§ (Mr. Charley, Mr. Whitwell.)
§ Order for Second Reading read. Motion made, and Question proposed, "That the Bill be now read a second time."—(Mr. Charley.)
§ MR. P. A. TAYLOR
, in rising to move, as an Amendment, that the Bill be read a second time that day three months, 1854 said:* Sir, if the Bill proposed by Her Majesty's Government be fairly and sufficiently described as a Bill designed to meet the evil of violent personal assaults by means of stronger, more certain, and more efficient measures of repression, I think no one who sits in this House would be disposed to challenge the second reading. But it is not so. Mr. Herbert Spencer, I think, has said—In the treatment of our criminals there alternate or co-exist an unreasoning severity with an unreasoning lenity. Now we punish, in a spirit of vengeance, now we pamper with a maudlin sympathy.The Bill of Her Majesty's Government, then, is based on this principle—namely, that it is wise and politic to attempt to counteract and to stamp out crimes of violence by violence, to meet brutality by a spirit of vengeance, by the brutality of the law; in fact, although euphemistically termed Offences Against the Person Bill, it is known more commonly in the Lobbies and in the House as "the Flogging Bill." It is for this reason that I oppose it. The experience and wisdom of our fathers, after a very long course of experiments in, and experience of, violent punishments, had, as one thought, finally determined that brutal and brutalizing punishments—punishments of torture—were altogether out of date. Those punishments certainly did one thing well—they brutalized society; but they did not by any means stamp out any one particular crime. The Flogging Bill of the right hon. Gentleman is, I am bound to admit, not a very violent or severe measure—for a Flogging Bill; but it does this—it organizes and it further extends the punishment of flogging. It will be in the recollection of the House that some 12 or 14 years ago there arose a sudden panic in this country about a particular description of crime, known as garotting. I suppose there never was a greater amount of panic with a less amount of reality. Under the influence of that sudden panic this House rushed into what might be called experimental legislation. We had at that time given up, it was hoped for ever, the practice of torturing our criminals; but as a remedy for this particular crime, and to stop the panic at this particular time, flogging was introduced, rather as an experiment than otherwise. That experiment has 1855 failed as signally as did all the punishments of torture employed by our fathers before us. Yet when the Government might be expected to redress the error made at that time, and to go back to the more wholesome scheme of punishment, finding that the Act had proved an entire failure, they come forward instead and propose to recognize, organize, and complete the system of punishment by flogging. It is hardly necessary for me. Sir, to answer the assertion that we who are opposed to this punishment by torture, are friends of the garotters; that we have a kind of sentimental pity for them, and feel much more compassion for them than for their victims. I deny that entirely. There is nothing I hate more than needless torture for man or beast, but I cannot plead guilty to the soft impeachment. It is not the suffering of the garotter that moves me in this matter so much as the demoralization of society. Our sentiment and passion are rather aroused for our civilization, for our good repute among the nations, for our Christianity. And when I say our Christianity, I am not speaking of any particular dogmatic form of Christianity, but of that inner spiritual life which has done more than anything else to give Christianity its hold upon the world for the past 2,000 years. When we are charged with taking up the sentimental side of this question, I beg most respectfully to throw back the imputation upon those who make it. We are not the sentimentalists. Reason and experience are the groundwork of what we support. The hon. and gallant Member for Mid-Cheshire (Colonel Egerton Leigh) and the other hon. Members who hold the same views are the sentimentalists, if to be sentimental is to disregard the dictates of reason and the lessons of experience, and to be carried away by the temporary panic of the moment. That hon. and gallant Gentleman, forgetful of the lessons our parents learned, has his mind so filled and his ears so stuffed with the sufferings and the cries of the victims of personal violence, that he calls upon the Government to take some steps in the matter, and they reply by an attempt to stamp out by torture and blood these acts of violence. When I first entered this House, some 14 or 15 years ago, I moved year after year for the omission from the Mutiny Bill of the 1856 flogging clauses; and, at last, upon the Motion of a Member who I regret no longer sits in this House, my Friend, Mr. Otway, flogging was entirely abolished in the Army. We little thought in those days when we were fighting flogging in the Army that we should have the whole question opened up later on, not merely in regard to the Army, but in regard to the punishment of crime. I well remember the anger hon. and gallant Members used to express against myself and others when we proposed that alteration of the law. They asked whether we thought them less tenderhearted—whether we considered them as disliking torture less than we did—or whether we thought that they were any more likely to desire to return to torture for civilian offences than we were? There were especial reasons, we were told, why flogging was essential for the Army. It was necessary to maintain discipline, without which the Army would be a mob, taken as it was from the refuse of the population. Little did we think then, when we believed we were destroying the last links of the system of punishment by torture, by getting rid of it in the Army, that the time would actually come when Her Majesty's Government would deliberately ask this House to revert to torture for civilian offences. Flogging in the Army came to an end. Why? Because the universal opinion of the country declared that it should exist no longer, because the opinion expressed by the hon. and learned Member for Sheffield (Mr. Roebuck) was the opinion of all cultivated men of the day, when he said he was sure "that no man after being flogged was an equal man to what he was before." The late Mr. Buxton, the representative of moderate and sensible men, said—It has been the great blunder which shortsighted rulers in every ago have made, and which has been attended with invariable failure, to suppose that it is by fierce and appalling punishments that crime is befit prevented.Well, Sir, and how was it that flogging was done away with? It was never proved that discipline could be maintained without it: it was not competent to be proved that the Army could exist in its then condition if flogging was abolished—it was done away with by the sentiment of the British people, by a burst of indignation which declared 1857 that they would not endure this abomination any longer, that this wrong should not be done any person on the bare chance of there being some necessity for it, or of some good possibly resulting from it. The right hon. Gentleman who brought in this Bill (Mr. Cross) appears to think it of no great consequence. It has been kept before us days and weeks, but it is not a Bill to bring forward at an early stage of the evening, and it is not one