Sitting of 6 July 1864

MINUTES.
PUBLIC BILLS—Committee—Trespass (Ireland) [Bill 13]; Punishment of Rape [Bill 157], negatived; Insolvent Debtors [Bill 20]—R.P.
Report—Trespass (Ireland) [Bill 13].
Considered as amended—Judgments Law Amendment* [Bill 160],
Withdrawn—Municipal Corporations (Ireland)* [Bill 139]; Fisheries (Freshwater)* [Bill 130].

TRESPASS (IRELAND) BILL— [Bill 13.]

  COMMITTEE.
  [Progress, 27th April.]
  Order for Committee read.
  Bill considered in Committee.
  (In the Committee.)
  Question again proposed.
  Clause 1 (Repeal of 10th Section of 27 Geo. III.).
  MR. BAGWELLsaid, he had opposed this Bill in every stage, and intended to continue his opposition, believing as he did that the measure was both unjust and impolitic: it was unjust because it gave to the landlord what was now the property of the occupier; and it was impolitic because it would create another incentive to crime in a country where agrarian crime was already too prevalent. By the existing law the power of prosecuting for trespass in pursuit of game was in the occupier, and this Bill would transfer it to the landlord
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  —and this was virtually to introduce the English Game Law into Ireland. He believed the Irish people were not awake to the serious consequences of the Bill. The evil effects of the Game Laws were clearly shown by the evidence given before Mr. Bright's Committee. Sir Harry Verney and Mr. Pusey declared that game preserving was a serious evil; Lord Hatherton expressed an opinion that game preserving and profitable farming were incompatible. Now, the present Bill was calculated to bring upon Ireland the evils which arose from the Game Laws in England, and to render that country a game preserving country, with all its attendant consequences of crime and misery. The Returns of convictions under the Game Laws which had been presented to the House made a folio volume of 481 pages. The number of convictions in England and Wales was 30,673, and in Scotland 3,226. Supposing the Amendments on the paper to be carried, they would very slightly mitigate the evils which he apprehended from the Bill, and entertaining this opinion he begged to move that the Chairman leave the chair.
  Motion made, and Question, "That the Chairman do now leave the Chair."—(Mr. Bagwell.)
  MR. DAWSONsaid, that a very erroneous impression prevailed with regard to the Bill. It was thought that if it passed into law, all the powers and concomitant consequences of the English Game Laws would be thrust upon the people of Ireland. But he asserted nothing of the kind would be the case. The Bill only gave to the landlord a power which it was very extraordinary that he did not already possess—the power of preventing trespass in pursuit of game. He thought the Bill would be acceptable to both parties. The tenant was often unwilling to appear in court to prosecute a trespass in pursuit of game, and he would be glad to be relieved from the necessity of being a party to the prosecution. The present Bill was a measure of relief to the tenant, and was, he believed, so considered by the occupiers.
  MR. M'CANNbelieved the Bill would be productive of great evil and mischief in Ireland. It was the introduction, with additions, of the English system of Game Laws into that country. It was quite true that no petitions had been presented against the Bill, but the fact was that the Irish people had given up petitioning, and were

