HC Deb 22 February 1876 vol 227 cc675-6
MR. P. A. TAYLOR

asked the Secretary of State for the Home Department, Whether his attention has been directed to two actions which were tried in the Westminster County Court on the 27th January last, before a jury, in which damages to the amount of £15 5s. were recovered against Reginald Garton Wilberforce, esquire, of the Temple and of Graffham, Sussex, barrister at law, and justice of the peace for the county of Sussex, for assaulting two boys, the sons of an agricultural labourer, by removing their clothes and violently flogging them on their bare bodies until they were covered with blood, for the offence of digging a rabbit out of a hedge on his estate, the defendant having given them the alternative of submitting to be whipped or of being prosecuted before the bench of which he was a member; whether he has caused inquiry to be made into the circumstances under which those assaults were committed; and, whether he has made, or proposes to make, any representation to the Lord Chancellor, with a view to the removal of Mr. Wilberforce from the bench of magistrates?

MR. ASSHETON CROSS

I have communicated with Mr. Wilberforce since this Question was put on the Paper, and I am authorized by him to state that there are one or two inaccuracies in the Question placed upon the Paper, the main one being the statement that he was a member of the bench of magistrates before whom this case would naturally have been brought. But I also thought it my duty to communicate with the County Court Judge who tried the action. I think the best answer I can give is to read his answer. He says— The boys were found rabbiting in Mr. Wilberforce's land, not for the first time. Mr. W. complained to their father; he would not, he said, prosecute such youngsters, and he asked the father to punish them. The father said he could not flog them himself, because his hand was disabled; but he asked Mr. W. to flog them, and promised to send them to him for that purpose. Accordingly, the following morning, the boys went to Mr. W. He asked them would they take a flogging or go to Petworth; each said he would rather have a flogging; each let down his own clothes; each stood, and Mr. W. flogged each of them with a birch rod, but did not lay his hand on either of them. He gave each of them such a flogging as a boy at Eton would have got in my time. The younger boy boasted a day or two after that he did not mind it a bit. The question left to the jury was whether the flogging was, under the circumstances, too severe. They found for the plaintiff—damages, £10. The jury probably wished to mark their disapproval of Mr. W. thus placing himself in loco parentis; but had the facts been as suggested by Mr. Taylor they would, I have no doubt, have given much larger damages. I thought the maxim volenti non fit injuria applied except as to any excess, and that the law was not as stated in the 'Pleader's Guide' as the result of 'Matthews v. Offerton,' that famous beating in 'Comberbach,' 218— 'Where one a beating underwent By his own license and consent, Court held, and so it was understood, The license void, the beating good.' I am bound to say that, in my opinion, the flogging was an error of judgment on the part of Mr. Wilberforce. I have his authority to say that it is a matter which he most deeply regrets. In conclusion I can only say, in answer to the last part of the Question, that the act of Mr. Wilberforce was not a part of his duty as a magistrate. What he did was not done in his judicial capacity.

MR. P. A. TAYLOR

gave Notice that on an early occasion he would call the attention of the House to this case and move a Resolution.