HL Deb 24 May 1889 vol 336 cc920-34

In 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 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 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 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.)


I 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 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.


I 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.


I certainly understood that it had been advanced as a special merit of this punishment, 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. 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, 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 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.)


The 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. 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.


I beg my noble Friend's pardon. That was not my Amendment. No doubt I approved of it, but I did not propose it.


At 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 objections taken to it by the noble and I learned Lord.


My 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 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.


I 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 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.


I 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 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. 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.