  933
  indifferent to what was going on in that House. Looking at the benches near him, he could not help expressing his astonishment at the scanty attendance of Liberal Members. Where were they? ["Oh, oh!"] He did not deny that there were some Liberal Members on the other side; perhaps they were in reality more liberal than the Members on the Liberal side. But, as to the English Liberal Members, they were calling for the support of the Irish Liberals in the division that was to take place on Friday; but now, where—["Order!"]
  MR. M'MAHONsaid, he did not quite see how the hon. Member for Drogheda was out of order, for in arguing against the progress of a Bill he had a right to show how seriously it would affect the great bulk of the tenantry of Ireland. Every tenant in Ireland who happened not to have a lease—and they were the great bulk of the agricultural population—would be seriously affected by the Bill, and an opportunity ought to be given for more fully considering it. The Bill was said to be for the protection of the tenantry, but it was strange that they had never asked for it. He thought, therefore, that the Bill should be printed and circulated, so that the opinion of the country might be ascertained with respect to it. If it were true that the tenants in cases where prosecutions were required were unwilling or afraid to undertake those prosecutions, there might be some ground for the Bill; but there was no evidence that such was the case. If passed, it would make the law of Ireland more stringent than it was at present, and even more stringent than that of England. He had always contended for the assimilation of the laws of the two countries; but in the present case the worst parts of the law of both countries were picked out and embodied in the Bill, If anything was done in the matter, it ought to be done not by a private Member, but by the Government upon their own responsibility.
  SIR COLMAN O'LOGHLENsaid, he was in favour of the principle of the Bill, which was to enable a landlord to proceed for trespass when the game belonged to him, but he did not desire to see the English Game Laws introduced into Ireland. He would suggest, however, that it would be better at this late period of the Session to withdraw the Bill, and introduce a new one next year.
  MR. W. R. ORMSBY GOREsaid, he certainly would not accede to the sugges-
  934
  tion to withdraw the Bill, as he believed it would be a great relief to the tenant.
  MR. O'HAGAN (THE ATTORNEY GENERAL FOR IRELAND)said, that the second clause would, by a side wind, displace the old law of the country, which required that where the landlord reserved the game to himself it should be done by a regular, written instrument. This was a serious innovation on the law, and he did not think it should be done by a side wind and without due consideration.
  MR. W. R. ORMSBY GOREsaid, no doubt the proposed change in the law was a great alteration, but what were Members sent to that House for unless it was to alter the law? The game on land held from year to year was now virtually the landlord's property, yet if he wished to punish a trespasser he must go and ask the permission of the tenant; and if the latter gave his consent, he subjected himself to the ill-will of the person prosecuted. That was a position from which the tenant would be very glad to be freed.
  MR. MONSELLsaid, that in certain instances the Bill as it stood would transfer the property in game from the tenant to the landlord, and that undoubtedly would be a great change; but he thought if the Amendment of which his hon. Friend the Member for Youghal (Mr. Butt) had given notice was adopted, it would remove all objections. Under that clause the landlord who retained his right to the game, would be enabled to vindicate his right himself. This would give him all the power that was necessary, without introducing any fundamental alteration in the existing law.
  MR. LONGFIELDsaid, that the Game Laws in England and Ireland thirty five years ago were the same; but by the 1st William IV. not only was that right given to the landlord, which his hon. Friend by this Bill intended to give, but by retrospective legislation even existing contracts were altered, and that was going much further than it was now proposed to do. The Irish tenant was well disposed to preserve his landlord's game, but he complained that the present state of the law took from him both time and labour, and placed him in an invidious position towards his neighbour. The landlord had the beneficial ownership of the game at present, and this alteration of the law would merely enable him to enforce his right. He protested against a small portion of Gentlemen in that House setting themselves up as the exclusive champions of the Irish tenant.
  MR. M'MAHONsaid, that as in a few months they would be probably sent before their constituents, if the hon. Member thought his Bill was so much desired by the Irish tenants, he could not do better than go before them with the cry of "My Game Bill."
  MR. W. R. ORMSBY GOREsaid, it would be seen from the Amendment which he had put upon the paper, that he did not propose to take away any existing right. He went so far as to require that no prosecution should be instituted by any person except he had an exclusive right to the game.
  SIR GEORGE GREYsaid, it was difficult to know what they were discussing. As the hon. Gentleman had himself put an Amendment of an important character upon the paper, he would suggest that the hon. Gentleman would do well to commit the Bill pro formâ, and have it printed, and then the House would see what their real position with respect to the Bill was.
  MR. W. R. ORMSBY GOREsaid, there was no difficulty in ascertaining what the nature of the Bill was. He was ready to maintain every existing right except that of prosecuting in the name of the tenants at will.
  LORD NAASsaid, that there was really but one clause in the Bill, and his hon. Friend proposed to substitute another which had been before the House for the last two months. The House, therefore, would gain nothing by committing the Bill pro forma.
  MR. LONGFIELDsaid, that where a landlord had reserved to himself the right to game it was in every instance an exclusive right. The Attorney General for Ireland would tell them that such was the case. It might, however, be better to insert a word which would make that clear, and his hon. Friend had no objection to do so.
  MR. O'HAGAN (THE ATTORNEY GENERAL FOR IRELAND)said, that there was not the slightest doubt that so far the law, as stated by the hon. and learned Gentleman, was correct.
  COLONEL DUNNEsaid, that hon. Members who had no interest in land in Ireland were very liberal in dealing with other people's property; he should be very sorry if it were supposed that Ireland was represented by a few Gentlemen who came there and made speeches as an easy means of raising political capital. He did not think the Bill would be of much use; how-
  936
  ever, he should support it because there was nothing misleading about it. Every landed proprietor now put more stringent conditions as to game into his leases than the Bill provided for him.
  MR. BAGWELLsaid, he would put it to the House whether it was more vulgar to impute motives of the vilest kind to Gentlemen who were equal in social position to the hon. and gallant Member, or to do what hon. Gentlemen conceived to be their duty in that House.
  MR. M'CANNsaid, they had heard a good many legal opinions, but the legal Gentlemen had not made the matter much clearer. The Bill gave no definition of game, which was an essential point, and he should therefore support the proposition of the Home Secretary.
  Question put.
  The Committee divided:—Ayes 29; Noes 73: Majority, 44.
  SIR COLMAN O'LOGHLEN,on behalf of the hon. and learned Member for Youghal (Mr. Butt), who was unavoidably absent, moved the following Amendment:
  "In line 11, after blank, insert, 'whenever any proceeding shall be instituted against any person to recover the penalty imposed by—." In line 15 to leave out, "shall be, and is hereby repealed," and insert, "it shall not be necessary to institute such proceeding, in the name or by the authority of the occupier of the land, upon which such person has entered, but same may be instituted by any persons legally entitled to the exclusive right of killing game upon such land; and in such case the leave and licence of the occupier or person entitled to the possession of such land shall not be a sufficient defence, but for the purpose of such proceeding the person entitled to the exclusive right of killing game shall be deemed the legal occupier of the land; but, in all other respects, the person charged with such trespass shall be at liberty to prove, by way of defence, any matter which would have been a defence to an action at law for such trespass, and no person shall be convicted of such offence who shall have entered upon such lands by leave and licence of the actual occupier in case it shall appear he had reasonable cause to believe that such occupier was entitled to authorise him to kill game on such land."
  Amendment proposed, in page 1, line 11, after the words "sixty-four," to insert the words "whenever any proceeding shall be instituted against any person to recover the penalty imposed by."—(Sir Colman O'Loghlen.)
  Question proposed, "That those words be there inserted."
  MR. W. R. ORSMBY GOREsaid, he approved the principle of the Amendment, which he had adopted in a new clause he

