Lords Sitting of 24 May 1889

BRIBERY (PUBLIC BODIES) PREVENTION BILL. (NG. 90.) FRIENDLY SOCIETIES ACT (1888) AMENDMENT BILL. (No. 91.)
Brought from the Commons, read 1a, and to be printed.
COMMITTEE OF SELECTION FOR STANDING COMMITTEES.
Report from, That the Committee have added the Lord Stanley of Alderley to the Standing Committee for General Bills for the consideration of the Hares Preservation Bill [H.L.]. Read, and ordered to lie on the Table.
ARCHDEACONRY OF CORNWALL BILL. (No. 12.)
House in Committee (according to order); Bill reported without Amendment; and to be read 3a on Monday next.
CUSTOMS AND INLAND REVENUE BILL. (No. 78.) NATIONAL DEBT BILL. (No.79.)
Read 2a (according to order), and committed to a Committee of the whole House on Monday next.
PUBLIC LIBRARIES ACT (1855) AMENDMENT BILL. (No. 50.)
Report from Standing Committee received (according to order): Moved that the Bill be not recommitted to a Committee of the whole House: On question, agreed to; Bill to be read 3a on Tuesday next.
THE STANDING COMMITTEES.

  QUESTION—OBSERVATIONS.
  THE EARL OF MINTOin rising to ask the Chairman of Committees if he will state to the House on what principles the new Standing Committees on Public Bills are constituted, especially as regards the admission and exclusion of Peers who are not of judicial or official or ex-official standing; also, whether as regards Scottish legislation these Committees are to remain constituted as at present; also, whether, in his opinion, the words of the Standing Order No. LIV. (to the effect that "at any Committee of our own" any Lord, though not of the Committee, is entitled to come in and to speak but not to vote) are applicable to the case of the new Standing Committees, said: I had some hesitation in putting on the Notice Paper the quèstions I am about to ask—as they may appear to be of a somewhat invidious character. But in what I propose to say, no susceptibilities shall be wounded. In fact, I take no exception to any of the names that appear on the list of Members either of the Committee of Selection or the Panel of Chairmen, or of the Standing Committees. On the contrary, the House has chosen a Committee of Selection, and has chosen well. The Committee of Selection in its turn has chosen a Panel of eight Chairmen, and has chosen well; no men of greater ability and better business habits could have been found. Again, the Committee of Selection have chosen 98 Peers to serve on the two Standing Committees, and on the whole has chosen well. I find no fault with the materials of the new organization. If it is, in some respects, defective, the faults are those not of commission but omission. Again, as regards the new system. I think it

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  probable that a well-chosen Committee, presided over by a good Chairman, may transact the business committed to them with great efficiency. But it must be remembered that the greater the efficiency, the greater the confidence felt in the proceedings of these Committees, the less will be the disposition to scrutinize Bills in Committee of the whole House, so that virtually the Committee of this whole House stage in the passage of Bills through Parliament will be largely superseded. Moreover, to consign Bills to a limited number of Peers is to derogate from the theoretical equality of the rights of all Peers in matters of legislation. The change in the House of Lords by the adoption of this new system is much more sweeping than what has been done in the Commons. In the Commons the only Bills that are referred to the Standing Committees are those connected with law and trade. In the Lords all public Bills are to be referred, or are capable of being referred, to the new Standing Committees. I have made an analysis of the composition of the Standing Committees as at present constituted, dividing them into three categories. The first category consists of all the Law Lords; the second, of all Peers who are now holding office or who have formerly held office. The list includes not only those who hold or have held high office, but those also who have held subordinate posts in the Administration. The nomination of Peers in these two classes is virtually of an ex officio character. The third class consists of the residue of the Peerage—men who have never been connected with office. There are now two Standing Committees—one for legal Bills, the Members being 40 in number; the other for General Bills, numbering 60—but as two Peers belong to both Committees, the actual number of Peers appointed to serve on them is 98, not 100. Here is the analysis—

  For Legal Bills.

  General Bills.

  Totals.

  1st. Law Lords

  10

  2

  12

  2nd. Official and Ex-official

  20

  38

  58

  30

  40

  70

  3rd. Unofficial

  10

  20

  30

  40

  60

  100

  (2 being counted twice.)

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  Thus, while the legal and official and ex-official elements (58 Peers in all) are a large majority of the whole, and are in fact of an ex officio character, only 30 Peers out of the whole body have been chosen who have been unconnected with office. Some of the omissions are particularly noteworthy. 1st. The whole Bench of Bishops; 2nd, the whole of the Representative Peers of Scotland, 16 in number, with the exception of one of the number who now holds office. Some 44 in all are omitted from the Committees. As regards Scottish legislation it is proposed in the House of Commons that there shall be a Grand Committee for Scottish legislation, consisting exclusively of Scottish Members. This I think objectionable. But in the case of these new Standing Orders in the Lords, the composition of the Committees is not what it ought to be. The Peers connected with Scotland on these Committees are as follows:—

  Legal Bills.

  General Bills.