in whose defence it is worth while to say a word. I venture to differ from him with regard to the importance he attaches to this measure. It is, I think, much more important than some others which we are to be detained here till Christmas, if necessary, to pass. It is for England, practically, a renewal and re-establishment of the principle of punishment by torture, and for Scotland it is absolutely so. ["No, no!"] That is the fact. The Act passed in 1863 did not apply to Scotland, and flogging there was abolished in 1862, after it had for 40 years previously passed into utter and deserved disuse. It had, as Alison side, writing in 1833, gone out of use by the change of manners. Some hon. Members seem to think that they have found a heaven-born remedy for crime, and that the "cat" has descended direct from the skies, as something entirely new in the history of our country. Let me read them a few words of graphic description as to how we have experimented in regard to flogging, contained in The Law Mgazine. The writer says—We flogged men before hanging them; we flogged libellers regularly and mercilessly, we even went so low down in the list of offenders as to flog beggars. The practice grew into one of the arts, and culminated about the reign of James I. The last half of the 16th century and the first half of the 17th, deserve, I think, to be regarded as the golden age of flogging in England. During this period the cat was continually going. In prison and out of it, the warder always had his hand in. We flogged at the cart-tail in the street, almost as often as we flogged in prison. Our fathers were logical, and on the sound principle that what is sauce for the goose is sauce for the gander, they flogged women as well as men. 'They warmed her shoulders,' is the expression of one of our facetious Judges. No one, who knows the fact, can deny that they gave flogging a long trial in England; and yet in spite of this trial, and of a fervent instinctive, and as to its origin brutal and barbarous prejudice in its favour, with the firmest conviction that it was a heaven-appointed remedy, our fathers found that it did not answer. Crime did not diminish, brutality rather increased, and the same people 1858 were often obdurate enough to be 'warmed' several times without beneficial effect. Reluctantly and with that sorrow with which men always part from long cherished belief, clinging indeed to shreds and fragments of it, they diminished the use of the cat. Something else had to be tried; and not having yet hit upon the right track for the diminution of crime, as we have done in more recent times, they substituted last century wholesale hanging for flogging. They very properly argued that hanging, being a more dreadful punishment than flogging, would be a more powerful deterrent. It had too the additional advantage, no slight one, of not requiring a second application. Accordingly they hanged for almost every offence,Now, Sir, I am no advocate for hanging, but I do think hanging is preferable to torture. Well, to put a man out of existence is a poor and contemptible admission on the part of society, that with all its powers of administration, of restraint, and reformation, we cannot deal with this unhappy criminal, and so perhaps there is nothing for it but to put him out of existence. But it is infinitely worse to brutalize and torture him. I find there are some hon. Members of this House who do not know, or have forgotten, what this really means, and who doubt the justice of the word I use. They tell me—"We were boxed when we were babes, we were beaten when we were boys, we were thrashed when we were students, and to call it torture is altogether absurd." But these are not the punishments against which I am speaking. I may have—I have—my own opinion of the advantage of physical force. We have already discovered that we break in our horses and our dogs better by kindness and by rewards, than by the old system of cruel brutality, we may, perhaps, soon discover that we can do without it altogether with regard to children and boys. I am speaking rather of the punishment of the cat, the most painful instrument of torture the world has ever known. [The hon. Member having read a horrifying description of flogging from The Medical Review, and the opinion of the late Mr. Wakley, proprietor of The Lancet, proceeded.] The Saturday Review puts it thus—The simple question is whether a man who knows that if he commits an assault he will be flogged, is less likely to commit one, than a man who knows that he will only be imprisoned.And The Review certainly carries out its principle to the fullest extent, for it says—There can be very little doubt that what is wanted is a periodical flogging—say, once a fort- 1859 night—in addition to imprisonment and hard labour.All honour to the consistency of that illustrious print; but I do not think the House is prepared to adopt the views of The Saturday Review. Now, Sir, I will ask the House to look at the matter in this point of view. If there is one thing more cruel, more brutal, and more without excuse than the brutality of the individual criminal, is it not the act of society when it gets that criminal within its grasp? Society takes that friendless scoundrel by the throat. It has it in its power to do whatever it will with him; it can restrain him, it can shut him up for life, or until he has proved that he has some right by good behaviour to go out again; it can make him work for his living; it can moderate his rations if he shows too much strength; it can do all that is reasonable in the way of restraint:—and yet what does it do,—it imitates upon him the brutality which the garotter inflicted upon his victim. The lesson that society ought to teach him is that he has committed a crime against humanity. But what it does say is, that it is right and just to do to him all and more than all that he did to his victim, and it teaches him not that cruelty is an infamy, but that the motive, the object which he had in view, was wrong. Mark the lesson this teaches the brutal father who has disobedient children. Society cannot say obedience is not a good thing. How, then, shall he attain this good thing? The right hon. Gentleman teaches him—"Let him boat them until he has forced them into submission." Or the brutal husband has a drunken wife. Assuredly it is a good object to reclaim her, and prevent her from ruining herself and her family. How shall the brutal husband effect this? The right hon. Gentleman teaches him—"Let him beat her till she cannot raise her hand to her head." There is something, to my mind, infinitely mean and contemptible in this way of punishing our lowest class of criminals by brutal violence. Think of what their lives and chances are They are born, literally and morally, in an atmosphere of crime; they have no chance of raising themselves from what they are; they live in the midst of a public opinion that surrounds them and teaches them and educates them in crime. Our system of laissez-faire government, the maintenance 1860 of individual freedom, prevents any intercourse between ourselves and these the lowest branch of society. They may live in dens or garrets, but the philosopher or the missionary has no access to them; in fact, we are as much separated from them as though they lived in Central Africa. When a man offends against the law, we have legally and morally all power to deal with him. We can restrain him, we can punish him, we can make him work; we can, in fact, bring our culture, our