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  intended to substitute for Clause 2; but there were Words in the latter part of the Amendment which he objected to. The hon. Member for Yougbal (Mr. Butt) was satisfied with the new clause to be proposed in lieu of Clause 2.
  MR. BAGWELLwished to know whether the hon. Gentleman would give a landlord who had the exclusive right of killing game the power of prosecuting trespassers or not.
  MR. ROEBUCKsuggested that it would be much better for the Committee to have the whole matter before them before they were called on for a decision. He defied any one to understand what was before the Committee. He would pass the Bill through Committee pro forma, and have it reprinted.
  SIR GEORGE GREYsaid, that he had recommended the same thing half an hour ago.
  MR. W. R. ORSMBY GOREobserved, that there could be no difficulty in understanding what was intended, as the new clause had been before the House for two months.
  MR. ROEBUCK MR. ROEBUCK moved that the Chairman report Progress.
  Motion made, and Question put, "That the Chairman do report Progress, and ask leave to sit again.—(Mr. Roebuck.)
  The Committee divided:—Ayes 43; Noes 60: Majority 17.
  MR. LONGFIELDthen said, that if the Amendment moved by the hon. Baronet the Member for Clare (Sir Colman O'Loghlen) were withdrawn, the promoters of the Bill were ready, when the Committee came to the consideration of the new clause in lieu of Clause 2, to alter it in a way which would be satisfactory to hon. Members on both sides of the House.
  Amendment, by leave, withdrawn.
  Clause agreed to.
  Clause 2 (Penalty for trespassing in pursuit of Game, or of Woodcocks, Snipes, &c.), struck out.
  Clause 3 (Interpretation of the word "Game.")
  SIR COLMAN O'LOGHLEN SIR COLMAN O'LOGHLEN moved the omission of the word "rabbits" from the clause.
  Amendment proposed, in line 23, to leave out the word "rabbits."—(Sir Colman O'Loghlen.)
  Question, "That the word 'rabbits' stand part of the Clause," put, and negatived.
  MR. W. R. ORMSBY GORE MR. W. R. ORMSBY GORE moved the insertion of the word "woodcocks."
  MR. M'MAHONobjected to the insertion of "woodcock" and the other words which the hon. Gentleman had put on the paper—"snipes, quails, landrails, wild ducks, widgeon, and teal." Those did not constitute "game" in the true sense of the term. There could be no right of property in migratory birds, which were not bred under the care of keepers. They were not "game" under the law of England. If it was desired to assimilate the laws of the two countries, why should they be inserted? "Wild ducks, teal, and widgeon" were found in the Irish Act of 1787, but that was no reason why they should be inserted in the Irish Game Act of 1864.
  COLONEL SYKESsaid, a man could not have property in migratory birds. Wild ducks, widgeon, and teal were the property of the Esquimaux for half the year.
  MR. W. R. ORSMBY GOREsaid, that if the hon. and gallant Gentleman would accompany him to Ireland, he would show him twenty nests of wild ducks within a space not larger than that House.
  Motion made, and Question put, "That the word 'woodcocks' be added."
  The Committee divided:—Ayes 81; Noes 28: Majority 53.
  MR. M'MAHONobjected to the insertion of "wild ducks, widgeon, and teal." They were not game, and he hoped the Committee would not make them so.
  MR. W. R. ORSMBY GOREsaid, wild ducks were included in the early part of the Bill, and by two Acts their eggs were made game.
  MR. BAGWELLreminded the Committee that on some of the shores of Ireland, wild ducks formed a great resource for poor people.
  MR. LONGFIELDexplained that the Bill referred only to private property.
  SIR GEORGE GREYunderstood that wild duck was included in the Bill only in connection with penalties for trespass.
  MR. ROEBUCKasked why, in that case, they did not include all birds—a swallow for instance. [A laugh, and "Hear, hear!"]
  MR. M'MAHONsaid, that if the Committee agreed to the introduction of wild

