THE EARL OF MILLTOWN
My Lords, I beg to move "That the Bill be committed to a Committee of the whole House to-morrow."
§ EARL GRANVILLE
I desire, my Lords, to make a personal explanation of a matter of fact before the Motion of the noble Earl is agreed to. Your Lordships will remember that the noble Earl, in moving the second reading of this Bill, gave as the principal argument for it the success of the Garotting Act, passed some years ago. In the course of the Debate the noble and learned Lord (Lord Herschell) questioned the accuracy of this statement. I have referred to the returns for which he had moved, and I would state that it was the arrest of the garotters, and the severe sentences passed upon them by Lord Bramwell, which had put an end to the practice before the introduction of the Bill. The noble Marquess gave a flat contradiction. He states that he was in the House of Commons at the time, and his perfect recollection was that he then 1767 stated that the Garotting Act had worked like a charm.
§ THE MARQUESS OF SALISBURY
What I said was that the introduction of the Bill and the knowledge that it would pass into law acted like a charm.
§ EARL GRANVILLE
No doubt that was so. But I ventured to suggest last week that, considering the great disagreement as to a most important fact, it might be judicious to inquire first and to act afterwards. But Lord Mill-town blamed me for not having profited by the notice which he had given in order to study the Bill. No amount of study of the Bill, however, could have made the House anticipate that his Lordship would state his facts under a complete misapprehension, and I cannot help thinking that the old-fashioned and conservative doctrine to inquire first and then to act might have been adopted with advantage. I am afraid of adding fuel to the fire by reminding the House of a conclusive speech of Lord Aberdare, which showed that it was by police precautions and severe sentences that the practice had been destroyed before the introduction of the Bill. I said that Lord Aberdare spoke with authority as the then Home Secretary. The noble Marquess corrected me, saying that Mr. Bruce was not then Secretary of the Home Office. The correction was right, but it did not affect the authority of Lord Aberdare on a matter of fact, as he was Under Secretary for the Home Department at the time. Lord Aberdare regretted his absence last week, and also that public business prevents his being here to-day. He has, however, sent me the following statement:—I have taken several opportunities of exposing the baselessness of the popular belief that garrotting was suppressed by Lord Norton's Act of 1863. The facts are these. There had been several garrotting outrages between January and July, 1862, but in July there was in London an extensive outbreak of that crime, which continued for some months. Successful efforts were, however, made by the police to apprehend the perpetrators, who were speedily brought to trial and sentenced severely by Lord Bramwell. When, about the middle of November, 1862, I was appointed Under Secretary of the Home Department, the crime had entirely disappeared. Nor did a single case of garrotting, distinguishable from the ordinary offence of 'robbery with violence,' occur between that time and six months after, when Lord Norton's Act was passed.I cannot help thinking that the inquiry as to the facts which I have suggested 1768 would not have been unwise, although the noble Earl, the noble Marquess, and their friends decided by a large majority otherwise.
§ VISCOUNT CRANBROOK
Will the noble and learned Lord move for the returns which he mentioned on the previous occasion?
