HL Deb 09 June 1863 vol 171 cc553-64

Order of the Day for the Second Reading read.


My Lords, the Bill which I now propose to your Lordships to read a second time is a very short one, and I can assure your Lordships that it is as simple as it is short. With your Lordships' permission, I shall take the liberty of explaining in a few words, what its object is. It gives power to inflict corporal punishment three times within the first six months, in the event of conviction, for any of those robberies which are accompanied with violence, such as were known in the course of last winter as "garotting" cases. After the discussion which the Bill has undergone in the House of Commons, I do not think it necessary to enter at great length or in minute detail into its provisions; but, as I am aware that objections are entertained to the measure by some of my noble Friends, I think it will simplify the discussion if I state as fairly as I can what I conceive those objections to be, and the arguments which suggest themselves to my mind as showing that the opposition to the Bill is not well founded. As I understand them, the objections to the Bill are on two grounds:—First, it is said that awarding a particular punishment for a particular offence must be regarded as special legislation; and secondly, because it awards corporal punishment, which the opponents of the Bill object to in any case whatever. Now, as regards the objection on the ground of special legislation, it may be very desirable to put a number of offences under one head and in one category; but that rarely can be accomplished in practice. It is very much the genius of English legislation, if I may use the term, to deal with each particular case as it arises, and to suggest the best remedy. That has been our practice for some years past. It is now, I believe, admitted that there has been a very considerable increase of crime during the last few years. Certainly there has been a great increase within the last year or two in crime accompanied by personal violence, and especially in the number of those attacks on the person which are generally known as "garotting cases." During the last autumn and winter very considerable alarm was felt in reference to those offences; and though I admit that there may have been considerable exaggeration in respect to garotting cases, there can be very little doubt that there was a large number of them. The alarm felt by the public was justified by the number of convictions for this class of crime; and it is really no exaggeration to say that for some time it was positively unsafe to walk in the public thoroughfares of London after nightfall. It is true that during the last few months there has been a decrease in the number of those cases, partly arising from an increse in the police force, and partly because in the summer season there do not exist the same facilities for the commission of the crime itself. But there is too much reason to fear that this improved state of things may not be permanent. I object, and I am sure your Lordships object, to legislation under anything like a panic. I believe that such legislation is most undignified, most unworthy of Parliament, and mischievous in this respect—that it generally provokes a reaction, and carries you back to the point from which you started. I ask the House to agree to the second reading of this Bill in order to avoid anything like that. It seems, however, to be reasonable, that where a particular evil exists it should be met by a particular remedy; and at this moment it is possible to legislate without panic, and at the same time it is possibe to legislate while the cause of the legislation is fresh in our minds. Your Lordships will observe that these garotting offences are generally committed by persons who have been convicted over and over again. These persons are not only inured to crime, but they unblushingly make it a profession by which to gain a livelihood, and combine a love of plunder with a system of personal violence and outrage such as was scarcely heard of even in the worst days of highway robbery. The intent must be looked to in all these cases; but where such violence has been used as is calculated to result in murder, we must not draw too nice a distinction if an intent to murder has been frustrated by some Providential interposition or some fortunate accident. I must say that Parliament has to thank itself in a great degree for this state of things. Unfortunately, it has been for some years the study of Parliament to mitigate every rigour of the law, to cut down punishments, to abate the severity of sentences, and, even when they are pronounced, to modify them very considerably. I think this course of legislation has contributed materially to give rise to a special case; and as we have such a case to deal with, we ought not to hesitate to apply a special remedy. There are two objections on the ground of corporal punishment—one, that it is demoralizing and degrading; the other, that it is ineffective. I think that many persons who argue against it on the former ground, give the class of which garotters are usually composed credit for motives and feelings which they neither possess nor comprehend. There are, I am afraid, in the world many persons of such low and base spirit that it is absolutely