§ Order of the Day for the Second Reading, read.
THE EARL OF MILLTOWN
My Lords, it will probably be within the recollection of most of your Lordships that some six and twenty years ago a terrible epidemic of robbery with violence broke out in the Metropolis, and, to a certain extent, all over the country; persons were seized from behind and throttled, and very serious injury done to them. That was a common and constant occurrence, and no one felt himself quite safe going home in the evening from attacks of this kind, and it 1350 was not unusual for even ordinary citizens to go about armed. The offence was called, as your Lordships will remember, from its resemblance to a Spanish mode of execution, garrotting. It was in vain that the learned Judges passed long sentences of penal servitude; nothing seemed effective to put a stop to these crimes. The public on all sides called out for something to be done, but the Home Office, as usual, remained quiescent. Nothing whatever was done by the Home Secretary, at that time Sir George Grey, and from his non-interference in these matters he was supposed to have earned a considerable amount of popularity amongst the criminal classes. I recollect a cartoon in Punch at the time, which represented two or three garrotters attacking an old gentleman, and just as they were about to perform their usual operation one of them calls out to the other, "Let him alone, Bill; it is our non-interfering friend, Sir George Grey." My noble Friend on my right (Lord Norton), then Mr. Adderley, a Member of the other House of Parliament, threw himself as it were into the breach. He brought forward a Bill for subjecting persons guilty of robbery with violence to the lash. This measure met with no support from the Home Secretary, nor from the Government of the day; but, backed by the opinion of the country and the good sense of the House of Commons, my noble Friend persevered with his Bill, and eventually it passed into law. That Bill proved a very great success, and but a very short time elapsed after it had been put into effective operation before robbery with violence began considerably to diminish; the miscreants who were so perfectly reckless of the sufferings of others had a very sensible dread of incurring physical pain themselves, 1351 and no very long time elapsed before the crime of garrotting faded away and your Lordships will observe that in the sentences now passed by the learned Judges, it is but seldom that they have to have recourse to the punishment of the lash. Therefore, my Lords, what was then only an experiment has now become a proved success. But since that time, and within the last few years, a new form of robbery with violence has arisen which is untouched by the Act of 1863. I mean the custom which the criminal classes have lately adopted of arming themselves with revolvers when about to set out upon their depredations, with a determination to use them remorselessly, either to effect their object, or to enable themselves to escape from capture. I need not now stop to remind your Lordships of the numerous cases which have occurred. I may mention, however, en passant, the affair not long since in Mayfair, where a policeman, finding two men about to commit a burglary in the area, was remorselessly shot down by them, and the villains effected their escape. There was a remarkable case the other day at Muswell Hill, where a number of burglars having deliberately armed themselves with revolvers, set out on a marauding expedition, and having pitched upon a house without any notion—as far as we can judge—as to choosing that particular house, they proceeded to rifle it; and when interrupted in their operations they opened a regular fusillade upon the unfortunate inhabitants, which all but ended in the death of one. These are only one or two instances out of many that could be cited. The danger is becoming an imminent one, and the country demands that a stop should be put to it. My Lords, the country appears to be of opinion, judging from the expressions which I have seen in the public Press, and from the numerous presentments which have been forwarded by Grand Juries, that the remedy which proved so effectual in the case of garotting shall be applied to this new danger to which the public are exposed. It may be said that it is not a right thing to inflict torture upon anybody, and no one can be more reluctant than I am to advocate the infliction of anything approaching torture, either upon mankind or dumb animals. But with regard to this particular point I 1352 cannot help coinciding with what was well said by M. de Cassagnac when the question of the abolition of capital punishment was raised in the French Chamber. "By all means," said the witty Frenchman, "abolish capital punishment: mais que Messieurs leg assassins commencent." As soon as the burglars have ceased to make use of revolvers upon Her Majesty's subjects, and upon unarmed policemen, the necessity for inflicting upon them the lash will cease. The remedy is in their hands, and I do not believe myself that once the Judges are armed with the power it will be very necessary for them to exercise it. My object is not to torture, but to deter. My Lords, in framing this Bill it has been suggested to me by some of my noble Friends that the punishment ought to be extended to all burglars, certainly to those who inflict actual bodily harm in the course of their operations. I do not mean to say that there may not be a great deal to be said, at any rate for the latter part of that suggestion; but this Bill is aimed at a distinct species of crime, and I wish, with your Lordships' permission, to confine it to that. It is aimed against the habitual criminal, who deliberately, and with malice aforethought, arms himself with a revolver, or with some other firearm, determined to make use of it rather than allow himself to be captured, or to be frustrated in his designs; and there is a distinction to be drawn between such a man as that and the criminal who, in the heat of a struggle, inflicts a serious blow upon those who are resisting him. Then I am quite sure that unless something is done to prevent this use of firearms by habitual criminals, the country will be compelled to arm the police with an equally efficient weapon. That is a suggestion which I myself should be sorry to see carried out for many reasons. It would be rather a step backward in civilization, and I am told that the police themselves are not desirous of it. But if burglars are still to be allowed, without incurring any greater punishment, to arm themselves with such weapons, and thereby escape capture, it will be too much to ask an unarmed man, no matter how brave he be, to resist them in their depredations or to effect their capture. Now, my Lords, turning to the Bill which I hold in my hand, it is of an extremely simple character. 