HC Deb 03 April 1865 vol 178 cc719-26

said, he wished to call attention to a subject of considerable importance, but which, on its first aspect, might not appear to be very deserving the attention of the House. He desired to invite their attention to the correspondence just laid before the House between Sir Richard Mayne and the Magistrates of Barnet. The subject seemed small, but there was involved the question, whether that House would consent to allow habitually the Chief Commissioner of Police, an Executive officer, to set at nought or explain away by his instruction the legislation of Parliament. The facts out of which this question arose were briefly these. The magistrates at Barnet sentenced two boys under the Juvenile Offenders' Act to be whipped, and took advantage of a section in that Act which enabled them to order the punishment to be inflicted by a constable, as, the boys being the children of respectable parents, it was desired to spare them the stigma of confinement in the county gaol. Upon applying to the Inspector of Police, however, the magistrates were informed that to carry out their sentence would be contrary to his instructions. Now, the House ought to consider whether it would share with the ordinary, by a process of official instructions, the functions of legislation. At least the instructions so issued should be always laid before Parliament, so that the Legislature might be made aware of what had become of previous legislation, and on what practical conditions of the law it might proceed to further enactments. The magistrates, of course, were rather astonished at the Inspector's statement, because Barnet being a rural district, within the Metropolitan Police Act, their own constables had disappeared, and had become merged in the metropolitan Police. They remonstrated, and in reply they got a letter from Sir Richard Mayne referring to two cases which had occurred at Epsom and Richmond some twenty or thirty years ago. This letter seemed somewhat to implicate the Home Secretary in the matter, for Sir Richard stated that in these cases he had taken the advice of Sir George Grey, who thought that though the police were not exempt in case of magisterial order from the duty of whipping offenders, yet some arrangement might be made "by which the necessity of throwing it on the police might be obviated." Now, whatever might be the private opinion of the Home Secretary or Sir Richard Mayne it mattered nothing compared to the public duty of the execution of legislative enactments. When Parliament had once said that such and such should be the law, the course was simple to the Executive administrators of the law. Judging from the opposition which was made by the right hon. Gentleman two years ago to the proposition for extending the punishment of whipping to garrotters, he fancied the Home Secretary had allowed private feelings to intrude in this case into his public office. Under the encouragement given by Sir George Grey, Sir Richard Mayne stated to the Barnet magistrates that, looking at what occurred in the cases at Epsom and Richmond, he had reason to believe that the constables would feel great repugnance in carrying out the sentence. The case had now arrived at this point—not only might the Chief Commissioner explain away, but he might also obstruct legislation, and he might do so simply on the ground of his officers having a repugnance to it. It was a grave question, whether the Executive of the country could, on the mere ground of the repugnance of its officer, obstruct the carrying out the enactments of Parliament. The magistrates seemed to have thought this letter very unsatisfactory, as, no doubt, the House would also, and they wrote again to Sir Richard Mayne, and received from him a reply which was most significant. He required, if the police were to perform the duty, that there should be provided for the birching of two little boys—a punishment inflicted in most of our public schools—all the paraphernalia which was provided in the old days when 400 or 500 lashes with a cat-o'-nine tails were inflicted in the army, when it was necessary to have a surgeon on the ground, and all the hospital appliances, and to provide for the contingency of death. He Baid— I do not think the police ought to be allowed by me to inflict such a punishment unless precautions are taken by the magistrates to guard against any abuse of the power proposed to be given, and that the sentence should not be inflicted if, from the state of health of the prisoner, or other causes, dangerous consequences might ensue. For these purposes, some persons should attend on the part of the magistrates to see that the punishment is duly inflicted according to the sentence, and a competent medical man, appointed by the magistrates, be present during the punishment. Now, such a demand where all that was to happen was the birching of two little boys, could never have been seriously made by a man in Sir Richard Mayne's position, and it was therefore merely a pretext for obstructing the execution of the sentence. Sir Richard went on to assign a further reason against executing the magistrates order—that if the sentence were carried out at the police-station, it would be within the hearing of the wives and daughters of the constables, whose nerves, no doubt, were so delicate that the cries of these little boys would be too much for them. He had no objection to police constables being married and having families, but if the fact of their having wives and families was to excuse them from performing the duties cast on them by law, he should be ready to propose a Vote to provide a separate house for the wives and daughters, where they could not be shocked by the cries of little boys who were birched. Would the House permit Executive officers to set its legislation at naught in this fashion? He hoped the right hon. Baronet opposite would explain the transaction, and that he would promise at least, if such transactions were to continue, to supply the House with copies of all instructions which Sir Richard Mayne might think fit from time to time to issue to his police on particular Acts passed by that House, especially as he had been informed that in many other cases those instructions had completely set Acts of Parliament at naught. This matter might be small, but the principle involved was a very important one.


