§ Amendment reported (according to Order).
THE EARL OF CARNARVONmoved the omission of the proviso at the end of the first clause, so as to make it a special clause in the Bill, and moved to insert a clause placing in the hands of the Judge the discretionary power of whipping where the offender was convicted of an intent to commit the crime. Their Lordships would doubtless remember that in Committee on the Bill a change was introduced, rendering it compulsory on the Judges to award the punishment of whipping where a person was convicted of the crime. He was anxious to leave the discretion, as far as possible, in the hands of the Judge, especially as in other respects the Judge must have that discretion, and would move the Amendment of which he had given notice.
§ THE EARL OF HARROWBYsaid, the crime of committing rape was such a disgusting one, that, although it might generally be right to leave the amount of punishment to the discretion of the Judge, he would in cases of rape make whipping compulsory.
THE LORD CHANCELLORsaid, that 1282 since this subject was last under discussion he had made some inquiries with the view of ascertaining whether making the infliction of the punishment of flogging compulsory would be more likely to produce greater certainty of punishment, or to augment the disinclination of juries to convict in cases of this sort. He found that in the year 1862, 135 cases of rape were tried, out of which there were eighty acquittals—an unusually large proportion. He had also consulted the Judges upon the subject, and although he had not obtained answers from all of them, the opinions of the majority of those from whom he had heard were in favour of annexing this punishment to the existing one, provided its imposition should be left to the discretion of the Judge. They admitted that it was a fitting punishment, but felt that in cases in which there was any uncertainty about the charge, if the punishment were made compulsory it would increase the disinclination of the jury to find a verdict of guilty. Under these circumstances he should be glad to see the punishment made discretionary rather than compulsory.
LORD WODEHOUSEthought that on the whole their Lordships would do wisely not to make the punishment compulsory. The other night he thought it would be desirable to make a distinction in the punishment for the committal of the crime and the attempt to commit; but now he was of opinion that it would be safer to leave the punishment in both cases to the discretion of the Judges.
§ EARL GREYpointed out that the effect of the Amendment proposed to-night, taken with the Amendment made on the previous debate, would be to render the punishment compulsory when the offence was committed, but discretionary when the offence was not committed.
THE EARL OF CARNARVONsaid, that so far as the Bill made the punishment compulsory that was not part of his Amendment. The Amendment simply went to make the punishment discretionary on the attempt to commit the crime.
§ THE EARL OF DERBYsaid, that the last time the Bill was before the House, the clause was amended to make the punishment compulsory in the case of a conviction for an actual committal of the offence. His noble Friend now sought to leave the discretion with the Judges in the cases of attempt to commit the crime.
LORD WODEHOUSEsaid, he would 1283 rather see the clause restored to its former position, that the word "shall" should stand in the place of "may."
§ EARL GREYsuggested that the House should now agree to the addition to the clause, and that on the next stage of the Bill the whole clause should be again considered, with a view of making the punishment of whipping discretionary and not compulsory in all cases.
§ Amendment agreed to.
§ Bill to be read 3a on Thursday, the 28th instant, and to be printed as amended. (No. 52.)