§ Order for Committee read;—House in Committee.
§ Clause 1.
§ MR. PHINNsaid, that upon looking over the Bill, it had struck him that the punishments of the Bill were not sufficiently deterring in their nature to meet the evils which it was proposed to remedy. He had proposed to submit certain clauses which would extend corporal punishment in cases of assault. It was certainly a great anomaly that the power of inflicting corporal punishment should be still retained for larceny and other lighter kinds of offences, but that it should not exist as a means of punishment in more serious cases of assault. After the intimation which he had received from the Chairman of Committees, that the clauses with regard to felony would not come within the scope of the Bill, it was not his intention to press them on this occasion, but he thought that it would be desirable to consider them when the question of consolidating the whole of the criminal code was brought forward. He should, however, at a subsequent stage of the Clause, propose that power should be given to the magistrates to inflict corporal punishment in the cases contemplated by this Bill.
§ MR. BARROWsaid, he wished to move the insertion of words in the clause requiring that the trials of offenders should take place in open petty sessions. His anxious desire in proposing this Amendment was, that two justices sitting in a private room should not have power to convict a person upon the immediate impression which an ex-parte statement might produce. He hoped he should be pardoned for applying to his brother magistrates that which he felt applied to himself—Homo sum: humani nihil à me alienum puto; for he confessed he was not proof against the tears or the sufferings of an injured woman or a helpless child. The clause gave two justices of the peace power to inflict the punishment 670 of confinement, with hard labour, for six months, in cases of aggravated assaults on women and children, and, looking to the amount of punishment, and the disgrace involved in it, he thought it important that the persons charged with these offences should not be deprived of the safeguard which the public hearing of a case always afforded. He was not desirous of sheltering the really guilty from due punishment, but he was anxious to give protection to the really innocent. He proposed, therefore, that the hearing of these cases should take place only in open petty sessions. It had been suggested that that would delay very much the punishment which ought to follow immediately upon the commission of those aggravated assaults; but he was not aware that the infliction of punishment without due deliberation for an offence, however aggravated, necessarily tended to improve the administration of criminal justice. That, at all events, had not been the character of legislation in this country of late years. The objection was, that in some counties the petty sessions were held but once a month. But he was surprised to hear this, for in his own and other counties with which he was acquainted, they were held twice a week. In cases of affiliation the system of conducting the inquiry in open court had been in operation for a considerable time, and he saw no reason why, in cases of aggravated assault, the same course should not be adopted.
MR. FITZROYsaid, he thought that the adoption of the Amendment would be tantamount to the rejection of the principle of the Bill. The object of the Bill was to enable the magistrates, before whom a complaint for violent assault upon a woman or child was brought, to adjudicate upon the case while the injury was recent and evident. The Amendment would necessarily lead to delay, and thereby frustrate the ends of justice, as in many cases if the hearing of the charge were deferred, such an amount of influence would be brought to bear on the complaining parties, that they would ultimately not come forward to press it. Cases of affiliation stood upon totally different grounds.
§ MR. HENLEYsaid, he presumed that by "open petty sessions," his hon. Friend (Mr. Barrow) meant the ordinary periodical petty sessions of the magistrates. As the Bill stood, he did not think it would, in the country districts, carry out the object of the proposer. The hon. Under Secretary for the Home Department (Mr. 671 Fitzroy) had told them on a previous occasion that he wished these cases to be decided before the woman had been acted upon by those influences which were generally brought to bear against her; and they all knew that a woman, however angry at the first, was very forgiving as soon as the smart went off. But in the country the difficulty would be to get two magistrates together, and he believed that in ninety-nine instances out of a hundred there, the warrant or summons would in consequence be made returnable at the petty sessions. In practice, that, he thought, would be the result, whilst the delay would seldom exceed three days on the average. Further, he was of opinion that such cases as these ought to be sent to the petty sessions. For a very aggravated offence, the punishment would be a 20l. fine, or six months' imprisonment at hard labour; and it was scarcely right to subject a man to that heavy punishment, unless the trial was held in such place, and under such circumstances, as that he might be able to obtain legal advice, if he thought proper. It was now, he was happy to say, the universal practice in this country for no decision of a judicial character to be adopted except in open petty sessions; and where a party was apprehended under a warrant, it was certainly of the utmost importance that he should not be condemned unless in a Court where he could have legal assistance if he chose to require it. He believed, also, that more substantial justice would be done by letting these cases go to the ordinary petty session tribunal—which would, in practice, be the operation of this Bill—than by any other mode that could be adopted. Under the first clause these cases were to be heard by two justices of the peace, or by one magistrate of a Police Court. That, he thought, seemed like an assertion that one "paid magistrate" was equal to two "unpaid."
