HL Deb 01 July 1867 vol 188 cc751-61

rose to call attention to the Memorandum addressed to the Commanding Officers of Volunteers in regard to the Employment of Volunteers in aid of the Civil Power. He thought that after the discussion which took place on these Instructions in the House of Commons the other night, it would be unnecessary for him to trouble their Lordships at any length; he trusted, however, he should hear from the noble Earl the Under Secretary for War that it was the intention of Her Majesty's Government to modify the Circular, and to state distinctly that the Volunteers were not liable to be employed in aid of the civil power, except as far as they might, in common with the rest of Her Majesty's subjects, be called upon to act in their ordinary civil capacity for the maintenance of the public peace. He would ask their Lordships to consider whether the Circular clearly and distinctly laid down the principle which had been affirmed by the other House, and whether, on the contrary, it did not contain certain ambiguities of language which might be productive of great inconvenience in the future, and indeed create dissatisfaction among the Volunteer Corps? With respect to the first paragraph of the Circular there was very little to be said. It was simply a preamble, and the next three paragraphs laid down the principle that the Volunteers were not to be called out as a military body to repress civil disturbances, although they were not, by the mere fact of their being Volunteers, exempt from the liability which devolved on the rest of Her Majesty's subjects, in aiding and assisting in the repression of public disturbances. The fourth paragraph was couched in very ambiguous terms, and here he might point out that, in considering this Circular, it ought to be borne in mind that it was issued by the War Department, and signed by the noble Earl opposite and by the Secretary of State for War. Now, the War Department had nothing whatever to do with the Volunteers in their civil capacity, but only had dealings with them as far as they were a military body. Consequently, the Volunteers would naturally think that any directions given to them by the War Department had reference to their military capacity, and did not refer to them as ordinary subjects of Her Majesty. The Circular referred to cases of riot and disturbance which did not amount to insurrection; but would it not be very difficult for Volunteer officers, not learned in the law, to determine what riots and disturbances came within that definition? So far as he could understand from what had been said in the other House, the Government had simply laid down what ought to be the conduct of Her Majesty's subjects generally when called upon to suppress riots and disturbances. There was also an apparent discrepancy between the fifth and sixth paragraphs. The fifth paragraph referred to the class of disturbance, and laid down that Volunteers might act as special constables, and be armed with staves, but could not be called out as Volunteers. The conclusion at which one would arrive was that in the cases contemplated by paragraph No. 6, Volunteers, not acting as a military body, might come out clothed, armed, and accoutred as Volunteers. Volunteers so coming out and acting would be under no regulations whatever; they would not be, as the law stands, acting under the Articles of War. If he was wrong, the noble Earl the Under Secretary for War would correct him; but he believed he was not wrong. They would not be even under the ordinary amount of discipline which Volunteers were subjected to when marching out. It appeared to him highly undesirable that the matter should be left in that way, if it should be the intention of the Government that they should act in cases of civil disturbances in the way in which persons totally disconnected with the Volunteers should do—as in fact the rest of Her Majesty's subjects should act if they were called upon to serve as special constables. If Her Majesty's Government had other intentions—if they thought the circumstances of the country required that they should have power to call out the Volunteers as Volunteers in the suppression of riots—he thought they ought to face the matter—they ought to ask Parliament to make the law what it would have been if the clause to which reference had before been made had been allowed to remain in the Bill, and take power to place the Volunteers under the Mutiny Act. Any set of men acting as special constables would be conducting themselves foolishly if they did not make use of any skill which they might possess in acting as a united body, even though it might result from military discipline—military discipline under the law the Volunteers could have none; but should those men be armed like soldiers, though not acting under military discipline, it appeared to him that the consequences might be very serious. Paragraph No. 9 went further than any of the preceding ones; for it laid down that the Volunteers might act in the emergency therein referred to without the call of the civil authorities. He believed that was the law, as far as it went, with respect to Her Majesty's regular troops; but what had been the practice for a long period? He did not know when it commenced, but I the practice, as laid down in the Queen's Regulations, was that the troops never were to act in civil disturbances, except on the written order of a justice of the peace; and that they were never to fire except on the express directions of such an authority. Why was that laid down? No doubt because it was considered that disciplined men acting on such occasions were put to a great strain. If that were sound policy—as he believed it was—with respect to Her Majesty's troops, ought it not to be applied to any other body of disciplined and armed men? It appeared to him that the effect of paragraphs Nos. 6 and 9, if they were carried out, would be very objectionable to Her Majesty's subjects generally, and very invidious to the Volunteers. For what might happen? A rash body of Volunteers might rush out and act as they pleased without the command of any officer. Nothing could be more calculated to bring discredit and odium on the Volunteers, and to shake the confidence of the public in the Volunteer force. It seemed to him that the Government ought to adopt either of two courses They might take the view adopted by Parliament in 1863, and which the House of Commons appeared to approve at present—namely, that the Volunteers should not in case of riot or disturbance act as Volunteers, but just as any of Her Majesty's subjects; or they might go beyond that, and in such cases place Volunteers under military discipline. He hoped the Government would re-consider the terms of the Circular with a view to its modification.


