§ Order of the Day for the Second Reading, read.
THE EARL OF MILLTOWN
In asking your Lordships to give a Second Reading to this Bill, I may, perhaps, remind the House that it is identically the same Bill as that which your Lordships passed last year. It has for its object the rendering liable to corporal punishment, burglars and housebreakers who of malice aforethought provide themselves with firearms, for the purpose of carrying out their designs. Your Lordships last year passed the Second Reading of this Bill in April, by a majority of 59 to 39. It was then referred to the Standing Committee on Law to which my noble and learned Friend opposite paid so high a tribute the other day. It was then most carefully considered, almost every line of it was more or loss contested, and, after two sittings, it passed through that ordeal no doubt considerably inproved by some Amendments, for which I had to thank my noble and learned Friend opposite, although he was opposed to the principle of the Bill. It then came back to your Lordships' House, and my noble and learned Friend took the somewhat un- 462 usual course of challenging the Third Reading. I do not the least complain of that. The Bill passed the Third Reading by a majority of 75 to 19. Owing to the late period of the Session and the pressure of business in another place the Bill could not be proceeded with any further last year, and I confess I was in hopes that, under the circumstances, it might have been allowed to proceed this year, and that the opinion of the other House of Parliament might have been allowed to be obtained upon it without further trouble. But my noble and learned Friend the Master of the Rolls appears anxious to fight the battle over again. Under the circumstances, I think it will be unnecessary for me to weary your Lordships by repeating arguments which I used last year. If my noble and learned Friend brings forward any new arguments on his side. I shall, bye and bye, have an opportunity of replying to them. At present I will simply remind him that I showed the House last year that the opinion of the learned Judges, when consulted on this question some years ago, when my noble friend below me was Home Secretary, was all but unanimous in favour of the punishment of flogging for the crime of robbery with violence. Amongst those who gave the opinion that that punishment had had a wholly deterrent and efficacious effect was one of the most learned of the Judges, for whose opinion I should have thought that my noble and learned Friend would have entertained at any rate considerable respect—Mr. Justice Brett. Not only was the opinion of the learned Judges almost unanimous (there were only two dissentients), but that of the learned Recorders, the Chairmen of Quarter Sessions, Chief Constables—in fact, of everybody who was cognisant of the habits of the criminal classes—coincided. Well, my Lords, public opinion has also, I venture to state, expressed itself in no uncertain manner in favour of this Bill. The organs of public opinion, with some exceptions which are hardly worth enumerating, are unanimously in favour of it. I do not think I need now trouble your Lordships by again going over the ground traversed last year, but that I may content myself with simply moving that this Bill be now read a second time.
§ Moved, "That the Bill be now read 2a."—(The Earl of Mill town.)
§ LORD ESHER
My Lords, I am sorry again to inflict upon your Lordships my objections to this Bill. The Bill is Criminal Code of this country physical one for the re-introducing into the personal pain to be inflicted on criminals in order to prevent crime. Your Lordships are all aware that in the older days flogging of prisoners was a punishment which was inflicted in very many cases, for the purpose of preventing many crimes. Flogging was also used in the Army and Navy, for preserving discipline and for the punishment of crime there. It was given up: and why? Because it was determined by the country and by Parliament that it was a cruel and brutal punishment, and a futile punishment. People were flogged from Newgate to Tyburn; people were flogged to various extents; in the Army and Navy the floggings were tremendous. Did that put an end to the crimes for which that punishment was used? It most certainly did not. The floggings went on, but the crimes did not diminish, and the punishment was put an end to on account of the horror which was produced on everybody who heard of its infliction, for everybody did not see it; and also on the ground that it had not prevented the crimes which it was intended to prevent. Now, by this Bill it is proposed to reintroduce that punishment in the case of this particular class of crimes. Will that punishment be in this case cruel or not? Will it again induce those feelings of horror which it induced before? I do not know whether your Lordships have read this Bill, but let us see what the flogging is to be. A man convicted of one of these crimes, and there are several of them which I shall presently notice, may be ordered to be flogged with a cat three times, and to have 50 strokes administered each time; but all the floggings must take place within six months. Let us see what the practical effect of that is. A man is flogged with 50 strokes of the cat directly after he is convicted. How long will his wretched back take to heal after that punishment? I venture to say that it will take many months before his wounds are healed. But only two months are given for the wounds which 464 have resulted from the horrible punishment