HC Deb 10 March 1828 vol 18 cc1089-101

On the report of the Mutiny Bill being brought up,

Lord Nugent

rose, pursuant to notice, to move a clause for preventing corporal punishment in the army. In bringing forward this amendment, the noble lord expressed his anxiety to avoid every topic and argument which might be calculated to excite feelings of irritation here or elsewhere. The subject was one surrounded with difficulty and delicacy, and nothing but an imperative sense of duty could have induced him to press it upon the attention of the House. He held it to be an incontrovertible fact, that the king, amongst his other prerogatives, possessed the power of not only controlling the army, but also of regulating and enforcing its discipline according to his discretion, subject to the laws enacted for that purpose, and under the sanction of that House. It was a fallacy to contend, that, because the soldier had voluntarily subjected himself to this disgraceful punishment, they should not legislate upon the subject, and decide as to the propriety and utility of this portion of military discipline. Even granting for a moment that the soldier has no grounds for complaint, he would still ask; first, was this a proper sort of punishment to exhibit before those who were the natives of a free country, and accustomed to civil liberty; secondly, was it a punishment conducive to the maintenance of those feelings and of that spirit in the army, which it was so desirable to uphold and preserve? Lastly, though first in importance, came the question—Could a substitute be found for this disgraceful and humiliating punishment? If there was any practicable and safe substitute,—any escape whatever from the infliction of a punishment degrading at once to him who suffered it, and to the service which admitted it,—sure he was, that the House would gladly adopt it. He was equally confident that every hon. and gallant officer who heard him would participate in the sentiment, and would be ready to admit, from the improved practice and feeling of the army, that any substitute of sufficient example would be highly desirable. The opinions of the officers in the army coincided with his own, that, if practicable, a substitute ought to be found for this degrading punishment. Upon that point he did not imagine there were two opinions in that House. The exhibitions to which this disgraceful species of punishment gave rise, familiarized the public mind, more particularly in garrison towns, to scenes to which it should never be accustomed. The noble lord proceeded to advert to the cruelty and injustice of the punishment. It was not calculated to maintain that chivalrous spirit which should always characterize the military service. In such a profession, it was impossible not to associate disgrace and infamy with stripes and blows, and it was hard that such a punishment should be inflicted upon a poor soldier, perhaps for his first offence; it was hard that a degrading mark should be put upon him which would follow him through life, and accompany him to the grave. Some gentlemen might consider these to be high-flown sentiments, but to such he would put this question. He believed there was not a more powerful inducement to lead a soldier on in hishonourable career, than the hope, that at the end of many years he might win his way to promotion. Suppose a soldier had thus obtained a commission, who in the early part of his life, and for a first offence had undergone this disgraceful punishment—in what position was that man placed? Gentlemen should not disregard the maintenance of honourable feelings in the army, even to the lowest ranks. The noble lord illustrated this position by reference to a fact which occurred during the wars of the succession. A number of Highland officers who had followed the fortunes of the Pretender, on being obliged to leave their native country, entered into the French service, and were there formed into a distinct regiment. In one of the battles which subsequently took place, they claimed the post of honour, and, advancing in the front of the army, they bravely bore the hottest fire, until they were mown down by the enemy's cannon. The Frenchmen, on beholding such a noble exhibition, universally exclaimed "Une fois gentilhomme, toujours gentilhomme!" In a Highland regiment, the soldier who suffered beneath the lash of the drum-major could never return to his country; he was an outcast and forbidden, and a stranger amongst his companions. Such was the feeling with which this degrading punishment was regarded in the Highlands. It was a species of punishment which tended to confound the gradations of crime. He understood that 200 or 300 lashes constituted the punishment for crimes of a secondary order, and yet more than 300 lashes could not be inflicted even for a capital offence, without endangering a soldier's life. Thus, when a man was ordered to receive 1,000 lasses, the number actually inflicted could not exceed 300; and he was glad to understand that, of late years, the disgraceful practice of bringing back a delinquent who had undergone a certain portion of his sentence, a second time to the lash, had been very properly abandoned. This punishment, like the code of Draco, which punished equally with death, the slightest as well as the most heinous offence, was calculated to confound all the gradations of crime, and to defeat the ends of salutary discipline.—The noble lord proceeded to recommend as a substitute for flogging, that which he saw employed three or four years ago in the garrison of Gibraltar, namely, hard labour and extra service. It was not his wish that the House should interfere with the government of the army, but he was desirous that they should express a strong opinion upon this subject. The continuance of the punishment of flogging in the army, was a national reproach, and it was high time that that part of the military discipline should be reformed. The noble lord then moved, that in section 24 of the mutiny bill, which relates to corporal punishments, the words "not extending to life or death" should be omitted, and the following words inserted—"provided always, and be it further enacted, that nothing in this act shall authorize any court-martial to direct the punishment of flogging, or any other bodily punishment, to be inflicted on any offender, except for drunkenness on actual military duty, theft, fraud, or assault, with intent to commit felony." These latter offences, to come within the meaning of the clause, must be perpetrated against a brother soldier: because in case of their being put in practice against fellow-subjects, not connected with the military profession, the individual offending came within the operation of the civil law.