1353 It is very much after the model of 1863. I propose to enact that whosoever shall be guilty of any crimes mentioned under what are called the housebreaking and burglary clauses of the Larceny Act of 1861, and shall be found when doing so to be in the possession of firearms, shall be liable to the same penalties as those indicated in the Act of my noble Friend, which I have copied verbatim. Those clauses I have placed in the Schedule to this Bill, in order that no one should be ignorant of the penalties that are imposed. If the Bill is passed through both Houses the Schedules may be omitted if it is thought necessary. I also provide that the attempt to commit these felonies shall also render the person attempting them liable to the penalty if he be found armed with firearms. I provide that it shall be immaterial whether the firearm is loaded or unloaded. The reason for that is that there would be no end of difficult questions which might arise on the trial as to whether the firearm was loaded or unloaded. Nothing would be easier for the practised burglar (and that is the man who will be most likely to be armed) to put the ammunition in one pocket and the pistol in the other, so that, in case he was arrested, a technical objection might be taken that the weapon was not loaded at the time. By the second clause I provide that any accomplice present at the commission of the offence, and acting in concert with the person so convicted, shall be liable if he has in his possession any firearms. That is also necessary, because nothing would be easier or more likely than for the man who had used the revolver to pass it to one of his accomplices, and so, when he was arrested, the most guilty of the lot might be found to be without a weapon Again, they might drop the weapons, and none of them would be found in possession of firearms; but the fact of their being there would, under this clause, render it a question for the jury whether one of them, at any rate, had not been at the time the offence was committed in the possession of firearms. I provide, by the third clause, that nothing in the Act shall authorize any Court of General or Quarter Sessions to order this penalty; but such Court shall continue to exercise its jurisdiction in all cases as if this Act had not been passed. 1354 This I put in, not because I have myself any doubt whatever as to whether the Courts of Quarter Sessions in this country would exercise the power righteously and properly and wisely; but I am well aware that there is a strong feeling elsewhere against giving such powers to the unpaid magistrates, and therefore I propose to reserve the power of inflicting this particular punishment to Her Majesty's Judges sitting in the Court of Oyer and Terminer and Gaol Delivery. By the 4th clause I provide that the magistrates before whom persons charged will be brought shall commit them to the Assizes, or to the Central Criminal Court, as the case may be, and not to the Sessions. That is not an unreasonable provision, because, in the case of burglary or housebreaking, where one of the parties be found armed with a revolver, it must be an offence of so serious a nature that it really ought not to be dealt with at Quarter Sessions. This is the whole of the Bill. It is one of a simple character. It is one, I believe, urgently demanded by the good sense of the country, and I humbly ask your Lordships to give it a Second Reading.
§ *LORD NORTON
My Lords, I should like to say a few words in support of a Bill which is an extension of the enactment which I had the good fortune to carry through Parliament about 26 years ago. For 26 years that Act has proved the truth of its principle. The best test of any punishment is its effect in preventing a repetition of the crime, and punishment, to be effective, must be suited to the motives of the criminal. Where fear of bodily pain is the only deterrent from crime, or where a morbid desire for notoriety or a wanton childish love of mischief is the incentive, the best penalty that can be devised is corporal punishment, which in the one case inflicts bodily pain, and in the other case involves disgrace as a counter to the notoriety sought. All those three cases have been illustrated by the results of three Acts recently passed enabling corporal punishment to be inflicted. Garrotting has been stopped by this means. The crime of shooting at the Queen, which used to be the ambition of cracked-brained seekers for notoriety, has been stopped by the threat of corporal punishment; and wanton injury to works of art is an 1355 illustration of the third class of cases referred to—that of childish, and wanton mischief—has also been stopped by annexing corporal punishment to it. A great deal of nonsense has been advanced against corporal punishment as degrading; but, my Lords, if the motives of a criminal are degraded, the medicine must suit the disease. I think this has been pretty well proved by the experience of these three Acts which I have mentioned. Perhaps the only genuine prejudice against corporal punishment has been caused by the excessive flogging of former times, but to argue from the abuse against the use of anything will surely not have weight with your Lordships. One thing is clear—that the shorter the punishment is for its purpose, and the more immediately connected with the crime, the better it is both for deterrence and for example. Culpam pæna premit comes was Horace's compliment to the Government of Augustus, and corporal punishment has the merit of shortness and immediate application. The reasons which make some people prefer long imprisonment are two, both very bad reasons. The one is to get rid of a criminal out of the way for as long as possible. That, I maintain, is an unfit object of punishment. Correction must deal with the criminal, and not merely get him out of sight. A Draconian Code would be the consummation of such a principle of punishment. We got into the way of it by our system of transportation, and the most unfortunate substitution, when transportation was not possible, of penal servitude in parallel long terms of sentence. The other reason advanced in favour of long imprisonment is the hope of reforming and educating criminals in prison. I maintain that there could not be a worse place for reformation of character than a prison. If there is any education in a prison it is in the art of hypocrisy, but as to character being reformed during a long term of imprisonment it is an unlikely and rare occurrence. Sir Edmund Du Cane, the Chief Commissioner of Prisons, in a publication last year, states his experience to be that long terms of imprisonment lose their deterrent effect. This Bill proposes to add whipping of armed burglars to any other punishment. Certainly, the 1356 punishment of whipping is the most proper for such reckless violence, and would be the most powerful deterrent, both from repetition and for example. I believe in many cases that whipping would be enough without the additional punishment. I shall beg your Lordships to let me call your attention soon to other crimes of similar brutality which might be brought within the same category. Your Lordships are aware that within a few days you had a Return laid on the Table from the magistracy of a great part of this Kingdom in favour of extending corporal punishment to suitable cases. My only hope now is that your Lordships will unanimously take this step in the course of the improvement of our Criminal Code which is embodied in this Bill.