said, that as he read the Circular, it appeared to him to convey clear and simple instructions, sufficient for the object. The Executive or the magistrates had no more power to call out the Volunteers for the suppression of riot than they had to call out the Members of the Army and Navy Club. The Circular stated that Volunteers, not as Volunteers, but as a portion of Her Majesty's subjects, could be required to serve as special constables, furnished with a staff, but not dressed in military uniform. Further on, it explained that in case of very serious riot, amounting to insurrection or revolt, the Volunteers might use arms to aid the civil power; but any other of Her Majesty's subjects might do the same thing, and the Volunteers in so acting would do so, not in any military character, but simply as citizens. Finally, they were authorized, in defence of their storehouses to act viet armis. In 1863, the Government of the day, foreseeing, perhaps, some such occurrence as that which had taken place at Chester, inserted a clause in the Volunteer Bill which would have placed the Volunteers in a different position; but Parliament deliberately rejected that clause, and Her Majesty's Government, accepting the decision of Parliament, merely explain in this Circular the law as it now stands. They had no intention of taking upon themselves the duty of calling out the Volunteers in time of riot; nor did they propose that any power, such as that which would have been given to the Executive by the clause omitted from the Bill of 1863, should be conferred upon them. He might remind the House that the Queen's Regulations contained, in addition to military regulations, a publication of judicial opinions for the guidance of troops; and, in like manner, the Government in issuing this Circular had no intention of issuing elaborate instructions, but simply a few general rules for application in times of difficulty. It was said that the paragraphs of the recent Circular were vague and inconsistent. If they were, the fact showed how difficult it was to lay down rules to be acted on in cases of emergency. To issue in a general Circular precise directions applicable to every possible contingency was, he thought, beyond the ability of any Government. Another objection to the Circular was that its language was at variance with Rule 98 of the Volunteer Regulations, which prohibited an assembling of the force except for certain purposes. But that rule had reference to the ordinary state of affairs, and was quite inapplicable to any of these extraordinary circumstances to which strict regulations could not apply, and under which some one must assume responsibility, and act in defiance of general rules. He thought that the Circular was sufficient for its purpose; but if it should turn out that this was not the case, or should any inconvenience arise from it, the Secretary of State had announced his intention of having it re-considered with the view of seeing whether its terms could be made more satisfactory. The only object of the War Department was to benefit the public service, and to give assistance and guidance to the Volunteer force in the performance of its duties.


must express his opinion that the Circular was open to all the objections which had been made to it by his noble Friend. He could not but think that it was very liable to be misunderstood by Volunteer officers, and might very much mislead them; and he thought the Government ought not to wait till some case of inconvenience arose before they corrected it. If the paragraphs to which objection had been taken were left out, there was every probability that commanders of Volunteer corps would be able to exercise a sounder judgment and discretion. The noble Earl (the Earl of Longford) had very truly said that it was impossible to foresee, and by the use of any language to provide for every contingency that might arise. It was wise, therefore, to refrain from making the attempt, and to confine the rules to cases with regard to which it was desirable to lay down rules plainly intelligible.


