§ On the motion of Mr. Estcourt, the House went into a committee on this bill. On the clause for "lewdly and obscenely exposing the person,"
§ Mr. John Smith
begged the House to reflect on the possible abuse which might grow out of such an enactment. To give a summary power of conviction to magistrates to punish men merely because witnesses were found ready to swear to the fact, might occasion the greatest perversion of justice. The very charge itself subjected the accused to the whole weight of public opinion, which in this country was decisive. If himself or any of his honourable friends were merely charged with such an offence, and no investigation were allowed, save the oath of an informer, they would never recover from the consequent depression of feeling during their lives. What also must be the sufferings of a respectable family, when the head of it was, on the oath of a solitary witness, accused of such an offence? The feelings of the honest and deserving classes ought not lightly to be exposed to such grievous imputations. At least they should be allowed that security which the intervention of a jury would afford them. There could be no objection, on the ground of a delay in the administration of justice, as a jury would go through the whole investigation in ten minutes. The offence was 1082 one which admitted of various shades; but unquestionably, when it was Of great enormity, it ought to be severely punished. Of the magistracy of the country generally, he thought very highly; but unquestionably, in some of the small corporate towns there were individuals in the commission of the peace, who were in the very lowest sphere of life; and it really was too much that the character of an English subject, under such peculiar circumstances, should be at the mercy of the immediate decision of one such person.
§ Sir J. Newport
also objected to a summary conviction before one magistrate, and on the oath of one witness, in a case where that conviction would necessarily consign a man to infamy for life. The higher the offence, and the more dreadful the consequences of conviction, the more necessary it was that the greatest caution should be used to guard against injustice. Trial by jury would undoubtedly be the safest proceeding. No man thought more highly than he did of the character of justices of the peace generally; but this was not a case which ought to be left to the decision of a single magistrate.
§ Mr. Estcourt
acknowledged, that in the first instance he was strongly against introducing this offence into the bill, and so were the committee; but, considering it expedient to obtain all the information they could upon the subject from magistrates, they found, after extensive inquiry, that some provision of the kind seemed absolutely necessary. In introducing that provision, they had endeavoured to guard it as much as possible from abuse. The offence was exclusively that of insult to a female. It had been stated by the magistrates, that the offence was so frequent, and it was so difficult to prevail upon females to overcome their natural delicacy, and prosecute the offender in a court of justice, that some summary punishment was almost indispensable.
§ Mr. Monck
contended, that as the liberty of appeal was given by a subsequent clause, it could not be said that a conviction under this bill depended on the decision of a single magistrate. If any party were discontented with the decision of a single magistrate on his case, he had full power to obtain upon it the decision of a bench of magistrates, before whom he would be able to have the assistance of counsel, and to derive all the benefit which he ought from the respectability of 1083 his character. No person had gone into the committee with a greater objection to this part of the clause than he had done, and no person had come out of it more fully convinced of its necessity.
Mr. Secretary Peel,
while he admitted that the question was one of considerable difficulty and delicacy, supported the clause. It was only when the charge was made by a female, that the accused could be convicted of the offence; where the charge was made by a man there must necessarily be two witnesses. He was quite aware, notwithstanding all the precautions that could be taken, that it was a power that might be abused; and it would be advisable to have occasional returns laid before parliament of the convictions under the act, to ascertain from time to time, not only whether there had been any abuse, but whether there had been any suspicion of abuse? It might be also a subject for future consideration, whether or not, where the enormity of the offence was very great, it should not be liable to a punishment of greater severity.
The clause was agreed to. On the clause relative to the power of sessions "to detain and keep to hard labour and punish by whipping rogues and vagabonds and incorrigible rogues," being read,
§ Mr. Monck
argued against that part of it which empowered the magistrates to cause individuals convicted as incorrigible rogues to be whipped. In his opinion, twelve months imprisonment, and the labour of the tread-wheel, was a sufficient punishment. He never would consent to any measure that savoured of torture; which the practice of whipping did. Formerly, sturdy vagrants were punished by whipping, branding on the forehead, boring the ears, and slitting the nose. All these inflictions, except that of whipping, were now done away; and that remnant of a system of torture ought also to be removed. It degraded the individual; and instead of reforming his evil propensities, rendered him more determined in the pursuit of vice. Another great objection was, that nothing was said as to the mode of apportioning the quantity. If the punishment were persevered in, some criterion, such as the breaking the skin, or the drawing of blood, should be laid down for the direction of those who administered the punishment. He concluded by moving "that that part of the clause which related to the punishment of whipping be left out."