  1st.One Law Lord

  1

  1

  2nd. Two Official and Ex-official

  2

  8

  One Unofficial

  1

  1

  4

  10

  Total 14; but one has been counted twice. Therefore, the actual number is 13.
  THE EARL OF MORLEYMy Lords, I scarcely understand why this question is addressed to me, because I am not ordinarily responsible for the composition of these Committees, except so far as I am ex officio Chairman of the Committee for selecting Peers to serve on the Standing Committees; but as the noble. Lord has referred to me, I will do my best to answer. It is difficult to lay down any distinct principle on which noble Lords are chosen for the Standing Committees. As your Lordships are aware, the new Standing Order provided that there might be four Committees, and that the aggregate number of Peers that might be appointed upon them was to be 150. Having that number in view, with only two Committees to be appointed, it seemed to the Committee of Selection that if they appointed 100. Peers and distributed them between the two Committees that would in spirit be consistent with the Standing Order, and would perhaps be a little more liberal than the House intended to be. I need

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  not say that by limiting the number of Peers on the Committees it is impossible to avoid the omissions to which the noble Earl referred. It is of the essence of a Standing Committee that it should not be a Committee of the whole House. As to the omission of right rev. Prelates, no doubt in certain classes of Bills their presence would be not only useful, but I may say almost indispensable. With the view of meeting a case of that kind, it was laid down by the Standing Orders that the Committee of Selection should have the power to add to a Standing Committee a certain number of Peers not exceeding ten for the consideration of certain Bills. This power has been exercised to a large extent with reference to the Bills already referred to the Standing Committees, and I am quite sure the Committee of Selection will only be too glad to exercise it to the fullest by adding to the Committees noble lords who are specially interested in any Bills. It appears to me that this is one way of meeting the question of omission raised by the noble Earl. It is hardly to be expected that the Members of the Episcopal Bench would have time or inclination to devote themselves to the details of many of the Bills sent to the Standing Committees. As to the omission of Scotch Representative Peers, I never myself, and I doubt very much whether any of my colleagues on the Committee of Selection had any particular regard to the fact whether the Peers selected were or were not Scotch Representative Peers. The principle, if I may call it a principle, which guided us was this. We went through, with the help of noble Lords of experience on both sides of the House, the list of Peers, and as far as we could, we appointed those Peers who generally attend to the business of the House, and who would, in our belief, desire to serve on the Committees. In doing so, I have not the slightest doubt that we have omitted some noble Lords who would be very useful, and I am sure that the Committee will only be too glad hereafter to remedy any mistakes they had been guilty of, and to add as far as they can to the appointments already made. What I said with regard in the omission of right reverend Prelates also seems to me to apply to Scotch Members. I understand the noble Lord to state that
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  there are 13 Scotch Peers on those Committees; and the addition of ten Scotch Peers, which would be made in the case of important Scotch Bills, would appear to give a fair and adequate representation of Scotland. This elasticity is specially provided in the Standing Orders, and with all submission it appears to me that that elasticity obviates the necessity for any special constitution of the Committees, for the discussion of Scotch or ecclesiastical or any other Bills. As regards the last point of the question of the noble Lord, I have no hesitation in saying that the Standing Order No. 54, under which any Lord, though not of a Committee, is entitled to attend and speak, but not to vote, does apply to Standing Committees. as it does to every other Committee; but I should doubt whether such a noble Lord, not of the Committee, would be entitled to move an Amendment, although he would have power to speak on any subject before the Committee, or on any Amendment moved by a Member of it. I think that as far as I can I have answered the question put to me by the noble Lord. I am sure that if there is any Bill in which he is especially interested which is referred to one of these Committees, the Members of that Committee would be glad to add his name to their list.
  THE EARL OF BELMOREI wish to put another question to the noble Lord opposite (the Earl of Morley) upon this subject of Standing Committees, and I may mention the reason that I address the question to him is because I have been. informed by a Member of Her Majesty's Government that he is the proper person to answer the question. I wish to know whether arrangements cannot be made to enter upon the Journals of the House the proceedings of the Standing Committees, and also the attendance of noble Lords on those Committees. When a Bill goes into Committee of the whole House, if anything of importance is done in Committee it is recorded in the journals, with of course, as the Committee sits in the same appartment as the House, the attendance of noble Lords. Now, we send many of our most important Bills to another room. It is arranged that both the Standing Committees shall sit concurrently with the House, and almost all noble Lords who pay constant attention to our business.