§ LORD HERSCHELL
I propose to do so, and that these Returns should be supplemented by those of a later date. Since the Bill was read a second time, I have looked into the statistics. I find that the Bill of 1863 was opposed by Sir George Grey, on the ground that only two years before our criminal law had been revised, and the punishment of flogging largely abolished. The Home Secretary then deprecated a return to an abandoned system, and pointed out that there were other offences to which flogging was equally applicable, and that it was the activity of the police, long before the Bill was introduced, and not the promise of the Bill, which had put an end to garrotting. The-garrotters were punished in November, 1862, and from that time to the 24th of February, 1863, when the Bill was brought in, there was no abnormal number of robberies with violence. I have myself looked into the statistics, and find that they entirely bear out Sir George Grey's statement. There were 209 cases in the last three months of 1863, while in the next three months there were only 164 cases. The statistics subsequent to that year show that from time to time there arose an increase in cases of that class which seemed to come like a sort of wave, and then there came a sudden diminution, which seemed, to follow whether the punishment of flogging was inflicted or not. That, my Lords, is exemplified by what occurred at Chester, where, on one occasion, the number of those cases rose to 19, but no punishment of flogging was inflicted, and the number of such cases at the next Assize was two. On another occasion the cases again rose to 19. One punishment of flogging was inflicted, and at the next Assize there wag only one such case. If the knowledge that he might be sent to penal servitude for life will not deter a burglar, the knowledge that he might be flogged would not have much effect. In 1862 there were 497 cases of robbery with violence, while in 1887 there were but 1769 326. But cases of simple larceny had diminished in a still greater degree, the number being—1862, 7,104 cases; and 1887, 3,005 cases. My Lords, my view is that the statistics do not at all support the view that that punishment has the deterrent effect which has been suggested, while the punishment is in itself objectionable. Then there are so many other crimes to which it might logically be applied—for instance, violent attacks upon women—that if your Lordships once start on that road it is difficult to see where you will stop. If carrying firearms by a burglar were made a distinct offence for which a distinct punishment would in all cases be added to whatever sentence he might get for the burglary, I think that would have a much more deterrent effect than the punishment of flogging. I think the Bill should be referred to a Standing Committee, and not to a Committee of the whole House.
§ Amendment moved to leave out "a Committee of the whole House to-morrow" and insert "a Standing Committee."—(The Lord Herschell.)
§ THE MARQUESS OF SALISBURY
My Lords, I do not propose to go into the historical part of the question. During the winter of 1862–3 there was a very considerable prevalence of this sort of crime, and a very considerable fear of it in London and elsewhere in the country. That is my recollection of it, and I am not entirely convinced that that is not correct by the contradiction of the noble Earl opposite. He took refuge behind a statement that there was not more than a normal amount of that crime. In fact, the word "normal" has just been shown by the noble and learned Lord to be a word of very various interpretation. In truth, mere figures will not give an accurate representation of facts. If it be necessary to look back, the newspapers of that day will show which recollection is correct. The crime of robbery with violence varies so much in intensity that while the figures seem to give one result, the actual practical effect on the population at that time would in reality give a different result. I am glad the noble Lord intends to move again for these figures, because I do not think it could be safely dealt with merely on the certificate of the Secretary of State. What I rose 1770 for was rather to point out that we are at one as to the kind of remedy which should be applied to the carrying of firearms by burglars. The noble and learned Lord said that your Lordships ought to add a special and certain punishment in every case in which the robber was detected with them. So far I agree; but that special and certain punishment, if it is to be of any use, must be inflicted at once. If it is to be delayed 10, 12, or 14 years, do your Lordships imagine it would have any deterrent effect? Can you imagine a burglar starting on a burgling expedition saying to himself, "If I go without firearms I shall get 20 years, and if I go with firearms I shall get 22 years?" and do your Lordships think it would make him leave his firearms at home? It is ridiculous to suppose that men who run such risks as these men do make narrow calculations of that kind. But if those men could be made to feel that if they were found with firearms they would get a good flogging immediately after they were sentenced, in spite of all the statistics and arguments of the noble Lord I am convinced it would have a very considerable deterrent effect. The truth is, the noble Lord's ordinarily clear reasoning is turned aside by the prejudice he entertains against this particular mode of punishment. For my part I have no prejudice against it. I want a punishment which will do the work. Whatever punishment is necessary to stop the crimes, let that punishment be applied. But this House should not be stopped by any merely fanciful theory, developed in these later times, that one particular kind of punishment is lawful and another is not. The noble Lord constantly used the words that "we must go logically forward." But nothing is more illogical than the English criminal law, and no system of law in any country was ever successful which paid undue regard to logic. Logic is the most dangerous snare of the Legislator, and the fact that the only criticism brought against the proposal is that it is illogical, is, to my mind, a proof that no real objection could be urged.
