HC Deb 11 March 1863 vol 169 cc1303-13

Order for Second Reading read.


, in rising to move the second reading, said, the Bill was short and simple, its object being the introduction of whipping as part of the punishment of garotters. The preamble was a transcript of the definition of a garotter drawn up by the late Lord Campbell for the Consolidation Act of 1861, and the rest of the Bill was taken from the Act which provided a similar kind of punishment for attacks upon the Queen. He hoped that the House would not, on that occasion, enter into the details of the measure. By the details he meant whether the punishment of whipping should be administered for the second offence, or only once, or whether the whipping should be public or private. He trusted they would confine themselves to the principle of the Bill, which was whether the punishment of whipping should be applicable to garotters. The right hon. Gentleman (Sir George Grey) had, on a former occasion, stated several objections to the Bill. The first was that by the Consolidation Act of 1861 the whipping of adults was left on the statute book in only one instance—offences against the person of the Queen—and that, consequently, the House was now asked to retrace its steps. His answer was, that if his proposition would add to the exception referred to another case strictly homogeneous, he was not proposing to go backward, but, on the contrary, to follow suit. It might be said that the man who for the sake of notoriety made an attack upon the Queen, and the man who to get a purse struck another upon the back of the head from a dark lurking place, did not belong to the same category. He would leave all metaphysical distinctions of that nature to be settled by the Home Secretary. What he maintained was that the garotter and the man who used violence against the Queen belonged to the same category in this sense—that the motives which actuated them were so low, and their sense of distinguishing between right and wrong was so degraded, that they could only be deterred by forcible appeals to their fear of physical pain. His aim in the Bill was the stoppage of a particular crime; and if he could only show that the punishment which he proposed, and which would only be applicable to criminals of that description, would put an end to that crime, it was not retracing their steps, but progressing towards the main object in view of all punishment. Since the subject was last before the House he had received numerous letters—more, indeed, than he had been able to acknowledge—from magistrates, governors of prisons, and philosophical writers, all concurring in opinion that in many cases there was no punishment so effectual and so much to the point as corporal chastisement. The next objection was, that juries might hesitate to convict garotters if they thought it possible that the judge would prescribe whipping as part of the sentence. He thought that argument was suggested rather by a recollection of the old system of excessive and brutal flogging than by anything contained in the Bill. But the Home Secretary had entirely mistaken the feeling of the public. The opinion was almost universal that punishments had become too weak and uncertain to stop crime, and there was a general impression abroad that a greater variety of punishments must be devised to meet now and increasing forms of outrage. Indeed, the feeling of the country seemed to be, that the penalty of death ought to be inflicted upon a second conviction for garotting; and there could be no doubt, that as the law presumed that a man contemplated the probable effects of his act, a garotter might fairly be considered a murderer. The only reason fur not putting him to death was that it was expedient to leave him some motive for restraining his violence to save his own and his victim's life. The next objection was the strangest of all—that some garotters might not have health or constitution, or be of a fitting age, to bear corporal punishment.


explained, that what he had stated on the introduction of the Bill was, that the right hon. Gentleman had not said whether the power of directing flogging should be discretionary with or imperative on the Judges; that if imperative, it could not be inflicted in all cases; and if discretionary, it would not be inflicted at all.


said, whether the sentence were discretionary or imperative he could not understand how a man, who was capable of springing like a tiger from his lair upon an innocent pedestrian in the street, throttling him and rifling his pockets, should all of a sudden fell into so delicate a state of health as should prevent him from being able to bear a flogging. There might be examples of such violent invalids, such ferocious valetudinarians, but they were phenomena for which no Act was bound to provide. Another objection was, that there might be other crimes which ought to be treated in the same way as garotting. He had no doubt that there were other cases which should be subjected to the same treatment, and he trusted the Home Secretary would find them out, and legislate for them himself next Session; but meanwhile, having got one clear case before them, there was no reason in the world why they should not deal with it at once. The last objection was, that flogging, though effectual in the army and navy and in prisons as a means of enforcing order and subordination, would not be proper in cases which had to go before a jury. He contended, on the contrary, that the process of a trial under the eye of a jury would afford a check against abuse in the use of whipping which did not exist either in prisons or in barracks, where corporal punishment might be carried too far. He would next meet the objections of the hon. and learned Member for Sheffield. He knew that the hon. and learned Gentleman's objections arose from most benevolent feelings; that he thought all corporal punishments brutal and degrading; and the hon. and learned Gentleman had said he had himself undergone the infliction in his younger days, and did not believe he had derived any good from it. But if the hon. and learned Gentleman had suffered as the hon. Member for Blackburn (Mr. Pilkington) had, he would see the distinction between the application of whipping to a schoolboy and to a hardened criminal. If ever he could himself become an accomplished garotter, he would confidently propose a whipping as a suitable correction of the totally different motives which must then actuate him from any which had actuated him hitherto. The right hon. Gentleman concluded by moving the second reading of the Bill.


seconded the Motion.

