HC Deb 06 May 1863 vol 170 cc1275-82

Bill considered in Committee.

(In the Committee.)

Clause 1 (Award of Punishment of Whipping).

MR. PEACOCKE moved an Amendment to insert in Clause 1, line 2, the words "Provided any previous conviction for felony be proved against him," after the word "may," the object of the Amendment being to secure that corporal punishment should not be inflicted, as proposed by the clause, in certain cases for a first offence. If the Committee were to assent to the exceptional legislation which the clause was meant to enforce in exceptional cases of aggravated highway assault, the opinion of the public out of doors could not fail to be that the Bill under discussion, instead of being a well-considered scheme changing the course of our legislation, was rather the result of the panic and alarm which had last year been created by the garotters. If the right hon. Gentleman who had charge of the Bill (Mr. Adderley) thought it desirable that corporal punishment should be inflicted in those cases in which personal violence was offered, why did he not make it applicable to other offences of a still more aggravated description—such, for example, as aggravated rape and night poaching? The great objection to corporal punishment was, he thought, that it tended to brutalize a man; but if a man were to be guilty of crime a second time, then it was a fair presumption that he had become so brutalized that corporal punishment would not add to his deterioration. With respect to ticket-of-leave men, their position indicated that they had committed a previous offence, and therefore they would not escape punishment if his Amendment were adopted. The great objection, therefore, he thought, to our present criminal code was that it did not make a sufficient distinction between the first and second offence. That was a distinction which, in his opinion, ought to be drawn, and he trusted the Committee would express their concurrence with him in that opinion by voting for his Amendment.

Amendment proposed, in page 2, line 4, after the word "may," to insert the words "provided any previous conviction for felony be proved against him."


said, that when the time which had elapsed since the alarm in respect to garotters prevailed, and the period which had been allowed to intervene between the last stage of the Bill—which was taken in March—and the present were taken into account, the hon. Gentleman was not justified in supposing that the measure was the result of a panic. It was, he might add, his deliberate conviction that corporal punishment might with advantage be resorted to in the case of such offenders as those described in the preamble of the Bill. The great object of punishment was to put a stop to crime, and the punishment provided by the existing law could not, he maintained, be held to go as far as was desirable in that direction. The merit of inflicting corporal punishment as he proposed would be that it would be inflicted once, and that there would be no necessity for its repetition.


questioned whether this mode of punishment would have the effect anticipated by the right him. Gentleman.


could not see why this punishment should only be inflicted once.


thought the exceptional state of things, against which this Bill was directed, had now passed away, and he objected to exceptional legislation for an exceptional state of things.


said, that the effect of the Bill would be not so much, perhaps, to deter persons who had entered upon crime as a profession from prosecuting such a career as to deter others from entering upon it at all. The great point was to stop crime at the outset, and he thought the punishment proposed would be likely to be most effective if prescribed in the case of a first conviction. He hoped, therefore, the clause would not be so altered as seriously to interfere with the efficiency of its operation.


said, that if the argument of the hon. Baronet were to hold good, we should repeal the principle of our criminal legislation which went on the principle of a gradation of punishment, by which the second offence should be more severely punished than the first; here we should visit the first offence with the heaviest punishment. A contrary system had for some time been in operation in the army and navy, under which the men were divided into two classes, a man being liable to corporal punishment only after he had, owing to misconduct, been degraded from the first class into the second. That system had, he believed, been found to work well not only in the army, but in the sister service. Some men were, no doubt, so hardened in crime that scarcely anything short of corporal punishment would have a very deterrent effect upon them; but then there was the danger, that if such punishment were assigned too indiscriminately, there would be a difficulty in obtaining convictions.


said, that hon. Gentlemen opposite seemed to deal with these questions as if they were dealing with the rights of their fellow-subjects; but he thought that criminals of the most hardened class should be considered as separate from the rest of their species. He protested against all maudlin sentiment, and thought the evil should be firmly and promptly dealt with. He should oppose the Amendment.