§ LORD HERSCHELL
My Lords, I waited to hear whether my noble Friend on the Woolsack, as representing the Government, would express any opinion upon this Bill; but as he has not risen I will make one or two observations upon what has fallen from the noble Lord opposite. Of course, we shall all be thoroughly agreed in our desire to stop the crimes at which this Bill is aimed, and to amend the law, if amended it can be, in any direction suitable and proper with a view to that result. But I cannot help bringing to your Lordships' notice the fact that the arguments in favour of the Bill have been, as I believe, founded very greatly on a misapprehension as to the success of the infliction of the punishment of flogging in putting an end to garrotting. A measure was introduced into the House of Commons some years ago with a view to extending the punishment of flogging to other offences. I think that in that case it was aimed against assaults upon women. I recently moved for a Return showing the number of cases in which offences had been tried where the punishment of flogging could have been inflicted for some time prior to the Act becoming law, and for several years subsequently to the Act becoming law; and those Returns conclusively showed that it was not that Act which put an end to garrotting, or reduced it within narrow limits. It had been reduced within narrow limits before that Act was passed, and it was not reduced into narrower limits after the Act was 1357 passed. One of the Returns was a Return showing the number of cases tried, of offences where flogging could be administered, and the number of cases where it was actually administered. As your Lordships may be aware, some Judies freely order the infliction of the punishment, others never make it part of their punishment. Now, on looking at these Returns, it cannot be maintained that the infliction of that punishment was a very potent deterrent against the commission of offences. I would earnestly commend the study of these Returns to your Lordships before this Bill is passed under the supposition that the infliction of corporal punishment has proved a satisfactory deterrent in the cases in which it has been inflicted. Of course, the whole strength of this measure rests upon the assertion that that is likely to be the case. I say, on the contrary, that so far as facts go, and as my experience goes, that is not the case; and it is on that ground that I am not prepared to support this Bill. Now, I will tell your Lordships why I think it has not been the case. One of the main elements in a punishment being deterrent rests in this: that that punishment that you intend to be deterrent shall be a certain one—that is to say, any person committing the offence will have on his mind the conviction at the time that he is likely to suffer that punishment. But if you only leave the infliction of this punishment in the discretion of the Judges, and if you know perfectly well that it will not depend upon the offence, or even upon the gravity of the offence, but upon the particular Judge who happens to try the case, whether the punishment will be inflicted or not—that it will rather more often not be inflicted than inflicted—then, at once, any certainty of that kind absolutely disappears. And, my Lords, we know perfectly well that that will be the case. There are some Judges who are known as flogging Judges (or there have been), and there are some Judges who are perfectly well known to be very much indisposed to order the infliction of that form of punishment; and the result has been, as a matter of fact, that neither giving the Judges power to inflict, nor the actual infliction of it, has, as far as can be ascertained, diminished crime. The noble Lord who 1358 seconded this Bill seconded it because he proposes something like a revolution in the matter of our punishment. He proposes that you should extend this practice of flogging much more largely—he takes this as an instalment. He says we are to have shorter sentences and more flogging. Now I confess I have myself very great doubts as to the advisability of such a change. The punishment of flogging, I believe, is the most unequal of punishments. It is punishment which is to some a punishment of extreme and intense severity, whilst to persons who may have been just as guilty as the others it is a punishment of, comparatively speaking, moderate severity. It depends on the character and constitution of the individual who may be punished, and may have very little to do with the aggravation or brutality of the crime. I should be sorry to generalize in any way; but, at all events, it is quite possible that those who are the most guilty will the least feel the kind of punishment which it is proposed by this Bill to inflict. And undoubtedly there is a feeling which would be very much opposed to any large or general extension of this punishment of flogging. As I have said, there are certainly some Judges who have the strongest objection to this form of punishment, and who would be most unwilling to order its infliction; but surely the first essential is to have some evidence before us—and we have none—that the punishment, where it has been adopted, has been effective. I will tell the noble Lord opposite what I believe did put a stop to the immense amount of robbery with violence which was rife some little time before that Act was introduced, and which was, no doubt, the origin of the measure. There were a number of cases of garrotting tried at the Central Criminal Court together. They were all tried by a learned Judge who is now a Member of this House (Lord Bram well), and he sentenced