Motion made, and Question proposed, "That the Bill be now read a second time."


said, he rose to move as an Amendment that the Bill be read a second time that day six months. He was wholly opposed to the punishment of whipping, believing that it never proved effectual yet in preventing crime, and that by degrading the offender in his own eyes it was calculated to render him reckless for the future and utterly unable to regain his position in society. The Acts passed two years ago for consolidating the criminal laws of England and Ireland had undergone most careful deliberation in both Houses of Parliament, and they had abolished whipping of persons exceeding sixteen years of age; and as to those offenders under that age, they stated that the Judge should prescribe the nature of the instrument of punishment and the number of lashes in every case. Penal servitude for life, hard labour, and solitary confinement—the punishment allowed by law to be visited on the class of crimes mentioned in this Bill—was amply sufficient to prevent, without having recourse to the cruel, barbarous, and antiquated expedient proposed by this measure. By a Return of Criminal Statistics, which had been moved for, it appeared that ninety per cent of offenders had not been convicted of new crime. It appeared that Staffordshire, which the right hon. Gentleman represented, stood, as regarded the goals of the country, the highest in the amount of flogging inflicted. The noble Lord the Member for Tamworth (Viscount Raynham) proposed a measure for flogging husbands for the purpose of promoting domestic felicity, and to compel them to discharge their conjugal duties. In Staffordshire, with a population of 747,000, there had been in three years 78 cases of flogging; in Lancashire, with three times its population, only 190 cases; in Middlesex, with a population of 2,206,000, only 52 cases; and in Yorkshire, with a population of 2,043,000, only 15 cases. Moreover, the cases of flogging had been during the same period greater in Staffordshire than in Ireland, with a population of 6,000,000. In the prison for the Hundreds of Salford there were constant cases of flogging; but in the prison at Wakefield, for the West Riding of Yorkshire, with a large manufacturing population, no such punishments were ever inflicted. While in Staffordshire the punishment of flogging was inflicted to a great extent, and in Lancashire nearly to the same extent, in Yorkshire, with a population of two millions, it was found politic to abstain from the infliction of that punishment. From these facts he came to the inevitable conclusion that the right hon. Gentleman opposite was utterly mistaken in supposing that the punishment of whipping was a prevention of crime. The want of employment was the parent of crime; and, consequently, the best mode of putting a stop to crime was to find useful and profitable employment for the criminal. He also objected to its being left at the discretion of individual judges when and how the punishment should be inflicted. There would be no certainty or uniformity under such a provision, but passion, or prejudice, or ignorance, would prevail in different districts. An Act of Parliament had been passed because a boy from some childish motive, which nobody could understand, had infested Her Majesty's palace. A better course would have been to have given him a good horsewhipping, but not to whip him with the cat-of-nine-tails. He deprecated all such hasty and ill-considered legislation as that proposed by the Bill, at all events until the Commission at present engaged in an inquiry as to the causes of crime and its remedies had made its report. His own opinion was that when that Commission had given its fullest attention to that subject, and had fully investigated it, the result would follow—they would arrive to the conviction that the ticket-of-leave system, which had been so much condemned by certain hon. Members, was a most useful and beneficial system in the restoration of unhappy offenders to a respectable position as honest members of society.

Amendment proposed, to leave out the word "now," and at the end of the Question to add the words "upon this day six months."


said, there was no gaol in the country where discipline was better maintained than in the gaol of Salford, or where more work was got out of the prisoners; and there flogging was used as a punishment. As a proof of what he had stated he might mention that on three occasions, when sitting at quarter sessions, he had been asked to sentence prisoners to four years' penal servitude rather than to two years' imprisonment in the Salford gaol. The hon. Member for Sheffield (Mr. Hadfield) forgot that criminals must be deterred from committing crime as well as reformed afterwards. Believing that flogging would have a deterring effect in the cases contemplated by the Bill, he would cordially support the measure. He would, however, suggest that in Committee this punishment should be confined to the earlier part of a prisoner's sentence.