  915
  are engaged on either one or other of the Committees. Last Tuesday one Committee sat a little earlier than the House, and the other at, I believe, the same time, and on inquiry from a noble Lord, whose duties required him to be here, as to how many Members there were in the House, I was told that there were only about seven. As we cannot be in two places at once, and as it is obvious that the work of the Standing Committees is more important than the business which is put down in the House on the days when they are meeting, I think it is only reasonable that the names of those noble Lords who attend should be recorded. With regard to the recording of the proceedings of the Committee what I am suggesting would be no in novation at all, because as I have pointed out, proceedings in Committee of the whole House are already recorded, and I think is if of historical importance that what takes place in the Standing Committees should equally be recorded in a permanent form.
  THE EARL OF MORLEYI think the noble Lord has brought forward a subject which may be usefully discussed by your Lordships. I quite agree that there ought to be a record of the proceedings of the Standing Committees. The only doubt I have, after making inquiries, is exactly the form in which they should appear. The Journals only record proceedings of the whole House, and the Reports which are submitted to the House by the various Committees. If you introduce into the Journals the proceedings of the Standing Committees they can only form part of the Report of those Committees to the House. Now, it would obviously be inconvenient, and would make the Journals bulky and difficult to refer to, if they were burdened with matter foreign from the work of the House itself. What I venture to suggest is that the proceedings of the Committees should be reported and placed in an appendix at the end of Journal.
  THE EARL OF BELMOREBut in the book itself.
  THE EARL OF MORLEYYes, in an appendix to the journals, so that that portion may be bound separately if desired. There is good precedent for appendices. Up to the year 1850 the appendices to the journal formed a
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  considerable part of the whole volume, which was very much thicker then than it is now. If the House will agree to that, I would suggest that the proceedings of the Committee and the attendance of the Peers should be printed in an appendix at the end of the volume, including of course, any Amendments that are proposed to the various Bills.
  THE MARQUESS OF SALISBURYI venture to hope that the House will not make any change until it has had full experience of the working of these Committees. For the present, I think the more simple the record of the proceedings the better. As time goes on we shall find out whether it is desirable to have fuller records in the Journal, but let us be guided by experience, and not by mere theory, and let the arrangement go on to the end of the Session before making any further change.
  THE EARL OF CARNARVONI do not know whether my noble Friend who has just spoken is aware that the House came to a Resolution on this subject some few days ago, and that, in fact, the proceedings of the Standing Committees are recorded and circulated with the daily Minutes of proceedings. That certainly applies to the Standing Committee over which I have the honour to preside to which are referred all general Bills. The question was raised in that Committee at one of our meetings whether it was not desirable, as the Committee was in effect substituted for Committee of the whole House, that some record of the proceedings should be taken, and in consequence a Resolution was moved in this House and was agreed to, that the proceedings of the Standing Committee should be printed and circulated with the Minutes. I wish further to point out that in doing this the House has followed the practice which has been adopted by the House of Commons. I doubt very much whether the attendance of Peers ought to be printed under any circumstances with the Minutes. It would be an innovation on the constant practice of the House, and I for one should be sorry to see it. At the same time your Lordships will remember that inasmuch as these Committees have taken the place practically and almost nominally of the Committee of the whole House, it does seem that it would be a misfortune not to have a record of

  917
  the attendance of Peers. I believe we are the only Assembly in the world of which it can be said that for centuries the attendance of each individual Peer has been almost without break or variation recorded in the Journals; and, as a matter of antiquarian and even historical interest it would be a great misfortune if there were now to be any break.
  EARL STANHOPEMy Lords, there is one very small point to which I would like to draw attention, and that is the very inadequate accommodation that there is provided for the meetings of these Committees. Some amount of inconvenience has already been felt, although all the noble Lords appointed on the Committees have not been in attendance. We shall presently have important measures sent to us from the House of Commons which will no doubt excite great interest, and the attendance at the Committees will be much larger. Therefore it is absolutely necessary that this question of accommodation should be dealt with. I am not certain that it would be altogether practicable, but it has occurred to me that provision might be made for these Committees in the new rooms at the side of the Central Hall.
  THE EARL OF KIMBERLEYI quite agree with what has fallen from noble Lords as to the importance of some, record being preserved of the proceedings of the House of Commons, but I also agree with the noble Marquess that it is equally important that the proceedings should not be too formal. I think the short Minutes to which the noble Earl (the Earl of Carnarvon) has referred are quite sufficient. I cannot conceive it possible that the House, which has, be it remembered, to deal with Bills after they have left the Commons, should be left in ignorance of what has taken place, and the Divisions that have been had, and the Amendments that have been unsuccessfully proposed.
  VISCOUNT HARDINGEI wish to draw the attention of the House to another point in connection with these Standing Committees. It appears that the average attendance at the meetings is very small indeed. Without making any invidious criticism upon the constitution of the Committees, I must say that there are some Members who are by
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  no means regular in their attendance, Why they should have been put on I do not know; but, as some noble Lords feel agrieved at their not having been appointed to serve on these Standing Committees, I think greater caution might be exercised in selecting those Peers who are fit and proper and willing to serve.
  THE EARL OF MILLTOWNIt is quite true that the proceedings of the Standing Committee for General Bills do appear on the Minutes, but those of the Standing Committee for Bills relating to Law, &c., do not, and I think it is extremely unfortunate that they do not. My noble Friend (Lord Herschell) is to-night going to move the rejection of a Bill which has been before that Committee; many important divisions were taken, and it would be of the greatest advantage for your Lordships to see how those divisions went; but, unfortunately, there is no record of them whatever.
  LORD BRABOURNEI sincerely hope that the noble Lord at the head of the Government will reconsider his decision with regard to records of the proceedings of these Standing Committees. The present system is all very well for those Peers who serve on the Committee, but it is exceedingly hard that those who are not Members should have no opportunity of ascertaining what has been going on, especially having regard to the fact that the Bills when they leave the Committees, come up to the House for final adoption or rejection. With regard to what has occurred to-day, I cannot sit down without making one respectful remark to my noble Friend at the head of the Government. I think the objection I ventured to take to the appointment of these Standing Committees in the first instance is now becoming better understood by noble Lords who have reconsidered the subject. A great many Peers have begun to find that they are practically disfranchised, and have not the opportunities of discussing various measures that they had before the Committees were appointed. It is a very singular thing that we should have tried to find a remedy for our having nothing to do in following precisely that course which was adopted by the House of Commons for precisely the reverse complaint. We have surely