civilization, our religion to bear upon him, and, if possible, to help to reform him. Yet the first time we come in contact with this wretch we show the excellence of our religion, the beauty of our culture, the charm of our refinement, by tearing his back with the cat. It is upon the demoralization of society produced by the infliction of such punishments as flogging that I lay most stress. Two or three years ago we even had a "torture literature" in the papers, and illustrations of flogging—and the Sheriff of London complained to The Times that when it was known that criminals were about to be flogged he received applications from persons of every degree desirous of witnessing this miserable spectacle. Sir George Grey, in the debate on the Bill of 1863, asked if flogging was so effectual, where was the line to be drawn? I repeat his question. If once you establish the principle that you are ready to attempt to stamp out a particular form of crime by violence, where indeed is the line to be drawn? A distinguished Member of this House, the present Chairman of Committees (Mr. Raikes), in Ms consistency of feeling proposed in two flogging Bills which he had before this House three or four years ago, and which came to nothing, to administer it for certain forms of libel. Why not stamp that out by flogging? What is there in these particular crimes of personal violence that makes flogging or other torture particularly applicable to them? On the contrary an equally good argument can be adduced to show that these are not the crimes most fitly punished by torture, if torture is to be used at all. Other crimes argue at least as much selfishness in their perpetration, and their consequences are a thousandfold worse than individual attacks upon a particular man. Will you flog the fraudulent bank director who takes ruin 1861 into hundreds of peaceful homes? Will you flog the debaucher of children under 10 years old? ["Hear, hear!"] There are thousands of such cases, but though hon. Members cry "hear, hear," I tell them that the House of Commons will never flog for such offences, because on the first cut of the lash touching the tender back of a gentleman the punishment will be swept away for ever. There is no limit to the extension of this principle, as the right hon. Gentleman who proposes this Bill will probably find. Will you flog women; and if not, why not? Barbarity, brutality, is not confined to one sex. Our fathers flogged women at the cart's tail. Are you going to do the same? If not, you have not faith in your opinions. Will you flog at the cart's tail; and if not, why not? The very advantage of these punishments is that they are deterrent, and if you really desire their full advantage, let it be known everywhere what suffering they create. It is not enough that the criminal classes should hear that suffering is occasioned by flogging. Let them see for themselves the streaming backs and hear the agonizing groans, or you do not do your duty by society. You inflict pain and cruelty upon the man you flog, because your object is not so much to punish him and prevent him from committing the same crime again as it is to prevent his class from doing the same thing. The poor sophism that because we do not hang in public that therefore we are consistent in not flogging in public is too glaring to need exposure. It is not the agony of death that acts as a deterrent, but the fact that death is inflicted, and this fact is sufficiently known by the announcements in the newspapers. But in flogging a man your principal object is that his class may know the agony he is suffering, and if you do not flog at the cart's tail, in the sight of all the world, as our forefathers did, you do not believe in your principles. I am almost ashamed to argue with a British House of Commons the economical side of this question, but if you flog a man you must imprison him afterwards, or else you turn a tiger out upon society. Further, is it nothing to say that we stand alone at this moment as the retainers or rather the returners to the punishment of flogging? At a Prison Congress, held in London some two or three years 1862 ago, this fact came out with the most marked effect. The gentlemen who attended came from every civilized country—they were not doctrinaire prison reformers, but men who had spent years in practically dealing with prisoners. Severity rather than sympathy with scoundrels was the general impression which a visitor would have gathered—but when the subject of corporal punishment came on for discussion, one foreign speaker after another arose and denounced flogging in the strongest terms. We found that England stood alone; that flogging had been abolished in every other civilized nation; and that the prison officials who had been deprived of its use—doubtless parting with their cats with many regrets—had everywhere come to the conclusion that to inflict it was a blunder. Every one Frenchmen, Americans, Germans, Danes, Italians, have given up the cat. Russia even has thrown down the knout, and Her Majesty's Government stoops to pick it up! The whole authority gathered from every quarter was against the policy of the Government—against punishment by torture [and the hon. Member read the opinions of Mr. Hill, formerly Inspector of Prisons, and of Mr. Sheppard, Governor of Wakefield Gaol]. I could go on giving authorities for ever, but that I am afraid of wearying the House. I will just, however, quote two distinguished ones from America. The Governor of Massachusetts State Prison, which contains about 650 inmates, says—I have never known an instance where I thought that a man would he made bettor by the infliction of blows;and the Governor of Wisconsin State Prison, one of the largest and best of American gaols, writes—"Corporal punishment is in no case inflicted." But it is said—"All this is very fair reasoning, but it must give way to the great law of fact. We had a terrible outbreak of garrotting some years ago, we established flogging as a punishment, and it was put down—so all your reasoning must go to the wall." I shall show by, statements and official statistics, which I think hon. Members will not be able either to deny or disprove, that there never was a more utter fallacy than that. I shall first show that garrotting was a panic rather than a wide-spread crime, that whatever it was it had entirely dis- 1863 appeared from London months before the Act was passed, and I shall then show that comparing previous and subsequent years to 1863 that the only crimes which have increased are precisely those which are rendered floggable by the Act passed in that year, and that all the other crimes have diminished. I will first call as a witness Lord Aberdare, who says—There was no idea more profoundly fixed in the English mind than that the punishment of flogging had put an end to garrotting. He happened to be appointed to the Home Office, as Under Secretary, in November, 1862, and the outbreak had taken place in the previous July. The streets were filled with police in plain clothes, and in an hour the whole of these garrotters were in custody. In some 26 oases which had been reported, there was only one genuine case, when they came to be examined into, and that was a case of an old woman on Primrose Hill, who was robbed with a certain amount of violence. Every woman who was found drunk in a gutter had been garrotted; every footman who had got a black eye had been garrotted, and there was a great deal of alarm about it. That Act had the credit of having put an end to