inflicted on that man to heal. His back will hardly be healed ere you must flog him again—you must flog him at the end of the second month or else you do not comply with the Act. But what will be the state of his back at the end of the second flogging? When you have come to the end of the second two months and have to flog him again it will be a dreadful thing to contemplate. And then he is to be flogged a third time. His condition then will be still worse. This Bill, as is usual, throws the responsibility off those who have drawn the Bill—it throws the responsibility off Parliament and throws it upon the Judges. It says the Judge may order a man to be flogged with 50 strokes three times in six months. The moment one points out the cruelty of that punishment, what is the answer? Thoansweris—"Oh, but the Judge will not order it—he will not order a brutal punishment." Is he never to order it? What is the meaning of an Act of Parliament which says that you may order a criminal to be flogged to that extent? Properly speaking it may be said the mode in which a Judge ought to interpret that Act of Parliament is to award the lightest punishment for the lightest class of offences; and the heaviest punishment for the heaviest offences; and for the worst class of offence he may order the heaviest punishment and may inflict the whole 50 lashes within the six mouths. For the worst class of burglary a man is now sent to penal servitude for life. If you send a man to penal servitude for life yon put him out of the way of doing further mischief, and yet you are proposing to administer to him the dreadful torture of this corporal, punishment. Is not that a retrograde movement in the direction of things in old days? To my mind it is a going back to the old days, and though, you do not flog the criminal from Newgate to Tyburn, yet you flog him in a way which gives nothing but pain to his person. Therefore, I say it is a retrograde movement, and if it is a retrograde movement to the extent which I have stated, what would be a sufficient ground for Parliament introducing such a state of things? If the Government, after having inquired of proper sources of information, that is to say of the Judges, had upon their responsibility 465 been able to come forward and say, "this crime or this new phase of crime is beating the old law; the old law cannot put it down, when administered with its full power; it has been tried and has failed; there must be something new; and we, upon our responsibility, bring forward this Bill dealing with this particular class of crime, and say that we cannot conquer this new phase of crime without it," there would have been something in it. But the noble and learned Lord is obliged to go back years in order to learn what was done in the case of another class of crime which did become so frequent that the ordinary punishment by law could not conquer it. At that time the Judges were asked to come to the conclusion from their experience of what had happened at Assizes that they could not beat the new phase of crime then prevalent without having that additional power given them, and they then advised it. But no such thing has been done in this case. The Judges do not recommend it, and when you look at the facts I say deliberately that this crime has not beaten the law, this crime is not increasing, and that you have not yet tried the full power of the law in order to prevent it. Now what would prevent it? There was a sharp sentence passed some time ago on a person who was convicted of using firearms, and, as far as I can see, that sharp sentence has frightened the criminals, because I can see no increase of this crime, but on the contrary, it seems to have ceased for a time. The Judges have not been asked about it; there is no statement put forward by any authority on the subject, and there is nothing to show that severe sentences as the law stands would not have checked this crime. If you let the criminals know that if they go with arms to commit burglary their punishment will be the most severe that is allowed in each particular case—that is to say, in burglary of the worst kind, penal servitude for life—there is nothing to show that that proper punishment to be inflicted by law will not beat this crime. Therefore, I say there is no excuse for individual Members bringing before this House a Bill of this description, without inquiries having been made which the Government might and could have made. I say there is 466 not sufficient ground or reason for passing such a Bill as this. But when you come to look at this Bill it contains some very strange enactments. It says, that if a man commits a burglary having in his possession firearms, although he has no cartridges with him with which to load the firearms, and it is therefore clear and obvious that he never intended to use them, he is to be flogged, and to the extent I have stated. More than that, if three men go to commit a burglary, and one of them stays outside; if it can be proved to demonstration that the others did not know that he had a pistol in his possession, and that they would not have gone with him if they had known it; nevertheless, because he had a pistol in his possession and escapes, getting clear away, when the others are tried for the burglary they are liable to be flogged three times in six months, with 50 strokes administered each time. It seems to me that that is a cruel law. I go further; to my mind it seems a wicked thing to pass such a law as that. But what would be the answer? The answer is that in such a