  939
  ducks, it would deprive a large number of people in Ireland of a portion of their means of subsistence. A man shooting a wild duck on the seashore would be liable to the penalties of this Bill.
  MR. LONGFIELDsaid, the Bill did not apply to the sea but to the land, which was private property.
  MR. M'CANNsaid, there were landowners in Ireland who not only claimed a right to the seashore, but who also prevented persons from fishing at high water up to their land. Was it likely they would permit the poor to shoot wild ducks on the seashore if this Bill passed?
  MR. LONGFIELDhoped the Committee would not suppose the Irish people lived on wild ducks.
  SIR GEORGE GREYobserved that, although wild ducks were included in the existing Irish law, they were not in the English law.
  Amendment proposed, at the end of the Clause, to add the words "wild ducks."—(Mr. William Ormsby Gore.)
  Question put, "That those words be there added."
  The Committee divided:—Ayes 64; Noes 53: Majority 11.
  MR. W. R. ORMSBY GOREproposed that the word "deer" should be included in the clause.
  MR. BAGSHAWobjected. In some parts deer ran wild over the country, and often did great damage to the crops of poor people.
  MR. M'MAHONasked if deer were not already sufficiently protected?
  MR. O'HAGANsaid, that deer in a gentleman's park were protected.
  MR. W. R. ORMSBY GORE,in referring to the Act of William III., found that deer were sufficiently protected. He would, therefore, withdraw his proposal.
  Amendment, by leave, withdrawn.
  Clause agreed to.
  Clause 4 (Act to extend to Ireland only) also agreed to.
  MR. W. R. ORMSBY GORE MR. W. R. ORMSBY GORE moved the following clause in lieu of Clause 2:—
  "Where the landlord or lessor of any land has reserved to himself the right to the game on such land, or where the occupier of any land shall hold the same as tenant from year to year, without a right to the game having been duly given to him by some writing, then such landlord or lessor for the purpose of prosecuting all persons for trespassing in pursuit of game on such land without his consent, shall be deemed the legal occupier of the said land; and any person who shall enter or be upon said land in search of or in pursuit of
  940
  game without the consent of such landlord or lessor, shall be deemed a trespasser, and shall on conviction thereof before one or more justices of the peace, sitting in petty sessions, forfeit and pay such sum not exceeding 40 s., together with the costs, as the said justice or justices shall think fit; and such penalty and costs shall be recovered and levied in the same mode, and with the same power of appeal, as are provided for the recovering and levying of any penalties under the Petty Sessions Act of the 14 & 15 Vict. c. 93, and the Petty Sessions Act of the 21 & 22 Vict. c. 100, and as if the provisions in said acts relating to the recovery of penalties were herein expressly repeated."
  Clause (Definitions of "legal occupier" and "trespasser."—Penalties for such trespass,"—(Mr. William Ormsby Gore,)—brought up, and read 1o; 2o.
  MR. BAGWELLopposed the clause, on the ground that there might be more than one person interested in the property who ought to have equal rights.
  MR. O'HAGANapprehended that, in such a case, the clause would not apply. It could only be brought into operation in cases where the landlord or lessor possessed an exclusive right.
  MAJOR STUART KNOXasked if the clause would affect Church property.
  MR. O'HAGANthought that it would not apply to property of that description.
  Motion made, and Question put, "That the Clause be added to the Bill."
  The Committee divided:—Ayes 103; Noes 27: Majority 76.
  House resumed.
  Bill reported; as amended, to be considered on Friday. [Bill 195.]