necessary, however painful it may be, to appeal to them by a fear of punishment rather than by holding out the promise of reward. Again, a great part of the opposition to the use of corporal punishment arises from an historical confusion in the minds of those who object to it. They assimilate the corporal punishment of this time to the corporal punishment of the 17th or 18th centuries. They imagine to themselves the pillory, or the culprit being whipped by the common hangman, in the manner that we read of. But I need hardly tell your Lordships that the corporal punishment of this day has nothing in common with the corporal punishment of the 17th or the 18th centuries. The present system has around it all those safeguards which have been imposed by modern legislation and modern custom, and it cannot be compared with what was inflicted in former times. I should be very sorry to institute a comparison between our sailors and soldiers and those miscreants whom it is the object of this Bill to punish; but as long as you apply corporal punishment to our sailors and soldiers, I cannot see on what principle or what logic you can object to it for the hardened criminal. There is only one other argument against this species of punishment with which I think it necessary to deal. It is said that it is an ineffectual kind of punishment; but I need only appeal to our own experience to negative this objection. In no less than three different cases, corporal punishment has been tried, and in all these three it has been invariably successful. The first is the case of juvenile offenders. Any one who knows anything of juvenile offenders, of the class from which they spring, and of the instincts under which they act, must know that in their case it would be impossible to surrender the power of inflicting corporal punishment. I do not mean to say that corporal punishment should be inflicted in all instances indiscriminately, but there are cases in which it is most important and invaluable. Your Lordships will remember the statutes passed three years ago for the consolidation of the Criminal Law. In those statutes, every penalty was systematically cut down and reduced; but so strongly did those who endeavoured to bring about an amendment of the law, feel on this subject, that they continued the punishment of whipping in the cases where it was still directed. With regard to offenders who are subject to penal discipline, there is in all cases on the part of the visiting justices a power of inflicting this punishment, though, unfortunately, the power has very often been allowed to lapse into desuetude. It would not be expedient for me to quote to the House from the evidence given before the Committee of which I had the honour to be the Chairman; but this I may say, because it is a fact perfectly familiar to any of your Lordships who have inquired into this subject, that all the ablest and most experienced governors of the gaols would object most strongly to part with the power of inflicting corporal punishment, and many of them will tell you that that punishment is so effectual that it has constantly stopped all repetition of the particular offence to which it has been applied. Lastly, you have the experience of two special Acts of Parliament, which were passed to repress special offences. In 1841 several unmanly and disgraceful attempts were made to inflict violence on the person of Her Majesty. Those attempts had been invested with a sort of morbid and spurious popularity, and were becoming common. It was at the time much discussed whether these offenders should be tried as for high treason, or whether they should be dealt with by a simpler process, and one corresponding better with the degraded character of the offence. In the end it was, I think, wisely determined to adopt the latter course, and the late Sir Robert Feel introduced a Bill allowing the presiding Judge at his discretion to award corporal punishment to any one who was guilty of this offence. It is quite true there were one or two attempts of the same nature after the passing of this Act; but the practice ceased to spread, and there has never been any attempt to revive it. But you have still a stronger case in another Act, which was passed a few years afterwards. In 1845 an attempt was made by some fanatic to break and destroy the Portland vase; and an Act was passed placing works of art under this protection, and giving to the presiding Judge the power of ordering the offender to be whipped. From that time to the present I believe there has not been one single instance of a conviction under this Act. Now, I do think that these cases—the case of juvenile offenders and prison offenders and our experience of the Acts of Parliament I have mentioned—are sufficient to show that corporal punishment can be made a most effectual check upon crime. It would be too much to presume, that if this Bill becomes law, as I trust it will, it will be as effectual in preventing the offence at which it is aimed as the two Acts I have alluded to; but I do think there is reason to hope that it will materially diminish a species of crime which, if some means are not taken, will certainly recur in an aggravated form in the next winter, and must then be dealt with. Under these circumstances, I beg to move the second reading of this Bill.