§ MR. BARROWsaid, he meant by the words "open petty sessions," to necessitate the sending of these cases of aggravated assault to "open petty sessions;" for as the clause now stood one magistrate might send for a brother magistrate living in the next house, it might be, hear the case in his own house, and at once resolve upon a conviction. He was the more desirous of pressing his Amendment, because it was clear, from what had been stated by the hon. Gentleman (Mr. Fitzroy), that he did, in fact, wish that two justices should have it in their power to convict, 672 even though it were on the spur of the moment.
§ CAPTAIN SCOBELLsaid, he fully concurred in the Amendment of the hon. Member for South Nottinghamshire (Mr. Barrow). As a magistrate himself, he thought that to give larger powers to two justices in cases of aggravated assaults, than they now possessed in ordinary assaults, would be most injudicious and improper. All assaults were now heard in petty sessions, and it would be reversing the natural order of things to give greater power to magistrates sitting in private, than to the petty sessions. The increase of punishment proposed also rendered it necessary that the inquiry should take place in the most deliberate manner. Let them remember that they were now establishing a precedent, and making the punishment fivefold what it was before. Indeed, he thought that six months' imprisonment was too heavy a sentence to allow the petty sessions to inflict. Four months, with hard labour, was ample for all aggravated assaults, and he hoped the clause would be altered in that respect.
§ MR. PACKEsaid, he apprehended that the intention of the hon. Member (Mr. Fitzroy) was simply to extend the powers of the Act 9th Geo. IV. to cases of aggravated assaults. The process under that Act was for one magistrate to issue his warrant against the defendant, who had then to appear and answer the charge before two magistrates. That was the mode in which common assaults were now dealt with; such, he presumed, was the way in which this Bill was designed to operate, and for his part he saw no great difficulty in carrying it into effect. With regard to the Amendment of the hon. Member for South Nottinghamshire (Mr. Barrow), he confessed he did not see the use of it. It was well known that in all cases heard before two magistrates the proceedings were conducted in open court, and that the parties were at liberty to employ legal advisers if they wished. He was somewhat surprised at the remarks which had fallen from the hon. and gallant Member who spoke last relative to giving magistrates the power of inflicting the punishment proposed by the Bill. The hon. and gallant Gentleman must have forgotten that at this moment magistrates had the power of committing for six months with hard labour on charges of stealing fruit and vegetables. He (Mr. Packe) thought the country had reason to be obliged to the 673 hon. Member (Mr. Fitzroy) for introducing the Bill, and that the Committee ought to assent to its provisions.
§ MR. NEWDEGATEwas understood to say, that in order to prevent magistrates from laying themselves open to the charge of acting on the impulse of the moment upon ex-parte statements, it was desirable that the hearing should take place in open petty sessions at the time and place when and where the petty sessions were usually held, where the magistrates of the district, their clerk, legal gentlemen, and the public press were all present.
§ MR. BARROWsaid, he merely wished to have the opinion of the Committee on the question of "open petty sessions." If that were agreed to, he should then be ready to propose words for effecting the object mentioned by the hon. Gentleman.
§ MR. BONHAM CARTERsaid, the important point was to have the case heard, not at the "usual time," but the "usual place" for holding the petty sessions. No delay ought to occur in hearing such cases, and he thought that as the object of the Amendment was simply to insure publicity, there could be no difficulty in so wording the clause as to attain that end. If it were so framed as to provide that the place of hearing should be open, then they would have all the publicity that was necessary, and that without depriving the person assaulted of her remedy.
§ MR. BARROWsaid, that publicity would not be secured by a petty sessions held on any other than the usual day of bolding the petty sessions.
§ MR. PHINNsaid, he wished the Committee to refer to the Act passed a short time since, which gave the magistrates the power of inflicting corporal punishment on juvenile offenders, and in which ample provision was made for ensuring due publicity. He would suggest that, instead of the words proposed by the Amendment, the words "in open court" would be preferable.
§ MR. NAPIERsaid, he believed it would be impossible to carry out the substance of the clause if the words of the Amendment were adopted.
