LORD DE ROS, in rising to call attention to the uncertainty which existed as to what was expected of the military during mob riots in the Metropolis, in order to have their duties more clearly defined, said, that when the subject was under discussion the other evening in that House divergent views had been expressed by noble and learned Lords, and views which had not been generally accepted by officers in the Army. The Queen's Regulations said that the troops were not to be called out, except upon the request of the magistrates in writing, or upon occasion of great and sudden emergency. In case they were called out and loss of life should ensue in consequence of orders being given to fire if the troops were Infantry, or to charge whore they were Cavalry, the question arose who was to decide whether the action was justified. The only tribunal he could think of was a jury who might be empannelled to try the officer for his life who had given the order. An officer in such circumstances would be placed in a very awkward position, and one in which he ought not to be placed. The officer would practically have a rope round his neck, as if he acted precipitately he would be exposed to a trial by jury, and if he thought the circumstances did not justify his taking action he would be liable to be tried by a court martial for neglect of duty. He held that such a state of uncertainty ought no longer to be allowed to exist. When an officer was engaged in foreign war it was his duty to get as many of the enemy killed as he could, whereas in a civil disturbance he was bound to spare human life as much as he could. There was a well-known case in the year 1852 when soldiers were employed to escort voters to the poll. Disturbances arose and the soldiers fired without the command of their superior officer. Some lives were lost, and the men were put on their trial; but the Grand Jury threw out the bill 1618 on the ground that the men were acting in defence of their lives. His own opinion was that the military ought not to be called out in aid of the civil power, except in the most extreme cases and in opposition to an armed mob, and should always be accompanied by a magistrate. He trusted that these few remarks might lead to a clearer definition of what was required of military officers when they were called out to aid the civil power.
§ LORD HALSBURYsaid, he wished to point out the mistake of the noble Lord in regarding as a proposition of law what was simply advice as to the most prudent course to adopt. For instance, it was said that soldiers should not be called out, except in extreme cases. But the difficulty was that a case would arise when neither a magistrate nor a military officer was present. Since the discussion which took place on this subject the other evening he had perused the Judgment delivered by Lord Chief Justice Mansfield in the Exchequer Chambers. His Lordship said—
Since much has been said about soldiers, I will correct a strange mistaken notion which has got abroad that because men are soldiers they cease to be citizens. A soldier is gifted with all the rights of others, and is bound to all the duties of other citizens, and he is as much bound to prevent a breach of the peace or a felony as any other citizen. In 1780 this mistake extended to an alarming degree. Soldiers with arms in their hands stood by and saw felonies committed, houses burnt and pulled down before their eyes by persons whom they might lawfully have put to death if they could not otherwise prevent them, without interfering, some because they had no commanding officer to give them the command, and some because there was no justice of the peace with them. It is the more extraordinary, because formerly the posse comitatus which was the strength to prevent felonies must in a great proportion have consisted of military tenants who hold lands by the tenure of military service. If it is necessary for the purpose of preventing mischief or for the execution of the law, it is not only the right of soldiers, but it is their duty to exert themselves in assisting the execution of legal process or to prevent any crime or mischief being committed.That which the noble Lord opposite desired to lay down as a proposition of the law was impossible in the very nature of the case. It was a question as to what was necessary and appropriate violence to meet violence. The resistance must be made appropriate to the occasion, and to the degree and extent of the force against which it was to 1619 be used. No absolute rule could be laid down, because the thing must depend upon the degree of the necessity and the urgency of the occasion. He did not believe that on the former occasion there was any real difference of opinion between his noble and learned Friends, the Lord Chancellor, Lord Bramwell, and himself, on the subject.
LORD ELLENBOROUGHsaid, he thought that military officers had a considerable grievance in this matter, and ought to have some decisive legal opinion upon which they might rely in justification of their action when called upon, and the more so since the opinion of the Attorney General of the day, given in 1801, had until recently continued in the Queen's Regulations; but, in common with the modern childish practice, had been removed from Her Majesty's Regulations without being replaced by any similar authority of the present time for the guidance of officers placed in trying and difficult positions at a time of sudden tumult.