  919
  plenty of time to discuss all the measures that are brought before us. Indeed, about the only thing which can be said in favour of these Standing Committees is that they lead to a greater occupation of your Lordships time, because there is no doubt that in the case of all important Bills we shall in the House itself have to go all over the work that has been dealt with by the Committees. Meanwhile, the work is not always better done than would have been the case if it had been performed in the House itself. I may instance the proceedings in the General Committee upon the Smoke Bill (Metropolis) wherein, doubtless from the absence of special information upon the subject, I understand that a decision has been arrived at which will prevent any railway engine from approaching within several miles of the Metropolis. This work will have to be undone by the House if we are to preserve the inhabitants of the Metropolis from an inconvenience which would amount to a calamity. Of course, the House has decided to try the experiment of Standing Committees, and it should have a fair trial; but I do hope that the noble Marquess will give the matter his careful reconsideration, and that if he finds that we are practically re-discussing in the body of the House that which has previously occupied the attention of the Standing Committees, and if he finds, moreover, that there is, as I think there is, just cause of complaint by Peers who are deprived of opportunities of discussing Bills in which they are interested he will not scruple to abolish this new reform, which, although no doubt a measure of progress, does not appear to be one of progressive improvement.
  THE MARQUESS OF SALISBURYI have no doubt that if the predictions of the noble Lord are fulfilled, the House will not hesitate to alter the Standing Orders and abolish these Standing Committees. I rose, my Lords, simply to say that I have not objected to the circulation of Minutes such as those to which the noble Earl (the Earl of Carnarvon) alluded. What I referred to was the suggestion that the proceedings of the Committees should be entered in the Journal, which means a very large amount of formality and detail, the introduction of which I strongly deprecate.

LARCENY ACT, 1861, AMENDMENT (USE OF FIREARMS) BILL (No. 82.)

  THIRD READING
  THE EARL OF MILLTOWNIn asking your Lordships to give a Third Reading to this Bill. I shall not trouble your Lordships with any further observations upon its principle. We have already had two Second Reading debates on the measure. During both debates, almost everything that could be said for or against the Bill was put forward, and your Lordships, by overwhelming majorities, approved of the principle of the Bill. Under these circumstances I confess that the course which my noble and learned Friend opposite (Lord Herschell) proposes to take in moving the rejection of the Bill on the last stage, appears to me to be somewhat unusual. I desire to call attention to a Report on this subject which was issued in 1875. Lord Cross, when Home Secretary in that year, issued a circular to Her Majesty's Judges, to Chairmen of Quarter Sessions, Recorders of Boroughs having Quarter Sessions, Stipendiary Magistrates, the Magistrates of the Metropolitan Police Courts, and to Sheriffs and Sheriff Substitutes in Scotland, asking five questions with regard to the use of firearms. The fourth and fifth questions referred to the subject which was dealt with by the Bill now before their Lordships. The questions were: (4) Should flogging be authorized for other kinds of violence than those which came within the provisions of 26 and 27 Vict., c. 44, especially for assaults on women and children; and (5) has flogging been efficacious for putting down offences for which it was applied by 26 and 27 Vict., c. 44. Answers were obtained from all the Judges, and those who gave evidence that flogging was a sufficient deterrent were, the late Lord Chief Justice Cockburn, Mr. Justice Blackburn, Mr. Justice Mellor, Mr. Justice Lush, Mr. Justice Quain (who said that flogging was the only punishment except death that was really deterrent), Mr. Justice Archibald, Mr. Justice Coleridge, and Mr. Justice Brett. Now, as my noble Friend the Master of the Rolls, has not proved himself to be an enthusiastic admirer of this Bill, I wish not in the least to overstate what he said in reply to these questions. I do not say that he advo

  921
  cated flogging, but he did say that it had proved an efficient deterrent. I will read his Lordship's own words. In reply to the fifth question, he said:—
  "According to my experience it has, as applied in these cases, certainly had a material deterrent influence."
  So that the noble and learned Lord was then, as I have no doubt he is now, of opinion that flogging had proved an efficacious deterrent, and that is all I claim for this Bill. Mr. Justice Grove was of the same opinion. I would like to quote the remarks of Mr. Justice Lush, who, as everybody knows, was a kindhearted and gentle-minded man. In reply to the fifth question he said—
  "I believe it has. When I first went to Manchester in the spring of 1866 there was a general feeling of alarm at the prevalence of what was called garrotting. It had increased notwithstanding that heavy sentences of penal servitude had been awarded in the previous Session. I had as many, I think, as 20 or 21 flogged. I went again in the summer of the same year and had to administer the same punishment to about half that number. I have been there five times since and have only had one such case, and that was three or four years ago. The same result has followed at Leeds and Chester, and the crime has all but disappeared. From what I have seen and heard from prisoners, some of whom have implored me to give them any term of penal servitude rather than the cat, and from what I have been told by governors of gaols, I have no doubt that flogging is more dreaded than any amount of imprisonment or penal servitude; and that the suppression of garrotting is attributable solely to the infliction of this kind of punishment."
  After this expression of opinion, what weight can we attach to the exception which was taken to the noble Marquess's assertion that the punishment of flogging had "acted like a charm" in suppressing garrotting? So much for the Judges of the Court of Common Pleas and the Court of Queen's Bench which existed in those days. Then came the Barons of the Exchequer. They were unanimous. Chief Baron Kelly said that flogging had "utterly put an end to garotting." Mr. Baron Bramwell was of opinion also that it was "a thoroughly efficacious deterrent." Mr. Baron Piggott agreed. Mr. Baron Pollock made a remarkable statement, which I would like to read to your Lordships. He said:—
  "I think flogging should be authorized in all cases of assault with intent to do grievous bodily harm.… I do not think it would be desirable to authorize flogging for indecent assaults."
  Then comes a remark which is more to
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  the purpose. In reply to Question 5 he says:—
  "Flogging has, in my judgment, been efficacious in putting down these offences. Before I had experience as a Judge I was not in favour of flogging, nor did I believe in its efficacy. I have now been five Circuits in the Northern and Midland counties, and from what I have seen and heard in court, from what I have gathered from conversations with Magistrates, governors of prisons, and others, I am thoroughly satisfied that the practice of flogging has worked well, and gone far to put an end to systematic robberies with violence."
  I think, my Lords, that that is extremely important testimony, coming as it does from a learned Judge of vast experience, who was at first predisposed against this form of punishment. Then Baron Cleasby was also in favour of it, and so was Mr. Baron Amphlett. Of all the Judges whose opinions were asked upon this question, two only expressed an opinion adverse to flogging as a deterrent punishment. Those were the late Mr. Justice Keating and Mr. Justice Denman. Then, going on with this Report, the Chairmen of Quarter Sessions were unanimous in favour of flogging; so were all the Recorders of Boroughs having Quarter Sessions, all the Stipendiary Magistrates, and the Magistrates of the Metropolitan Police Courts—in fact, all persons who had had the best of opportunities for forming an accurate opinion, and who had had most experience in the administration of the law, bore testimony to the efficacy of this punishment, and the wonderful effect it produced on criminals insensible to other kinds of punishment. I think that that testimony is of far more value than the theories of noble Lords opposite who, however trustworthy may be their opinions on other matters, have not had anything like the means of forming a correct judgment on this question that were possessed by these witnesses I have called in support of the Bill. My Lords, it is said that the policy of this Bill is one of lex talionis. It is nothing of the kind. That is not my object in bringing forward the measure. I want to put a stop to this new practice of the criminal classes of going about armed, prepared to carry out their criminal intentions per fas aut nefas, heedless whether they murder or maim those who oppose them. I believe that the result of the passing of this Bill will be that that practice will be dis