§ MR. CROWDERsaid, he would suggest, that the object of the hon. Gentleman who moved the Amendment would be obtained, whilst the difficulties that it had created would be removed, by inserting words to the effect that such cases should be determined by two justices of the peace 674 sitting at the place where petty sessions were usually held.
After a few observations from several hon. Members, Mr. BARROW withdrew his Amendment, and the words suggested by Mr. CROWDER were substituted.
§ MR. STAPLETONmoved that the words "upon a female or upon a male child, under the age of twelve years," be omitted from the clause. He said that, by omitting these words, the effect would be to give a wider operation to the Bill. If the measure passed as it stood, the Committee would be consenting to occasional legislation, and placing upon the Statute-book a law which would not carry to their legitimate issue the principles which that House had affirmed.
MR. FITZROYsaid, he could not object to the punishment for aggravated assaults of a general character being made efficient; but by this measure he did not profess to deal with the general subject. On the contrary, he confined his attention, as much as possible, to a remedy for a particular evil. The clause, as it stood, did, in his opinion, meet the evil, and therefore he hoped the Amendment would not be pressed.
§ Amendment withdrawn.
§ MR. PHINNsaid, he believed this was now the proper time for him to introduce his proposal to give magistrates the power of inflicting corporal punishment in the cases contemplated by the Bill. He proposed to give them this power in the full assurance that it would not be abused, and to confine it by considerable restrictions. He regretted to say that two consecutive days hardly ever passed without some extraordinary case of violence upon females being brought forward in the metropolitan police courts; and one of the most able of the magistrates presiding in those courts (Mr. Hammill) had stated that he could see no end of the present system unless the Legislature conferred upon magistrates the power of inflicting corporal punishment. For his own part, he was of opinion, that in cases of this description they ought not to indulge in spurious philanthropy or mawkish sensibility. They ought to look at the person injured. It must be remembered that women rarely complained, and that children seldom brought their cases before the magistrates except some severe injury had been inflicted, the climax of a long series of ill-usage. It was not for 675 angry words and even for blows that wives brought their husbands before the bench; for, as he had just said, the woman rarely complained of her husband, or the child of its parent, until brutality had arrived at such a pitch that life was insecure. It was from this point of view that he asked the Committee to consider the proposition he was about to make. There was a strong feeling abroad, he knew, against the infliction of corporal punishment; but let him suggest a personal case. Suppose any hon. Member in passing along the street saw some ruffian assault a woman or a child, would he measure the weight of the blow with which he would knock the fellow down. Then he asked the Committee not to look too much to the case of the person who was to suffer the punishment for this offence, but rather to those who, from their age and sex, were in want of the protection of the law. Corporal punishment was not so unusual upon the Statute-book as many hon. Members might be led to suppose; for the power of administering it had been conferred upon magistrates to a considerable extent. He found that by the 7 & 8 Geo. IV. c. 29, s. 39, that upon a second conviction for damaging shrubs to the amount of 1s., two justices of the peace had the power of ordering the infliction of this punishment. Upon a second conviction of stealing live or dead wood, the justices had the same power; and upon a second conviction for stealing vegetables, the magistrates might order the same punishment. Were not women entitled to the same protection as vegetables, or dried wood, or shrubs? He did not find that the powers thus given to magistrates had been abused, or that they had been much exercised; but magistrates, like other persons, were subject to the control of public opinion, and they would not recklessly inflict such a punishment unless in cases where public opinion went along with them. He believed, that in order to deter men from the offences to which this Bill related, and to render them scandalous, shameful, and disgraceful, public opinion should be in this country the same as it was in France and other parts of the Continent. In France a blow inflicted upon a man was deemed a very serious crime against the State; but we had regarded it, compared with offences against property, as one of a lower grade. But he hoped that by rendering it disgraceful a state of public opinion would be matured which would be more powerful than 676 law itself in preventing the evil. As he had stated already, the evil had grown to such an extent that some stringent remedy was absolutely nescesary. He had carefully considered under what sanctions such a remedy could be provided; and, to use a rather hacknied phrase, it appeared to him that there were three courses open to the consideration of the Committee. In the first place, the person convicted might have the right of appeal. But this, as it appeared to him, would defeat the object; for the Chairman of the Middlesex sessions had assured him, that whenever the magistrates committed a man to the sessions for assaulting his wife, it was almost impossible to get the woman to appear against her husband. Such an instance had occurred that very morning. A case occurred in which the police magistrate, thinking his power not sufficient to punish the offender, who had endangered his wife's life, committed him to the sessions. But the woman would not appear. She could not be put under recognisances, because she was married. For these reasons he thought the appeal could not be adopted. Another suggestion was, that the magistrate should be empowered to empannel a jury, who should decide the question. But that would be a violation of principle. The right province of a jury was to decide upon facts. The fact of the assault in such cases was hardly ever in dispute. The question was, whether the assalt was sufficiently aggravated to draw down this punishment upon the offender. For this the jury could have no proper function. The third course was of another kind. He assumed that in aggravated cases the magistrate, if he thought proper to order the infliction of corporal punishment, would accompany it with some portion of imprisonment. He (Mr. Phinn) therefore proposed that no punishment of this nature should be inflicted until eight days after conviction, and that within twenty-four hours after conviction the depositions should be transmitted to the Secretary of State. It would then be open to the friends of the offender, or to the offender himself, to appeal to the Secretary of State. It might be thought that this was but a clumsy expedient. He was not wedded to it at all, and would accept any other that would effectually carry out the object he had in view. At the same time he commended the subject to the attention of the Committee, and hoped they would 677 sanction the principle at least of his proposition.