§ LORD FITZGERALDsaid, the true answer to give to the noble Lord who had introduced the subject was to refer him to the Queen's Regulations, which set forth the duties of soldiers when called out in aid of the civil power. It was almost impossible for either officers or soldiers to err as long as those Regulations were followed. The Queen's Regulations laid down the duty of military men in the event of riots; but it should be remembered that they did not supersede the Common Law, and it was to that they must look to find what the soldier's duty really was. A soldier was bound by military law to act under the orders of his officer; but if the officer gave an unwise order, or one that he ought not to have given, and that could not be justified, the soldier, if he acted under it, was liable to the Civil Tribunals, and might be brought to justice. On the other hand, the soldier, had he refused to obey the orders of his officer, might be tried by court martial and punished. That was not a pleasant position for the soldier. Chief Justice Tindal, at the the trials following the Bristol riots, charged the Grand Jury as follows. He said—
By the common law every private person may lawfully endeavour on his own authority and without any warrant or sanction of a magistrate, to suppress a riot. He may disperse or 1620 assist in dispersing, those who are assembled. He may stay those who are engaged in it from executing their purpose; he may stop or prevent others from joining in the riot; and not only has he authority, but it is his bounden duty as a good subject to perform this to the utmost of his ability. If the riot be general and dangerous he may arm himself to keep the peace. Such was the opinions of all the Judges of England in the time of Queen Elizabeth; but they added that it would be more discreet to be assistant to the justices in doing this.…. But if the occasion demands immediate action and no opportunity is given for procuring the advice or sanction of a magistrate it is the duty of every subject to act for himself and on his own responsibility in suppressing a riotous or tumultous assembly, and he may be assured that whatever is honestly done by him in the execution of that object will be supported and justified by the common law.In 1801 Lord Chief Justice Ellenborough, when Attorney General, gave an opinion on this subject, in which he said—However, it is by all means desirable to procure a justice of the peace to attend, and for the military to act under his immediate orders, when such attendance and the sanction of such orders can be obtained, as it not only prevents any disposition to unnecessary violence on the part of those who act in repelling the tumult, but it induces also, from the known authority of such magistrates a more ready submission on the part of the rioters. But, still, in cases of great and sudden emergency the military, as well as all other individuals, may act without their presence, or without the presence of any peace officer whatsoever.In the absence of his officers and in the absence of a magistrate a soldier was bound in a sudden emergency to act as an ordinary citizen in suppressing riot. When a magistrate was present, and a soldier acted in execution of the orders of his Commanding Officer he was indemnified by statute. This was the state of the law, and in his opinion it would be better to leave things as they were rather than to disturb and upset a fabric which had been built up in the course of generations, and was well understood.
§ LORD NAPIER OF MAGDALAobserved, that the House was exceedingly indebted to the noble Lord who had introduced this subject, because the soldier required, and ought to have, the most precise instructions in the civil law, which was superior to the military law under which he served. Soldiers were informed that in whatever they did honestly in the bonâ fide belief that they were discharging their duty they would receive the utmost consideration; but if a soldier were put upon his trial 1621 by the civil power in respect of any act done by him, the Judge would have to be guided by the evidence and could show him no consideration whatever. The position of a soldier, therefore, under existing circumstances was very difficult. If he were attacked while on sentry duty by several people and he had the misfortune to kill one in defending his post he might find himself indicted for manslaughter. Thus he might suffer at the hands of the civil power for merely carrying out the orders of his superior officers. Not very long ago a sentry, having challenged a man who attempted to pass his post in the night, killed him and a verdict of "Manslaughter" was brought in against him. He thought, therefore, that the duties of soldiers in all circumstances ought to be very distinctly defined.