case the Judge will not inflict the punishment. There again, I say that is shirking your duty. It is throwing upon the Judge the responsibility of saying—for the Act of Parliament enacts it—"Though this is as bad a burglary as could be; though the criminals have used any amount of violence, yet because they had not a pistol in their possession, and the other man had, I will not flog them." That would be in the teeth of the Act of Parliament. I say, in such a case under the Act of Parliament you ought to flog them. I say, therefore, that this Bill has not been drawn with the care which one could wish when its object is the re-introduction of so strong and powerful a punishment. Then another observation which I think ought to be made is this. This punishment is confined to a man having a gun, or pistol, or other firearm in his possession. If it is a true proposition that those burglars using weapons of that kind ought to be flogged, what do you say to a burglar going to commit a burglary with a long bowie-knife shining like silver—such knives as I have seen used by robbers and other people? Why is a man who carries a bowie-knife for the purpose of stabbing people not to be flogged, while a man who carries a 467 pistol, even without cartridges, is to be flogged? If you re-introduce this kind of punishment of personal pain by way of preventing crime, are not there other crimes which equally deserve this punishment? Are you going to stop here? What say you to the men who defile and destroy young children? Is not that a crime which is more frequent than this? I ask, if flogging would be a deterrent from such crimes, why should not these men be flogged? No doubt there are some noble Lords who would reintroduce the whole Penal Code of the last century. Suppose the case (it is not an infrequent class of crime in this country) of six or eight men taking hold of a young girl, and every one of them outraging her, one after another. What could be a more horrible crime than that? Why not re-introduce flogging in that case? Surely you should flog in that case, if you are going to flog at all. I will not refer to other classes of crime which are familiar to us all. I think it must be in the minds of some that there are many other crimes which are of quite as frequent commission as this, and if you apply this punishment to this class of crime, one would think you would also apply it to those crimes. Then, you come to this: Supposing you do flog these people, is there anything to show us that it will deter them? It did not deter criminals from, stealing in the old days, when they were flogged from Newgate to Tyburn; it did not deter people from committing robberies, for which they were liable to be flogged. It did not deter soldiers or sailors from committing crimes. On they went, and the crimes did not diminish. What ground is there for saying, therefore, that it will prevent crime now? I venture to say, as far as my judgment goes, that within a year after you have recommenced flogging, burglary will go on to as great an extent as before, and that if the criminals happen to have pistols with them, they will shoot policemen just as before. I say, if you apply the law as it is, with determination, and always with a determination to prevent and deter criminals from using firearms when they have firearms in their possession and intend to use them—I would not go to the length of saying more than that, not alone having them in their possession, but where there is clear ground for sup- 468 posing that they intend to use the firearms—that would be a ground for inflicting severe punishment. My noble and learned Friend has gone through the offences which are called burglaries; he has taken from certain collections of different Acts of Parliament those classes of offences, and let us see, therefore, what his use of firearms means. I see that the first refers to "Whoever shall break into or enter a church or chapel, or place of Divine worship with a pistol in his possession"—whoever shall break into or out of them. If a man breaks into a church at night there will be nobody there. He goes in to rob the poor box, or to steal the plate, but there is nobody upon whom he can use pistols; but because it is called burglary the man is liable to be flogged. In a dwelling-house, no doubt, the case is more serious; but when you consider what the burglary is, and that the punishment for it may be penal servitude for life, it is open to what I said before, that if it is a bad burglary you send the criminal to penal servitude for life, and why on earth you should torture him in addition I cannot imagine. It is a thing too terrible to contemplate. Then there are other kinds of burglary, such as breaking into a warehouse. If a man breaks into a warehouse at night the chances are very much the same as in the case of a church or a chapel, that is to say, that there is nobody in the warehouse. But there is no discrimination made in any of these cases; and, with great deference to my noble and learned Friend, I say that this is a carelessly drawn Dill. It is a Bill by which Parliament shirks its duty and throws the duty upon the Judge. It is a Bill drawn in a fit of hysterics, and I say it is a hysterical measure, because people have become frightened, and have not tried whether these particular cases can be met by the proper application of the ordinary law. I move that the Bill be read a second time this day six months.
§ Amendment moved, to leave out "now" and add at the end of the Motion "this day six months."—(The Lord Esher.)