all the offenders to penal servitude for life. If anyone will study the records of the Central Criminal Court they will find that that was followed by an enormous diminution in the number of offences, and that diminution was not carried any further by the passing of the Act which instituted flogging for that crime. I quite feel that burglars 1359 who are found in possession of firearms should be most severely punished—I do not in the least disagree with the noble Lord opposite with regard to that; and I should personally like to see the use or possession of firearms by a person committing offences of this description made of itself punishable, in addition to the punishment which is given for the offence under other circumstances, so as to mark distinctly the view of the law that it is an aggravation of the offence, and that there ought to be some special punishment attached to it. I think, if that were done, it would be much more likely to mark the special character of the offence by securing a special punishment in respect of the use of firearms or the carrying of firearms by persons committing burglary, and it would be much more likely to be effectual, than merely giving power to Judges to order flogging, and leaving it absolutely to their discretion to exercise the power or not, when we know that the discretion would be exercised in a different way by different Judges. On these grounds, although I sympathize entirely with the object of this Bill, I confess I am unable to give my support to it.
§ THE PREMIER AND SECRETARY OF STATE FOR FOREIGN AFFAIRS (The Marquess of SALISBURY)
My Lords, I only rise because I happened to be in the House of Commons at the time when the Bill was passed to which my noble Friend opposite (Lord Herschell) has referred, and my recollection differs very distinctly from that of the noble Lord. My recollection is that the introduction and passing of that Bill acted like a charm, and that even as soon as it was clear that it would pass there was a very large diminution of these offences. I think the noble Lord's argument is imperfect in this—that he seems to look at the operation of moral causes in the manner in which he would describe a laboratory experiment. He says one Judge did sentence to flogging, and no diminution of crime followed; another Judge did not sentence to flogging, and a diminution followed. That is rather a coarse and material way of looking at the operation of great moral causes such as this. You must look at the thing in large, and looking at it in that way, unless my memory grossly deceives me, that measure was one of the most efficacious 1360 measures of the Criminal Law ever passed. Of course, it is perfectly possible that, at the same time, Lord Bramwell interfered with his very just and resolute sentences; but it is almost impossible to disjoin the effect of various causes operating together towards the same end. Perhaps I might be allowed to plead that the very fact of Parliament passing the Act was not without its effect upon that learned Judge's mind.
§ THE MARQUESS OF SALISBURY
Well, I am speaking from memory, but I think the noble Lord is historically wrong in his references to what happened. There was an epidemic of garrotting in November, December, and January, 1862 and 1863, and the measure to which reference has been made was introduced as soon as Parliament met. The noble Lord says that this punishment is unequal. That is perfectly true. I would be very glad if the noble Lord would lay on the Table a list of punishments which are not unequal. I know of none. Even the punishment of death is unequal. There is no punishment which would not hit more hardly upon the man of delicate and refined nature than the man coarsely brought up—hit more hardly upon the man of delicate physical conformation than the man who had a robust constitution. Whatever the punishment is, the pain it inflicts must largely depend upon the nature and the antecedents of the person upon whom it is inflicted; and it is no real objection to make to a punishment, that is otherwise efficacious, that it is unequal. That is one of the necessary defects of human punishment; but it is a defect which has to be ignored in the necessity of putting down crime. But the extent to which this punishment ought to be applied must depend largely upon public opinion at the time. Punishments may be robbed of all their benefit if they go against the moral feeling of the community in which they are inflicted. I do not see what force there is in the argument that my noble Friend asks for this Bill only as an instalment. That is the ordinary attitude of all reformers, and they are often candid enough to say if they get what they ask at first they will carry it further. But in spite of that it has been the practice 1361 of Parliament to grant reforms which it had no intention of carrying to the extent which its advocates candidly and confessedly desired. If we applied that principle to my noble Friend's Bill we might accept the Bill without accepting a more extended application of the principle. I believe that the evil with which the Bill proposes to deal is a very great one, and that it is necessary to check this use of firearms which has been quite recently introduced among our people. In Committee any modification of the Bill which is thought desirable can be suggested and any safeguards introduced, or any rule adopted which may amend the caprice of different Judges to which the noble Lord referred; but I believe my noble Friend is right in pointing out what is a very great evil, and that the balance of argument is in favour of the Second Reading of this Bill.
