him, just as any other subject of Her Majesty, if he thinks that they are necessary for his protection in the discharge of his duty. Whether when the arms of the Volunteers are collected in one place the local magistrate may order those arms to be distributed among the Volunteers for the purpose of enabling them to assist in putting down riot and tumult, is a matter on which I think it is impossible to lay down any rule. If the riot and tumult are of a dangerous description, I apprehend the magistrate may, on his own responsibility, direct that arms be put in the hands of those special constables. Of course, he must take care that he exercises that discretion with caution and prudence; but if be honestly, faithfully, and firmly exercises his discretion, I apprehend he will be protected by law in placing arms in the hands of special constables where the tumult and riot are of a dangerous description, and it is absolutely necessary that the utmost force should be used. I do not think it necessary that I should enter more fully into the matter; because my right hon. Friend the Secretary for the Home Department, believing that the law on the subject should be clearly laid down, has determined to take the opinion of the Law Officers, with the view of obtaining such instructions for magistrates that, on the general question, no one will have any difficulty in coming to a right conclusion. But still a great deal must be left to the discretion of the magistrate. I am, however, convinced that if the magistrate should show the determination which the occasion may require, and act honestly, fearlessly, and faithfully, he will be protected by the law.
  EARL DE GREY AND RIPONmust say, after the discussion which had just taken place, that the question was not in a satisfactory position. It had been laid down

  927
  that local magistrates, on their own responsibility, in certain cases, might not only call on individual Volunteers to serve as special constables, and direct them to be armed as any other sworn constable, but might go further and on their own responsibility have them armed with arms and furnished with ammunition not the property of the Volunteers but the property of the Government. Whether these arms were kept by the Volunteers in their own homes or were all collected at a depot, they were equally the property of the Government. He must say, too, that he thought the distinction between a body of Volunteers acting as Volunteers, and a body of Volunteers acting as special constables, but armed with Enfield rifles and Government ammunition, was too fine a one. If Volunteers were to be employed to aid in putting down riots and tumult, it would be better that power should be taken to call them out under the Mutiny Act, as had been the case under the old law. If they were called out under the Mutiny Act, we should have them under better discipline. At the same time, he was bound to say he entertained very serious doubts as to the advisability of employing Volunteers for such purposes, except in the same way as all other persons who served as special constables were employed. The employment of Volunteers in civil tumults under any other circumstances seemed to him to require very grave consideration. The other House of Parliament had deliberately decided that they were not to be employed in that way. It was that determination on the part of the House of Commons which had led to the striking out of a particular clause in the Bill of 1863. It appeared to him that it was only in such a case as a general arming of the whole population that the Volunteers should be employed to quell any disturbances; but certainly, the matter was not one which should be left to the discretion of local magistrates.
  VISCOUNT HARDINGEsaid, that great dissatisfaction was felt at the uncertain position of the question. The Volunteer force had been enrolled under the impression that they were never to be called out except in the case of invasion or apprehended invasion; and he doubted whether the Volunteers should be allowed to use their arms on the requisition of a magistrate. When the Volunteer Act passed their Lordships' House, it contained a clause providing that Volunteers, at the
  928
  discretion, not of the local magistrates, but of the Secretary of State, might be called out in case of tumult; it went down to the House of Commons, but after a sharp discussion there the Under Secretary for War withdrew the clause. Possibly some such arrangement as was then contemplated might now be made; but the question was one that was delicate and difficult to deal with, and it would be much to be regretted if, through the state of the law, any unpopularity attached to the Volunteers. Against the notion that Volunteers were to arm themselves with weapons belonging not to themselves, but to the Queen's Government, and act independently in the case of simple riot, he felt bound to protest. A small party of them might he cut off, the rifles wrested from their hands, and serious consequences might ensue. And there was another point to which it was necessary that attention should be directed. In rural districts Volunteers usually had leave to keep their rifles in their own houses; but in towns, where the arms of three or four battalions were collected together in a magazine, some measures ought to be taken to protect the armouries.
  THE EARL OF LONGFORDsaid, that as many Volunteer officers had expressed to the Government a desire for instructions for their guidance in future emergencies, the Government had directed their attention very seriously to the matter. It was, no doubt, contrary to the spirit of the Volunteer constitution that Volunteers should be called out in a general way to repress disturbances, or that magistrates should think that this force especially was at their disposal to be set in motion on such occasions, There could be no doubt that the same loyal spirit which prompted the Volunteers to place their services at the disposal of the Crown in case of invasion would lead them to act as special constables, under proper guidance and authority, if the magistrates require their services for the preservation of the public peace. Then this point suggested itself. Cases might arise where the Volunteers might be called on to come forward with arms in their hands to repel a public enemy, and there might be public enemies within as well as without, when it would be very desirable that the Volunteers should be called out as an armed body. In framing any instructions it was therefore very difficult to lay down any precise line; but, keeping in view those difficulties which