§ * LORD BRAMWELL
My noble and learned Friend has said that this measure is put forward in a fit of hysterics, but I think the fit of hysterics has been a very 469 long one, because the Bill was in existence more than a year ago, I believe. I do not think there is anything hysterical about it at all. I do ask your Lordships to consider what the offence is which is aimed at by this Bill. It is the offence of a man going with a deadly weapon to commit a burglary, a most grievous crime in itself, creating great alarm and terror in the people who are the victims of it, and almost of necessity when discovered leading either to violent resistance, or violent attack, or both. It is the case of a man going to commit a crime with a deadly weapon in his possession, not necessarily to be used, for I dare say these men would rather not use weapons, but to be used if occasion requires. And mind, this is not an offence which is committed in a hurry, it is not like the easy of a sudden stabbing, or striking, or delivery of a blow, but it is a thing which is deliberately resolved upon by the offender before he starts. Is it not as well then, that when he is thinking of what he will do, he should think also of what he will suffer, if he is detected in this most serious offence? I declare that I know scarcely any offence which is greater than this, unless it be murder, and for that you can hang a man. I am very much inclined to think that if a pistol or firearm be fired that it would be a very proper punishment to be given to the burglar who goes forth to commit burglary, and resolved to fire and do murder if occasion requires. That is the offence which your Lordships have to deal with. Then my noble and learned Friend the Master of the Bolls asks—"But has flogging prevented crime?" I answer "No, nor has any other form of punishment prevented crime." Even capital punishment does not prevent crime altogether; certainly lines do not prevent it; penal servitude does not prevent it. Nothing prevents it altogether; but the punishment lessens it. It is quite impossible to say, therefore, that this or any punishment has not been a proper one because it has not been efficacious for putting an end to crime. But the question is, Does the punishment diminish the crimes? My noble and learned Friend says no, and that the men who were in former times punished for the commission of offences were not deterred thereby from committing them. 470 Upon that point I should like to give your Lordships an opinion which I have received from a gentleman named France, who had experience in these matters, and who was one of the Under-Sheriffs for Kent. He informs me that the men who had been flogged never appeared in prison afterwards, whereas other offenders constantly re-appeared. Then, again, my noble and learned Friend, as one of his arguments against the Bill, siys—"But see what an enormous power you give to the Judges of inflicting this severe and cruel punishment; you shirk the responsibility and throw it upon them." My Lords, you cannot help it; you must give the Judges discretionary power in the infliction of punishment. I wish, for the sake of the Bench of Judges, of which at one time I was a member, that they could be relieved of that responsibility. I most heartily wish that could be done; because of all the different duties I had to perform during the 25 years that I was a Judge the worst was that of fixing the amount of punishment of offenders who were brought before me, whom, in the immense majority of cases, I could punish by a shilling fine or imprisonment up to penal servitude for life. I believe if there could be any scale fixed which could be practically worked nobody would be more desirous that that should be done than the Judges themselves; but unfortunately you cannot lay down rub s which shall so discriminate between one set of oases and another, that the discretion of which I have spoken shall not be left to the Judges. Then, the noble and learned Lord says—"But the pistol may not be loaded, and the man may have no cartridges in his possession with which to load it, and yet you will be inflicting this punishment." But that and a good many other objections which he has taken are objections not to the principle of the Bill but to the details of it. Now, the principle of the Bill is the repression of the armed burglar; and if it is not necessary to extend it to a case where you cannot find that there is a charge or a shot in the pistol, then let the Bill be so amended in Committee, But it has already been before a Committee of your Lordships' House, and is now presented to you as it was then amended. Another objection which my noble and 471 learned Friend takes is this. He says—"You are in a sort of dilemma in confining the Bill to firearms. Is it right that a man should be flogged if he has a pistol in his possession and not if he has a bowie-knife." Well, my Lords, which is wrong? If one is right and the other wrong which is wrong? If it is right to flog them both that is one thing, and we are only seeking to do half what we ought to do. If it is wrong to flog them both let those who oppose the measure prove that it is so, but let them not say it is wrong to do this particular thing because if it is right to do it you are not seeking to do something else which is right on the same principle. That is not a sound objection. However, that is my noble and learned Friend's argument upon that point. I quite agree with what the noble Earl, who introduced this matter to your Lordships, said that yon ought not again to be troubled with long speeches upon this matter, because you have really had it all before you on previous occasions. What I ask you to do is this: Consider what a grievous offence this is, and ask yourselves whether there is a more grievous offence in the calendar, or one which more urgently requires stern repression. It may be, and no doubt it will be, that this Bill will not entirely put a stop to it, but that it will diminish this class of offences, and, therefore, I support my noble Friend in asking for a Second Reading for the Bill.
