HC Deb 06 July 1864 vol 176 cc940-8

Order for Committee read.


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 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."


thought 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 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.


said, the fourth clause met that objection.


said, 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.


seconded 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 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.


said, 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 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 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.


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.


said, 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 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.


was 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 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.


would 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.


said, 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.


said, 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.


would 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.


said, he thought persons who committed this crime deserved flogging and something more, but he did not think the punishment of 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.