said, he could not understand why they should be so mealy-mouthed about flogging a set of ruffians. The hon. Member for Sheffield himself admitted that it would be a good remedy against some offences; and yet he thought penal servitude enough for crimes of that particular description. Why, was he aware of a case that was tried only on the previous Thursday at the Hampshire assizes? The prisoner, Lewis Francis, was indicted for maliciously wounding George Dean, a warder at Portsea, on the 19th of December, with intent to murder. He was found guilty and sentenced to penal servitude for twenty years. Now, what was the former history of that man as given in the newspapers? Why, that in 1854, having been previously convicted of numerous crimes, for which he had undergone various terms of imprisonment, he was sentenced to be kept in penal servitude for four years. He was sent to Dartmoor, and in 1857 make a murderous attack, which he nearly completed, on a warder. For that he was convicted at the Exeter Lent Assizes in 1857, and sentenced to seven years' penal servitude. He was then sent to Bermuda, where he made another murderous attack on a warder, for which he was sentenced to fifteen years' penal servitude, and was then sent from that colony to Portsmouth. There he repeated the very same offence, for the fourth time, and was on the previous Thursday sentenced for it to twenty years' penal servitude, the four sentences upon him making altogether forty-six years. What was the use of passing these sentences upon such a blackguard as that? They had much better put up the triangles and flog him on the spot and all his fellow-prisoners who aided or abetted him in his murderous assaults. If the Governor of Portsmouth Gaol had the power of doing that, but would not use it, he was a wretched old woman for his lenity. Let any one go to Chatham, and see how the convicts were fed. These rascals had their roast meat, puddings, ale, and porter—things which no honest labourer on hon. Gentlemen's estates could get. The work they did was eight and a half hours per day, and they had half a day a week to attend the schools. Why could not they do as honest labourers in many villages did—namely, have their schooling in the evening? He cordially supported the measure, believing that the whole country was justly indignant at the manner in which these ruffians were treated.


said, that the Bill was advocated, if he understood rightly, upon the theory that it was necessitated by an exceptional state of crime. But before he voted for the second reading he should be glad to be satisfied that any such exceptional state of crime really existed, otherwise they would be liable to the imputation of legislating under an unreasonable state of panic. He really believed that the idea of an extraordinary prevalence of the crime of garotting was wholly and entirely untrue. He had had the pleasure the other day of dining with three police magistrates—and he was surprised to hear from them all, as the result of their experience, that there was no increase whatever in the crime called garotting. Indeed, one of them said that no case of garotting, pure and simple, had ever come before him. He inquired as to the truth of the very alarming and circumstantial details which had frightened everybody, including himself. The atrocious assault committed on a respected Member of that House which first excited alarm might have occurred at any other time of which he recollected. In another case it turned out that a young gentleman, who fell down and cut himself at night after dining, had thought that an attack by a garotter would be a respectable way of accounting for the accidental injuries he had received. Again the story of the heroic young lady resisting the garotter who tried to cut off her hair was entirely untrue. He had talked also with policemen on the subject, and had been informed that these street ruffians went about in list shoes, and could rob their victims even when a number of people were near, in two seconds. He had likewise been warned to look behind him as he passed a street lamp, to see whether there was not another shadow besides his own. He (Mr. Clay) thought there was an immense amount of exaggerated fear abroad with respect to this crime. But however that might be, he, for one, would never consent to the flogging of a man like a dog. It had a demoralizing and brutalizing effect not only upon the victims, but upon a great many others who were hovering on the brink of crime.