said, he should oppose the Amendment, being of opinion that the administration of punishment should not be made so lax as to lose the deterrent effect it seemed in some degree to have effected.


agreed that the most efficacious way to prevent the crime was to nip it in the bud. He had had some experience in these matters, and he believed that corporal punishment was the very best of punishments, because nobody liked it. Occasionally, people were found breaking windows on purpose to be sent to gaol; but nobody ever broke a window to get a good flogging.


said, he could not understand the sympathy manifested for the delicate feelings of a garotter, and thought nothing so likely to put a stop to the offence as a good sound flogging. It was said that the crime was on the decrease; but the fact was these London performers were "starring it in the provinces." It was most absurd to object to the flogging of such brutal ruffians.


thought, that if the house were of opinion that to revert to corporal punishment would put an end to these crimes, it ought to be inflicted for the very first offence. Any one who committed this crime at once placed himself in the category of violent ruffians, and was a fit subject for a degrading punishment.


pointed out that the garotters were generally old hands at crime, and few of them who were indicted for garotte robberies were then arraigned for their first offence. Besides, it would be always in the power of the Judge, if be saw any reason to think that the criminal before him was not a hardened offender, to remit this portion of the punishment.

Question put, "That those words be there inserted."

The Committee divided:—Ayes 37; Noes 191: Majority 154.

MR. MITFORD moved, that those words of the clause which sanctioned public whipping should be struck out.

Amendment agreed to.


thought that words of distinctive import should be used to define the number of lashes to be given.


said, that the maximum number of lashes to be inflicted at a time was fifty.

MR. KNIGHTLEY moved an addition to the clause, defining that the instrument used for the whipping shall be the "cat" employed in the navy, which, he was told, was more effective than that used in the army. As the Bill stood, a birch rod might be used; and though, in common with many other Members, who, no doubt, had experienced its good effects in early youth, he had a great respect for the birch, still it would be making a mockery of justice to use it to such criminals.


said, it was intended that the instrument used should be a "cat," but there was no necessity to specify it in the Bill. By an earlier clause it was enacted that boys under a certain age should be punished with a birch only, which, of course, inferred that the cat was to be used for men. The instrument never had been specified in any Act of Parliament.


wished to know to whose discretion the choice of the instrument was to be left. Under the existing Act, it was provided that the number of strokes and the instrument with which they should be inflicted should be specified by the Judge. The hon. Gentleman, he presumed, did not intend to leave this matter to the discretion of the gaoler.


did not think it was desirable to insert the words proposed by the hon. Member. If it were provided that the conviction should specify the number of strokes and the kind of instrument with which they should be inflicted, the object of the hon. Gentleman would be sufficiently attained.


wished to know whether all the "cats" were of the same pattern, for that fact would considerably affect the measure of punishment.


objected to the matter being left to the Judge, for we might have Judges infected by maudlin sentimentality. Fancy Sir Joshua Jebb being a Judge. What sort of instrument would he prescribe? The Bill ought to be so framed that there should be no chance of escape for these fellows; and the instrument used — which should be that which would give the most effective flogging—ought to be specified in the Bill.


said, the punishment could not be uniform, unless there was a pattern cat. A navy cat was unknown in some counties. He had never seen one, although he had seen a military cat.


thought it would be a great blessing if a Committee were formed of naturalists and officers of the army and navy, because he was not aware of there being any pattern cat either at the Admiralty or the Horse Guards. He had heard of pattern caps and pattern jackets, but never of a pattern cat. He had had some experience of the inconvenience of having to decide such questions. Some few years ago the Secretary for the Home Department—he did not remember whether it was the present Secretary—wanted to know what kind of a cat had been used in a prison in Oxfordshire. It was very difficult to give a description; for although it was easy enough to say the animal had so many tails and a body or handle so long, it was a very different thing when they came to the number of knots and the substance of the tails. So they sent their cat to the Home Office. They left it there a reasonable time, but by no possible entreaty could they ever get it back again, and he could only suppose it had ever since been the means of keeping the subordinates of the office in good order. Before parting with it, he had a conversation with the governor of the gaol, who had been in the navy, who said it was not a navy cat; and with another official who had been in the army, who said it was not an army cat. But if there was no pattern instrument at the Horse Guards or the Admiralty, a prisoner might complain of being unjustly punished, and there might be fifty officers on one side and fifty on the other to say that the instrument was or was not what they understood by a navy cat.


thought there should be some standard of punishment; or in one county it might be with an instrument having five, in another with an instrument having six, and in another with an instrument having nine tails.