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  continued. These individuals will not face the possibility and probability and peril of a punishment such as flogging. Utterly callous in regard to the pain they inflict upon others, they are altogether sensitive about the penalties that may be inflicted upon their own persons. I am bound to admit—and I will make the noble Lord opposite a present of the admission—that if in the repression of this crime by this means, some of these miscreants should suffer in their own persons, I should read the record of that suffering with a considerable amount of equanimity. That is not the object of the Bill, but I should think that if, after this Bill has become law, a man goes about armed to commit his depredations, he will have himself to blame if in consequence of doing so he receives a sound flogging.
  Moved "That the Bill be now read."—(Earl of Milltown.)
  LORD HERSCHELLI regret that my noble Friend opposite should have thought it right to express disapproval of my objecting to this Bill upon the Third Reading. My noble Friend may be consoled, I think, by the fact that he knows beforehand that he will defeat me by an overwhelming majority, and that all I shall have will be the satisfaction of my protest. Therefore, I do not think he need feel aggrieved by the course which I feel it my duty to take. My Lords, I am quite prepared for being set down as a sentimentalist, and a humanitarian, because I object to the measure which is now before your Lordships. I do not myself believe that I can lay any special claim to being a humanitarian. I am disposed generally to look at matters from a practical point of view, and my objections—be they right or wrong—to this measure are practical. I do not think anybody can dispute that there are practical objections to a measure which inflicts the punishment imposed in certain cases by this Bill. Some of them have been quite frankly admitted by those who are in favour of the Bill passing into law. My noble and learned Friend Lord Bramwell admitted that one evil connected with the infliction of punishment of this description was that it was apt to have a brutalizing and injurious effect on those who had to be the instruments of inflicting that punish
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  ment. I do not suppose that anybody will dispute that that is a real and substantial objection to it. And, my Lords, though I do not propose to dwell upon the effect that it may have upon those who suffer under it for the offences that they have committed—because I am quite aware that the argument is that it is intended only to be inflicted upon those who are already such brutes that they cannot be further brutalized—yet I would remind the House that human tribunals are not infallible, and that men are convicted of the offences to which this Bill has reference who are innocent of the crimes with which they are charged. ("Oh!") I have in my mind at this moment cases within my own experience where men have been so convicted, and who would in all human probability have received a severe flogging if this Bill had been law when they were so convicted. Now, I quite admit that you cannot undo any punishment that you inflict; at any rate, I agree with that to some extent, although it is not a very conclusive argument. It is perfectly true that you cannot undo the imprisonment which you have inflicted on a man who turns out to have been innocent of the offence of which he has been wrongfully convicted; but your reason for inflicting this punishment is that you intend it to be inflicted on brutes, and that it is a punishment of a specially degrading character. ["No, no."] I certainly have heard that argument used by some who have advocated this punishment. If it is not to be regarded as of a degrading character, certainly we differ very much in our estimate of what its real character is. It may be quite proper to inflict it, that is another question; but I say that for a man to be stripped bare before his fellow men, and flogged with a cat-o'-nine tails by a prison warder, is a punishment which an innocent man would feel beyond almost any other punishment.
  THE MARQUESS OF SALISBURYI think the noble and learned Lord has misunderstood what has been advanced in support of the Bill. I am not aware that any of its advocates have said that this punishment is intended to be brutalizing.
  LORD HERSCHELLI certainly understood that it had been advanced as a special merit of this punishment,

