§ Order of the Day for the Third Reading, read.
* THE EARL OF MILLTOWN
My Lords, there is an Amendment which I have to propose, but it is a very small one. It is for the purpose of restoring the Bill to the same condition in which it was when it left your Lordships' House last year. On the Third Reading, my late lamented Friend Lord FitzGerald proposed that Clause 61 of the Larceny Act should be added to those already in the Bill, and so render those persons who should be convicted under it liable to the penalties imposed by the Act. By some mistake that addition, which was consented to by your Lordships' House and passed, has not been printed with the Bill, and therefore has not appeared in the copies which have hitherto been placed before your Lordships. The 61st clause enacts that —Whosoever shall steal any cheques, monies, or valuable securities from any dwelling-house, and shall by any means or threat put any one being so threatened in bodily fear, shall be deemed guilty of felony, and being convicted thereof shall be liableand so on. My noble and learned Friend then stated, as well as I remember, that it was within his personal knowledge that cases had occurred of firearms being used under those circumstances, and that is an offence which certainly ought to be within the purview of the Act. I therefore, with the object of restoring the Bill to the condition in which it was when it left your Lordships' House, propose this Amendment.
§ Amendment moved, in page 1, line 10, leave out the first ("and"), and after ("fifty-seven") insert ("and sixty-one"); Schedule, page 5, after paragraph 58 insert as a separate paragraph; (61.) [Here insert clause 61 of 24 and 25 Vict. c. 96].—(The Earl of Milltown.)835
§ THE MARQUESS OF SALISBURY
Before we go to the Schedule, I want to ask my noble Friend, whether on the whole he does not think it expedient to pay a certain amount of regard to—what shall I say?—I may say, the sentiments of the Master of the Rolls, in view of the fact that probably elsewhere those sentiments will be more fully echoed than they are here. I think that the words "twice or thrice" in lines 23 and 24 might wisely be omitted. No doubt a great deal of the benefit to be derived from the Bill may be expected to proceed from the first whipping, the first application of the 50 strokes, and I do not think that the second or third whippings would be of sufficient advantage to justify my noble Friend in weighting his Bill with that which will adversely affect it elsewhere. I only suggest that as a matter of prudence.
* THE EARL OF MILLTOWN
Of course I should desire to accept any suggestion coming from the Prime Minister, but I must point out that the words of the clause are not mine. The noble and learned Master of the Rolls was under a total misapprehension of the law upon the subject when he made his statement to this House. In laying down certain rules for the flogging of these misdemeanants, I was simply copying the words of the Act of Parliament for which my noble Friend now present is responsible, and which was passed in 1866 for the purpose of stopping the crime of robbery with violence usually called "garrotting." I have made no alteration in it whatever. It is just the same thing, and if I accept the Amendment of the noble Marquess the clause will be made altogether different to the Act from which it is taken and which it simply extends. However, if the noble Marquess, under the circumstances, still thinks it would be advisable to make a difference between the present Bill and the existing Act of Parliament, I shall of course adopt his suggestion. At the same time I do not anticipate any very great hostility in the other House, if only Her Majesty's Government will do something to enable it to come to a decision upon the Bill.
§ LORD HERSCHELL
I cannot agree with the noble Earl that the proposal made by the noble Marquess would alter the existing law. No doubt in a single 836 Act it is provided that there should be or may be these repeated whippings administered. But we have now to consider, not the Act, but the application of the punishment of whipping for an altogether different series of offences, and unless the noble and learned Earl means to say that because in one Act this punishment has been awarded or rendered possible, it has become part of the British Constitution, and that in all other Acts into which it maybe thought advisable to introduce the punishment of whipping, it must be administered "once, twice, thrice," I confess I cannot understand his reasoning. We have now for the first time to award this punishment for a number of offences, and the question is whether in so awarding it we shall make the punishment once whipping, or inflict it once, twice, and thrice. We are not in the least concerned now with another Act, passed more than 20 years ago, which deals with another class of offences; and I cannot admit that when we are asked to begin afresh to extend this punishment of whipping, as proposed by this Bill, to the offences which are there dealt with, we are pledged to follow the same process in its infliction—that for all time we are to imitate the method thought right 20 years ago, even if we should think it right to flog at all.