said, he thanked the right hon. Gentleman for bringing this subject before the House. He thought this case was a remarkable illustration of some observations which had fallen from him on a previous evening respecting the position of the Chief Commissioner of Police in reference to the rural districts. It showed how entirely out of harmony Sir Richard's police administration was with the circumstances of those districts. They had been included in his jurisdiction not from police reasons, but from financial reasons. All counties, however, were now able to get contributions from the Consolidated Fund for their police, and there was no longer the same reason for these districts being in connection with the metropolitan police as when that force alone received a contribution from the funds of the State. It was a great mistake to suppose that any advantage was gained in police administration from having a large area. On the contrary, police efficiency depended a great deal on having a small area and close inspection. Another essential was that the police should be in harmony with the judicial functionaries of the district and with public opinion. What might be a good system in London was not necessarily a good system in a country district, and it would be better to give back to the counties the jurisdictions which had been taken from them. It would be judicious to revert to the rural police system in the districts now under the metropolitan police, and to make such police responsible to the magistrates of the counties, where no such case as the present one would ever occur again. The most satisfactory way of administering justice was through unpaid magistrates acting in petty session. What ought Sir Richard Mayne, the chief of the metropolitan police, to have to do at Uxbridge? Possibly, the system of "unpaid magistrates," like all other systems, might be open to some objection, but he should be very sorry to see "barristers of five years' standing" scattered all over the country as stipendiaries. The police force under the control of Sir Richard Mayne had grown up into a gigantic system quite beyond control, and such as ought never to be placed under the absolute authority of any one man. In the metropolis there was nothing to induce anybody to perform gratuitously those duties which were so generously and well performed by the body of country gentlemen throughout England. But though they could not have petty sessions in London, they certainly might confine Sir Richard Mayne within his legitimate sphere of action; for the military display of helmets, &c, gratifying though they might be to look at, were of slight importance compared with the due preservation of life and property.


said, that he differed from the hon. and learned Gentleman who had just sat down, and believed that within a certain circle of the metropolis it was desirable that the metropolitan police should have jurisdiction. At any rate, as far as the mere detection of crime was concerned, it was more satisfactory to have the jurisdiction in the hands of the police than in those of the magistrates of the county.


said, he believed that what the noble Lord said was perfectly true—namely, that it was desirable the metropolitan police should have jurisdiction within a certain area beyond the actual metropolis with a view to the prevention and detection of crime. Outlying districts included within the police jurisdiction were brought within its limits at the express request of the inhabitants. As regarded the question raised by the right hon. Gentleman, he could assure him that the views and instructions of successive Secretaries of State for the last twenty-five years were perfectly consistent on this point. With regard to the question of the right hon. Gentleman, he was at perfect liberty to see all the instructions which had been issued from the Home Office for the last twenty-five years. In 1847, after the Act of 11 & 12 Vict., which subjected boys to the punishment of flogging, the question was brought before the Home Office, and it was decided that it would be inexpedient to allow any police constable without check or supervision to inflict this punishment, and instructions were accordingly given that in all cases it should be inflicted by the gaoler of the police station, who was to be sworn in a constable of the metropolitan force for the express purpose. Lately, he had inquired from Sir Thomas Henry whether these regulations were still in force, and found, notwithstanding the ridicule thrown upon the matter by the right hon. Gentleman, that the cries of the boys did attract such a disorderly crowd and occasioned so much inconvenience, that for some years past the practice of whipping at the police stations had been abandoned, and boys were sentenced to imprisonment, though it might be only for a few days or a few hours, in order that the punishment might be inflicted at the prison, subject to those precautions which the right hon. Gentleman had also ridiculed. The other night his attention had been called to a Return of the whippings inflicted by order of the magistrates, and especially to one case where twelve lashes were inflicted on a boy six years of age. Into the circumstances of that case he had inquired; and the answer had not yet been received. The right hon. Gentleman, however, was quite in error in supposing that no precautions were taken against excessive punishment. In one case contained in that Return where twelve lashes were ordered, the surgeon who was present stopped the punishment at the eighth stroke. If the whippings were inflicted in the manner that was desired, and without any supervision, the House would ring night after night with complaints of the undue severity of the police. In the case of every boy who was sent to prison to be whipped, the surgeon was ordered to superintend the punishment, and the Governor was also bound to be present. In the outlying districts, no doubt, police constables were bound to carry out the lawful order of the magistrates, and both they and Sir Richard Mayne would he ready to do so; but he thought Sir Richard Mayne only did his duty in protecting the constabulary from the complaints which would be made if they inflicted these punishments free from all control and supervision. The magistrates, on their part, ought to see that proper precautions for this purpose were taken.