§ Mr. Lockhart
said, there was something absurd in the idea of sending to the house of correction persons who were convicted of being "incorrigible" rogues. He strenuously objected to the practice of whipping. Wherever it was resorted to, it must lead to consequences diametrically opposite to those which it should be the object of all criminal legislation to produce. Suppose a man sentenced to twelve months' imprisonment, and, in addition, to a whipping. At what time was that whipping to be inflicted? Was it to be inflicted before the imprisonment commenced? In that case, the individual would go into gaol, exasperated against society, and more anxious for revenge than for reformation. Was the punishment to be administered at the end of six months? Why, during that period the morals of the man might have been improved, he might have repented of the evil of his ways; and therefore it was unjust to punish him. It was also unwise: for that punishment would, perhaps, drive him back to his old courses. Or, was the whipping to take place at the expiration of the twelve months? There, also, the danger existed of committing an act of injustice, by punishing an individual whose moral character had been improved. If whipping was at all resorted to, it ought to be as a summary punishment. The offender should be set at liberty the moment he was so punished.
§ Mr. J. Smith
objected to whipping, under any circumstances, as a punishment that could do no good. It was absurd to suppose, that by tormenting the body, they could reform and render more virtuous the mind. Severe punishments always had the effect of exciting our sympathies on behalf of the suffering individual. The horror which his crime should elicit was lost in the recollection of the protracted misery which he endured. No one could reflect without shuddering on the torments which Damien and Ravillac were compelled to endure. However atrocious the conduct of a criminal might be, the refinement of cruelty in punishing him always excited some degree of sympathy for him. He looked upon solitary confinement as a much more effectual punishment than whipping. On this point they might take a useful lesson from their French neighbours. There 30,000,000 of people were ruled without any corporal punishment, with the exception of marking on the shoulder, and that, he believed, was done 1085 with some sort of liquid. He had seen it performed in Paris, and the individual did not appear to feel any pain.
§ Mr. Estcourt
said, that the present was an improvement on the old law. Formerly, vagrants, before they could be passed to their parishes, were obliged to undergo a whipping, and an imprisonment of seven days. By this act, however, whipping was confined to incorrigible rogues and vagrants only; That punishment was awarded, not in the hope of effecting reformation, but as a terror to others who were likely to transgress.
Mr. Secretary Peel
said, it appeared to him that gentlemen had argued this question with reference to the general subject of whipping, instead of confining themselves to its immediate connexion with this clause. He could not coincide with those who were of opinion that corporal punishment should be entirely abolished. The knowledge of the fact that it might be inflicted for particular offences, produced a salutary terror, which checked the growth of such offences. It was not introduced for the purpose of effecting reform, but as an example to others. A learned gentleman had made a remark on the word correction as inapplicable to incorrigible offenders. The word had, however, two meanings. If it were taken to mean reform, it would certainly be absurd to apply it to those who were adjudged to be incorrigible. But here the word correction simply meant punishment. To show the necessity of having recourse to corporal punishment, he would state a fact which had occurred some time ago. The convicts in the Penitentiary had been removed on board the hulks, and were there subject to the same regulations as they had been governed by while within the walls of the prison. Those regulations, however, which answered very well in the Penitentiary, were found insufficient on board the hulks. The convicts became turbulent and refractory: they combined together, insulted those who were placed over them, and behaved badly in every respect. A bill was in consequence passed, placing them under the usual regulations that were observed on board the hulks. Those regulations authorized corporal punishment for refractory behaviour. The consequence was, that the terror of that punishment reduced the convicts from the Penitentiary to a state of perfect subordination and obedience.
Mr. R. Smith
had no objection to visiting incorrigible rogues with this species of punishment, if those who ought tocome under the denomination of incorrigible were properly pointed out. The bill now before the committee set forth three classes of persons, as coming within the denomination of incorrigible rogues. 1. Those who break prison, before the term of their imprisonment under this bill. These were certainly fit subjects for additional punishment. 2. Those who were a second time convicted, as vagrants, under the provisions of the bill. He had no objection to the infliction of the punishment in cases of that nature. 3. Persons assaulting and resisting officers, while endeavouring to apprehend them as rogues and vagabonds. To this he could not agree; because officers might endeavour to arrest an innocent man. Such an individual, in a moment of passion and irritation, might resist and assault the officers. In that case, under this third portion of the clause, he must be considered an incorrigible rogue and vagabond, though, on inquiry, it might be found, that when the attempt was made to apprehend him, he was no rogue or vagabond at all. He therefore proposed, that the words "and being thereafter convicted as a rogue and vagabond" should be introduced.
§ Mr. W. Smith
said, it was true that this punishment might not reform the mind of an offender; but it would forcibly impress on his memory the inconvenience which must result from his adherence to those practices which occasioned such a painful and disgraceful visitation.
§ Mr. J. Smith
was happy to learn from the right hon. secretary that his mind was still occupied with the revision of the criminal code. They had gone on, exercising a great severity of punishment, for many years, with very little effect; and he was convinced that if a milder course were adopted, much good would result from it.
§ The amendment proposed by Mr. R. Smith was agreed to; after which the House resumed.