§
Amendment proposed—
Page 2, line 10, after the word 'paid,' to insert the words, 'and if a male to be privately whipped, in addition to such fine or imprisonment as aforesaid.'
MR. FITZROYsaid, he believed the punishment proposed by the hon. and learned Gentleman would be quite inconsistent with the feeling of the age, and the spirit of modern legislation. That feeling was not excited in any sympathy for the persons to whom flogging would be applied, but against an exhibition which must tend to brutalise the public mind. When it was said the moral feeling of the country was lower than that on the Continent, that was of itself an argument against habituating the public to the sight of brutal punishments. He not only thought it would be ineffective and mischievous, but materially tend to defeat the object of the Bill, which was to inflict certain and speedy punishment, because if it were made imperative on magistrates to sentence offenders to be publicly or privately flogged, it would shake their inclination to convict at all under such circumstances. He was quite sure it would also tend to prevent complaints being made, even in cases of aggravated assaults. Considering that complaints would principally be made by wives against their husbands, or by women cohabiting with men, it was obvious that they would not be inclined to subject their husband or paramour to so degrading and brutal a punishment. The object of legislation was to draw public sympathy as much as possible towards the victim, and to throw as much odium as possible upon the perpetrator of the outrage. This proposal would have precisely the contrary effect. Whatever the crime, the sight of a man undergoing corporal punishment would direct public sympathy towards him, and divert it entirely from the person he had injured. He believed further that, as had often been found in cases of capital punishment, the offender would think himself exalted into a hero in the eyes of his associates, and merely nerve himself to bear the infliction with fortitude, without being made at all sensible of the heinousness of his offence. He believed nothing could be more fatal to the utility of this measure than the introducing a punishment abhorrent to the spirit of the public mind. Although corporal punishment might be inflicted in cases of outrage upon the Sovereign, in the last two in- 678 stances it was not applied. If the principle were admitted, they had better go further, and adopt a lex talionis, and inflict all punishment, not by way of deterring, but by way of vengeance—they had better perpetrate on the offender the same injuries he had inflicted on his victim. The one system would be no more barbarous than the other, and he therefore entreated the Committee to resist the introduction of the words proposed.
§ MR. PHINNsaid, the words "publicly and privately whipped" were to be found in every Act of Parliament in which corporal punishment was inflicted; but he was quite willing that the punishment should be privately administered.
§ MR. NEWDEGATEsaid, he considered that the public were greatly indebted to the hon. and lerned Gentleman (Mr. Phinn) for the manly way in which he had come forward to propose the only effectual prevention of the brutal outrages in question. He did not think there was any public feeling against corporal punishment. There had been a great deal of maudlin philanthropy of late, but he was not prepared to say that a long imprisonment was the best way of meeting such cases. When corporal punishment had been inflicted two or three times, people would take warning, and the Act would fall into desuetude. Certainly the hon. Gentleman's idea of making a man a hero by giving him a whipping was a very strange one.