those offences, which had been entirely stopped by the action taken some eight or nine months before. Robberies with violence had gone on decreasing in number. He did not, therefore, attribute any success in that instance to the punishment of flogging.So much for the existence of garrotting as a wide-spread form of violence. The hon. Member then proceeded to read at great length statistics and figures to show that antecedent to the passing of the Flogging Act and Baron Bramwell's "wise severity" crimes of violence had continuously decreased, and that the same diminution had followed that period though the infliction of sentences of flogging were rare; and also reports of local authorities of great centres of population, brutal assaults, wife-beating, and crimes of violence had undergone a continual diminution compared with 20 or 30 years ago. Referring to the effect of flogging upon crimes of violence the figures showed that those very offences of robbery and assaulting to rob, which the Garotters Act of 1862 was passed to put down, increased and not decreased during seven years subsequent to the passing of that Act, whereas of those offences accompanied by violence which were not floggable the numbers of which in 1862 were 2,321, had decreased in 1869 to 2,155. Therefore the only crimes with violence that increased in the year subsequent to the Flogging Act were precisely that 1864 form of crime which was made floggable under that Act. And the result of that further is that, taking the 10 years before 1863 and the 10 years after, there were in the former period 3,261 floggable offences, and in the latter 3,380; while, on the other hand, the total number of offences against property with violence was 800 less in the latter period than in the former period. Again, taking the five years before 1863 and the five years after, the floggable offences increased from 1,450 in the former period to 1,910 in the latter. The right hon. Gentleman has not prefaced his Motion to-day with any observations, and it is therefore impossible for me to tell upon what he relies. Perhaps he relies upon the Report of the Judges. Now I do not hesitate to say—and I ask the House to be good enough to follow me in this—that the Report of the Judges is alone amply sufficient to condemn this Bill. If the people of this country are to return to the brutal punishment of their forefathers, and if we are again to go back to punishment by torture, the least we can ask is that there shall at least be something approaching to unanimity upon the bench of Judges. All men must know that, and, most of all, they who have to deal with and sanction by their moral influence, this change if it be necessary. Another ground for opposition to this Bill which I would urge is, that if there be one rule more universally held than another in regard to punishments, it is whether they be severe or not, at all events they must be certain. Yet there can be no doubt that if you have this great diversity of opinion among the Judges, the gambling element enters into the question, and whether a criminal is to be flogged or not will depend upon the accident of a circuit. What are the Judges' opinions? Lord Coleridge, Mr. Justice Brett, and Mr. Justice Denman declared emphatically against flogging. Mr. Justice Keating said that the Act not having made the sentence of flogging compulsory he had himself never passed it; and that the late Mr. Justice Willes, who thought much on such subjects, was wholly opposed to it. The diversity of the Judges in regard to the crimes they would punish by flogging, is yet more marked. Some would inflict it for indecent assaults and rapes upon children, and one Judge would punish stack firing with it. 1865 The belief of the Judges in its efficacy is also very varied. One did not believe in it, three declined to express an opinion, and two or three inferred that it did good because offences diminished—that is to say, they took the reports in the newspapers and believed them—while Chief Baron Kelly says it put down garrotting. Mr. Justice Lush says that he flogged everybody convicted of these offences, and so put them down; but Mr. Justice Keating, who toot the circuit next time, said he was obliged to have recourse to very severe punishments, so terrible was the amount of crime which had sprung up. When the Lord Chief Justice pronounces an opinion ex cathedra, it behoves those who are not professional men to regard it with the greatest respect and reverence; but when he gives reasons for the faith that is in him, then even non-professional men may venture to criticize them. Thus, when he says that he is in favour of flogging because it has put down garrotting, "as they saw in the newspapers," we know so far as that reason is concerned that his conclusions are false. The Lord Chief Justice says—In recommending the infliction of corporal punishment in such cases, I assume that the punishment in its infliction will be kept within due bounds of moderation and humanity; and while it carries with it such an amount of bodily pain as shall operate to deter offenders from acts of brutal violence, shall not be unnecessarily severe, or calculated to cause prolonged suffering to the party undergoing it. I presume that the degree of severity with which the punishment is to be inflicted will not be left to the discretion of those who are to inflict it, but will always be under the regulation and direction of the Executive Government.The first part of this reminds one of the recommendation of Elizabeth, that the rack shall be used "as gently as such a thing may" How it is to be "always under the regulation and direction of the Executive Committee "I fail to see, unless the right hon. Gentleman proposes to be himself present at every ceremony of the kind, and I have no doubt if he were it would be very much for the advantage of the criminal. It will be seen that this condition of the Lord Chief Justice invalidates and renders worthless the judgment already given, because the punishment will depend for its severity, not upon the Judge or jury, but upon the thews and sinews of the warder who has to administer it, and upon the bodily vigour and strength of the victim. And 1866 we know from the testimony of Mr. Wakley that no surgeon can estimate the effect of a flogging. So far as the Judges are concerned, then, there is no justification for the Bill of Her Majesty's Government. Whether the right hon. Gentleman relies upon the Reports of Chairmen of Quarter Sessions and other officials, I really am unable to say, but what strikes me in going over this Return is how skin-deep appear to be the reforms we thought most assured. Our law and punishment reformers, our Romillys and our Frys, and all those others thought they had mitigated the severity of our punishments, and that they had effected a real anchorage in the thought and knowledge of the nation, and yet here we have numberless officials, Chairmen of Quarter Sessions and others, not even impressed with horror that it is necessary to go back to these punishments, but entering into the subject with all the gaieté de caur with which a French Marshal entered the late War. You will find that in a large number of answers the writers know nothing about flogging, because it is limited to crimes of violence, although they approve of it. There are many honourable exceptions, who decline to be made the official reporters of the Government, or to base their knowledge on newspaper paragraphs. For instance, Mr. Philip Sillard, Chairman of the