THE EARL OF KIMBERLEY
Your Lordships must not look merely at the number of cases of robbery with violence, but at the particular kind of robbery with violence. After punishment 1771 had been inflicted on those garrotters in November 1862, the particular kind of robbery with violence did not recur, or did so only in a very small degree. With regard to the general question of humanity I cannot help thinking that some of the expressions your Lordships have heard would correspond very much with the arguments which were used in favour of capital punishment against Sir Samuel Romilly's reforms. Looking at the sentences inflicted, Judges vary exceedingly in their views, and the present condition of the law is therefore not very satisfactory.
§ *EARL FORTESCUE
I think, my Lords, that too much importance should not be attached to the statistics just quoted against or in favour of the view that the undoubted rapid diminution in garrotting was caused by the Act newly imposing the liability to be flogged upon that crime. For I well remember the wide-spread alarm at the time, and how people did avoid risks to a greater extent, and the number of cases of that particular offence became smaller, not merely because there were no persons ready to garrott, but because those who would have been their victims were more prudent, took more precautions, did not walk so much alone, and wanted more means of defence than they had previously.
§ *LORD ESHER
My Lords, speaking from my own experience as a Judge for 20 years, I venture to doubt very much whether an enactment of flogging is the most efficacious measure for the prevention of crime. Flogging has been often tried in this country and has been almost always given up. It is a punishment very difficult to adminster; of its severity a great deal depends not only on the constitution of the victim, but on that of the executioner. If a man has a peculiar mode of flogging, if he brings down the lash not only upon the back, but round the stomach, the effect may be very serious. Flogging as a punishment has been given up because public feeling has been wounded on seeing that the victims have died or have been very much injured. It is said that the doctor would be present, but the mischief is often done before the doctor can interfere. There are other more effectual means of dealing with such crimes which have had a very deterrent effect. The noble Lord opposite (Lord Bramwell) is one of the 1772 most humane Judges on the Bench, but when he thought it his duty to inflict on garrotters a sentence of penal servitude-for life he did not shrink from doing so. I remember, when stabbing was very prevalent, the late Mr. Justice Willes said at the Assizes at Manchester that he would send every man convicted of the offence to penal servitude for life. The-result was that the crime disappeared for a very long period. I recollect myself going to Leeds, where it was the habit of some young men not only to rob but to stamp the features of the victim almost out of form with their clogs, and, following the example of Mr. Justice Willes, I said that whenever a man was convicted before me of such a thing I would send him to penal servitude for life. The result was that the crime disappeared. I think the better way would be to insist upon the certainty of a severe punishment rather than the amount. Whenever a man commits burglary with arms the Judge's discretion should be taken away, and the offender should be sentenced, say, to penal servitude for 20 years at least. I believe that such an enactment would have a greater effect than the punishment now proposed.
