HL Deb 28 April 1864 vol 174 cc1757-60

Bill read 3a (according to Order).

LORD WODEHOUSE

said, on a former occasion, he had given notice of an Amend- ment which he intended to move on the third reading. The punishment of flogging might be very appropriate in many cases of rape, but was not necessarily so in all, and the object of his Amendment was to render it discretionary, and not compulsory, on the Judges to order the infliction of flogging in addition to the other punishment in cases of conviction. This would be effected by striking out the word "shall" from the first clause, and restoring the word "may" as it stood in the original Bill.

Amendment moved, to reinstate the word ("may") in lieu of the word ("shall").

LORD WENSLEYDALE

opposed the Amendment upon the ground, that if the punishment of flogging were to be inflicted at all for the crime, that sentence should be made compulsory.

THE LORD CHANCELLOR

said, that it was necessary to consider what would be the effect of a particular kind of punishment, not only as deterring from crime, but as influencing a jury in convicting a prisoner. Now, however much the Judges might differ as to the propriety of inflicting the punishment of whipping at all in the cases to which the Bill referred, they were, he believed, unanimous in holding that, if authorized, a discretionary power should be given to Judges to inflict it. If it were made compulsory it would tend to produce a greater disinclination in juries to convict than existed at present. He had previously received the opinions of the Judges of the Common Pleas and Exchequer in that sense; and he had since learned the unanimous opinion of the Judges of the Queen's Bench, to the same effect, through a letter from the Lord Chief Justice. That learned Judge stated it to be his persuasion that the reluctance and hesitation of juries to convict did not arise from any want of a proper abhorrence of the offence, but from the frequency of cases in which this charge was made either without any foundation, or where the woman turned round upon the man to whom she had given encouragement. Hence the Judges thought that to make flogging compulsory would have the effect of increasing the disinclination of juries to convict, and that it would be better to make it discretionary.

THE MARQUESS OF WESTMEATH

said, after what he had heard he should be unwilling to do anything that would be likely to endanger the result of trials of this character. He would therefore assent to the Amendment.

EARL GREY

said, that the arguments contained in the letter of the Lord Chief Justice did not bear out the conclusion which it announced. He had no doubt that charges of rape were frequently made without just grounds. No man, however, ought to be convicted unless there was a reasonable certainty of his guilt; and in such a case he did not see why a jury should be indisposed to convict merely because the consequent punishment would be a flogging. In his, opinion the sort of punishment which was inflicted on an animal was exceedingly fit and appropriate as the penalty of so brutal a crime.

On Question, their Lordships divided:

Contents, 55; Not-Contents, 20; Majority, 35.

Resolved in the Affirmative.

THE MARQUESS OF WESTMEATH

, in moving that the Bill do pass, expressed his opinion that it was most injudicious ever to have taken away the capital punishment for offences of this sort where more than one person was concerned.

Bill passed, and sent to the Commons.

CONTENTS.
Westbury, L. (L. Chancellor). Annaly, L.
Aveland, L.
Belper, L.
Devonshire, D. Boyle, L. (E. Cork and Orrery).
Somerset, D.
Carew, L.
Bath, M. Chelmsford, L.
Bristol, M. Chesham, L.
Westmeath, M. Clandeboye, L. (L. Dufferin and Claneboye).
Albemarle, E. Cranworth, L.
Bandon, E. Dacre, L.
Bantry, E. Dartrey, L. (L. Cremorne).
Carnarvon, E.
Cathcart, E. Foley, L.
Clarendon, E. Houghton, L.
De Grey, E. Lismore, L. (V. Lismore).
Ducie, E.
Effingham, E. Methuen, L.
Hardwicke, E. Monson, L.
Home, E. Overstone, L.
Lucan, E. [Teller.] Ponsonby, L. (E. Bessborough).
Romney, E.
Saint Germans, E. Rivers, L.
Stanhope, E. Rosebery, L. (E. Rosebery).
Stradbroke, E.
Verulam, E. Saltersford, L. (E. Courtown).
Wicklow, E.
Eversley, V. Skene, L. (E. Fife).
Hardinge, V. Somerhill, L. (M. Clanricarde).
Leinster, V. (D. Leinster). Stanley of Alderley, L.
Sydney, V. Taunton, L,
Wodehouse, L. [Teller.]
St. Asaph, Bp.
NOT-CONTENTS.
Marlborough, D. Hunsdon, L. (V. Falkland).
Derby, E. Inchiquin, L.
Ellenborough, E. Lyttelton, L.
Grey, E. [Teller.] Lyveden, L.
Harrowby, E. Silchester, L. (E. Longford).
Hawarden, V.
Sundridge, L. (D. Argyll).
Churston, L.
Colville of Culross, L. Tredegar, L.
Congleton, L. Wensleydale, L. [Teller.]
Dunsany, L.
Harris, L. Wynford, L.