Huntingdon Quarter Sessions—I name his name with all honour—writes—Although opinions have been expressed to me in the affirmative, they seem to me to be based upon reports of what has occurred elsewhere, rather than from any personal knowledge. I can only state that I do not know of a single case that has occurred within my experience in this county.The report from Essex is-"I believe from hearsay evidence that flogging has been very efficacious." Hereford says—"No offence under this section has occurred in this district, but we are of opinion that it has worked well." Radnor—"I do not doubt that flogging has been highly efficacious, but I only speak from reports in the papers." Warwick —"I have not seen returns, but I have no doubt," & c., while Kent and Wiltshire write—"Garrotting unknown, but flogging excellent." I am sorry to see that in Scotland—although there they can have had no experience, because flogging was abolished by statute in 1867 1862—that these official Returns, based upon paragraphs in the London newspapers, with some honourable exceptions, all go to support the right hon. Gentleman and his flogging measure. Now, Sir, I know we are very apt to deceive ourselves, but I do deceive myself if I have not made out a strong case against this Bill. I have shown that the proposed re-enactment and return to brutal, brutalizing, and exploded punishments has no excuse in the condition of crime in this country, and has still less excuse after the failure of the experiment of 1863. I appeal, therefore, upon these grounds, to Her Majesty's Government to reconsider their decision; failing that, I appeal to the House of Commons to save the country from this abomination, and failing that, one other appeal I make which I know will not fail, I appeal to the honest sentiments and generous intelligence of the British people.
§ Amendment proposed, to leave out the word "now," and at the end of the Question to add the words "upon this day three months."—(Mr. P. A. Taylor.)
§ Question proposed, "That the word 'now' stand part of the Question."
§ MR. WADDY
side, that according to the speech which they had just heard, all those Judges who did not entirely agree with the hon. Member for Leicester (Mr. P. A. Taylor) did not know anything about the subject; while everybody was entirely misinformed who did not base his opinions solely on the statistics which that hon. Gentleman adduced. Having himself the misfortune to differ from the hon. Member on pretty nearly everything he had side, he was afraid he should be told that he had gone into the subject of flogging with great gaiety of heart. It was impossible to expose all the hon. Gentleman's fallacies, because they were so numerous; but, at the outset, he protested against the attempt to prejudice the whole question by describing what was meant solely for punishment as "torture." When torture was used, it was used for the purpose of extracting the truth, and was altogether different from that which was inflicted as a punishment. He protested also against having a picture drawn to them of the way in which some of their unfortunate countrymen were born upon dung-hills, brought up without educa- 1868 tion, and then taken by the throat. Did the hon. Gentleman mean to say, because they had been raised upon dunghills they were not to be punished at all? Were they to tell criminals—"You are ignorant, and therefore do not understand the nature of your crimes. You have been accustomed to look on felony almost as a trade; and therefore we cannot think of thrashing you, although you may have thrashed an innocent person within an inch of his life." Might they not, according to that reasoning, go further and say—"Because you do not understand the difference between meum and tuum, we cannot think of putting you in prison." Let the House not be led away from the real point before them by the tall talk which had been addressed to them. Of course, it was not pleasant to be flogged; and it was because it was not pleasant and they did not like it that men were subjected to that punishment. It was a gross fallacy to compare the infliction of two dozen strokes at the outside on men who had been guilty of the greatest brutality and the infliction in former days of 200 or 300 strokes—which was next door to murder—on soldiers of the Army, who had done nothing but run away to their wives or their sweethearts. Some of them had had experience of what had been the result of the punishments inflicted in consequence of the judgments of Mr. Justice Lush, whose name had been mentioned not altogether in a kindly way that evening. For himself, he could state that in a district where that experiment had been extensively tried, he had observed over and over again at the Assizes that after what was roughly called a "flogging Judge" had been sent round there was a remarkable diminution next time of offences of that character; while, on the other hand, when a Judge of exceeding tenderness of disposition went round, the result had been a wonderful crop of those crimes. He entirely agreed with the general principle of the Bill, which was that where men had committed crimes indicating great brutality, they must be men of an exceptional character, and must be punished in an exceptional way; that they were men so thoroughly hardened that you could only get at them by making them feel corporally what they would never feel in any other manner. In his experience at the criminal bar he 1869 had found prisoners curious not as to whether there was any hope of an acquittal, but as to whether they would be likely to "have their backs warmed," showing that this was what they most dreaded. There was no use in being very tender and almost poetical on such a question. Something had been said about periodical flogging. He was quite disposed to think that a very good thing. He believed it had been tried with eminently good effect, and he thought it might be well that the flogging should not be given all at once, but should be carefully distributed over the length of time that the man remained in prison. He would not let them have it all at once, if letting them know that more was coming would do them good. He was bound to say that he felt a very great amount of sympathy with the victims; he could not give all his sympathy to a man who had knocked down a fellow-creature, and nearly kicked him to death; he must give some of his sympathy to the man who had been kicked. A man who deliberately went out with a life-preserver to catch some decent man going home, knock him down, half murder him, and then stamp upon him—such a man would not altogether have his (Mr. Waddy's) sympathy, because, when caught, he would got a good thrashing; but some of his sympathy was with that unfortunate man who was so brutally treated. He had risen to protest against the entirely false air with which this matter had been presented to the House and the glamour which had been thrown over it. As to its being said that we were to flog women, or to flog men at the cart's tail—these things answered themselves. It was not true that they wanted to frighten men by their seeing the blood run down the back; if they knew that the man got a good flogging in prison, that would be enough for them. Criminals of the character he had mentioned should know distinctly that when they were starting off on a dark night, armed with life-preservers or other weapons, they would get a good flogging, as sure as they were born, if they used violence; and such knowledge would have a wonderful effect upon them.