§ LORD HERSCHELL
My Lords, I am certainly not going to trouble you at any length with observations which I have made before, which I then made in vain, and shall equally make in vain to-night. Nevertheless, as my noble and learned Friend who has just sat down has again expressed his reasons for the enthusiasm he has shown for this particular form of punishment, I shall once more shortly state my objections to its infliction. I think he has himself shown the danger of the course upon which the Bill is entering. "What a horrible crime this is," says my noble and learned Friend, and there I quite agree with him; but he went on to say that he would be quite prepared to inflict the punishment of hanging for such an offence as this, though it might not reach the point of murder. That seems to me to show the danger of entering upon a course 472 of legislation of this description, because if you carry it out to its logical result you will probably next have a proposal to inflict the punishment for other kindred offences, and you may have the punishment of death inflicted for every crime of which people may happen to become alarmed, and which they may describe in very terrifying terms. That is one of my objections to the re-introduction of this special punishment for a particular class of crime. I object to it because you are not perfectly assured of the results in which it may land you when once you have commenced. Now, I entirely agree with my noble and learned Friend that the offence of carrying firearms with which the Bill deals is a very serious one; I do not think its seriousness has been in the least degree exaggerated; but I cannot agree with my noble and learned Friend that burglary itself is such a very heinous offence. He well knows in his experience that there are plenty of burglaries committed which are infinitely less serious than, many other offences, which are visited with slight punishment.
§ * LORD BRAMWELL
I think I said so. I have felt that strongly, and I have tried to send such cases to Quarter Sessions.
§ LORD HERSCHELL
There are, of course, other cases in which burglary becomes a very aggravated offence. But, my Lords, one question upon which I am at issue with my noble and learned Friend is this. He asserts that if you add this particular punishment to the punishments already existing, the number of these cases would be diminished. I deny that there is anything to warrant that assumption. We have not had a single fact placed before us which warrants that assumption. It rests simply upon individual ideas as to what is likely to be the operation upon the minds of burglars of a particular state of the law. I will tell your Lordships why I do not believe this punishment has the effect which many suppose. In the first place the statistics which have been obtained, so far as they can be obtained, with regard to the offence for which it can at present be inflicted, certainly do not point in that direction at all; but if any inference can be properly drawn from them it would be the contrary. In the next place you have this fact: crimes 473 for which you cannot flog have diminished during the past few years 50 per cent., and crimes for which you can flog have not diminished at all. Surely that is a remarkable fact if it be supposed that this punishment has such a deterrent effect as some believe. But I quite agree with my noble and learned Friend, Lord Esher, in saying that before such a Bill as this is passed, we ought to have information on the subject from the Government, because the Government alone can give us the official information which can be a guide under these circumstances. I will tell your Lordships why I do not believe this punishment is likely to be deterrent, and I am, in saying this, simply reasoning as my noble and learned Friend reasons, from one's knowledge of human nature and of the influences which actuate human beings. I do not dispute that by the prospect of flogging you might deter a man from the commission of an offence if you are standing at the moment with a whip ready to flog him at the time he is preparing to commit the act, though, even then, it may be doubtful, as in the case of sailors committing offences on board ship, and who know that they cannot escape—who know that there is no question of their being caught, as the burglar may hope to escape. It has not a deterrent effect there. But my noble Friend supposes the burglar to reason thus—"I do not care for the penal servitude for life, I do not care for that deterrent punishment, although I shall suffer the deprivation of my liberty for long years; that does not deter me at all; I will risk that; but if you add to the penal servitude the chance of the addition of so many strokes of a cat-o'-nine-tails that will stop me; there I draw the line." The one punishment will stop him and the ether will not; that is the supposition. I do not believe that if a man knew he was going to be caught and was going to receive a sentence of penal servitude, he would run the risk. He does the act because he does not believe he is going to be caught and to get a sentence of penal servitude. Therefore he will think he is not going to get the flogging either. He will not get the flogging, of course, unless you catch him, and if you do not catch him he will be just as free from the flogging as from the 474 penal servitude. I think, therefore, that the chance of getting an additional flogging, will not deter a man who thinks he may not get either it or the penal servitude. But I think there is a greater evil in your adding this punishment, for this reason. A man does not like to get penal servitude. Why does he carry a weapon now? Because he thinks that by creating alarm with it, or possibly by the use of it, he can get free or can diminish the risk of capture. That is why he carries it. If you think your flogging is going to have this deterrent effect, do not you