said, this was one of the gravest questions that could come before the House, and the manner in which it had been met by the right hon. Gentleman did not lessen its importance; for what did he say?—that the members of this highly-organized and highly-paid police force would only carry out the law if the magistrates did something which the law did not authorize them to do. The papers showed that this question did not come upon the police by surprise, but formed a branch of a regularly codified system. The law had been altered two or three times since the Epsom case in 1850, and if the Home Secretary thought it was still defective, why had he not provided the necessary Amendment? The right hon. Gentleman spoke of the power as dangerous, and talked about "lashes." Language of that kind served very well to get up a cheer in the House, but he knew very well this was no case of lashes, but of whipping with a birch rod. These two things were as different as chalk and cheese. In 1850, in 1857, or in 1865 did Sir Richard Mayne dream of securing the attendance of a surgeon? He never dreamt of it. Was it out of mercy to the child that the whipping was withdrawn from the hands of the police constables. Such a thing never entered into his consideration. The real and only reason for the course adopted was that it was repugnant to the feelings of the highly-paid constable to discharge these functions, and the humane considerations were thrown in as corks to float the case. The paid constable could not soil his fingers, but he turned the dirty work over on the unpaid constable, the tradesman, perhaps, who had properly nothing to do in the matter. The question was, where was all this to stop? England was fast becoming one of the most police-ridden countries in Europe. When Sir Robert Peel got up the force, he gave to the policeman, at 20s. a week, the power which the common law had given to the tradesman, and they had been growing on step by step. It was quite clear that Sir Richard Mayne did not like flogging, and he did not wonder at it. But what would it come to? The next tiling would be that a constable would not take a man into custody because he would have to be hanged, and a special constable would have to be sworn to take him. In the present instance, the House had the case submitted to it of a Chief Commissioner of Police who of his own arbitrary will relieve the constables under him from the performance of a duty which happened to be disagreeable to them, while if anybody was aggrieved by them there was no remedy against them unless the existence of private malice could be proved. That was a state of things which, in his opinion, was open to the strongest objection, and it would, he feared, continue to grow step by step in the direction pointed out unless a check were put upon it. It was evident that the boy3 in question had not been flogged either because Sir Richard Mayne did not like the infliction of that punishment, or because the police thought it a disagreeable task. If, however, the law imposed such a duty upon them, they were bound to perform it; for it was as monstrous to contend that they ought not to be called upon to do so as that a man should not be flogged in prison because the wife and children of the Governor resided within its walls. As matters stood we seemed to be getting into a very awkward position. If the law relating to such cases as the present were wrong it was easy to amend it; but while it remained on the statute book he did not think it was either right or fair of the Home Secretary to back up a Police Commissioner who refused to obey it because it did not happen to be to his mind. As to there being any danger to the boys from being flogged with that murderous instrument, a birch, those who were as old as he was would not entertain much apprehension on that score, and he felt sure the right hon. Gentleman opposite, who possibly might have had himself some experience in that way, would concur in that opinion. At all events, when Sir Richard Mayne talked about dangerous consequences in the present instance there was as much an air of what was commonly called humbug about the whole thing as he had heard of for a long time. It was, he might add, the duty of the right hon. Gentleman to compel Sir Richard Mayne, as an Executive officer under the Government, to obey the law, and not to make such absurd excuses for its violation as the House had just listened to.

Main Question, "That Mr. Speaker do now leave the Chair," put, and agreed to.