§ *LORD BRAMWELL
My Lords, I do not think this is a question peculiarly for lawyers or Judges; it is a question of good sense. Judges inform themselves, of course, of the punishments they can administer, as to which the law leaves them a great discretion. For most offences where penal servitude might be inflicted the punishment varies from penal servitude for life to a day's imprisonment. For my own part I have a very strong opinion in favour of flogging in certain cases. With respect to the logic of it we have flogging administered in particular cases, and therefore the question is whether we might not apply it in the case before your Lordships. These burglaries with firearms, I think, require some deterrent punishment. There is scarcely a crime which excites more alarm, because these offences are committed at night, when people are asleep. I believe that flogging is deterrent. Imprisonment for a long period does not strike the offender in the same way. He has a chance of getting off and of a limitation of the term. When he is sentenced it is not exactly pain that he experiences; it is not something which impresses itself on 1773 him; and when the imprisonment is over he only remembers that it was a wearisome life. But if there were something which happened in the course of the punishment which the man considered as pain that would be more deterrent. I confess I would not consult the culprit as to what punishment he would like. He has offended, and the question is what society is to do with him, not for his sake, but for its own. My noble and learned Friend said, "Inflict a punishment of penal servitude for 20 years." That cannot he done. The law gives an enormous latitude in the sentence, and it is necessary that it should. Some burglaries are of the most trivial character. A man going along sees a window that he can open; he puts his hand in and steals a coat or piece of meat. That is a burglary if committed after nine o'clock at night. You could not sentence such a man to 20 years' penal servitude; he must be sentenced to a less punishment. And what a shocking thing it is to sentence 30 men to penal servitude for life. Moreover, when a man is sentenced to 20 years' penal servitude, he is kept at the expense of society for 20 years, instead of having a smart, sharp punishment, which would more impress his mind than along term of imprisonment. Of the story of the garrotters I ought to know something if anybody does. There was a positive epidemic of garrotting. Two Judges, of whom I was one, went to the Old Bailey Sessions. On my suggestion it was arranged that one Judge should try them all. I agreed to do so. I would not sentence any of the prisoners till I had heard all the cases, and then—and it was the only thing for which any gratitude might be due to me if any was due at all—I added about 50 per cent to their ordinary punishment. The effect of sentencing all the prisoners in a lump—some to 10 years', some to 12, some to 15, and so on—I was told that the terms represented in the aggregate a century and a half—was such as to put a stop to the epidemic for a time. There was not one sentenced to penal servitude for life. I remember distinctly the origin of the Act of Parliament that was passed afterwards—it was when a Member of Parliament was robbed with violence near the Guards' Monument in Waterloo Place. My noble and learned Friend objected that flogging is 1774 such a different thing to different people But so is every punishment, and it is also true to say of every punishment administered to an innocent man that it cannot be undone. Of course, he might be compensated, but that is seldom or never heard of. The worst thing about flogging is that it has a tendency to brutalize the man who administers it, and that it accustoms the public at large to the infliction of something in the nature of torture or violence, which one would rather should be absent from their minds. But although I do not mean to say that flogging is a perfect punishment, and although I see disadvantages in it, I nevertheless think it is a proper punishment to apply in such cases as are aimed at in the Bill. I do not say, my Lords, that flogging is a good punishment, but I do think it is one which would be attended with good results in this class of offences.
§ *LORD NORTON
My Lords, I agree in the opinions which have been expressed by the noble and learned Lord (Bramwell). According to the observation and experience of highest authorities, flogging is the only punishment for which a man never comes up a second time if he can help it; and, with regard to the objection that it is brutal, the offender is a person of brutal instincts which can only be met by kindred appeal. Whatever may be said by the noble and learned Lord (Herschell), there is no doubt the "wave" of garrotting, however fluctuating before, has very much subsided since the Garrotting Act. I rather think the noble and learned Lord's feelings with regard to this particular punishment arise simply from recollections of the excessive degree in which it was administered in former times; but the abuse of a anything is no argument against the moderate use of it, especially when it has proved to be in peculiar cases deterrent. Lord Esher says it is unequal; but so are all punishments, according to the recipients. It is more certain than any other. There is no sentence of penal servitude that is ever carried out in the terms in which it is given, and every criminal knows that. It is, therefore, a sentence of less form and example than flogging, from a character of uncertainty, and there can be nothing worse than uncertainty for a deterrent 1775 punishment. The noble Lord has referred to statistics, but statistics are not always a safe guide. Let me ask whether this punishment has not been successful for other classes of crime? Take the case of shooting at the Queen. That was a crime practised by half-mad persons desirous of obtaining notoriety, and the infliction of a disgraceful punishment for it acted as a deterrent. The same may be said of wanton injuries to works of art. Inflicting pain as retaliation is not the object of this punishment, and the question has nothing whatever to do with humanity either towards the criminal or his victim. The sole question is—"Is it a deterrent punishment for the particular crime or not; are there cases of brutal crime which are met best by it, and from which such criminals are deterred more than by any other?" The noble and learned Lord says that popular feeling revolts from this form of punishment. But why? Simply because of the brutality of floggings formerly; but to say that because there were brutal floggings at one time, we are not to use flogging at all, would be unworthy of this House. When the Garrotting Act was passed, Sir George Grey, in Committee, having despaired of stopping the Bill, introduced a clause providing that the punishment was only to be administered to garrotters by a "cat," of which a model was to be kept at the Home Office. It turned out to be severer than the Army or Navy cat, and this may caution us from attempts to modify a very plain proposal.