think it is possible he may say, "It is more than over necessary for me to carry a pistol, because, if I am caught, it will be all the worse for me. I shall have penal servitude for life even if I do not carry the pistol, and therefore I had better carry it even at the cost of a flogging plus the penal servitude." To suppose that the man is going to sacrifice his chance of liberty for the risk of a flogging in addition is futile. I do not believe he would. I do not think, from my experience and knowledge of human nature, that is the way in which a man would reason at all. The truth is that the burglar goes out on his expedition in the expectation that he is not going to be caught, and that is why he is ready to take the risk, and will be ready to take it with this punishment or without it. I will only say this in addition: If the noble Lord had succeeded in passing this Bill last year, I have no doubt we should have been told in most eloquent terms that he had succeeded in putting down burglary with firearms, there having been a cause for general alarm on the subject. But during the past year, although the Bill did not pass into law, there has been a considerable diminution of this offence. We have heard of late of comparatively few of these cases, and certainly nobody can say there has been an increase of these crimes beyond what they have been in years past. That is one of my reasons for objecting to special legislation of this kind. I object to it unless there is special need for it, and where has the special need for it been proved on the present occasion? My noble and learned Friend says the law may be inefficacious, but, if so, you can alter the law; you can bring in a fresh Bil 475 giving a proper punishment. I agree that you can. But, surely, it is an objection to any law being passed if it makes the remedy inefficacious, and if it inflicts a punishment in respect of a particular offence which is not, upon the hypothesis of the moment, alarmingly frequent, and if it omits to impose that punishment for a similar offence which at the time needs to be just as much if not more guarded against. I say that the whole case for this Bill goes unless you can show by the increase of alarming cases that there is need for it. If there is not, then surely it is an unnecessary measure for the purpose of dealing specially with one kind of offence, while leaving undealt with other offences which require, on the same principle, legislation just as much. I will not detain your Lordships further with a repetition of observations which I made last year in opposing this Bill.
§ * LORD NORTON
The noble and learned Lord who has just sat down says we have no right to introduce a punishment unless we are quite certain that it will be deterrent of the crime against which it is directed; and he seems to have this ready reckoner, that all crimes for the punishment of which flogging is not inflicted have diminished; but that those crimes for which flogging may be inflicted have increased. According, therefore, to this ready reckoner of the noble and learned Lord we have only to abolish the last remaining vestige of corporal punishment in order to reduce or put an end to crime in this country. But, in the first place, as to his statement that there is no proof that flogging would be deterrent. Is there no proof? I would ask him, first, on grounds of philosophy what does deter people from committing crime but something which meets the motives of the people who commit it? Can he deny that there are cases where people's motives to crime can only be dealt with by the fear of pain? Can he deny that the fear of pain is the only thing which deters from the more brutal kind of violence? We know from experience what has been the result in three classes of offences to which flogging has been applied within the last 20 or 30 years. There were cases of firing at the Queen by half-crazy individuals, who clearly did not want to murder Her Majesty, but who had only 476 acted from a morbid wish for notoriety. Flogging was enacted, and the offence absolutely ceased. Another case in which the threat of flogging has stopped a miserable itch for mischief is the mutilation of works of art. It was found that some wretched fellows took a pleasure in mutilating works of art in the British Museum and in other collections. Flogging was enacted for cases of that sort also, and they ceased from that moment. The third class of cases was those dealt with under the Garrotting Act. Flogging was made the punishment, and garrotting has almost ceased since that Act was passed. I know that it was disputed in the last debates upon this subject whether the Garrotting Act had stopped garrotting. I think the noble and learned Lord Esher himself stated that there were certain severe sentences passed by the noble and learned Lord Bramwell which were efficacious at that time and caused the cessation of garrotting. But we find the noble and learned Lord himself who passed those severe sentences telling us to-night that he considers particular cases of crime are specially to be met by corporal punishment; that, neither imprisonment nor penal servitude will meet those cases, and that they are casts in which punishment must be short and sharp; and he states that the cases most requiring this kind of punishment are the very cases which we are dealing with—that is to say, cases of brutal violence. But the noble and learned Lord the Master of the Rolls has said that floggings had failed to reduce crime, and then he described the kind of flogging which he had in his mind at the time—that is to say, the most cruel and brutal kinds of flogging which were inflicted in former days. Does he mean to draw any comparison or inference from the non-effect of punishments of that sort and the more moderate use of corporal punishment proposed by this Bill? The reason why those floggings in former times ceased to be inflicted was that they were excessive, and the whole feeling of the country was against them, and from their very excess they failed to have the effect desired. But this proposal is a totally different, thing, and what the noble and learned Lord who moves the Amendment has to show is that this is a punishment which 477 will not meet the case of these offences. I would ask the noble and learned Lord to tell us plainly what is his alternative. He admits that this brutal crime of robbery with firearms exists, and he agrees that the punishment which we now use does not stop it.