PUNISHMENT OF RAPE BILL—(Lords.)

  (No. 157.) COMMITTEE.
  Order for Committee read.
  SIR STAFFORD NORTHCOTE,in moving that the House go into Committee upon this Bill, said, he was anxious to explain that he did not hold himself responsible for all the details of the Bill; but, considering that the measure was one which deserved the attention of the House, he had consented to take charge of it. The Bill came down from the House of Lords. The crime of rape, they all knew, had recently been committed in a very aggravated manner in several instances, and a feeling had prevailed in many parts of the country that the offence had not been punished with due severity. He did not say that whipping would be a suitable punishment for all persons convicted of that crime; but there were cases, and among them those where several persons had acted in concert, in which it might

  941
  very properly be administered. It was sometimes alleged that flogging was brutalizing; but in the class of cases to which he referred it could hardly be said that its infliction would be brutalizing. The same kind of punishment might be advantageously extended to criminal assaults upon girls of tender ago. These offences were frequently not committed in moments of passion, but wilfully and deliberately. He intended to propose in Committee a clause by which whipping was added to any other sentence provided by law, on any person convicted of abusing any girl under twelve years of age.
  Motion made, and Question proposed, "That Mr. Speaker do leave the Chair."
  SIR COLMAN O'LOGHLENthought that such a Bill ought not to pass without grave consideration, even though it had come down from the other House. He did not think there had been such an expression of public opinion as justified such a measure. There had been no petitions praying for an alteration of the law; there had been no complaint on the part of the Judges that the existing law was not sufficiently stringent; nor had there been any increase of this crime since the law was last altered, that showed that such a measure was required. In 1861, after due consideration, the Legislature instead of increasing the punishment for rape gave the Judge power to reduce it by substituting three years of penal servitude or imprisonment in place of penal servitude for life. The official Returns showed that there had been no increase in crimes of that nature. Indeed, they were almost stationary, notwithstanding the increase of population. The number of persons charged with rape in 1853 was 136; in 1858 it was again 136; and in 1862 it was 131. In 1853 the assaults with intent to commit rape were 150; in 1858 they were 161; and in 1862 they were 157. That showed there was no necessity for this Bill, and no justification for altering their existing legislation, which had been settled after full consideration. Moreover, it should be remembered, that a charge of rape or attempt at rape was easily made, and often difficult to be disproved, and the enormous proportion of acquittals to convictions in these cases showed that the charge was frequently made to extort money, or for other improper purposes. But even had there been an increase in the crime he did not think they ought to revert to the penalty of flogging without
  942
  the most deliberate consideration. There had been only two instances in which of late years offences against the person had been punished with flogging—the one was with regard to assaults on Her Majesty, and the other, the measure of the right hon. Member for Staffordshire (Mr. Adderley), with reference to garotting, which crime had at that time suddenly become very prevalent. In the latter case, if he had been a Member of the House at the time, he should have opposed such an alteration of the law. In 1853 an attempt had been made to extend the penalty of flogging to cases of aggravated assaults on women. The question was then fully discussed, and the House, by a large majority, refused to annex the punishment of flogging to cases of that kind; and yet if any crime deserved flogging it was a crime of that nature. The House, under all the circumstances, ought not to proceed further with this Bill. It was a Bill which contained provisions contrary to modern legislation; no mention was made of the number of lashes, the instrument to be used, or how many times the punishment should be inflicted. The Mutiny Act limited the number of lashes.
  SIR STAFFORD NORTHCOTEsaid, the fourth clause met that objection.
  SIR COLMAN O'LOGHLENsaid, he perceived that was so; but he grounded his objection to the Bill on the barbarous and retrograde principle which the Bill wished to introduce. No case had been made out for a change of the law. He moved that the Bill be committed that day three months.
  MR. ROEBUCKseconded the Amendment. This Bill proposed to introduce a very important alteration in our criminal code, and should not have been undertaken by a private Member without at least the co-operation of the Government; yet the House would observe that both the Home Secretary and the Attorney General, the two officials chiefly charged with the guardianship of our criminal law, were both absent. When the hon. Gentleman who had charge of the Bill talked of the enormity of the offence under consideration as justifying the infliction of a brutalizing punishment, he showed how totally ignorant he was of the principles of criminal legislation, and of the writings of our great jurists on such subjects. Jeremy Bentham laid it down that if the penalty of one penny would put an end to murder, all punishment beyond that was so much mischief done. That might be a new idea to