§ LORD LAMINGTON
My Lords, I only rise to make a remark on one point. All who have to do with criminals agree that the one deterrent for these classes of crime with violence is flogging. What has been the opinion expressed by governing authorities on the subject? I remember one of our governors saying that, if instead of hanging they were to administer a flogging three or four times, it would do more than any other form of punishment. I am quite certain it is the one thing which that class of men fear most.
*THE EARL OF MILLTOWN
My Lords, after the admirable speeches of the Prime Minister and Lord Bramwell, I feel that I should be only wearying your 1776 Lordships by further continuing the debate. There are, however, two observations which I should wish to make. As to the Garrotting Act having had a beneficial effect, I confess that until I heard the argument put forward in this House I never heard it doubted that the Act was a great and complete success. Surely my noble and learned Friend has had plenty of time to prepare his statistics, but he has not given us any. My Lords, it is admitted on all hands that this growing practice of burglars carrying firearms requires further legislation. No other remedy than that I have brought forward that can at all be called a practical one has been suggested. My noble and learned Friends opposite have given practically none, and I confess I was surprised to hear the noble and learned Lord going back to the extraordinary suggestion of inflicting an additional term of imprisonment to penal servitude for life.
§ LORD HERSCHELL
The noble Lord is mistaken; my suggestion was that in nine cases out of ten I should not give penal servitude for life.
*THE EARL OF MILLTOWN
I was going to ask my noble and learned Friend how he would frame and act that a person committing this offence shall be liable to penal servitude for life, and then that, in addition, if he be found armed with a pistol or a weapon of any kind, he shall be liable to a further term! How, I would ask, with all his ingenuity, can the noble and learned Lord carry that out by inflicting any further term of imprisonment? Then the other suggestion by Lord Esher was that the discretion of the Judges should be fettered and that they should be compelled in those cases to pass a sentence of a long term of penal servitude. The absurdity of this proposal has been exposed by Lord Bramwell, but the noble Lord further said that some damage of a fatal character might be done by the infliction of this punishment. Well, my answer to that is that this punishment has been in operation now for 26 years and nothing of the kind has happened, and I cannot understand why we should expect greater injury to occur in the future than has happened in the past. One word more as regards the suggestion of my noble and learned Friend that this Bill should be sent to 1777 one of the new Committees instead of going before a Committee of the whole House. I do not know whether he wished to persevere in that suggestion; but, if he does so, I should not oppose any objection. I may say that in framing this Bill I have had the assistance of Mr. Poland, who, it will be admitted, has had a greater amount of experience in the Criminal Law than any man at the English Bar. The criticisms directed to the purport and object of the Bill seem to me to be more apt in reference to the legislation now in existence than to the Bill at present before your Lordships' House. The question is not now whether flogging shall be inflicted for certain offences—that is now the law of the land; it is whether a punishment still, as I maintain, has already proved effectual, shall be extended to other and cognate offence which the country demands shall be put a stop to. Having had the valuable assistance of Mr. Poland in drafting the Bill, I do not think fault can be found with the machinery of the clauses. However, if my noble Friend and others with him are desirous that this Bill should go before a Standing Committee instead of a Committee of the whole House, I, for my part, shall not oppose it.
§ Amendment agreed to.
§ Bill committed to a Standing Committee accordingly.