§ CAPTAIN SCOBELLsaid, he regretted that for the first time he must take a different view from that of his hon. and learned Colleague. Perhaps the hon. and learned Gentleman never saw a man flogged, for had he seen it, he thought he would not press his Motion. If their horse or dog offended them, would they tie the animal up and lacerate his back? He was sure they would not; but that was what they would do with their fellow-creature. They should recollect that flogging lacerated, cut through the skin, and if once seen, it was a sight which would never be forgotten. Objections were felt against its infliction under martial law, and those objections were of still greater weight against its introduction into the civil law. Could it be supposed for a moment that a man would ever forget that his wife had procured his being flogged? No. They would send back a scarified man to be as comfortable with her as he could under the circumstances. During the twenty-five years he had sat as a magistrate in petty 679 sessions, he had never seen such a sentence passed. It would be harsh in the extreme, and he could not consent to increase the punishment beyond six months' hard labour.
§ MR. PACKEsaid, it was a new punishment, for although cases had been cited, in which the law awarded corporal punishment, he was not aware that it was ever acted up to, the rule being to limit it strictly to culprits under the age of sixteen years.
§ MR. AGLIONBYsaid, he would support the proposed Amendment. He did not advocate the infliction of corporal punishment as a general rule, but in cases of extreme depravity he thought it might be resorted to with good effect. At the Manchester sessions it was frequently ordered, and was found to work well. The hon. and gallant Gentleman (Capt. Scobell) talked of a man's skin being lacerated by the lash; but he did not seem to value the skin of poor women, whom the Bill was designed to protect. He did not think that a flogging would procure much public sympathy for the brute who should be convicted of ill-treating a woman. All of what were called gaol offences were punishable by the lash. He remembered a case at the Manchester sessions where a man who had been convicted took off his clogs and threw them at the Chairman's head. The man was immediately ordered to be taken back to the prison, and soundly flogged. The offence had never been repeated; and the punishment had had a very beneficial effect. He hoped the Amendment would be agreed to.
§ LORD LOVAINEsaid, he believed there were persons who could not be reached by any other punishment, and it was for that class, and that class only, which was so utterly degraded, that he recommended its infliction. He could not conceive how any parallel could be drawn between these crimes, which left with the victims effects perhaps for life, and any ordinary offences. He confessed he could not comprehend the distinction between a man who beat his own wife, and a man who beat another man's wife, except that the atrocity was greater in the one case than in the other. He should vote for the Amendment, and he hoped the words would be inserted.
§ VISCOUNT PALMERSTONsaid, that supposing public opinion were, for the time, to go with the proposition now made, public opinion, it must be remembered, was constantly ebbing and flowing, and it was 680 impossible to say how soon the reaction would take place. The Committee should bear in mind what was the object of the Bill before them. The main object was to increase the punishment to be summarily awarded to every man brutal enough to commit violent assaults on women and children. He did not at all admit that a man was more entitled to commit these injuries upon his own wife, than upon another man's wife. On the contrary, he thought that it was a greater offence. His own wife was more entitled to expect protection, and another man's wife had her own husband to guard her from injury. Why had it been necessary that a summary mode of proceeding should be preferred in cases of this description? His hon. Friend (Mr. Fitzroy) had clearly explained, that if time were permitted to intervene between the offence and the complaint founded upon it, and the punishment to follow, those domestic influences of terror or affection which might be brought to bear, would defeat the ends of justice, and give impunity to the offender. Then let the House consider how this proposition would operate. They wanted, on the one hand, to encourage the victim to complain, and on the other hand to inflict a punishment sufficiently severe to deter from the commission of the offence. Suppose a wife to have had injuries recently inflicted upon her: if she felt that the punishment which her husband would receive would be a severe one, and such as would prevent the repetition of the offence, she would make her complaint, and seek the protection of the law; but if the punishment, besides being severe, were to be a degrading one, and one which would leave upon the husband marks which would remain for life, the wife would be deterred from making the complaint, because she would share in the disgrace which she would bring down upon her own husband and family; and, in the next place, by inflicting upon the man marks which would last for life, they would sow the seeds of domestic resentment, which it could not be the object of the Legislature to implant. The first objection applied to public whipping, which would be a disgraceful exhibition; and the wife would be pointed at by her neighbours for the rest of her life as the woman who had occasioned her husband to be flogged. He thought that that would tend adversely to the object which they had in view. Then it was said by the proposer of the Amendment that he would omit "public" flogging; that he would not 681 go back to the days of the cart's-tail, but that there should be a private whipping. Now, what was the object of punishment? He held that it was not revenge upon the offender. We did not measure punishment in proportion to the degree of criminality attaching to the person who had committed the offence. If we did, it would be right to follow the example of other ages, and to pursue the offender