said, that the Volunteer officers throughout the country would learn with something like dismay that the Government were still only considering whether they would maintain these rules or not. After what had passed in another place, the position of the Volunteers, he thought, was even more difficult than before the issue of these regulations, and must continue to be so until it should be officially made known whether the Instructions were to be modified or not. There could be no doubt that the orders, as they stood, were not popular; and the Government, if they listened to the opinion of the House and of the country, would immediately alter their terms. In the event of any disturbance arising before these were modified, the Volunteers would be placed in a very false position. The instructions were not only vague, but to the eye of the ordinary Volunteer they were absolutely contradictory. In one paragraph Volunteers were told that the civil power was not entitled to call them out, but further on they were informed that the civil authority might call upon Volunteers by every lawful means in their power to aid in suppressing a disturbance. Perplexing questions must also arise as to the meaning of "lawful means." They were not to use their arms, it seemed, but they might avail themselves of their military discipline and organization. Comparing paragraphs 5 and 6, it would be difficult for a simple Volunteer to distinguish when he might and when he might not appear in uniform; but if, in certain cases, Volunteers were entitled to avail themselves of their military skill, and there was at the same time no prohibition of their acting in uniform, it was difficult to discover what difference existed between their so acting as individuals, and acting as a military body. So in regard to the paragraph authorizing Volunteers to act on their own responsibility if the civil authority was not present or within reach—how far was a Volunteer officer to send, and how long was he to wait for the civil authority before acting upon his own responsibility, and how was he to measure the extent of a serious disturbance? Under the Instruction the Volunteers might, even in the absence of their officers, make use of their arms, for who was to say what was and what was not a "dangerous" riot? There never was a riot yet in which parties upon the spot did not think that there was serious danger. Was it not the apparent danger that had been the excuse on occasions when lamentable excesses had been committed in suppressing insurrection? Was it not said that the parties "had lost their heads?" In giving instructions to Volunteers, he certainly thought great caution was necessary. The classes who joined the Volunteer Force were principally composed of men with an active turn of mind who wanted something to do, and desired nothing so much as an opportunity of showing their courage and their zeal. What they required was holding in and not urging on; and the danger was rather that they would do too much than too little. But, it might be said, cases could be imagined in which their interference would be absolutely necessary; riots such as those which took place at Bristol formerly might recur, or if the peculiar features of the outbreak at Chester were reproduced, and, with murder, and pillage going on in every direction, were the Volunteers to remain passive spectators? He answered at once that, under such circumstances, be the law what it might, the Volunteers were under no restraint from acting—they could be called upon with the rest of their fellow citizens, to restore law and order. But disturbances of this kind very rarely occurred. He knew the difficulty and delicacy of all proceedings requiring an Act of Indemnity at a latter period; but he believed the true language on this subject had been held by the noble Earl (the Earl of Carnarvon), whose honourable retirement from office inflicted a severe blow on the present Government when writing for the guidance of the West Indian colonists on the question of Martial Law. It might be said that it was unfair to throw on a magistrate or commanding officer the duty of determining at what point the law ought to be broken by the employment of Volunteers. But just as a soldier should not be deterred by the fear of wounds or even of death from doing his duty, so persons placed in a position of trust, ought to face the consequences of breaking the law in presence of a clear and overwhelming necessity. Save in these exceptional cases, however, the existence of the law was clearly for the benefit of society, and he therefore hoped Her Majesty's Government would consent to strike out from the instructions the objectionable paragraphs.


said, that being himself a Volunteer officer, he concurred with every word just uttered by the noble Earl opposite (Earl de Grey) as to the difficulties likely to arise under these Instructions if insisted upon. Volunteers were apt rather to be over zealous than to hang back; and hence, if any riot appeared to be of a serious character, and a magistrate could not be found, they might have very painful scenes occasioned by Volunteers rushing to the front with arms in their hands and deciding for themselves whether the circumstances were such as to warrant their interference. If Volunteers were allowed to use their arms at all, it ought to be under the Mutiny Act, and then persons would know what they were doing.