§ THE LORD CHANCELLOR (Lord HERSCHELL)said, he was afraid that the noble Lord who had brought forward this subject had not obtained any very useful information, or derived any complete comfort or satisfaction, from the variety of views that had been expressed on this question by the different lawyers who had taken part in the discussion. He, however, did not think that there was so very much difference of opinion among them as regarded the law—it was the particular facts of each case that struck legal minds differently. But, however that might be, it could not be denied that officers and soldiers acted to a certain extent at their peril, or refrained from acting at their peril; and he quite agreed that it was desirable to make that peril as slight as possible. He did not think it was possible to remove that peril altogether, but, at the same time, he thought that when the matter was looked at from a practical point of view that peril would be reduced to a minimum. When they discussed the question theoretically it was possible to conceive all manner of cases in which a soldier might incur danger, which, however, never arose in actual practice. In looking at this question it could not be too strictly borne in mind that the duty of keeping the peace and of preventing riots rested primarily upon the civil force of the country acting under the civil power, and it was more important to bear that in mind now than ever it was. In former times it had been the practice to call in the aid of the military 1622 on frequent occasions; but at the present day, when the organization of the civil force had been carried to so high a point of efficiency, it was very seldom that recourse need be had to the military to maintain order. There were, however, occasions when the civil power might properly call in the aid of the military force, and that aid should be given when regularly called for by the civil power. There might be cases in which it would become the duty of the military to give their aid to the civil power without its being regularly called for, and with regard to such cases it was impossible for any hard-and-fast rule without exceptions to be laid down. In general practice common sense would tell the military man when it was his obvious duty to take action without waiting for the authority of the civil power. But these cases would be very rare. It was impossible to define what a great emergency was, and it must be left to the military authorities to take upon themselves the responsibility of acting in each particular case. For instance, a soldier who saw a policeman being trampled to death by a riotous crowd would be justified in interfering for the protection of the policeman without waiting to be called upon by the civil power to take action. If the military acted on those lines he did not think that they would be likely to go wrong, or that they would often find themselves placed in positions of danger or difficulty. Of course, difficulties might arise in certain cases as to the amount of force which it was justifiable to use—thus, more force might lawfully be used in arresting a man who was committing a felony than one who was merely committing a misdemeanour, and these were legal distinctions which a soldier was not expected to understand. The case he had put was that of a soldier acting, not in his military capacity, but rather in that of an ordinary citizen, and he did not think that the instinct and judgment of a soldier was likely to be worse than that of any other man. He had endeavoured to place this matter before the House as free as possible from legal technicalities. The great thing to be borne in mind being that the duty of keeping the peace lay primarily upon I the civil force, that the military were only to be called for in the regular way by the civil power, and, the other cases 1623 being exceptional, trust must be placed in the good sense and the good faith of the military to act properly.
§ THE DUKE OF CAMBRIDGEsaid, that, as far as he understood, the noble and learned Lord on the Woolsack had said that the Queen's Regulations could not override the law. Nobody ever imagined that they could. But what military men wanted to see was that what was contained in the Queen's Regulations was really the law of the land. That was the point which, with all respect for the observations made by the noble and learned Lord, he had not been quite able to make out. It was laid down in the Queen's Regulations that wherever it was possible a magistrate was to attend. He understood from his noble and learned Friend that it was not necessary to read the Rio**t Act, but he himself believed that it was necessary. He did not pretend to say that it would be necessary in the case of an attack, because, if troops were attacked, they had a right to defend themselves, just as any one of their Lordships, if attacked, had a right to defend himself. And, if in doing so they had the misfortune to kill their adversary, they would, of course, be acquitted. The troops, if attacked as a body, would defend themselves as individual citizens. But he was under the impression that if the troops were called out to support the civil power, and the civil power found themselves no longer in a position to hold their own, or to carry out the necessary requirements of the law, then the Riot Act ought to be read before the troops were allowed to act. And yet after what had been said that night there was some doubt whether that was so or not. There ought to be no such doubt. He concurred with the Lord Chancellor that there must be great exceptions to ordinary proceedings. There were instances in everyday life which no one could foresee. A commotion might suddenly arise when there was no idea that anything was going to happen. In these cases, of course, they ought not to wait for the Riot Act to be read, but to act on the spur of the moment on their own responsibility. But the ordinary rules laid down in the Queen's Regulations did not make it at all as clear as he should like to see, and as every officer and man would like to see, how and in what circumstances he was to do certain things. 1624 He thought that it would be a very desirable thing that, as far as possible, the Queen's Regulations should be made absolutely compatible with the ordinary and existing law of the land. It would be very desirable, after the discussion which had taken place, to put a case before the Government in order to ascertain the law on the subject, with a view to have the Queen's Regulations and the ordinary law so clearly going together that there could be no mistake or misunderstanding as to how, when, and in what spirit the troops ought to act when called upon to support the civil power.
§ THE LORD CHANCELLORsaid, there was no doubt that an ordinary tumultuous assembly could not properly be dispersed by the military force until after the Riot Act had been read, because after that Act had been read it then became a felony to remain after being told to disperse; and the troops might use all the force that was legitimate for the purpose of preventing felony. But in the case of a mere ordinary tumultuous assembly, not meeting for felonious purposes, it was obvious that they would not be justified in resorting to the force that might be used in the case of felony.