Mr. John Smith

, in seconding the motion, observed that, in his opinion, the punishment of flogging had a tendency to increase the number of crimes. He had I lately conversed with a person who had been many years the principal keeper of Newgate, and he had been assured by him, that he seldom recollected a criminal flogged at the Old Bailey who had not been committed again within less than twelve months for a new offence. A punishment of that kind invariably produced a total loss of character, and such a recklessness of consequences, that it was not a matter of surprise that the unfortunate sufferers, neither seeking nor procuring employment, were forced to have recourse to their old practices as a means of subsistence. If such was the effect of corporeal punishment upon those persons, how much more severe must it he on the soldier, exposed to disgrace before the whole of his comrades. He believed, indeed, that flogging produced in the soldier a furious and implacable spirit, which urged him on to the commission of new and more aggravated offences. The example of France cited by the noble lord, must be considered as conclusive on the subject. It had been his lot to see about 5,000 of the French troops in garrison for some time, and he did not recollect a single instance of corporeal punishment being inflicted for any offence. So great, indeed, was the horror amongst them of any degradation of that kind, that he believed the soldier would have run his bayonet through the body of the officer who should have ventured to command its infliction. In his opinion, the discipline of the army would be better preserved, and he was sure it would be more consistent with humanity, if they were to shoot a few soldiers every year, than to expose them to the horrible agony of corporeal punishment. After some observations upon the horribly disgraceful scenes which were once exhibited in the Tilt-yard, the hon. member contended, that if there was no better argument for the abolition of flogging, he would urge the propriety of discontinuing it as a punishment from the very unequal manner in which it was inflicted, and the very unequal strength of constitution which was brought to suffer it. A man embrowned by the sun, and accustomed to work without his shirt, would suffer much less from flogging than a manufacturer who was perhaps brought up to a labour less severe; and it was at the same time well known that it was in the power of the person who held the lash to make the punishment frightfully severe or comparatively trifling. For these reasons he seconded the noble lord's motion with pleasure; but he would have felt much greater pleasure in doing so, if the noble lord had proposed to abolish the punishment altogether.