§ *EARL COWPER
My Lords, I cannot help thinking that this is rather retrograde legislation. It seems to me that, if we pass this measure, we shall find it difficult not to go further. There is no very great difference, after all, between a burglar who carries a revolver in order that he may shoot a man, and another who carries a knife or a life-preserver which would be equally likely to cause death. I do not think it would be possible to confine the operation of the measure to the use of firearms. It would have to be extended to other deadly weapons if passed at all, and I think it would be retrograde legislation. The feeling in this country is very strong against flogging, except for very disgraceful offences. So strong is it, that, in spite of many arguments which were brought up by experienced officers in the Army as to the absolute necessity of preserving flogging in the Army and Navy, it had to be done away with. After all, what is flogging but inflicting torture; and if you once admit the principle of torture in punishment, you go back to the system which prevailed in the Middle Ages. I think we ought to be very careful in extending the practice of flogging. If we are to have the punishment of flogging at all, it should be limited to some absolutely disgraceful acts, and not simply used as a deterrent. For these reasons, I feel it incumbent to vote against the Bill.
THE EARL OF CARNARVON
My Lords, as it happens that I myself was partly concerned in the Bill to which allusion has been made, and carried that Bill through your Lordships' House after my noble Friend, then Mr. Adderley, had introduced it into the House of Commons, I should like to say one word upon the subject. There was great opposition at the time to the introduction of this principle of corporal punishment. There is no doubt that at the time of the passing, or about the time of the passing, of that Act, the crime at which the Act was directed fell off. Whether that was propter hoe or not I really cannot say. I looked very closely at the time, I remember, into the question which Sir James Mowbray so very warmly disputed—whether or no the falling off of crime was due to the Act, or whether it was due to other causes such as the noble and learned Lord (Lord Herschell) has mentioned. I always indulged the hope that it was due to the Act in which I had had a considerable share; but I think this at least is certain, and will be supported by the general evidence of Judges and Chairmen of Quarter Sessions—that corporal punishment, when discreetly and sparingly adopted, is viewed with very great terror by the criminal classes. It is a punishment which is open, no doubt, to abuse, and singular abuse, if indiscreetly used; but, on the other hand, if exercised with great caution, I think the opinion of everybody concerned with the criminal classes would go to this length at least—that it is viewed with extreme apprehension and terror. One object of this Bill, as I understand—and there, I think, everyone will sympathize with it—is indirectly to restrict the pernicious habit of carrying firearms. That is a question which, of course, is apart from the offence of housebreaking. There is no doubt whatever that of late years the habit of carrying revolvers and pistols amongst the peaceable population of this country has grown up. I think, myself, it is a mischievous habit, and one which it would be well if Parliament did its best to put a stop to. A very simple method of dealing with it, of course, is to impose a licence upon the possession of these weapons, but it is difficult to enforce such a regulation. In foreign countries 1363 legislation has been—and, I think, not unjustly—very strict upon the subject; and laws are in existence both in France and in Italy directed, not so much against the possession of these weapons, as against the size and particular make of the very light ones. That is a matter well deserving of the attention of Parliament. It certainly tends to crime, and it engenders a much too facile use of those particular weapons. With regard to this particular Bill, I do not understand why my noble Friend who has introduced it has disqualified Quarter Sessions from dealing with these questions. Quarter Sessions at this moment is perfectly competent to order corporal punishment in cases of robbery, and it does order it, and I can see no reason whatever why that power should be taken from it. The Chairmen of Quarter Sessions, as a rule, are quite as competent, it seems to me, to impose corporal punishment in the case of housebreaking as in the case of robbery. I do not quite follow the meaning of Clause 2, in which it is provided that if a person committing the offence of housebreaking is accompanied by an accomplice, and that accomplice carries a loaded or unloaded gun, not the accomplice, but the principal, is to suffer corporal punishment.
THE EARL OF CARNARVON
I do not distinctly understand why this penalty should be limited to house-breaking alone. If a robber who attacks a man on the high road has a pistol in his pocket or in his hand, it seems to me that he deserves the sentence of the law in this respect quite as much as a housebreaker, and I do not see the logic of separating the two cases, unless it be, as my noble Friend (Lord Norton) indicated, that this is merely an instalment, and that a much larger measure will follow hereafter.
§ EARL GRANVILLE
My Lords, I thoroughly agree with the object of the measure. The habit has, no doubt, very much increased of late years of this particular class of persons going about armed. This Bill is based entirely on the principle of preventing that habit by the infliction of corporal punishment. The noble Lord (Lord Norton) took the line that corporal punishment had had 1364 deterrent effects in the cases in which it had been inflicted, and the noble Marquess (the Marquess of Salisbury) also took that line. My noble and learned Friend (Lord Herschell) gave his reasons for thinking that it was an error to suppose that that had been the result of the Act. Now, I agree entirely with Lord Cowper in regard to the general principle which ought to govern us—I mean those general principles which induced a great reform in the infliction of corporal punishment in our criminal procedure, and which seem equally opposed to our reverting to it unless in cases of absolute necessity. The noble Lord who has spoken last (the Earl of Carnarvon) added to this evidence the statement that in the opinion of all the Judges, and of all the Chairmen of Quarter Sessions, corporal punishment was desirable in certain cases. He did not give us any clue as to how he obtained that evidence.