with torture in imprisonment; we should inflict bodily punishment in prison adequate to the magnitude of the offence committed. But we had abandoned that system, and the main object of punishment in these days was by public example to deter others from committing the offence. It was for the protection of society, and not for vengeance upon the individual. If a whipping such as had been described by the hon. Member for Cockermouth (Mr. Aglionby) were inflicted upon a man for throwing his heavy iron-bound shoes at a Judge, it would probably not be very severe, and, if promptly executed and publicly made known, it would no doubt accomplish its purpose; but, in cases of the nature under consideration, if they were deliberately to inflict a slight whipping it would have no effect, while if it were to be so severe as to leave permanent marks upon the person, then it would be open to the objection which he had already stated—it would tend to produce lasting resentment between a man and his wife, and that was what the Legislature did not desire to do. The Bill of his hon. Friend, he thought, would probably answer the intended purpose. It gave to the magistrate power to increase the duration of imprisonment, to add to it hard labour, and in other cases, which he apprehended would not be very frequent, to add a pecuniary fine. Then, was it not better for the Committee to see what the effect of this amendment of the law would be? He thought that it would be successful. It offended no public feeling. Public feeling went with it. He would admit, even, that it went further; but he would rather go short of public feeling than exceed it. He said, then, let this amendment of the law be tried. If it should prove insufficient, Parliament, at some future period, could have recourse to stronger measures; but he really thought that it was wiser in Parliament to adapt its remedies to what was sufficient, than to run the risk of overstepping public feeling and sympathy and doing a mischief, perhaps, in spite of their best intentions.
§ MR. PHINNsaid, the principle of the noble Lord, of abstaining from legislation because of the flux and reflux of public opinion, would put an end to all reform, because there was no question on which public opinion might not change. It appeared to him that all who had argued against his Amendment had exhibited a morbid sympathy for the offender, instead of a proper and wholesome sympathy for the victim of his brutality. No magistrate would inflict this punishment in the case of a husband proceeded against by his wife, unless he saw that the brutality and barbarity of the man had reached such a pitch that they never could live together any longer. The argument of the hon. Gentleman the Under Secretary of State, that this provision was contrary to the whole tone and spirit of modern legislation, was based on false premises, as numerous Acts of Parliament, in the last twenty years, gave power to inflict corporal punishment. The noble Lord (Viscount Palmerston) preferred imprisonment; but his (Mr. Phinn's) objection was, that the punishment of prolonged imprisonment fell with the greatest severity on the wife, who frequently had to seek the protection of the workhouse. The existence of the power to inflict corporal punishment would prevent the necessity of its frequent application. The Statute-book teemed with Acts by which that punishment could be inflicted, and he hoped the noble Lord, to be consistent, would at once propose their erasure. With regard to its efficacy, a friend of his, the Recorder of a provincial town, found that the place was infested with London pickpockets, and having to pass sentence on a very gentlemanly specimen of the class, he told him he had contemplated imprisonment and transportation, but had not, perhaps, contemplated a whipping. The young delinquent began to cry and implore for mercy, which the Recorder granted on condition that he told his London friends that such would inevitably be the fate of the next that was convicted before him, and the place was never troubled with a London pickpocket afterwards. When Recorder of Portsmouth, he had adopted the same course, and with the same result.
§ MR. WALPOLEsaid, that, according to the speech of the hon. and learned Gentleman (Mr. Phinn), he ought to bring in a Bill for the public whipping of all pickpockets; and in the same speech the hon. and learned Gentleman advised the 683 noble Lord (Viscount Palmerston) to bring in a Bill to repeal the power of whipping any persons at all. The hon. and learned Gentleman had reminded the Committee that the power of inflicting corporal punishment was not resorted to until other remedies had failed. Common prudence would suggest that they should attempt at any rate to put down these brutal offences by increased powers, instead of running the risk of outraging public opinion by adding a brutalising punishment when it could possibly be put down by other means. He agreed that public opinion would justify it; but he also agreed with the noble Viscount that it was extremely doubtful whether the public opinion would remain at the same point when the experiment was once tried. The hon. Member for North Warwickshire (Mr. Newdegate) said, for brutal offences men ought to be punished as brutes. Now, punishment was to deter people from crime, and to humanise and civilise those who had committed it. He believed firmly that by this Amendment they would brutalise, and not humanise, the persons whose feelings they wanted to correct. The hon. and learned Gentleman (Mr. Phinn) objected to imprisonment, because it deprived the wife of her protector; but would a man who had been whipped at the complaint of his wife be likely to go back and protect her? There was no chance of it; but there was a chance if the punishment was proportionate to the offence, of its having a reformatory effect. He believed that public opinion would go against a brutal punishment, and they would be compelled, very speedily, to change the law which it was attempted by this Amendment to enact, merely for the purpose of putting down an offence before having tried the experiment of putting it down by more ordinary means.