§ COLONEL EGERTON LEIGH
side, that if speaking up for the rights of women was sentimentalism, he might own the soft impeachment at once. He had been very much suprised to observe 1870 that during his speech the hon. Member for Leicester (Mr. P. A. Taylor) never mentioned a word about the sufferings of women. The hon. Member jeered at the Press, and said that its accounts of those outrages were not true. When they saw the trials that took place, and noted the convictions in which they resulted, and the places to which the offenders were sent, he thought it right, he admitted, that even a newspaper might sometimes toll the truth. Moreover, if lies were at one time the food of newspapers, they were not so now. In many of these cases the attacks on women amounted almost to "deferred murder." A man, for example, would jump on a woman, though she might be in the family-way; or would kick her in the face; or sometimes would work upon her feelings through her child by putting hot ashes on her baby's head. When he read of such cases he was sorry there should be such brutes in the world; but he felt no sympathy for them. He agreed with the last speaker in denying that there was any just comparison to be drawn between flogging in the Army and as it was proposed to be administered under the provisions of the Bill under discussion. He, for one, deprecated flogging in the Army; but he supported the punishment when it was intended only to be used as the reward of brutal violence, and as a means of protecting women and children, who could not protect themselves. There was no occasion that one man should be punished for an offence of this kind, if he only knew the punishment that awaited him if he did commit it. If a man kicked his wife, put her on the fire, or threw her downstairs, he owned he could not feel the sympathy for the brute which the hon. Member for Leicester felt. It was of no use to urge that cases of this sort were so few. Many of these cases were never heard, because it was in the nature of women to forgive and forget, and many a brute had been saved from punishment by his wife at the last moment telling a lie in his favour. Women themselves could not be trusted to deal with this question. He had a Women's Eights paper sent him the other day, in which they said—"Educate the men," and reasoned in this way, that if they could spell "cat" they would never require to feel it. He really had hoped that there would have been a general 1871 feeling in the House in favour of this Bill. In his opinion, we had been at fault in not dealing energetically with these crimes of violence. If the Bill was passed he believed they would in future have very few cases of such brutality, because a man would think once, if not twice, before he brutally assaulted his wife or his children, for it was well known that the greatest bullies were the most arrant cowards. As to the talk of the hon. Member about flogging at a cart tail, and the other exaggerations in which he had indulged for the purpose of arousing the sympathies of the House, all he could say was that he believed their duty was to protect women, children, and weakly persons from such outrageous assaults, and, for his own part, he had not the slightest sympathy with the spurious sentimentality which would let off the ruffians who committed such brutal assaults without condign punishment. The fact that violent assaults were allowed to go without adequate punishment was more likely to brutalize a whole population than the other fact, that the commission of such assaults was certain to be followed by punishment in kind. The measure was purely of a preventive character, and as such it would have his cordial support.
§ MR. SHAW-LEFEVRE
, in supporting the Amendment of the hon. Member for Leicester (Mr. P. A. Taylor), remarked that in the course he was taking he was not impelled by any feeling of spurious sentimentality as it had been called by the hon. and gallant Member who had just sat down. The object of punishment was to deter crime, and if it could be proved to his satisfaction that flogging would have that effect, he would support the Bill; but it was because he was convinced that corporal punishment of a severe kind had always increased instead of diminished those crimes of violence and brutality that he opposed it. For nearly three centuries flogging prevailed both in England and on the Continent, but at the present moment England was the only country in which it was retained. He found that at one time ladies of honour were flogged for breaches of etiquette by the masters of ceremonies at some Continental Courts, and Peter the Great, when he was young, flogged his Court ladies, and when he was older he flogged his generals. Where it had been aban- 1872 doned the reason for the abandonment had been that it was found impossible to tame a brutal man by inflicting a brutalizing punishment upon him, or permanently to decrease the number of the criminal classes by retaliatory punishments. He would ask the House whether the amelioration of our criminal law had not produced a great improvement in this respect. In 1842, when our population was 16,000,000, the number of persons convicted and sentenced to transportation or penal servitude was 4,718. In 1872, during which interval great ameliorations had been introduced, and when the population had increased to 23,000,000, the number of convictions had fallen 1,514, or less than one-third in 30 years. It was strange, however, that the Judges had always been the most strenuous opponents of every attempt to humanize our law. ["No, no!"] He said that and repeated it. In 1820, when it was proposed to abolish capital punishment for the offence of stealing goods of the value of 5s., Lord Ellenborough, in the House of Lords, said the Judges were unanimously against the proposal, and he added, if it was agreed to, "we shall not know whether we are standing on our head or our feet." He confessed, therefore, that he was not surprised to find the Judges in favour of flogging. There was something in the position of a Judge which led him to favour retaliatory punishments. ["No, no!"] He repeated there was something in the position of a Judge which inclined him to favour retaliatory punishment—he would not call it "torture." ["No, no!"] Why, he was