THE EARL OF CARNARVON
So far as I remember, what I stated was this—that it was the opinion of all those who were competent to pronounce an opinion—some Judges, some Chairmen of Quarter Sessions, some gentlemen engaged in the control of prisoners—that corporal punishment was viewed by the criminal classes with singular apprehension and terror. I do not think I went beyond that.
§ EARL GRANVILLE
The introduction of the word "some" makes the whole difference, because that is exactly à propos of what my noble and learned Friend (Lord Herschell) pointed out—and it was admitted by the noble Marquess—that the Judges act so very differently that, whereas some do apply corporal punishment, others make it a habit never to do so. I may remind your Lordships that when Lord Aberdare, who I am sorry to say is not here to-night, but who spoke with the authority of Home Secretary at the time of the passing of that Bill—
§ EARL GRANVILLE
At any rate he put forward certain facts which were opposed to the conclusions of the noble 1365 Marquess, and entirely coincided with those of my noble and learned Friend (Lord Herschell). I cannot pledge my memory to the exact statement Lord Aberdare made, but I think it was to the effect that he attributed the improvement that had taken place to the resolute action taken by the police against garrotters, and the arrest of the principal gang who were doing the mischief, and the severe sentences which were passed by Lord Bramwell. This all points to the conclusion that the cessation of the crime of garrotting took place before that Act came into operation at all. If that is the fact—and I think Lord Aberdare was not likely to be mistaken upon the subject, nor is my noble and learned Friend (Lord Herschell) likely to be entirely wrong in his recollection—I would recommend that a short interval should take place before the Second Reading of the Bill to ascertain the facts which, viewed from different sides, are now entirely in dispute.
§ *LORD FITZGERALD
My Lords, if your Lordships give a Second Reading to this Bill, it is one of such a character, and so very important, that it would probably go to one of the recently-appointed Grand Committees—I suppose the Grand Committee on Law—and there would be ample opportunity to make all the inquiries which are necessary. Now let us see what is the Bill and what is the object of the Bill. The object of my noble Friends is that the practice of persons engaging in burglary, being at the time armed, with the intent, probably, to take human life if necessary to enable them to carry out their felonious intent, should be put an end to; and he aims at deterring from that by vesting in the Judges a power, in aggravated cases, to inflict corporal punishment. When my noble Friend, some few days ago, put a question to the Government as to whether they were prepared to introduce any measure with a view to regulating and limiting the pernicious habit of carrying revolvers, his question was directed to this alone, but I think he has now very properly extended it. I am not in a position to speak from any experience as to the effect of such legislation in this country, and I will not presume to criticize the advice which the noble and learned Lord on the Front Bench has 1366 given us. It is said that the effect of the Act passed in 1863 was, by deterring parties from the repetition of the offence, to secure the cessation of the crime of garrotting. Now, under the Bill now before your Lordships, it is proposed to apply the punishment only to very aggravated cases—cases where parties go armed for the purpose of committing burglary, and prepared presumably to use their firearms, and, if necessary for their purposes, to take human life. For a Bill going to that extent I am prepared to give my assent, and I think your Lordships should give this Bill, which is designed with a very proper object, a Second Reading. I am not alarmed by the proposal to leave the question of the infliction of the punishment to the discretion of the Judges. I hope we shall never come to a time when in England there shall be a law taking away the discretion of the Judge, and forcing him to inflict in every case coming within the category the utmost punishment that the law empowers him to inflict. You must have that judicial discretion. It may be that in the case of a weak man the power will not be put in force; but in the case of strong Judges it will be exercised for the public protection. I had one opportunity of considering the effect of corporal punishment, and that was on a very remarkable occasion. Some noble Lords may still recollect that in 1867 there was an armed insurrection in Ireland. On that occasion many hundred prisoners were arrested in a state of insurrection. They were captured by the military and marched into Dublin, and subsequently committed for trial. It was my lot to have to assist upon the Special Commission with my late friend Lord Justice Whiteside in the trial of those prisoners. The then Viceroy (Lord Abercorn) wisely considered that it would be simply elevating the prisoners to the position of political martyrs to try them for treason or high treason, and accordingly the Government determined that the trial was to take place under an Act of George II., which gave power to imprison, and in certain cases corporal punishment could be inflicted. Now, Chief Justice Whiteside and I consulted together, and we came ultimately to the conclusion that as no violence had been used, as there had been no house broken 1367 into and no life had been taken, these were cases in which we ought not to inflict corporal punishment. In passing a short sentence of imprisonment on the first man tried under the Act, we announced from the Bench that where no outrage had been actually committed corporal punishment would not be inflicted. Now, what was the result? The result was that hundreds of trials were compressed into a few days because the people, relieved from the fear of corporal punishment, came in and pleaded guilty and received very moderate sentences. Now, my Lords, what was the result? The country became aware from the judical statement that there was power in such cases to inflict corporal punishment, and since then there has been no playing at insurrection. I am quite prepared to arm the Judges with this discretionary power.
