§ MR. HOPWOODasked Mr. Attorney General, Whether he is to be understood to be of opinion that, wherever "whipping" was mentioned in a penal Act, as for instance the 5 and 6 Vic. c. 51, for the Protection of Her Majesty, "scourging" or "strokes with a birch rod" could be lawfully substituted under that term; whether the "whipping" in the 5 Geo. 4, c. 83 and, previous Vagrant Acts, was inflicted by the vagrant being carried to
Some market town, there tied to the end of a cart, naked, and beaten with whips throughout such town or place till his body be bloody with such whipping:and, whether any statute has been passed since to change that Law?
§ THE ATTORNEY GENERAL (Sir HENRY JAMES)I understand my hon. and learned Friend entertains the view that wherever whipping can be inflicted under a penal Statute the prisoner must always be flogged with a cat-o'-nine-tails or some such instrument, and cannot legally be punished with a birch-rod. I am aware that my hon. and learned Friend's view is that the more severe flogging would not be inflicted, and from humane motives he desires to get rid of the whipping altogether. I do not, however, agree with him; for, although formerly the flogging was of the most severe character, yet in modern times, in the interests of humanity, its severity has been modified, and I think such modification is within the discretion of the Court passing the sentence. I may add that in 26 Vict. c. 51, and the 1300 three Consolidation Acts of 1861, under which whipping can be inflicted, express provision is made that the instrument with which the punishment is inflicted shall be specified in the sentence.