Moved, That the Bill be now read 2a.


My Lords. I confess that the introduction of this Bill has been to me matter of great regret and pain. Your Lordships are well aware that, for the last thirty years, Commission after Commission has been issued to inquire into the whole subject of our penal legislation. Acting upon those Commissions were Members of your Lordships' House, Members of the other House, judicial functionaries, and persons connected with the laws relating to criminals generally. The investigation took place, and the subject was inquired into, perhaps more exhaustively than any subject ever before Parliament. The result was, that in 1860 the late Lord Chancellor introduced a great number of Bills for consolidating the criminal law and affixing the proper punishment to each offence. Throughout these proceedings the punishment of whipping was regarded as altogether objectionable, and, except in the case of juvenile offenders under the age of sixteen, and in the other cases mentioned by my noble Friend, whipping was abolished. Now, if it was abolished from any sort of sympathy with the criminal, I certainly do not share in that sympathy; but I am persuaded that the infliction of whipping, if it becomes at all general, produces a sympathy for the criminal in the minds of those who hear the sentence pronounced, and so does great mischief. The law having been thus altered in 1861, a panic arose before two years had passed, owing to the prevalence of a particular crime; and if there were no other objection, I think that a measure of criminal justice introduced in consequence of a temporary panic is in itself greatly to be deprecated. It is quite true that in the last six months of 1862 the crime of robbery with violence greatly increased. Having been a Member of the Commission which sat on the subject of penal servitude, I happen to know that the number of cases reported to the Metropolitan Police within this period was eighty-two; whereas in previous years, during the same period, the number was only about twenty-eight or thirty. But since that time no increase in the number of these violent attacks upon the person have occurred, so as to justify such a measure as the present. I must appeal to the experience of your Lordships whether from time to time certain crimes do not come, as it were, into fashion. They prevail, and no one can tell the reason why. When I was at the University of Cambridge—now half a century ago—I can remember that near a village in Newmarket a stack was set on fire every week. No one could give a reason for the offence, but no farmer could preserve his property—the offence had become a fashion. Again, when I had the honour of being a common law Judge, the practice of a dreadful crime, that of poisoning, prevailed. No one could tell why or with what object. Then your Lordships will remember, that if one person threw himself off the top of the Monument, he was sure to be followed by two or three other persons; and it became necessary to put up an iron railing there and at the top of the Duke of York's Column. A few years ago burglaries were exceedingly prevalent, and a dreadful murder of a clergyman in Surrey was committed by burglars. Why do I allude to these subjects? Merely to show that you cannot by any legislation prevent at certain periods the occurrence of a particular crime. Now, having stated that there was in 1862 this great increase of robbery with violence, let me add that in December twenty-nine of these offenders, who are rather loosely called "garotters," were brought before the Criminal Court and convicted; and those who remember the sentences of Mr. Baron Bramwell will not think that they were at all too severe. What has been the result? Why, we have heard of no garotting since. I do not say that single instances may not have occurred; but my noble Friend has not told us that the commission of such robberies and violent assaults in the streets of the metropolis has been common since December last. Let us suppose that this Bill, instead of having been introduced at the beginning of the Session, had been brought forward now for the first time, would your Lordships not ask, "What is the necessity for particular legislation upon this particular crime? The fact is, that we are recurring, in some degree, to the objectionable courses of legislation which prevailed in the last century. Then, when any offence became common, as, for instance, stealing from a dwelling-house to the value of forty shillings, it was made a capital felony, until at last our statute-book became a discredit to any civilized country, and was obliged to be reformed. I think, therefore, my Lords, that as this subject has been practically considered for the last thirty years by persons most competent to form a sound conclusion, it is