THE EARL OF KIMBERLEY
My Lords, this is not, perhaps, the time for discussing the very remarkable instance to which the noble and learned Lord has alluded; but I feel bound to say this—that I am exceedingly glad that he and his learned Colleague came to the conclusion, as they did, that the cases of insurrection to which he has alluded were not fit cases for corporal punishment, and I desire to express my very strong conviction that in no case whatever in this country would it ever be right to inflict corporal punishment in cases of insurrection. I sincerely trust that no such attempt will ever be made, and of this I am perfectly certain—that if it is ever made it will revolt every man of right principle in this country. But that is quite apart from the questions before us, of which everybody must have heard, and which everybody must wish to see suppressed. The question here is whether corporal punishment is a punishment which is likely to effect the object which we have in view. I confess I doubt it extremely. It is always very difficult to ascertain whether certain effects follow from certain causes, and I have no special knowledge, but only general remembrance, as to what followed immediately after the passing of the Act of 1863; but what I would remind your Lordships of is this—that this system of flogging was the old system in this country inflicted on the largest possible scale; and experience—long experience—the experience of generations 1368 showed conclusively that this punishment of flogging did not deter from crime. On the contrary, the classes subjected to it became indifferent to the punishment, and one of the great reforms in the present century was the abandonment of what was found to be a thoroughly bad system, and the adoption of another system; and, for my part, I am not in favour of reverting to the old system. Some people imagine that criminals will be deterred by the punishment of flogging. I do not believe it. There may be two or three cases where the man may be alarmed, but I believe that long experience of the criminal population shows that where flogging has been adopted the deterrent effects are very small indeed. But, on the other hand, I am of opinion that some additional punishment is required in the cases to which this Bill refers, and the noble and learned Lord (Lord Herschell) hinted at what I think would be a very practical improvement in the law—namely, that the possession of firearms in the cases mentioned in this Bill should be made a distinct and additional offence. Whenever a man who is committing an offence of this kind is found in the possession of firearms under the circumstances stated, he should be charged, as an entirely distinct and separate offence, with having arms in his possession, loaded or unloaded. That seems to me to be a far more prudent mode of dealing with this matter than by flogging. The fact of the matter is that, besides the doubt which exists as to the efficacy of the punishment of flogging, there is so very large and wide a sentiment in the community against it that it does not receive that moral sanction, on the whole, which is, as the noble Marquess justly observed, absolutely necessary in order that the punishment should have any effect. The noble and learned Lord (Lord FitzGerald) suggested that this Bill should go to the Standing Committee on Law. I sincerely trust that that course will not be taken. This is a matter in which Lay Lords have quite as good opportunity of forming a private opinion as any noble and learned Lord. It is not a question of law, but a question as to what should be the punishment. If it is desirable to have an inquiry into the fact, and to see whether or not my noble and learned Friend (Lord Herschell) is justified in 1369 the conclusion he draws as to the effect of the Act of 1863, then the proper course would be not to refer the Bill after a Second Reading, but to refer the whole subject to a Select Committee. If the Bill is proposed to be read a second time now, I shall certainly vote against it.