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  when applied to those for whom it was intended, that it was of a degrading character. But I put that aside. If it be true that this is a punishment which above all other things a man would dread to have inflicted, then obviously you are going to add to the risks which any innocent man wrongfully convicted will suffer the infliction of a punishment which on your hypothesis, is one which any man would care for more than penal servitude. I cannot conceive anything which would be more likely to be a sting in a man's mind for the rest of his life than that he should have been convicted of an offence of this description when innocent, and flogged with the cat-o'-nine-tails in the prison yard. I will venture to say that an innocent man suffering in this manner would be likely to feel that more, and think of it more, than the mere imprisonment, the mere deprivation of his liberty. That is one of the objections that I feel to this measure. And, my Lords, it is impossible to shut one's eyes to the fact that if this principle be a right one, there are many who desire its application (and, in my opinion, it ought to be applied) to many cases that are outside this Bill. We cannot forget what has passed in another place. I observe that one Member of the other House voted for a measure similar to this on the ground that he hoped to have the punishment applied to persons convicted of indecent assaults; and, although there is no class of crime which excites greater abhorrence, it is impossible to doubt that there are few offences of which an innocent man is more likely to be found guilty. I think it is a perilous course to adopt a principle of punishment the essence of which is the mere infliction of pain. No one has less sympathy with or is less likely to stand friend to Bill Sykes than I, but when we adopt a principle of this sort I think we run considerable danger. If, in spite of the passing of this Bill, burglars still carry firearms, it will then be said that we must carry the principle further and inflict some punishment of a still more severe character. I altogether doubt the wisdom in the present day of resorting to or increasing the infliction of punishments the mere principle of which is to give physical pain.
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  These, my Lords, are objections to the general character of the measure. I now come to deal with the Bill itself. If it had dealt with the use of firearms or murderous weapons in connection with burglary, I could have understood that it was founded on some principle; but the Bill applies to the case of a man with an unloaded pistol, and that whether he has or has not the means of loading it in his possession. I confess that is an anomaly which I do not like, and I endeavoured in Committee to instil some principle into the Bill, but without success. I sought to limit it to cases of loaded firearms, or cases where the man had ammunition and also an unloaded firearm in his possession, or cases in which the unloaded firearm had been used for purposes of intimidation. I also endeavoured to apply the Bill to the possession of deadly weapons other than firearms, but the Committee rejected those proposals. A man, therefore, who has an unloaded pistol in his possession may be flogged, while one who has a dagger and actually uses it will be considered less criminal and incapable of being flogged under the Bill. But, more than that. One knows [hat burglars use other implements o sides guns and pistols. I dare say some of your Lordships have seen—I have more than once—what are called knuckledusters, which will destroy a man's appearance so that he may be disfigured for the rest of his life. A man may use weapons of that kind and yet not be punished under this Bill in the same way as a man who carries an unloaded pistol. For my part, I protest against legislation of that sort. I object to it altogether. If this is a right principle it seems to me that it ought to be applied in some cases in which it is not made applicable, and not applied in others in which it is. Besides, there are offences included in the Bill which are comparatively speaking trivial. For instance, a man breaking out of a church if in possession of an unloaded pistol might be flogged. If t could be conclusively proved that, in spite of those objections, more good would be done by the Bill than harm, one might accept it notwithstanding those objections; but I believe that the imagination of the noble Earl that when he Bill has passed burglars will cease to go about with firearms is not well,

  927
  grounded. No doubt if the man committing the specified offence were certain that punishment would follow, that punishment would act as a deterrent whether it were flogging or mere penal servitude. But if a man is willing to risk the chances of penal servitude for life, the question is whether the mere addition of the chance of flogging will alter his view of the risks. And, my Lords, there is one danger (not, it seems to me, imaginary) which may result from this measure. Suppose you are right in saying that flogging is the punishment dreaded above all others by burglars, is there not a danger that the fear of it will induce burglars to use their firearms to effect escape, where, under other circumstances, they would not have used them? They will not receive any more severe punishment for using firearms than for merely carrying them. Now, with regard to the evidence of the effect of this punishment in the past, I should like to say a word or two. I know that many Judges think the punishment efficacious, and I know that some most eminent Judges have always been opposed to it, and some who I am quite sure could not be charged with sentimental reasoning. But the efficacy of punishments must be to a certain extent a matter of opinion. The noble Earl has quoted the opinion of a learned Judge who says that he went to Manchester, and that he inflicted flogging in a certain number of cases, and that the crimes ceased. [The Earl of MILLTOWN: Chester, and Liverpool, as well as Manchester.] Well, I have the records of the number of convictions and the number of sentences of flogging at Liverpool and Manchester. At Manchester (which was the town to which the noble Lord referred), I find that at the Summer Assizes of 1884, there were ten cases of garrotting, and two were flogged; at the Winter Assizes there were six cases, and none were flogged; at the Winter Assizes of 1885 there were 19 cases, and none were flogged; at the Spring Assizes of 1886, there were 13 cases, and 12 were flogged—the last is, I think, the occasion to which the noble Lord specially referred. At the Summer Assizes of the same year there were 13 cases, and six were flogged; at the Winter Assizes the same year, there were 15 cases. The truth is, it is a very difficult thing for
  928
  any individual Judge to follow the results of the particular punishments which he inflicts, and determine what has caused a diminution of crime. I am satisfied that the infliction of long terms of penal servitude by my noble and learned Friend, Lord Bramwell, was that which really put a stop to garrotting. I do not deny that flogging may have terror for the criminal classes, but the real question is, will the addition of that punishment to penal servitude make the difference between committing the offence and not? My Lords, I have stated my objections to this Bill, and it seems to me that the problematical good to be obtained by passing it does not really outweigh the evils which everybody must admit, though opinions may differ as to their importance, to be real ones, which must result from this change in the law. I therefore beg to move that the Bill be read this day four months.
  Amendment moved, to leave out "now" and add at the end of the Motion "this day four months."—(The Lord Herschell.)
  LORD NORTONThe noble Lord's argument, based on the possibility that a man might be wrongly convicted, would apply to all kinds of punishment, solely excepting fines, but especially to capital punishment. The test of proper efficacy of punishment lies in its preventing the repetition of a crime; and to prevent repetition the punishment must meet the motives of the offender. Therefore, refined punishments must always fail to affect the motives of men so brutal as to be capable of the most atrocious crimes. If mere physical pain is the only punishment which will effectually operate in certain cases, the fact that it is mere physical pain is not enough to justify its disuse. There are some loathsome diseases for which there are none but loathsome remedies; but no one on that account would suggest that the sufferer should neglect the only road to health. Corporal punishment as administered in the old days in the Army and Navy was undoubtedly brutalizing. Then as many as 300 or 400 lashes might be given; but under the present Bill 25 lashes is the maximum number that could be inflicted. Moreover, the infliction of the punishment would always be within.