  929
  Volunteer officers had suggested, as well as others which had reached them from other quarters, the War Department had taken counsel with the proper authorities, and the result was that full instructions would be issued with as little delay as possible. The question of armouries being one that was supposed originally to be provided for by the Volunteers themselves, no military arrangements had been undertaken for their preservation; but the point had become one of importance, and with others would receive immediate consideration.
  EARL GREYsaid, that the discussion that had taken place that night had placed the matter in a more satisfactory condition than it was before. He thought it clear that, except under the control of their officers, the Volunteers certainly ought not to come out with Government arms in their hands. It was highly undesirable that Volunteers should be brought into collision with the people; at the same time, circumstances might arise rendering such a course indispensable. For instance, if the 1,400 or 1,500 Fenians at Chester the other day had made an organized attack, thereby levying war upon the Government, the magistrates and officers in command of the troops would have been deserving of censure had they not armed the Volunteers and directed them to act against the insurgents. It was of the utmost importance that the law on the point should be clearly defined, because at present the position of an officer in command of Volunteers in case of a riot would be exceedingly trying and painful. He heard, therefore, with much satisfaction that the Government proposed to take the state of the law into consideration. He hoped when the matter was looked into some effort would be made to define how the Volunteer force might be employed under local authority; and, if they found it to be necessary, he hoped they would not shrink from introducing a short Bill for the amendment of the law.
  EARL RUSSELLsaid, he did not propose to say anything on the law of the case which, no doubt, had been laid down most carefully by the Lord Chancellor. The House of Commons while they provided for the Volunteers being called out in case of invasion, had negatived their being called out in cases of riot and tumult, and it appeared to him that it would be very dangerous to introduce any Bill on the subject which would give further powers for the interference of Volunteers. Their
  930
  Lordships were all aware that it had been necessary to call out the regular troops in many cases, and he did not remember a single instance in which they had not shown the utmost discretion and acted with the utmost forbearance, although exposed, perhaps, for hours to very trying circumstances. In the case of Volunteers, no doubt influenced by local feeling, or to some extent by party hostility, one could not be certain that they would act in all cases with the same forbearance as regular troops. As a matter of expediency, therefore, he hoped it would not be necessary to alter the law, or to attempt to call out Volunteers in a fashion more dangerous than the employment of regular troops—that was to say, without being under the control of their officers.
  THE EARL OF BELMOREsaid, there was one point in connection with this subject which could not be too clearly borne in mind, and that was the distinction between simple riot and insurrection. In circumstances such as those that had occurred at Wolverhampton the other day, it would be clearly unadvisable to employ the Volunteers; but at Chester, if what was contemplated had been carried into execution it would not have been a simple riot, but a levying of war against the authority of the Queen. In such a case as that, the employment of Volunteers would stand on a very different footing from an ordinary case of riot.

MASTERS AND OPERATIVES BILL.
(The Lord St. Leonards.)
MASTERS AND OPERATIVES BILL.

  (NO. 3.) COMMITTEE.
  House in Committee (according to Order.)
  LORD CRANWORTH LORD CRANWORTH moved the omission of the last part of Clause 4, which provided that masters and their workmen might, by mutual consent, be bound before the proposed Court of Conciliation to consent to an increase or decrease of wages for twelve months. This he described as unreasonable and unnecessary.
  An Amendment moved, to leave out from ("paid") to the End of the Clause.—(The Lord Cranworth.)
  LORD ST. LEONARDSdeclined to assent to the Amendment.
  On Question, That the words proposed to be left out stand Part of the Clause? their Lordships divided:—Contents 1; Not-Contents 9: Majority 8.
  Amendment agreed to.

  CONTENTS.

  Saint Leonards, L. [Teller.]

  NOT-CONTENTS.

  Chelmsford, L. (L. Chancellor.)

  Devon, E.

  Buckingham and Chandos, D.

  Colville of Culross, L. [Teller.]

  Cranworth, L. [Teller.]

  Silchester, L. (E. Longford.)

  Carnarvon, E.

  Derby, E.

  Teynham, L.

  On the Motion of The LORD CHANCELLOR, the word "Operatives" in the title was altered to "Workmen."
  The Report of the Amendments to be received on Friday next.
  House adjourned at half past Seven o'clock, till To-morrow, half past Ten o'clock.