Sir J. Sebright

, being of an opinion diametrically opposite to that of the noble lord, and of the hon. gentleman, felt himself bound to state, in a few words, the reason of that difference. There were many persons in the House better quali- fied to state those reasons than he was; but as he had formerly seen a little of the service, he was desirous of saying, that he was prepared to justify the punishment of flogging, because he believed it to be absolutely necessary. That opinion, from what he had seen, he must continue to hold, until some of those who had much greater experience, and whose habits of commanding large bodies of troops, gave them knowledge upon the subject, were prepared to say that the discipline of the army could be preserved by any other species of punishment. The French army had been alluded to; but he begged the House to consider that that army was very differently constituted from the English army, while the punishments were ten times more severe. An English soldier was never confined more than forty-eight hours at one time, while a French soldier was frequently kept for an almost unlimited time in prison, and fed upon bread and water. As to the abolition of the punishment of flogging, he could speak from his own knowledge that it had been tried in every regiment in the service—it was tried every day, and as long as possible—flogging being only resorted to as a dernier resort. It ought to be recollected, that the English soldier was very much given to drinking—a vice common, indeed, not only to the soldier, but to the nation in general, although he was glad to say it did not prevail so much as formerly among the higher classes. This vice led to very bad consequences in the army, and it was necessary to punish it with severity; but he was convinced that the army altogether was in a most efficient state, and that the British soldier was in every case treated with a kindness and delicacy beyond that shewn to any other army in the world.

Sir H. Vivian

said, he participated in all the humane sentiments which had been expressed by the noble lord and the hon. member who had seconded the amendment. No man would more readily give up the present system than he would, if he had pointed out to him a safer or a better plan. He, however, was a friend to the discipline of the army, knowing that without strict discipline, an army was infinitely more dangerous to its friends than to its enemies. His feeling was, that times might arrive when it would be absolutely necessary to have recourse to corporal punishment for the preservation of due order and. discipline; and therefore he could not consent to its abolition. In his opinion, the constant recurrence to this subject threw a sort of slur on British officers which they did not deserve, since they did not, except in extreme cases, have recourse to this punishment; and if there were any way of removing it, he was convinced that their feelings would go hand-in-hand with their duty. It was said last year, that British officers wished those who were placed under their command to crouch under the lash like spaniels. In his view of the case, the soldiers were more like their own national bull-dog, and sometimes required the strong hand of the master to be exercised to prevent them from being dangerous to their friends. In consequence of what had passed in the House last year, he had made some inquiries into the number of corporal punishments inflicted in different regiments for a given period, and the result of his inquiries was this:—In one regiment he found sixty-eight defaulters, four courts-martial, one man punished; in a second, seventy defaulters, seventeen courts-martial, three men punished; in a third, eighty defaulters, nineteen courts-martial, two men punished; in a fourth, thirty-five defaulters, four courts-martial, two men punished; in a fifth, twenty-one defaulters, one court-martial, one man punished; and in a sixth, forty defaulters, sixteen courts-martial, three men punished; and, except in two cases, no punishment was inflicted exceeding a hundred lashes. He therefore contended, that there was no abuse of the system. The noble lord had referred to the French army; but he ought to take into consideration the difference between the manner in which the French and the British army was constituted. He was aware that no corporal punishment was inflicted in the French army; but the French soldier was liable to other punishments, infinitely more severe than any that was, or could be, inflicted on the British soldier. Besides, the British army was quartered all over the country, and it was necessary to have a powerful and efficient control over them; while the French army, on the contrary, was constantly kept in garrison towns or in barracks. In case of any crime being committed by a French soldier, he was either condemned to death, to the boulet, or to be placed in a garrison for life. With respect to the conduct of the British troops in the field, it was quite evident, from their achievements, that corporal punishment had not daunted their spirit; and with respect to their discipline, any man acquainted with what had passed in the south of France must know, that the British army were hailed as deliverers, while the French army were feared and dreaded. The gallant general proceeded to animadvert upon the impolicy of members bringing forward questions with which they were not acquainted. The noble lord, in his amendment, proposed to inflict the punishment of flogging for theft, fraud, and drunkenness; but he had totally passed over offences of a much more serious description, such as disobedience of orders, and sleeping upon their post; while he allowed the punishment of flogging for petty theft from a fellow soldier, an offence which the articles of war expressly required the commanding officer to place under the cognizance of the civil power. If a soldier was, for instance, to knock the noble lord down in the street, what punishment would he award him? And yet the noble lord and others wished to abolish all fears of that punishment which kept the military in awe, and prevented them from indulging in those acts of licentiousness, which might give some gentleman an opportunity of declaiming against the army as a disgrace to the country. After some observations upon the difference between the men taken in time of peace and those whom the officers were forced to recruit in time of war, and admitting that the punishment was not so necessary under such circumstances, the gallant general passed a high eulogium upon the feelings of kindness and affection, like unto that of a parent for his child, which existed between the officers and the soldiers of the British army; and concluded by declaring, that the expression of any strong feeling by the House was not necessary, either to prevent the infliction of unnecessary punishment, or to preserve the discipline of the army.