§ LORD ESHER
Indeed, I did not say that our present law cannot stop it; I said exactly the contrary. What I said was, that if you try the present law, and unfailingly inflict the proper punishment which the law allows, you will put an end to the offences
§ * LORD NORTON
My noble and learned Friend admits that the crime exists, but he says that if you try on the law as it is it will cease. That is to say, it is existing, and nothing effectual is done to check it; the noble Lord's recommendation, therefore, is to let it go on. That is really his recommendation. Now, let me consider whether he has said anything more to the point than that. In the course of his speech he suggested longer terms of imprisonment, or penal servitude. Is penal servitude with its uncertainty a sort of punishment which will deter men who hazard burglary with firearms? The noble and learned Lord Herschell said that certainty of punishment was the only thing which would deter from this sort of crime. I would ask him whether penal servitude is not the most uncertain punishment which we have in our Code? If there is one thing certain about it, it is that the sentence pronounced will not be carried out? If the noble and learned Lord thinks that the certainty of punishment is necessary for these criminals, at all events the alternative for corporal punishment is, according to his own showing, the most inappropriate to meet the case. I also say that certainty is of the greatest possible importance, and that it should be inflicted as near to the occurrence of the crime as possible in cases of this sort; and there is no punishment so certain as a definite infliction of pain. The noble Lord who moves this Amendment has given his opinion as a Judge that this is not a deterrent punishment for crimes of this sort. As the noble and learned Lord Bramwell has said in former debates upon this subject, Judges and lawyers are not the best fitted to give opinions upon such a matter as this. I prefer to 478 take the opinions of the Governors of our gaols, and they say that this is the only punishment for which a certain class of criminals will never come again if they can help it. What can be a greater proof of its fitness than that? Surely if a man will never come again for the punishment if he can help it, that is a proof that it is exactly what a punishment should be, namely, a deterrent from the crime. That is the general opinion of the Governors of our gaols. We know from the answers given to a Circular sent out by my noble Friend Viscount Cross, after the Garrotting Act had been tried 10 years, that with the sole exception of my noble and learned Friend Lord Esher, and perhaps Lord Coleridge, all the Judges, Magistrates, Recorders, and Chairmen of Quarter Sessions throughout the whole Kingdom—England and Scotland—are in favour of corporal punishment in special cases. I desire to draw your Lordships' attention to the inefficacy of our present mode of imprisonment. I allow that our prisons have been greatly improved during the last 20 years, and yet so inefficacious is that mode of punishment that, having carefully investigated the condition of matters in the prisons of Warwickshire and Staffordshire—the two counties with which I am connected—during the last winter, I can inform your Lordships that the number of first convictions in these two prisons is comparatively small; and considerably more than half of the prisoners are cases of re-commitment, and it is not for the second, or third, or fouth time only, but sometimes for the tenth or twentieth time that they have been re-committed to prison. Nothing can be more dangerous than an undeterrent system of punishment. You had better have no punishment at all; better agree with Lord Beaconsfield, when the abolition of flogging in the Army was proposed, he said, "Crime is gradually vindicating its own impunity." Undeterrent punishment is useless cruelty. Burglary, with murderous violence, will certainly continue if we go on with present punishments, only adding to them further terms of imprisonment. You may by long imprisonment keep men out of the way of doing harm. It is the idea of noble and learned Lords who oppose this measure 479 that by sentencing men to long terms of penal servitude you keep them out of harm's way. What a notion of punishment in a civilised country, to shut up criminals without making the slightest attempt at reclaiming them or using effective means of turning them out as useful citizens! Shut them up for life and they will do you no further harm, and let their wives and children be maintained in workhouses. The result will be to inflict upon ourselves the feeding, housing, and clothing of criminals for their lives, and to support in workhouses their wives and families. That is to say, we are to meet the crimes of robbers by robbing ourselves to a much greater extent, and to always keep some 20,000 able-bodied men who should be adding to the strength of the country shut up in prison instead of trying to reclaim them from crime to industry for the benefit of society. My Lords, I cannot believe that the arguments which are adduced to-day, as they were adduced last year, against this measure, will have more effect with your Lordships now than they had then, and I hope that the Bill which we have before us will be passed by a large majority.