just reminded by his hon. and learned Friend the Member for the City of Oxford (Sir William Harcourt) that Baron Bramwell had made use of the expression that there ought to be a power of retaliation on offenders—of causing them to suffer pain similar to what they had inflicted, and the same opinion was given by many others of the Judges. It had been said that this Bill was justified by the result of the Bill of 1863, which was brought in to put down the offence of garotting and crimes of robbery with violence. It was true that the brutal crime of garotting was put down in a short time, but the brutality and violence was only turned into another direction. Crimes of violence, 1873 instead of diminishing, increased, and the figures of the hon. Member for Leicester he regarded as conclusive on this point. From judicial statistics it appeared that for the five years previous to 1863, when the Act was passed, the number of robberies with violence was 290 a-year, while for the five years subsequent to that date the number was no less than 383—nearly 100 a-year more. As to garotting itself, all the evidence pointed to this, that there was a sudden outbreak in 1862, and that only about 90 persons altogether were concerned in it. Sir George Grey, who was Home Secretary at the time, admitted that the outbreak had entirely ceased before the Bill was brought in, and it was also testified by Lord Aberdare that it had ceased by November, 1862. The fact was, that within a few weeks after the outbreak the offenders were all in prison. Lord Aberdare had assured him that the Home Office in December, 1862, was pestered by people who complained of having been the victims of garotting, but that on investigation not one of them proved to be a genuine case. Among the cases which proved not to be founded in truth was one of a young lady who said she had got a black eye and had her hair pulled out by garotters; but it turned out that she did not lose her hair by garotters, but that she had actually sold it. ["Oh, oh!"] He had the fact, and others that he had stated, from Lord Aberdare, who was then Under Secretary for the Home Department. The fact was, that the "panic" from the fear of garotting continued long in the public mind after the crime of garotting had ceased, and in many instances persons who alleged that they had been garotted and treated with great violence were found on inquiry by the police to have fabricated their complaints. It was alleged that brutal assaults had greatly increased during the last few years. The Blue Book contained Returns from the chief constables of the number of such cases, but no total for the whole country was given. Adding them up, he found that the numbers of brutal offences for which offenders were tried and convicted were—in 1870, 371; in 1871, 311; in 1872, 311; in 1873, 312; and in 1874, 351, showing no substantial increase of brutal assaults. The assaults summarily convicted were as follows:— 1874 in 1870, 3,076; in 1871, 2,566; in 1872, 3,164; in 1873, 3,212; and in 1874,3,777; and the increase was confined to Lancashire, the West Riding, Stafford, and Durham, where there had been a great rise of wages and a proportionate increase of drinking; but the increase of crimes of violence caused thereby was not necessarily of so permanent a character as to justify a change in our legislation, and now that wages were lower these crimes would probably diminish. Again, certainty was an essential element in criminal jurisprudence, and the Bill would fail in this respect. If there was any class of offences to which the promoters of the Bill would wish it to apply, it was to wife-beaters. He was by no means sure that the Bill was so worded as to apply to them; but supposing that it did, he would remind the House that greater powers had been given to magistrates to punish aggravated assaults upon women than upon men. A magistrate might send an offender of this kind to prison for six months with hard labour, while in ordinary assaults the limit was two months without hardlabour. It was found that if wife-beaters were to be punished at all they must be dealt with summarily, for if the investigation were deferred, the wife would not appear and give evidence against her husband. If the Bill gave power to the magistrates to send these oases to the Assizes, what chance would there be that the wife would give evidence against the husband? And if she did, would any Judge flog the husband and then send him back to the arms of his unloved, but, perhaps, loving wife? After such a punishment the husband could never regard his wife again with affection or respect; and he (Mr. Shaw-Lefevre) put it to the right hon. and learned Recorder whether, after such a degrading punishment, a divorce between the parties would not be advisable as the best course that could be adopted, for they could never be expected to live in peace. He, however, saw no clause in the Bill to that effect. Another element of uncertainty was this—that there were flogging and non-flogging Judges. It was well known that some Judges would not administer flogging—it would depend, therefore, upon what Judge went the circuit whether such punishment were awarded 1875 or not. Another element of uncertainty was this—As magistrates might commit either to Assizes or sessions, and as flogging was to be ordered only by Judges, non-flogging magistrates would commit to sessions. Again, juries often refused to convict of offences which carried certain punishments, non-flogging jurors would not find verdicts for the serious offence which was to be punished by flogging. These elements of uncertainty would very seriously affect the administration of the Bill if it became law. The increase of crime was in the less serious class of cases which were dealt with summarily, and to which, therefore, this Bill would not apply. The Judges themselves complained that magistrates dealt with cases they ought to send for trial; and it was a question whether, in the case of wife-beaters, greater power should be given to the justices of dealing with this class of offence. In conclusion, he objected to the extension of flogging as impotent to prevent crime, tending to perpetuate and create a brutal class in the community, and to increase those very crimes it was intended to diminish.