said, that he wished to say a few words before the House went to a division. However popular in certain quarters any proposal might be at that moment having for its object to increase the severity of our criminal code, he felt it his duty to sup- port the Amendment to the Motion of the right hon. Gentleman. He did not, however, agree in all the reasons which had been given for that Amendment. He did not think that the House was precluded from entertaining the question by a Commission having been appointed to inquire into the question of penal servitude. It was quite true, as the right hon. Gentleman had stated, that the other evening, on the introduction of the Bill, he had said that two years ago the criminal law of the country was revised and consolidated, the Bills for that purpose having undergone the mature consideration of a Committee composed of almost all the legal Gentlemen in the House, and of several hon. Members of great experience in the administration of the Law. He stated that the House ought to examine well the grounds on which they were asked within two years to alter a material portion of that law after it had been deliberately sanctioned on the unanimous recommendation of that Committee, and he said, not that they ought not to retrace their steps if wrong, but that they ought to be well satisfied that they were wrong before they reversed the decision to which they then came. The right hon. Gentleman said they were wrong, because there had been during the last six months of 1862 an unusual number of robberies with violence in the streets of London. His hon. Friend who had just sat down had adverted to some of these cases, and he entirely agreed with him, after having investigated them, that there had been great exaggerations in many of the cases alleged to have occurred. He could not go so far as his hon. Friend and say that there was during last year no unusual amount of a particular class of crime. There was far above the usual number of robberies with violence in the streets of London; but were those crimes so frequent still? And if not, from what cause? He believed there was a fashion in crime, and the publicity which was given to an attack on a Member of that House had actually prompted the commission of similar outrages—just as two or three persons throwing themselves from the Monument or the Duke of York's Column rendered it necessary that precautions should be taken against similar acts of suicide. What was done in consequence of those crimes? The police were increased, a certain number were employed in the streets in plain clothes; and many of that class of criminals were apprehended and brought to justice. They were tried at the Central Criminal Court, in the November sessions, many of them were convicted, and the consequence was, he believed, the number of robberies with violence did not at that time exceed the usual amount. Those who had been convicted were suffering the punishment they justly deserved, and where was the necessity for Parliament to alter the law? The vigilance of the police, and the due administration of the law, had proved sufficient to put down the crime. His hon. Friend had said, the proposed measure was panic legislation, but it was panic legislation after the panic had subsided. He believed, judging by past expedience, if they left the power of inflicting corporal punishment to the discretion of the Judge, the discretion would be generally used in favour of the alternative punishment. The object of the measure proposed by the late Sir R. Peel with reference to outrages on the Sovereign was to counteract the influence of a morbid state of mind which associated an act of treason with a feeling of vanity or ambition; and, with reference to injury to works of art, whipping was no longer a punishment at the discretion of the Judge. The alleged success of these Acts was a misapprehension. In the only two cases of convictions under the former of them, the sentence had not been whipping, but seven years' transportation. The right hon. Gentleman proposed a great alteration in the existing law. Not only did he extend the power of inflicting corporal punishment to adults; but whereas it could only he inflicted once and in private, the number of lashes and instrument being specified, the right hon. Gentleman proposed, that whipping might be public as well as private, that it might be repeated three times, and he took away all discretion as to the number of lashes and the instrument with which they were to be inflicted. Did he really mean that a man might be sentenced to penal servitude for life, and be three times publicly flogged during that sentence? and yet this was what the Bill would sanction. If they were to alter the criminal law, which had been settled only two years previously, he did not see why they should say, with regard to one particular offence only, that the punishment of whipping should form a part of the sentence. Why, for instance, should they not include in the class of felonies to be so visited the crime of rape, or any other crime of violence? There ought to be something like principle in the alterations they made in the law. The hon. and gallant Gentleman (Colonel North) had referred to the case of an incorrigible ruffian who had been tried four times for murderous assaults on warders of the prison; but, under the Bill, if be did not rob as well as savagely assault those warders, he would escape the punishment of flogging. He had no doubt such a man came back from Bermuda with his back scored by punishment; but did it cure him? [Colonel NORTH: I will try and ascertain the fact.] He thought a punishment which was appropriate for insubordination in prison, where the infliction must be prompt and on the spot, might be altogether unsuitable where an offence was committed and the accused had to take his trial weeks or a month afterwards. The Bill bore marks of hasty and careless preparation, and he hoped the House would negative the second reading.


said, he wished, as his name was on the back of the Bill, to say a few words in explanation. The right hon. Gentleman had no doubt detected some blots in the measure; but there would be no difficulty in curing them in Committee. A private Member bringing forward a Bill of the kind ought to be held excused if he did not produce a perfect measure. If the Government had shown any disposition to take up the subject, he was quite sure his right hon. Friend would have been, glad to leave the matter in their hands to introduce a perfect measure; but they had not only not produced any Bill, but they opposed the measure before the House on the ground that a Commission of Inquiry had been appointed, which, by the admission of the right hon. Baronet, did not touch the question. His right hon. Friend thought it desirable to take the opinion of the House on the subject; he asked them to affirm the principle, and any Amendment would gladly be assented to if it were shown to be a proper one. The right hon. Baronet had never touched the argument on which the Bill rested—which was, that it was necessary to have these punishments not only reformatory, but deterrent. It had become clear to every one that the scale of punishments in the country was insufficient to deter offenders. He quite agreed that there were ebbs and flows, and might be a fashion in crime; but the question was, how to stop it? In cases of assault on the Sovereign they altered the punishment, and it had been found sufficient to check the offence. What was asked was that the same step should be taken with the particular class of offences under consideration. It had been said they were legislating on panic, and that many of the garotting cases had been exaggerated. But what of those which had been tried by Judges and juries? In the November sessions at the Central Criminal Court twenty seven persons had been indicted and twenty-four convicted for robbery attended by violence in the streets of London. These men, who showed the greatest hardihood in the dock, did not care a bit for penal servitude. It might be they did not care for flogging; then he did not see what harm it could do to them. The crimes of violence against which the Bill provided were committed with the greatest deliberation, and frequently with the most brutal ferocity; would flogging deter from them, or would it not? In his opinion they owed it to the protection of Her Majesty's subjects to try what the effect of that punishment would be. The feeling of the country, and he believed of a large portion of the House, was in favour of the Bill.

Question put, "That the word 'now' stand part of the Question."

The House divided:—Ayes 131; Noes 68: Majority 63.

Main Question put, and agreed to.

Bill read 2°, and committed for To-morrow.