hardly consistent with common sense now to introduce, owing to a temporary panic, an enactment which is to form a permanent part of our criminal law. That of itself forms a serious objection to the Bill. But, further than this, I think the Bill will be absolutely inoperative. You are obliged to trust to the Judges a discretion as to the punishment they may administer. There are evils in the extent of that discretion; but much greater evils would arise from removing it, because it is impossible à priori to define what constitutes the essence of guilt which makes a greater or lesser degree of punishment advisable. My firm conviction is, that if this Bill becomes law, there will scarcely ever be an instance in which whipping will be applied to criminals, except to those under sixteen years. My experience as a common law Judge leads me to form that opinion; and more than that, one of the most experienced of Her Majesty's Judges told me, that having consulted six or seven of his colleagues, he believed the power would never be acted on at all. If that be so, we shall have an Act of Parliament which is the result of a panic, which panic has subsided, and the only effect will be to place upon our statute-book a law which will be a dead letter. Now, as to the panic itself, there were twenty-nine persons convicted and sentenced by Mr. Baron Bramwell; and Sir Richard Mayne is of opinion that that number includes a very large proportion of those who were concerned in the eighty-two cases of violence and robbery, and he is satisfied that among those who were convicted was one of the men who was concerned in the attack upon a Member of the other House. But the panic has now subsided, either because the present punishment is sufficient, or because the persons who perpetrated the crimes were all included in the number of those who had been convicted and sentenced to imprisonment, which will prevent them from renewing the offence for some time to come. There is another objection to this Bill. No sentence can be pronounced with a knowledge of the exact extent of the punishment, because there is no one who knows how to flog. In the army soldiers, I believe, are taught to flog; so that when an unfortunate man is sentenced to the lash, it is sure to be administered by an experienced hand. In unpractised hands the flogging may be severe or it may be trifling, and thus the element of uncertainty is introduced. At present, criminals under sixteen must be flogged with a birch rod; but the Bill provides that with respect to other criminals of the class specified the punishment may be inflicted "with any instrument the Court may direct." Can the Judge sentence men to be bastinadoed? That is a very objectionable power; but even if the instrumeut be the cat-o'-nine-tails, I am told that those cats differ among themselves so much that their application in some cases is extremely severe, while in others it is very trifling. This element of uncertainty alone should make your Lordships hesitate to pass this Bill. There are other objections which may be certainly remedied in Committee, but which I refer to only to prove how hasty and unconsidered is this legislation. Who is to be flogged? Every person who garottes another, or commits violence with intent to rob. But if a man knocks down another and cruelly assaults him, if there is no intention to rob, this punishment is not to be inflicted. We have heard of a case where one man bit off the nose of another, disfiguring him for life; and why, if flogging be right for garotters, should it not be right for such ruffians? Then, again, it is provided that the punishment shall be penal servitude for life, or for any term not less than three years, or imprisonment for not more than two years, or to be once, twice, or thrice privately whipped; but the whipping may be in addition to, or in substitution of, any other punishment. But how can a man be sentenced to three whippings in substitution for other punishment? Is he to be flogged in the court—for there is no provision for his being taken back to prison? and where is he to be in the interval between the whippings? Even in cases of sentences of death, so strict is the construction of law that a Judge does not at once sentence a man to be hanged until he be dead, but first orders that he be taken back to the place whence he came, and then pronounces the remainder of the sentence. I admit that these objections are not incurable, but they show that the Bill has been introduced hastily, with a laudable motive, no doubt, to meet an evil; but in attempting to cure that evil it will introduce several others, and is wholly at variance, with the legislation sanctioned by Parliament two years ago. For these reasons I move, as an Amendment, that this Bill be read a second time this day six months.