said, he hoped some definite answer would be given by Her Majesty's Government before the discussion closed. The mischief of this Circular was that it appeared to give authority to acts which, on the part of the War Office, were expressly disclaimed. It seemed to be thought that because the instructions were drawn up by the Law Officers of the Crown they must necessarily be clear and precise. But his experience, as First Lord of the Admiralty, had taught him that the Law Officers of the Crown were not always the best qualified for drawing instructions for the case of officers. Some years ago, when he was at the Admiralty, it was necessary to issue Instructions for the guidance of captains and commanders in the Navy, serving in the Baltic during the Russian war. He was furnished for that purpose with a document extending over five or six pages, drawn by the Queen's Advocate. The legal accuracy of the document he never for a moment questioned; but he knew it would be perfectly absurd to send out Instructions in that form, which would only have the effect of puzzling the naval officers. The result of the present instructions must be, he feared, to puzzle Volunteer officers. A Volunteer officer at the time of a riot might think himself justified in acting with his men with a view to suppress the disturbance without the order of a magistrate. It had been authoritatively stated, in answer to a question as to whether a Volunteer might use Government arms in suppressing a riot, that he might use whatever arms were within his reach. If these Instructions were to be accepted as authoritative and acted on, a Volunteer officer and his men might be found acting with all the appearance and effect of a military force, though it was acknowledged and stated that they could not act as a military body. He hoped the War Department would withdraw the Circular as it stood, and issue another clearly stating what appeared to be the meaning of the Government—that is to say, that, although Volunteers could not be called out as a military force, they were not exempt from the responsibility of acting as ordinary subjects of Her Majesty; that they were not to act as a military body, but as citizens only.


thought there was nothing to prevent Volunteers suppressing riots as citizens, but that it must be with arms they happened to have at the time of the outbreak, not with arms supplied to them by the Government; nor should they be permitted to act as suppressors of riots in uniform.


said, that the fault in the Circular of which their Lordships complained, seemed to him to be rather its bad English than its bad law. It would be a very serious matter indeed if the law were bad; but the difficulty seemed to lie in the fact that the Government had not clearly expressed what every one knew to be the law. A man might certainly read the Circular with an honest desire to act according to law, and yet be unable to do so from not understanding the authoritative exposition. He trusted, however, that it would be found that the civil magistrates would not be under any difficulty respecting what was the law of England relating to the suppression of disturbances. He certainly thought that the obscurity of the Instructions was not so great as had been represented; but he feared that the result of the discussions in that and the other House would be, not to enlighten the Volunteers as to their duty, but only to render them fearful, timid, and undecided in emergencies when the peace of the community was in danger.


said, that, on behalf of the Government, he could not consent to the request of the noble Viscount (Viscount Halifax) to withdraw the Circular; it was certainly not issued with any desire to puzzle Volunteers, and he did not think noble Lords opposite did justice to the intelligence of the Volunteers in thinking them incapable of understanding it. The Circular's unintelligibility had, in his opinion, been exaggerated; it might, possibly, have been better worded, and if the Government could mend it in this respect Ministers would not have the least objection to try and make it more clear. It should be remembered, when using the word "Volunteers," that a Volunteer was a Volunteer whether in uniform or not; it was only necessary to add that, whether a Volunteer or not, a man was obliged to act as a civilian when called upon by the civil power although not as a Volunteer. It was known, beyond all question and dispute, that a Volunteer could only be called upon in his military capacity to act against a foreign invader. This was the principle on which the Circular had been drawn up, and he believed it was perfectly clear in its terms, and that, it was generally understood, would appear from the fact that not a single official inquiry had been received at the War Office for information respecting its meaning. Of course there had been meetings and discussions about the matter; but that was the natural result of the issue of such a Circular; and the more there were of such discussions the better. But although the Government could not consent to withdraw the Circular, he had no doubt it would be made more clear.


said, that in the course of his life he had had considerable experience of riots; and, although the conduct of the military might have been called in question, there had never been any doubt felt as to what was the law on the subject; and he considered that the Circular very adequately explained it.


thought that unquestionably there were obscurities in the Circular which ought to be removed. He agreed with the noble Lord opposite (Viscount Halifax) that the effect of these discussions would be to increase the doubts of Volunteers who wanted to know how they ought to act under certain circumstances. He thought a safer guidance would be obtained by an authoritative decision as to the propriety or impropriety of the conduct of Volunteers in special cases. Every one knew what had happened at Chester, and he would have it stated by the Government whether what the Volunteers had done there was right or wrong. For instance, it had been said that the Volunteers saved the military stores at Chester; let it, then, be said whether their action in that respect was according to law, and if so, what was the principle on which they had acted?


said, that it was clear, from the fact that noble Lords on both sides of the House entertained doubts about the meaning of the Circular, that the language was to a certain extent ambiguous; and it was of the utmost importance that all such doubts should be removed. He trusted, therefore, that the matter would be re-considered, and that the Circular would be deprived of any unnecessary doubt or ambiguity.


said, that his right hon. Friend the Secretary of State for War had already promised that the re-consideration to which the noble Earl referred should be given.