  943
  the hon. Baronet, but that only showed how utterly incompetent he was to deal with such a question. Violence had always been the resource of incompetent legislators; and he was ashamed of the House of Lords, in which sat the sages of the law, for passing such a Bill, Could anybody say that England was more criminal now than she was before the reforms advocated by Sir Samuel Romilly were adopted? The prevention of crime was the true aim of the wise legislator. It was said they could not by flogging brutalize the man who was brutal enough to commit that offence; but would they not thereby help to brutalize society? One of the worst blots in our system was the vile habit of flogging, and he regretted that men who deemed themselves the most advanced lights of the age should endeavour to persuade the House to retrace its steps in the path of civilization, and should do their small best to barbarize the people.
  Amendment proposed,
  To leave out from the word "That" to the end of the Question, in order to add the words "this House will, upon this day three months, resolve itself into the said Committee,"—(Sir Colman O'Loghlen,)
  —instead thereof.
  MR. ADDERLEYsaid, the hon. and learned Member for Sheffield appeared to have a ready mode of settling in his own mind what he thought was good or bad, and of condemning what did not exactly suit his views. He had known the hon. and learned Member sufficiently long to know that he considered every one hopelessly incompetent to understand a subject but himself, and everybody who did not fall in with his peculiar views of jurisprudence must expect to be denounced as seeking to brutalize society. According to the hon. and learned Gentleman nobody has studied Bentham but himself; yet it was plain that the hon. and learned Gentleman was himself but imperfectly acquainted with the principles of that jurist. His hon. Friend (Sir Stafford Northcote) had not advocated that form of punishment for the crimes in question, namely, rapes with conspiracy and violence, merely on account of their enormity, but rather on account of its suitableness to check so aggravated and peculiar a kind of crime. Certain crimes implied motives in the criminal which they could not appeal to except by the terrors of corporal punishment. That was the argument of Bentham himself, although the hon. and learned Member for Sheffield did not appear to Mr. Roebuck
  944
  be aware of it. If a mild preventive punishment was shown not to be suitable to that particular crime, and not to check it, whereas a coarser punishment was better adapted to put it down, were they in the name of refinement and humanity to let such crimes go on, accompanied by an endless series of ineffectual punishments? The hon. Member for Clare (Sir Colman O'Loghlen) had made a prima facie case against the Bill in saying that no increase of the crime of rape had been made out; but though the crime might not be increasing, yet he was sure the hon. and learned Baronet would allow that the crime was far too common. As an inhabitant of Staffordshire he (Mr. Adderly) confessed he was horrified at the number of these offences which always appeared in the calendars for trial at the assizes for that county; and if they could do anything that would tend to diminish the crime, they ought not to be discouraged in the attempt by any imputation of ignorance from the hon. and learned Member for Sheffield. He looked upon the absence of the Home Secretary and the Attorney General as an indication of their approval of the Bill, the Lord Chancellor having supported it, on the part of the Government, in the House of Lords. This Bill proposed to extend the application of the Bill which he (Mr. Adderley) succeeded in passing last year by a large majority, in spite of the determined opposition of the Government. Perhaps it was owing to his having been beaten last year by a majority of three to one that the Home Secretary very wisely staid away on this occasion. The punishment was urged, not on account of its severity but its adaptation to this peculiar kind of crime, which was in accordance with the principles laid down by Bentham. It is one of his maxims that the punishment should correspond with the motives to the crime. The simple question before the House was, whether this was a crime which made corporal punishment a suitable penalty. He contended that the grossness of the offence, and the ruffianly perpetrators of it they had to deal with, showed that it was. The fact that the law on the subject had been altered twice during the last twenty years, showed that the Legislature had not made up its mind as to the proper mode of dealing with it. So far from the Bill being a retrograde step, the retrogression was on the side of the humanitarians, who made the absurd mistake of judging of the feelings of all sorts of criminals by their own, and, there