§ SIR JOHN SHELLEYopposed the Amendment, on the ground that the punishment provided by the Bill should be tried before recourse was had to the last and most degrading punishment which it was in the power of the law to inflict.
§ MR. HENLEYsaid, he objected to that portion of the Amendment which gave an appeal to the Secretary of State within eight days after the sentence had been passed, and before which time the punishment could not be inflicted. It showed that the hon. and learned Gentleman had not confidence in his own propo- 684 sition, and that it was altogether a most objectionable plan.
§ MR. DEEDESsaid, he did not understand whether the vote which they were going to, involved that portion of the proposition relating to the appeal to the Secretary of State. If it did, he should, though very unwillingly, vote against the Amendment.
§ MR. PHINNsaid, that he had introduced that portion of the proposition to satisfy some friends of his own, who thought that there should be an appeal; but he wished to take the division upon the abstract question of giving power to the magistrate to inflict this punishment.
§ SIR JOHN PAKINGTONsaid, he wished to know in precise terms whether the hon. and learned Gentleman proposed to accompany his Amendment with the provision of appeal; because he was not prepared to vote for giving an appeal, but he was for giving the power to award corporal punishment.
MR. HUMEsaid, he should oppose the Amendment, for it was a retrograde step, after all the efforts which had been made to put an end to flogging in the Army and Navy.
§ Question put, "That those words be there inserted."
§ The Committee divided:—Ayes 50; Noes 108: Majority 58.
§ MR. PACKEsaid, he wished to propose the addition of words whereby magistrates should be empowered, if they thought fit, at the expiration of a sentence, to bind the party to keep the peace for any time not exceeding six calendar months.
§ Amendment agreed to.
MR. FITZROYmoved to add to the clause a proviso to prevent an appeal to the quarter-sessions against any conviction under the Act.
§ MR. BARROW,who had a notice on the paper that he intended to move a proviso for giving a power of appeal, similar to that contained in the Malicious Injuries Act, 7 & 8 Geo. IV., c 30, s. 38, said, that he could not agree to the Amendment which had just been proposed by the hon. Member for Lewes. He thought that in all cases of convictions under summary jurisdiction which involved imprisonment there ought to be a power of appeal, and unquestionably he thought there ought to be such a power in those cases which, like this, involved not merely imprisonment, but 685 imprisonment for six months, with hard labour, and the disgrace of being convicted of an aggravated assault. He assumed, of course, that the person appealing was innocent, otherwise the appeal would do him no good.
MR. FITZROYsaid, he thought the Committee would agree with him, that to allow the power of appeal would destroy the whole principle of the Bill, which was to secure that summary conviction should be followed by speedy punishment. According to the notice which the hon. Member had upon the paper, twelve days might elapse between the day of conviction and the meeting of the quarter-sessions, and during that period the wife might be subjected to improper influences in order to induce her not to appear against her husband.
§ MR. HENLEYsaid, it was a fixed principle in all Acts of Parliament of this description, that if there was a penalty of imprisonment beyond two or three months, the power of appeal should be given, and he objected to any exception in the present case.
§ MR. PACKEsaid, he saw great difficulty in allowing appeals in cases like the present. With regard to what had been said by the hon. Member for Oxfordshire (Mr. Henley) about its being a new principle to refuse appeal in cases of assault, it was quite the reverse. By the 9 Geo. IV., c. 31, sec. 37, it was provided that magistrates should have summary powers to try cases of assault, and no power of appeal was allowed in those cases. It was intended to carry out the same principle in the present Bill, and he thought that they ought also to follow the same course with regard to appeals.
§ MR. BARROWsaid he would withdraw his proviso.
§ Amendment agreed to.
§ Clause, as amended, agred to; as were also the remaining clauses.
§ The House adjourned at three minutes before Six o'clock.