  929
  the discretion of the Judge, and no doubt a distinction would be made between burglars having loaded or unloaded pistols. Again, it is no argument against dealing with the use of firearms by burglars to urge that the use of several other kinds of destructive weapons is not dealt with in the Bill. As to certainty in the meaning of punishment flogging is superior to any other kind of punishment, and particularly to penal servitude, which is about the most uncertain of all punishments. A man who is sentenced to a term of penal servitude never really knows to what he is sentenced, the sentence never being fully carried out. It is said that the punishment of flogging is unequal because its severity depends on a man's constitution. But every kind of punishment is unequal in the sense that it must vary with the constitution or the circumstances of the man who bears it. I do not, however, know that there can be such an inequality in the infliction of 25 lashes that we should be so particular as to the exact amount of pain suitable for a man who has not hesitated to break into a house with the intention, if the householder resist the taking of his property, to blow his brains out. I ask the noble and learned Lord to consider whether he ought not to rest satisfied with what he has effected in the Standing Committee. He has so far emasculated the Bill as that if a burglar is not actually charged in the indictment with carrying firearms, although it may come out distinctly in evidence at the trial that firearms were in his possession at the time, he cannot be flogged. The Bill is thus altered so as to make it necessary that every burglar should be charged in the indictment with carrying firearms that, if it come out in evidence, he might be liable to flogging.
  LORD HERSCHELLI beg my noble Friend's pardon. That was not my Amendment. No doubt I approved of it, but I did not propose it.
  LORD NORTONAt any rate, the Amendment was very much supported by the noble and learned Lord. For myself I hope that your Lordships will regard this as the true test of punishment—namely, whether it meets the motives of the criminals who are to be prevented repeating their crimes; and applying that test in this case, I do not think the Bill is at all open to the
  930
  objections taken to it by the noble and I learned Lord.
  LORD ESHERMy Lords, I intend to vote with the noble and learned Lord opposite for the rejection of the Bill, and I do so on the ground that I think it is a cruelly unjust Bill, and that it contains within itself powers which are even contrary to natural justice. I also shall vote against the Bill because those who were in the majority in the Committee refused every Amendment which, in my opinion, would have made the Bill decent and just. It is said that flogging would be more efficacious than a sentence of penal servitude without it. That may be so; but, as to that argument, if, besides giving the Judge power to flog the prisoner, power were also given to cut off one of his ears, no doubt that would be still more efficacious. How a burglar with an unloaded pistol and with no ammunition for loading it could blow out a man's brains, as the noble Lord who has just spoken has so often seemed to fear, I cannot understand. I shall adopt all the reasons of the noble and learned Lord opposite for voting against the Bill except one, and that is his argument as to the danger that innocent persons might be flogged. In all my experience at the Bar and as a Judge I have never known an innocent man to be convicted. I have known persons to be convicted and their sentences to be afterwards altered, not because it was proved that they were innocent, but because the matter was brought into sufficient doubt; and I have often advised that the punishment should be remitted on that ground, but I have never once been able to satisfy myself that a man who had been convicted was really innocent. However, all the other reasons advanced by the noble and learned Lord I adopt. I say it is unjust to subject a man to the same punishment whether he intended to use those weapons or whether he did not. But there is another matter in the Bill to which I would refer, and which as it stands proposes, I think, a monstrous injustice, and that is Clause 2. It relates to the case of two burglars going out together, only one of whom has a pistol in his possession. It may be proved to the satisfaction of the Judge and the jury that the other man did not know that his companion had a pistol, that he did not suppose that he had one, that he had even asked and made in