  945
  fore, wished to treat brutal offenders as though they were persons of refined sensibilities. In this particular there was a marked retrogression from the common sense of our predecessors, both of more recent and of long past ages. Deterrence from crime is the main object of punishment, and that which does not appeal to the motives cannot be deterrent.
  MR. O'HAGAN (THE ATTORNEY GENERAL FOR IRELAND)said, that the absence of the Secretary of State was on public business, but he was authorized to speak the sentiments of his right hon. Friend as well as his own. They both concurred in the Amendment of the hon. and learned Baronet the Member for Clare (Sir Colman O'Loghlen). He considered sufficient grounds had not been shown for making the proposed change. The established principles of the criminal law should not be disturbed lightly and on temporary grounds; if altered, it should be altered in accordance with recognized and permanent principles. The object of punishment was simply the reformation of the criminal and the prevention of crime. Beccaria said long ago that certainty in regard to punishments was of more importance than severity; and that doctrine had been confirmed by experience in this very case. He agreed with the hon. and learned Member for Sheffield, that wherever there was excess of punishment there was injustice in proportion to the excess. The hon. Gentleman opposite (Sir Stafford Northcote) had been guilty in this case of a petitio principii. He said that the offence was brutal, and that the punishment proposed was brutal; but it did not follow that a brutal offence would be prevented or diminished by a brutal punishment. The punishment of whipping was now considered as not a wise punishment, but was now the exception. Nothing had been said to show that this particular punishment would be effective as regarded the particular offence referred to. If it had been proved that whipping would diminish the scandalous offence in question, he should have supported the Bill; but as no such case had been made out, he must resist any departure from the established system.
  MR. HUNTsaid, he had supported the Bill of his right hon. Friend the Member for Staffordshire last year; but this Bill stood on an entirely different footing. He agreed that it was undesirable to inflict greater punishment than was sufficient; and if the existing punishment was proved to be insufficient, he should not be afraid to
  946
  vote for additional punishment; but he did not think that additional punishment in this case would have the slightest deterring effect, The offence in question in ordinary cases was an offence of impulse, not of deliberation. If the hon. Gentleman would limit his Bill to cases where more than one person was concerned in the commission of the offence he should vote for it; but if he declined to do that, he must oppose it.
  SIR STAFFORD NORTHCOTEwas prepared to say at once that he should accept the vote of the hon. Member for Northamptonshire (Mr. Hunt) on the condition he annexed to it, namely, that the operation of the Bill should be confined to cases in which more than one person was concerned in the commission of the crime. He was not answerable for the details of the Bill which was introduced into the other House, and had passed with the consent of the Lord Chancellor, and with the approval of several of the law Lords. He had taken charge of it, and had been led to believe that the Government were not unwilling that the subject should be considered. In fact, the Solicitor General, whose absence he regretted, had given him distinctly to understand that the Government did not disapprove but rather approved of its principle, though he thought Amendments were necessary. He was sorry to hear now from the Gentleman who spoke on behalf of the Home Secretary, that he was determined to oppose the Bill. He hoped, however, the House would support it. With regard to the severe criticism which had been made on the Bill by the hon. and learned Member for Sheffield, he begged to say that he was not by any means certain that he had used the expression to which he alluded; but, in spite of his opinion and criticism, he maintained that they ought to take into consideration the enormity of the offence committed when they were apportioning punishment; and he believed that the proposed punishment in this case, while it would not be too severe, would produce certainty in its infliction, which would be a great advantage gained. He did not think that in aggravated cases of rape there would be any inclination on the part of juries to convict on account of the severity of the punishment. The course of mitigation of punishment of late years had been such that in many cases punishment was most disproportionate to the offence. In the cases of assaults upon young children, the offence was treated at present only as a misdemeanour. Now, could any one doubt that in such cases as