Mr. Wilbraham

strongly condemned the practice of flogging. It was a most sanguinary punishment; and, in his opinion, a disgrace to the British army. Those who opposed this practice were described as visionary speculatists; but he believed that lord Combermere would not be considered a speculatist; and that gallant officer had, in a very great degree, if not entirely, abolished, the inhuman practice of flogging in the British army in India. He could not conceive why the French, the Portuguese, the Spanish, and even the Hindoo troops, should be exempted from this punishment while it was inflicted on Englishmen.

Mr. Warburton

said, that in contrasting the modes of punishment in our army with those in the French army, hon. gentlemen had spoken of the latter as though no other punishments were known in it besides solitary confinement and death. They had forgotten all the gradations of punishment; that in the French army offences were divided into two classes, the one of which consisted of faults against discipline, and the other of crimes. Faults against discipline were visited with fourteen days' confinement, being kept on bread and water for three days, and other punishments of a lenient nature. Crimes were the subject of the sentences of a court-martial, and the punishments assigned for them were travail publique, irons, death. He knew of no system better calculated to remove offences than a gradation of punishment like that adopted by the French, and the success of that system convinced him that it might be beneficially adopted in the English army. He was sorry that the suggestion which the hon. member for Montrose made last session had not been attended to; namely, that flogging should be confined to regiments on foreign service. He thought it well deserving the attention of the House.

Colonel Lindsay

said, that hon. gentlemen ought not to forget of what class of persons the army was composed. Some of them were wayward and disorderly, and a great portion of them exactly at the age when men's passions were the most ungovernable. Physically speaking, the army was the most uncontrollable body of men in the community. And yet they had to undergo the greatest privations; were exposed to insult without the means of resenting it; and were called upon to do their duty silently and instantaneously. It was therefore absolutely necessary that such men should be restrained by a very severe code of laws. He would call upon the noble lord who wished to abolish corporal punishment in the army to say what he would substitute in its place. He was free to admit that military men were greatly indebted to hon. gentlemen, and especially to the hon. baronet, the member for Westminster, for bringing this subject before the House; because he was sure that they had been the means of lessening the application of corporal punishment. But there was a great difference between the abrogation of this power and the non-use of it. In his opinion, the infliction of corporal punishment ought only to take place in extreme cases; but the power of inflicting it ought not to be entirely removed. He argued this question on the same principles of humanity which hon. gentlemen on the other side so strongly insisted upon; but he came to a very different conclusion. Remove the power of inflicting corporal punishment, and the only resource, in cases of mutiny, would be death. This, then, in point of fact, was the humanity of the noble lord: leaving the military judges no mediate course, he compelled them to pronounce the sentence of death for an offence which did not deserve so severe a punishment. As to foreign armies, the punishments in them, so far from being more lenient, were much more severe than in ours, and were inflicted at the will of non-commissioned officers, and without any trial. Seeing, as he did, that the British army was able to beat the army of any other nation to which it was opposed, he was unwilling to alter the discipline under which it had been brought to its present state of perfect discipline.