  931
  quiries to ascertain whether he had one, and had been assured that he had not, and really believed that he had not. The man with the pistols escapes; the other is caught and convicted of the burglary. As the Bill stands that man, who had taken every means to convince himself, and who believed that his companion had not a pistol, can be flogged; the other escapes free. Now, I tried to get an Amendment to that clause, for the purpose of obviating that which I call a wicked injustice, and it was refused. I know it is said, "Oh, but the Judge would not flog a man under those circumstances; we give power to the Judge to flog him, but know he will never exercise it." Well, I have great admiration for Her Majesty's Judges, but I have not that absolute confidence in them, and I think, moreover, that it is wholly wrong to give power in an Act of Parliament which may produce a manifest injustice, and then to say, "Oh yes, but the Judges will not do that which the Act empowers them to do." I call that bad legislation. I have often had to construe the meaning of Acts of Parliament, and there is this very well settled rule which I have always acted upon. If an Act of Parliament uses general words, which are capable of two constructions, one of which would give a reasonable construction, the other of which would conduce to either uncertainty or wicked injustice, I have said that the proper construction of that Act of Parliament is to say that the former is the true construction. After this Act I can hardly say so. If it be really the intention that a man, under the circumstances I have referred to, shall not be flogged, plain and unmistakable words to that effect ought to be in the Act. I have asked the supporters of this measure to put the matter plainly in the Bill itself, and they have refused to do so. I say I will vote against any Bill which has such a monstrous clause in it.
  VISCOUNT CRANBROOKI venture to think that my noble and learned Friend (Lord Esher) is entirely mistaken in the argument he has used. Where two prisoners are tried together it happens over and over again that though they are both liable to the same punishment the Judge differentiates the punishment according to the evidence
  932
  given against each of them. Two men might be charged with manslaughter and one escape with a week's imprisonment, while the other was sentenced to ten years' penal servitude. It is a necessity that Judges should be invested with such discrimination. The 2nd Clause of the Bill merely provides against an invasion of this principle. It is idle to talk of the situation created by one burglar saying to another, "I hope you have no firearms nor anything that will get us into a scrape." We have to deal with the common practices of criminals, and it would be impossible to deal with culprits of the worst kind if the accomplice of a man who used a weapon was not liable to the same punishment as his comrade with whom he would have shared the plunder had their venture been successful. It must be left to the discretion of the Judge to say whether there was any difference between the two. I have never been a great advocate for flogging, and I know it is a question which raises considerable doubts in men's minds; but it is absurd to compare flogging with mutilation. It was enacted that flogging might be resorted to in certain cases of robbery. A friend of mine was. garrotted, and in less than a minute was so injured by the pressure upon the throat that he had to keep his bed for three months. You must use strong measures to deter men from committing such crimes; and it is believed that flogging will operate as a corrective and preventive. If you cannot change a man's heart you may change his mind and show him the folly and wickedness of such crimes. The use of firearms has come to the front lately; and it is hoped to put down that practice not by cruelty, but by well-deserved punishment.
  LORD BRAMWELLI trust your Lordships will read this Bill a third time. I very much agree with my noble and learned Friend opposite that it would be better if this 2nd Clause had been left out. Everyone knows that there does exist a great objection to corporal punishment, and it would have been safer to have left out that clause. But my noble and learned Friend did not quite do justice to those who persisted in retaining it. The argument used for it was this—It is true that one of the party of burglars

  933
  may be possessed of a firearm or weapon, and it is true that his companions may not know of it; but what are probabilities? The immense probability is that each man knows what weapons of offence the others have. Then, it was said, let this clause remain in the Bill, and trust to the Judge not improperly to punish, unless there is satisfactory proof of knowledge on the part of the man who had not got the firearm that it was carried by one of the party. There is little doubt that there has been an increase in the number of burglaries committed with firearms—for one reason, because the miserable weapons which these people get are so cheap. That flogging is deterrent I have not the slightest doubt, though I have not had the opportunities of other Judges of knowing its effects. Some Judges in not ordering offenders to be flogged have neglected their duty, and I have told them so—in the most friendly way. The objection to flogging—that it is a punishment that cannot be effaced—applies to other punishments, too; and we must run some risk in inflicting all punishments, including capital punishment, which it is not proposed to abolish on that account. My noble and learned Friend said that he never knew of a case of a wrong conviction. Well, I congratulate him. Personally, I have certainly known of wrongful convictions, but the cases have been very few indeed—so few that I think we need scarcely have regard to the mere possibility of a man being improperly convicted and sentenced to be flogged. Punishment to be deterrent must be painful. I do not wish to refer to those who opposed this view of punishment as humanitarian, for that term was often applied offensively to very well-meaning people. But the Italian, Beccaria, who was a most humane man and who did so much for the regulation of the Criminal Law, and to make it reasonable and humane laid down these principles:
  "Thefts which have not violence united with them should be punished with pecuniary penalities,"
  in which he included loss of liberty as entailing loss of opportunity of earning money.
  "In the case of thefts with violence the, punishment should be corporal."
  934
  I do not say that your Lordships will be satisfied with the argument, but, at any rate, that is the opinion of a good and humane man in favour of the proposition which is now before your Lordships.
  On question, "That 'now' stand part of the Motion," the House divided:—Contents 75; Not-Contents 19.
  Resolved in the affirmative.
  Bill read 3a accordingly
  Moved, "That the Bill be now passed."
  On the Motion of LORD FITZ GERALD, the following Amendments were agreed to—
  Clause 1, page 1, line 10, leave out first "and," and after "fifty-seven" insert "and sixty-one," Line 14, leave out from "felonies" to "all" in line 15. Page 3, lines 13 to 25, leave out Section 58, and insert the following Section:—
  61. Whosoever shall steal any chattel, money or valuable security in any dwelling house, and shall by any menace or threat put any one being therein in bodily fear, shall be guilty of felony, and being convicted thereof, shall be liable, at the discretion of the Court, to be kept in penal servitude for any term not exceeding 14 years, and not less than three years, or to be imprisoned for any term not exceeding two years, with or without hard labour, and with or without solitary confinement.
  Bill passed, and sent to the Commons.

TOWN POLICE CLAUSES ACT (1847) AMENDMENT BILL. (No. 83.)
Read. 3a (according to order), with the Amendments, and passed, and sent to the Commons.
House adjourned at Seven o'clock, to Monday next, a quarter before Eleven o'clock.