§ THE LORD CHANCELLOR
My Lords, the useful discussion that we have had does not seem to have resulted in any practical suggestion as to what is to be done with an evil which is admitted to exist; and when I say that, I do not accept the observations that the noble Lord has just made. Practically this offence—the one which strikes everyone as the one that is on the increase, and which ought to be checked—is the possession of firearms by burglars at night. I do not mean to say that it is absolutely confined to that, but that is practically the real evil that is growing, and that people feel to be a very serious danger. Now, the punishment for burglary at present is penal servitude for life. How are we going to increase that? You can only do it by imposing the punishment of death. I do not suppose that that is the practical suggestion which will be made. Therefore it seems to me that if the only suggestion is that you are to increase the punishment, which already has reached the extreme, that is no very great contribution to the solution of the problem. Now, the discussion has taken rather a historical turn. I confess that my memory was rather against that of my noble and learned Friend (Lord Herschell), and I sent for the only book that I could at the moment lay my hand on; I do not mean to say it is any great historical authority, but so far as it goes it entirely supports what the noble Marquess said. I find in "Haydn's Dictionary of Dates," in the article on "Garrotting," after describing what the offence is, it says—Many attempts to strangle made by thieves termed garrotters, in the winter of 1862–3, led to the passing of an Act in July 1863 to punish these acts by flogging, which proved effectual.I do not mean at all to say that there may not be important matters to be discovered in the statistics to which the noble and learned Lord refers, and, between this time and the time when the Bill is likely to be parted with by your Lordships one way or another, it would 1370 be very desirable that those statistics should be laid before us. But undoubtedly this fact cannot be denied, that at one period—namely, the period referred to in the book, 1862–3—there was a very great epidemic of violent assaults in the streets at night of the character which is described as garrotting. It is equally true that certainly for a great number of years that species of crime has become very rare. Now, I quite feel that it is very difficult always to trace effects to their causes, but certainly the general impression of a great number of persons is in that direction. The noble Lord (the Earl of Carnarvon) referred to the opinion of the Chairmen of Quarter Sessions and persons who were engaged in the administration of justice. I can supply him with some facts which, perhaps, he was not aware of. Within the last three or four months I have received several presentments of Grand Juries recommending that flogging should be added to the punishment of persons in possession of firearms at night, and convicted of burglary, and recommending it strongly as being the only effectual deterrent in their view to the increase of crime, which they all testify to have taken place. I do not quite understand the attitude of my noble Friend (Lord Herschell) in the observations he addressed to your Lordships; because, while admitting the evil, and desiring apparently some additional punishment, and admitting that some remedy or another was required, his main objection to the Bill appeared to be directed to the leaving it in the discretion of the Judges to order this particular form of punishment. The logical conclusion from my noble and learned Friend's argument appeared to be that there should be no discretion in the Judges, but that they should be compelled to order flogging in every ease, if flogging be any deterrent at all. I will only say one word more upon the subject. I believe it is quite true to say that the old system, which inflicted flogging for every offence, did revolt everybody's sense of right; but if you appropriate flogging only to such crimes as really are disgraceful, and ought to degrade a man, and ought to make him feel for the rest of his life the degradation of having been flogged it by no means follows that that will revolt the moral sense of the community. 1371 As to the suggestion of the noble Lord (Lord FitzGerald) that the penalty should apply to burglars carrying knives or life-preservers, as well as to those carrying firearms, of course, this is all a matter of degree; but I shall not be opposed to the extension of the measure to the carrying of any weapon of deadly character, and presumably carried with a view to its use in resisting capture. Then, the question is whether flogging is a punishment which will be deterrent. Well, I will not say it is the universal opinion, but a vast number of people believe that, applied in certain cases, and not applied indiscriminately, it has an immense effect. Under these circumstances, I hope your Lordships will give a Second Reading to the Bill.
THE EARL OF MILLTOWN
I would like to say one or two words in reply to what has fallen from the noble and learned Lord opposite (Lord Herschell). One of his arguments was that punishment ought to be certain. I agree with him, but, even if all my noble and learned Friend says about flogging and non-flogging Judges be correct, the criminal can never tell before what particular Judge he will be tried. The noble and learned Lord quoted statistics which were obtained in the other House. I should like to have seen them on the Table here. I have not the slightest doubt that the noble and learned Lord has quoted them accurately; but, at the same time, I have a fancy for seeing those figures before me before coming to any conclusion upon them, because we all know that figures can be made to prove anything. One fact we do know: that shortly after the passing of the Act of 1863 the crime of garrotting practically ceased. The noble and learned Lord referred to the sentences of Lord Bram well. I well remember those sentences, and the sensation they created; but he forgot that the perpetrators of those crimes were all liable to penal servitude before the Bill of my noble Friend (Lord Norton) was passed, and yet the fact that they were so liable, and that such sentences were not infrequently passed, had not a deterrent effect. It seems to me a most monstrous inference to suppose that the cessation of crime arose from those sentences and not from the Bill, which was practically concurrent with them. With regard to the suggestion by the noble 1372 and learned Lord (Lord FitzGerald) as to applying the penalty further to the possession of knives or life-preservers, the one specific object of this Bill is to check the growing practice of the criminal classes carrying firearms, and I considered that it was desirable to deal separately with a matter of this importance. As to what has been said by the noble Lord behind me (the Earl of Carnarvon) with respect to the exclusion of the Quarter Sessions from the exercise of this power, my noble Friend is aware that crimes punishable with penal servitude for life are already excluded from Quarter Sessions, so that the limitation in the Bill is quite logical. The noble Earl opposite (Earl Granville) suggested that the Second Reading should be deferred in order to give time for the consideration of the statistics on this subject. The noble Earl will forgive me for reminding him that I gave notice of my intention to introduce this Bill almost at the commencement of the Session, and there has been ample time for anyone who was opposed to its principle to have examined fully into the question, and—if he will forgive my saying so—giving notice of opposition to the measure, which no one has done up to the present moment. My Lords, I think I can add nothing to what has already been said in favour of the principle of the Bill; and as to the other points which have been suggested, they can be adequately considered in Committee. I conclude, therefore, now simply by asking your Lordships to give the Bill a Second Reading.
§ On Question, "That the Bill be now read a second time," their Lordships divided:—Contents 37; Non Contents 9.
§ Bill read 2a accordingly.