Mr. Hume

said, it would seem from the speech of the gallant member that the British army owed its superiority over other armies to the system of flogging that prevailed in it. Now he was by no means disposed to admit, that a practice which had a tendency to degrade the soldier, and to brutalize his mind, was a practice necessary to sustain the character of the British army. In Holland, Prussia, and in Wurtemberg, as well as in France, flogging had been abolished with the most beneficial effects: and even in Austria, and the few other places where it was continued, the flogging did not take place by removing the clothes of the soldier publicly, and punishing him in a manner so revolting to humanity as was practised in our service. When it was admitted that this punishment was not inflicted in more than one regiment out of four or five, and even then very seldom, it was evident that the perfect state of the discipline of our army was not owing to this practice. He had proposed a safe experiment; namely, that the abolition of this punishment should be extended, in the first instance, to England. They would then see what little effect this revolting species of punishment had in preserving the discipline of the army, and with what safety it might be extended to the whole British army. In this country, where, in any extraordinary case, the aid of the civil might be called in to assist the military power, he thought the experiment might with propriety be made, and he had submitted a proposition to that effect last year. In India, lord Combermere had almost altogether abolished corporal punishment. He had issued a general order, which restricted the infliction of it to stealing, marauding, and acts of gross insubordination, which would render the soldier unworthy of the military service; thereby limiting this degrading punishment to persons who had been guilty of the most infamous offences. He hoped the day was not far distant when this brutalizing practice would be altogether abolished.

Colonel Wood

thought that, although corporal punishment was not allowed in foreign armies, the discipline of them was preserved with greater severity than in ours, because the infliction of capital punishment was more frequent. The noble mover had attributed to him an argument which he had never used: that noble lord had made him say that, as boys were flogged at school, he saw no reasons why soldiers should not be flogged. Now, no such argument had ever fallen from his lips. He had commanded a regiment for many years, and had always introduced corporal punishment as seldom as possible. There was, perhaps, no regiment in which it had been inflicted in so few instances. He was not, however, of opinion that the punishment could be altogether done away with, although it ought to be as seldom resorted to as possible. In some instances he had had recourse to it; and there were I two in which young soldiers, on whom it had been inflicted, had thanked him for the salutary effect it had had upon them, in deterring them from continuing in a course of offences which would have led to severer punishment in the end. The British army had been contrasted with the armies of other countries. For his part, he thought the British soldiers, who had beaten all the armies that had been brought against them, had military character enough. Besides, as soon as they were disembodied, I they fell into the mass of the people, and did not, as in France, form a particular class of the community, and, still preserving their military character, think themselves of a superior order to the rest of their fellow-subjects.

Lord Palmerston

said, he would not again go over the old argument upon this subject. To state the objection to what was proposed generally, it was this,—that where there were large bodies of armed men collected together, strong measures were necessary to keep them in order. Means which might be used for this end in other countries, could not be resorted to in this. How, for instance, could the punishment, so much insisted on, of solitary confinement, be inflicted in this country? Our troops were not in strong garrisoned towns or military fortresses, where men could be confined apart from their comrades. We had no mode of imprisoning soldiers, except sending them to the common gaols; and he did not think that an association with the ordinary inhabitants of gaols would be likely to send a soldier back to his regiment at all improved. It was a great mistake to suppose that corporal punishment did not prevail in foreign armies. Foreign soldiers were subject to blows and stripes, and the only difference between them and ours was, that in the one case this species of punishment was inflicted with trial, and in the other without trial. He apprehended that the House would not be inclined to follow this course. Many of the substitutes for this punishment in foreign countries would not be tolerated in England. If our soldiers were seen parading the streets with cannon-balls chained to their legs, such a spectacle would be much more revolting and disgusting to the public mind than the present system. The noble mover wished to abolish all corporal punishments, except for certain offences named in the clause. Now, the mutiny act and the articles of war said, "Go to the civil power whenever it is possible," and the cases in which this was not possible were the very cases in which the noble lord wished to do away with corporal punishment. The mutiny act was passed to provide for cases which called for the immediate interposition, and which the ordinary course of the law could not put down. These were, desertion, disobedience, insubordination, and mutiny, whatever it might be, and these the noble lord wished to exclude from corporal punishment. But the noble lord's proposition involved an impossibility; and he thought that it would be better to say that there should be no punishment but death, and take away corporal punishment altogether, rather than make such dangerous exclusions as these.

General Duff

protested against any hasty attempts to remodel an army which had driven the invincible legions of France from one end of the world to the other.

The amendment was negatived.