§ MR. HENLEY
side, when the Bill was introduced he asked himself these two questions—first, whether there had been any increase of the crime it was intended to meet, and, what was more material, how far the existing law had been put in force; for unless the present law was put in force they were acting mischievously if they attempted to meet any spasmodic outbreak of crime by fresh legislation, inasmuch as they were only tempting those who had in their hands the administration of justice to be lax and careless in carrying out their duty. It had been pointed out, and he could confirm the statement, that up to 1873, there had been no increase of this kind of crime in the previous 10 years, cither relatively to the increase of the population or positively in the number of offences sent for trial in the Courts of Record, where they could receive more serious punishment than magistrates could administer summarily. In the live years from 1864 to 1869 the number of cases in Class I., which ranged from murders down to common assaults, was 12,300, and in the five following years the number was 10,797. Assaults attended with bodily harm numbered 3,383 in the first five years and 3,274 in 1876 the second. Common assaults fell from 1,231 in the first five years to 929 in the second. Assaults on police-officers fell from 1,100 to 460. Clearly up to 1873 there was no great necessity for legislation. In the Blue Book recently circulated, certain crimes were classified under the head of "Brutal Assaults," but he could not institute a comparison with regard to these, because it was faulty in this respect—that in the areas formerly given were the counties including the large towns, whereas in the Blue Book just referred to, the counties proper, exclusive of the borough jurisdictions, were taken as the areas. The number of aggravated assaults on women and children was 3,203 in 1864 and 2,713 in 1873. These figures again showed a remarkable diminution. There might have been a spasmodic increase in the last year; but it would be better to wait and see whether the law had been fairly put in force within the last 18 months by sending the severe cases for trial, when they would receive proper punishment. They could not shut their eyes to the fact that, during the reign of Her present Majesty, a most remarkable relaxation of punishment had taken place, which, perhaps, had never before occurred in the history of this country. Of the class of offences under consideration, notwithstanding an increase of population of 50 per cent. the number of cases were, in the period of 1834–37, as nearly as possible identical with what they were now. He did not think the House had sufficient evidence fairly to induce them to legislate; because if they did legislate without full knowledge and persuasion, that the law was not, at present, fairly enforced, it would tend to lead to a lax and careless administration of the law. He could not, therefore, vote for the second reading of the Bill.
§ MR. HOPWOOD
, in opposing the Bill, side, that under the present law 50 lashes might be inflicted, and the punishment might be repeated, whereas the present Bill limited the punishment to 25 lashes. That, he thought, was an indication that the Home Secretary himself did not like the Bill. His hon. and learned Friend the Member for Barnstaple (Mr. Waddy) said that he had considerable experience in criminal cases; but so had others who did not agree with his hon. and learned Friend. The Judges themselves were not agreed. Mr. Jus- 1877 tice Keating wrote to the effect that, so far as his experience went, he had not observed the law to be deterrent. That learned Judge remarked of an Assize which had come after a flogging Assize, that he had been obliged to inflict larger and heavier sentences. Mr. Justice Denman had also said that a man came back to him who had been flogged, and he had to give him a heavier sentence and penal servitude, and that, so far as he could judge, flogging was not successful. No doubt there were other Judges who did not take this view, but took that which was almost universal among officials. Flogging was substituted for burning in the hand by the 19th of Geo. III., and by the 7th and 8th of Geo. IV. it was reserved for certain offences. But that statute had never been repealed unless by implication in the Consolidation Statute. In the case of women, whipping was abolished, but not in the case of men. But everybody grew sick of it, and with one consent it was given up. So disused had it become that every one thought it had been abolished by statute. As the punishment had thus been voluntarily given up he trusted the House would never lend itself to re-enact it in the smallest degree.
side, he recognized with regret the stern necessity of some legislation in the direction of the leading principle of the Bill. It was necessary, however, and he had no option but to accept the measure. One reason why he did not hesitate to accept the Bill was because he thought that punishments under it would be of very rare occurrence. Only in exceptional cases and to punish exceptional brutality would the lash be resorted to. He believed that the infliction of an exceptional punishment in cases of exceptionally brutal offences would put an end to the practice of brutality, for the reason that men's minds would naturally revolt alike against the crime and the punishment, and both alike would lessen in frequency. He could not for a moment admit that the measure was drawn in a spirit of retaliation. Its framers recognized the principle that the sole end and aim of punishment was to deter from the commission of crime, and had drawn their Bill accordingly. One principle in the Bill, he thought, required further consideration. The principle on which our legal reforms had been framed was that 1878 of expediting the administration of justice, and so lessening the expense attendant thereon. If a man were committed in August to the Assizes and there was no Winter Assize he might have to remain in gaol six months before he was tried. There was no reason why courts of quarter sessions should not be empowered to deal with offences of this sort. He therefore hoped the Home Secretary would consent to these eases being dealt with by them.
§ MR. MUNDELLA
side, that as many hon. Gentlemen desired to speak on this highly important subject, and as the debate had not commenced until half-past 9 o'clock, he would move the adjournment of the debate.
§ MR. DISRAELI
The hon. Member for Sheffield has not done justice to his own case in saying that the debate did not begin until half-past 9. I trust he was engaged in a more agreeable manner in another place. Considering that the debate did not begin until half-past 10, I think he is justified in moving the adjournment of the debate.
§ SIR WILLIAM HARCOURT
side, that they had heard the weighty opinions of his right hon. Friend the Member for Oxfordshire (Mr. Henley), who always spoke with an authority which was acknowledged by the House, and he (Sir William Harcourt) was surprised at the absolute silence of the Government. They did not attempt to answer the statements made against the Bill. If it were necessary, it was the greatest public slander ever inflicted upon the English people. ["Oh, oh!"] Neither France, Germany, nor America inflicted such punishments. What would they think of England if such a Bill were allowed to pass without discussion?
MR. ASSHETON CROSS
had supposed that the Motion for the adjournment of the debate was intended for purposes of discussion. It was not the fault of the Government that neither he nor the Solicitor General had addressed the House in this debate. He had explained the object of the Bill when he brought it in, and he was quite ready, when he had an opportunity, to defend it.
§ SIR WILLIAM HARCOURT
I spoke under an entire delusion. I thought that the First Lord of the Treasury opposed the adjournment of the debate.
§ Motion agreed to.
§ Debate adjourned till Thursday.