Amendment moved, to leave out ("now") and insert ("this Day Six Months").


said, the authority of the noble and learned Lord was always great in that House, but upon the present occasion he was unconvinced by his arguments. The noble and learned Lord began by objecting, that as we had so recently consolidated our statute law, it was not desirable to begin to make changes. No doubt that argument was one that had some weight; but no one could contend that because the statute law was consolidated three years ago, after careful consideration, they were precluded from making any amendment of the law where amendment was shown to be necessary. He thought in this case that necessity had been shown. There was now a particular punishment assigned to a particular offence, and it was found that that offence, so far from being diminished, had increased till it had become a source of great, though no doubt to some extent exaggerated, alarm. It was proposed by the Bill, to endeavour, by a new kind of punishment, to deter men from that crime. He could see no reason why they should not try the experiment. The noble and learned Lord had stated that he had no sympathy with the criminal who was to be subjected to this punishment; and no one would have. The punishment could not be said to be excessive, for it was limited by the Bill to fifty lashes at one time; and he thought that met the objection that they were returning to the barbarous legislation of the past century, His noble and learned Friend used one argument which had surprised him much as coming from him. It was said, that if the Bill passed, the law would be inoperative, because the Judges would seldom sentence any offender to the punishment which the law directed. The Judge had the discretion, no doubt, to apportion the sentence to the particular occasion, but that discretion was limited by the intention of Parliament; and he had too much respect for the judicial Bench to suppose, that whatever their private opinions might be as to the policy of the law, they would fail to give effect to the intention of the Legislature. Then the noble and learned Lord said that the sentence would be uncertain, because the person administering the punishment might, in one case, have a strong arm and in another a weak arm. But that was an objection which applied equally to the sentences of courts-martial, and in all cases where corporal punishment was inflicted within the gaols. Under the present law a convicted criminal, for gross misconduct, was subject to punishment by the lash; and in the course of the inquiry upon the subject of prison discipline, the witnesses, almost without one exception, stated flogging to be a salutary punishment, and that they would be sorry to see it abolished. The noble and learned Lord had pointed out one or two defects in the Bill—as, for instance, that the flogging might be in substitution for imprisonment, while it was not provided that the man should be imprisoned till the flogging had been administered; but that was a fault that could be easily remedied in Committee. 'As to to the objection in regard to the kind of instrument, it was impossible to define a Parliamentary cat; but perhaps the most convenient way of getting over the difficulty would be to leave out that part of the Bill which provided that the Judge should direct with what instrument the punishment should be inflicted, and to leave that matter to a general order of the Secretary of State. As to the main object of the Bill, he believed that it would very much diminish the class of offences which it was intended to punish, for it was a kind of punishment which this class of offenders dreaded more than any other. If it were thought desirable to extend the provisions to any other class of atrocious offenders, he saw no objection to doing so.


I wish to say a very few words on this question. I must say that the speech of my noble and learned Friend, who has had so much experience in the administration of criminal law, appears to me perfectly unanswerable. The attempt which was made to reply to it by my noble Friend who has just sat down is, I think, the only speech I ever heard from him in which there appeared to be no argument whatever. I must apologize to my noble Friend for saying so, but really in no one sense did he answer the remarks made by my noble and learned Friend. I think it most objectionable to legislate on a panic, and the panic in which the Bill originated has now gone by. My noble Friend says that because the criminal law was consolidated two years ago is no reason why we should be debarred from improving a certain portion of that law now. I do not consider the consolidation of the law final; but it is, I think, a reason why, the subject having been intrusted to legal Committees of very high character and brought to one point we should be very careful not to make little innovations—small holes in the corners of the consolidated statutes quite inconsistent with the tenour of the law. Then, as to the punishment of whipping being applied only to one class of offenders, ought it not to be extended to a case, for instance, of two men who committed a savage assault on a woman for a particular purpose? I say, my Lords, it is monstrous to limit the punishment of whipping to one class of offenders under the influence of a sort of panic which has now passed away. It is no doubt true that evidence was given by the governors of gaols as to the very favourable effect of flogging in certain cases; but I believe that the flogging in those cases was altogether of a different character. The punishment assigned for a particular offence may not deter a criminal, because he really believes he will not be caught; but in prison the difficulty is to find an aggravation of punishment which will have any effect without interfering with the health of the criminal, and in such cases flogging has been introduced; but, as I have said, I believe the cases are not parallel. No doubt this Bill has been carried by a large majority of the House of Commons; but if my noble and learned Friend presses his Amendment to a division, I certainly, for one, will vote with him. At the same time, I cannot help thinking, seeing the benches opposite so very full, if they are all of one opinion, having been brought together, not by the severe pressure of the cat-o'-nine-tails, but of the more mild and conciliatory whip of a noble Friend I see opposite, we had better be satisfied in saying Not Content without a division, reserving to ourselves, though I think it will be difficult, to endeavour to improve some of the more ridiculous provisions of the Bill in Committee.


said, it depended upon the instrument used, the handle, the lash, and the knots, whether they made the punishment of no value and no terror to those who received it, or whether they made it a real and severe punishment. Unless the character of the instrument was defined, the provision might be useless.


observed, that an instrument of the kind was kept in all our gaols. He would only add that the governor of the gaol in Staffordshire had assured him that he had never occasion to apply the punishment a second time.

On Question, That ("now") stand Part of the Motion? Resolved in the Affirmative: Bill read 2a accordingly, and committed to a Committee of the Whole House on Thursday the 18th Instant.