Amendment negatived.

MR. ADDERLEY moved the addition of the words "in each case the Court shall specify the number of strokes to be inflicted, and the instrument to be used."

Amendment agreed to.


said, that after the decision of the Mouse that the punishment of whipping ought to be applied to persons guilty of offences of violence, he would make no further opposition to the progress of the Bill. But he must remind the House that they were for the first time connecting a sentence of flogging with a sentence of penal servitude. Hitherto, those punishments had not been coupled. Whenever flogging could be inflicted, the Judge was at liberty to sentence a person to that punishment and imprisonment, but not, as might now be the case, to penal servitude for life, and to receiving 150 lashes at three periods, the intervals between which were not fixed.


proposed to add to the clause the following words:— Provided that in all cases the whipping shall take place during the first six months of the period of imprisonment or penal servitude.


said, he had no objection to the addition of the words.


said, the proviso implied that the punishment of flogging could not be inflicted on persons sentenced to less than six mouths' imprisonment, because the flogging could not take place after the expiration of the sentence.


proposed that they should get rid of the difficulty by adding "if the sentence shall be as much as one year's imprisonment, and if less in the first part of the sentence."


suggested that the Judge should decide when the whipping should take place.


said, they might get rid of the difficulty by providing that no such whipping should take place after the expiration of six months from the passing of the sentence.

Amendment proposed, To add the words, "Provided that in no case shall such whipping take place after the expiration of six months from the passing of the sentence.


said, it was the first time that penal servitude and whipping had been married. The practice in gaols was this:—When a man was sentenced to penal servitude, the sentence was sent up to the Home Office, and the local authorities knew no more than Adam when the man would be removed from the prison. Supposing under this Bill a man was sentenced to three years' penal servitude and to be thrice whipped, was he to be whipped three times before the Home Secretary could remove him? What were they to do? Were they to whip him at once, and so make sure of the whipping? Probably, before the Bill passed, provision would be made as to the strength of the arm of the person using the cat. But who was to give the punishment? Punishment of that kind incapacitated a man for travelling. You could not whip a man to-day and pop him into a railway carriage to-morrow to travel a hundred miles or more to the place to which the Home Secretary ordered him to be removed. Was the whipping to be after he was removed to the Government prison? Sometimes convicts were not moved for four months, and then all the whipping must be in two months; or, if the convict was to be whipped in the county where he was sentenced, there ought to be a provision of certificates, to insure his not being whipped over again when he had been removed. He thought it a great pity the innovation should be made of coupling whipping with penal servitude, and that it would lead to great inconvenience.


said, the Bill gave rise to so many perplexities that he thought more time ought to be given to consider the matter. He should move that the Chairman report Progress.

Motion made, and Question put, "That the Chairman do report Progress, and ask leave to sit again."

The Committee divided:—Ayes 32; Noes 159: Majority 127.

After further discussion, Amendment agreed to; Proviso added to the Clause.

On Question, "That the Clause as amended stand part of the Bill,"


said, that if he had been satisfied with the result of the division which took place on the Amendment moved by the hon. Member for Maldon (Mr. Peacocke), he would not have troubled the House with another division; but he believed the fact was that many hon. Gentlemen had so great an abhorrence of the system of whipping that they would not accept even the Amendment which would have the effect of mitigating the evil. He should divide the House upon the question.

Question put:—The Committee divided:— Ayes 144; Noes 31: Majority 113.

House resumed.

Bill reported; as amended, to be considered on Friday, and to be printed. [Bill 111.]

House adjourned at half after Five o'clock.