  947
  those it would not be just to inflict the punishment of whipping? He had, therefore, put a notice on the paper for the purpose of meeting such cases.
  MR. AYRTONwould appeal to his hon. and learned Friend (Sir Colman O'Loghlen) not to accept the compromise which had been proposed to him by the hon. Member for Northamptonshire (Mr. Hunt). There was no objection on the part of those who opposed the Bill to increase punishment where such an increase was calculated to repress crime: that, however, was not the question before the House, but whether the punishment of flogging should be inflicted. Why, flogging was a mere kind of torture, and if the object was to torture, besides flogging they might just as well introduce the thumbscrew and scarification. The object of punishment was prevention of crime and not torture of the criminal. Believing this Bill to be a proceeding in the wrong direction, he hoped the House would stop it, in order that those who took an interest in the matter might proceed in a right direction to remedy the evils complained of. He did not see any necessity for plunging into this sort of legislation, which was calculated to brutalize the people and render them, in consequence of that brutalization, more likely to give way to their passions. He hoped the House would maintain the consistency of our criminal law, and not allow it to be frittered away by hasty and inconsiderate legislation.
  MR. PACKEsaid, that the whole subject should be taken up by Government. There were other crimes of a brutal and disgusting character, that required to be dealt with in any Bill that might be introduced. He should support the Motion for going into Committee.
  MR. CLAYsaid, he believed this was the first time that any proposition had been made to increase the measure of punishment without showing that the crime for which the punishment was intended had increased.
  SIR JOHN TRELAWNYwould deprecate precipitate legislation on such a subject even if the crime were on the increase, which it was not. There were many cases in which great injustice might be done if this Bill were passed, and therefore he urged upon the House to consider the subject more fully before legislating upon it.
  MR. SCLATER-BOOTHsaid, he thought persons who committed this crime deserved flogging and something more, but he did not think the punishment of
  948
  flogging should be introduced in this piecemeal fashion, and he would suggest that the Government should issue a Commission to consider the subject generally. He thought the better course would be not to proceed with this Bill, and that the Government should consider before next Session the best means of dealing with this and analogous offences.
  Question put, "That the words proposed to be left out stand part of the Question."
  The House divided:—Ayes 78; Noes 84: Majority 6.
  Words added.
  Main Question, as amended, put, and agreed to.
  Bill put off for three months.

INSOLVENT DEBTORS BILL— [Bill 20.]

  COMMITTEE.
  Order for Committee read.
  MR. PAULL MR. PAULL moved that the House go into Committee upon this Bill.
  Motion made, and Question proposed, "That Mr. Speaker do now leave the Chair."
  MR. PAGETappealed to the hon. Member not to press the Bill. The Lord Chancellor had introduced a somewhat analogous measure into the other House, but owing to representations that were made, and opposition that was offered, that Bill had been withdrawn.
  MR. PAULLsaid, he had abstained from pressing this Bill until now, because it was understood that the Lord Chancellor intended to deal with the subject to which it related. As the measure proposed by the Lord Chancellor had been withdrawn, he knew no reason why the Bill should not be proceeded with.
  MR. BAINESsaid, that a large Trade Protection Society in the town he represented objected to the Bill, which would destroy a system of credit most essential to the comfort of the working classes in time of pressure.
  COLONEL FRENCHdid not think the opposition of a combination of Trade Protection Societies should prevail against the Bill.
  Bill considered in Committee.
  House resumed.
  Committee report Progress; to sit again To-morrow.
  House adjourned at a quarter before Sis o'clock.

Preamble
Their Lordships met; and having gone through the business on the paper, without debate,
House adjourned at half past Two o'clock, till To-morrow, half past Ten o'clock.