§ MR. HOPWOODasked Mr. Attorney General, Whether, in recently commenting on the three consolidated Criminal Acts as justifying the view that a sentence of "whipping" might be altered into "strokes of the birch rod," he had overlooked the fact that the "whipping" in those Acts only applied to male offenders under sixteen years of age; and, whether there is any other Statute which authorises the change from whipping to "strokes with the birch rod?"
§ THE ATTORNEY GENERAL (Sir HENRY JAMES)My hon. and learned Friend is somewhat pertinacious in showing that he differs from the opinion that I have already twice expressed in answer to Questions he has put to me in this House. His view is that whenever the punishment of whipping is directed to be inflicted the instrument to be used must be a cat-o'-nine-tails or scourge, and cannot be a birch rod. I do not think so. No doubt, in practice, the cat-o'-nine-tails formerly was used, but in more recent times humanity has caused a departure from the old practice; and I think, where there is no provision to the contrary in the Statute regulating the punishment, the Court may specify the instrument to be used. In answer to the second portion of my hon. and learned Friend's Question I would refer him to the 26 & 27 Vict. c. 44, which is an Act under which garrotters are punished, and he will find that where the whipping is inflicted on offenders under 16 the birch rod must be used. But as to adults the Court must specify the instrument with which the punishment is to be inflicted. As my hon. and learned Friend has not accepted my view on previous occasions, I would refer him to the opinion of Sir James Stephen in a note to Article 12 of his Criminal Digest, in which he says that the only limitation as to the instrument with which a whipping can be inflicted is to be found in the declaration of the Bill of Eights against illegal and cruel punishments. I am anxious to remind my hon. and learned Friend that no modern Statute permits a man to be whipped more than 1634 three times; and as this is the third time he has returned to the attack, I hope he will in mercy relieve me from further castigation.