§ * LORD NORTON
I think there would be considerable force in what has fallen from the noble and learned Lord if this Bill were upon a totally different subject and applied to a totally different kind of crime to that which is dealt with by the former Act, but it is simply because the crime dealt with by this Bill is of exactly the same character, only if anything worse in degree than the crime dealt with by what is called the "Garrotting Act," that there is a fair inference to be drawn from one Bill to the other that the two will be equally successful. The noble and learned Lord spoke as if corporal punishment were proposed to be applied to a totally new category of crime. That is not the case, for the subject-matter of this Bill is practically identical with that which is dealt with by the Act from which it is drawn. The Garrotting Act, which was so very successful, applied corporal punishment to people who murderously attacked for robbery in the dark. In one case the 837 garrotters broke the jaw of an old gentleman in getting his watch. This Bill would similarly deter from murderous burglary. For that class of crime this has teen found to be a deterrent punishment. Unless punishment is made deterrent you had better have no punishment at all; there is no use. On the Second Reading the noble Lord said this was retrograde legislation; but, in sequence of a series of like legislation, it is a step in advance. It is an application of precisely the same principle, not trenching on any new ground, not trespassing on anything experimental. There is no sense in comparing the whippings now inflicted with the floggings of a former age, and it is simply from the fact that in the olden times floggings were brutally excessive and therefore were abandoned, that the inference is drawn that the great and most needful resource of corporal punishment cannot be admittedly applied. As to the proposition which has come from the Prime Minister, I think the noble Earl who introduced the Bill is wise in accepting it; though I am to a certain extent sorry for it, because it will look as if this House had flinched from following the precedent which has already been successful, and the fact may be quoted in other places as showing that, after all, your Lordships have flinched from the full conviction upon which you, by large majorities last Session, passed the same Bill. The Prime Minister himself expressed an opinion that a considerable check was given to garrotting even before that Act passed. The mere threat of the Act operated to check the crime, and so I think the mere threat of this Act will be a check, and has already proved a check, to the use of firearms in burglary. I am sorry, therefore, that the effect of this Bill should be diminished in any respect at all. At the same time, I think the noble Earl was right in accepting the omission proposed.
* THE EARL OF MILLTOWN
My Lords, I am not of a particularly bloodthirsty disposition, but I think it is necessary to award the necessary punishment to brutal burglars. My contention is that this punishment will deter them from putting a six-shooter in their pockets when they set out to commit burglaries, and I am 838 quite satisfied that many of the sacrifices of life which have occurred would have been avoided had this measure been in operation. As I am upon my legs I should like to refer for a moment to what was said by the Master of the Rolls.
§ LORD HERSCHELL
This is a little out of order. The noble Earl has spoken upon the proposal of the Prime Minister. He can hardly reply in this way to what has been said by those who have spoken since.
§ THE MARQUESS OF SALISBURY
With regard to line 25, may I take the opportunity of saying that I have no wish to flinch—a word which is perhaps more applicable to another person in these proceedings—from doing what I consider absolutely necessary, but I think it is not desirable to go further than. is absolutely necessary, and we may very well go by steps. Your Lordships may remember that the Master of the Rolls, in his speech, raised questions of a disagreeable anatomical character, which in the other House may possibly have some effect.
§ Amendments agreed to.
* THE EARL OF MILLTOWN
My Lords, in moving that the Bill be passed, I may perhaps now be allowed, notwithstanding the criticism of the noble and learned Lord, to say a few words with regard to the objection taken yesterday by the Master of the Rolls as to the 1st clause in the Schedule, which applies to cases of sacrilege. The noble Earl Kimberley made the same objection last year, on the ground that persons do not ordinarily live in churches and places of Divine worship, and therefore that nobody was likely to get hurt there by an armed burglar. I think that states the substance of the objection of the Master of the Rolls. But if I recollect rightly, a case occurred some time ago in which a Roman Catholic priest made a most plucky defence of his church against a burglar who was attempting to steal the communion plate, and though, the burglar was armed, the priest managed to frustrate his intentions. But a most remarkable case, which I recommend to the attention of the noble Earl, was a case which was tried at the Old Bailey, in, I think, the year 1884, 839 when a burglar named, I believe, Orrock, going on a predatory expedition, and having provided himself with a six-shooter, seeing a church apparently unprotected, proceeded to effect an entrance with the object of stealing the communion plate; but a policeman came upon the scene, and attempted to arrest Orrock, who thereupon pulled out his six-shooter and shot the policeman dead. Orrock was tried at the Old Bailey, before Mr. Justice Hawkins, convicted, sentenced to death, and executed. Thus two lives were lost, neither of which possibly would have been sacrificed had the provisions of my Bill been then the law of the land, for I think it probable that in that case the burglar when he placed the pistol in his pocket had no intention of using it for the deadly purpose which ho afterwards carried out, and had my Bill been in operation would have left it at home rather than run the risk of a flogging.
THE EARL OF KIMBERLEY
The noble Lord has alluded to something I said last year. These are matters of opinion. He does not think that occurrence would have happened if this Bill had been the law of the land, but I think it would. That is, of course, a matter of opinion entirely. There are many other crimes committed where people have pistols and use them, and I do not see why this particular crime has been selected. As the noble Lord has mentioned one case, I will just mention another, which happened not very long ago in my own county. A man stole a horse, a police man attempted to arrest him, and he fired at the constable. As far as I can see, this penalty ought to have been applied to that man just as much as to a criminal committing a burglary. My objection to the Bill is simply this, that if you introduce the practice of whipping in this particular instance, I cannot see the slightest reason why you should not extend it to a vast number of other offences. I still maintain my opinion that it is a retrograde step, and one which is inconsistent with our whole system for long years past, during which we have had a considerable diminution of crime. I therefore see no reason at all for passing this Bill.
§ Bill read 3ª (according to order); Amendments made; Bill passed, and sent to the Commons.