THE EARL OF KIMBERLEY
I only wish to call the attention of the House to one point, and I shall do so in very few words. I do not wish to trouble your Lordships upon the arguments which have been adduced on one side or the other; but I do wish to make one remark upon our present system of penal servitude. I was astonished to hear my noble Friend opposite state that our system had been a failure, and I do not think he can have looked into the Report upon the Convict System lately as I have done or he would probably not have made that statement.
THE EARL OF KIMBERLEY
I thought the noble Lord went a little further than that. I am glad my noble Friend has referred to that, because it gives me the opportunity of asking the House to consider what the result of our system of criminal punishment has been. Of course, I do not suppose for a moment that the diminution of crime has been, or ever will be, caused entirety by any system of the kind; but I do say that, 480 concurrently with the introduction of our system, there has been the most extraordinary diminution in crime that has ever been seen in any country. Now, I have here the figures which are given in the last Report from the Convict or Prison Commissioners of England, and I could give your Lordships for every year the number of sentences for all serious crimes from 1836 down to 1888; that is, for a period of 52 years. What do your Lordships suppose the diminution has been during that period? The number of such sentences has diminished year by year from 3,611 in 1836 to 924 in 1888, and that, observe, concurrently with an increase of population in England and Wales not very far off double. Therefore, you have had a diminution in crime of 75 per cent. concurrently with an increase of population of 50 per cent. Then we have been told that our system of prison management is a failure; on the contrary, I think if there is one thing upon which we may congratulate ourselves more than another it is that our system of convict management has been a signal success. When my noble and learned Friend seems to regret that we have not gone back to our old system of shorter and sharper punishments, I say experience has shown us that our present system is more deterrent than the old system. If I really thought that this form of punishment—flogging—would be more deterrent than our present system, much as I should regret the re-introduction of a brutal system of punishment, I might consider that if our present system had failed, we ought to have recourse to flogging; but why we are to have recourse to dogging and bring it again into our penal system when we have the most indisputable proofs that without it we have had a decrease of crime, I am at a loss to conceive. It is not a merely temporary outbreak of a particular class of crime at a particular period which would justify the re-introduction of such a form of punishment. My noble Friend has said that whenever there is a serious outbreak of brutal crime, such as beating women, and others which have been mentioned, or wherever there has been an increase of it during even one year, we should re-introduce flogging. But if we were to do that we should break down the whole system which has been 481 Laboriously built up now for so many years, and I am convinced that far from having a diminution of crime by the re-introduction of the old and bad system there would be an increase of crime. For that reason I do earnestly hope that the House will re-consider and reject a Bill which is really an attempt to re-introduce a system which was a failure, and which, I believe, will be a failure; a system which is wholly inconsistent with the whole spirit of our present Criminal Law.
§ LORD WATSON
There is one passage in the speech of the noble Lord who spoke from this side of the House upon which I desire to make an observation. I was somewhat astonished to hear that the Chairmen of Quarter Sessions and others in Scotland are all agreed in favour of some such measure as this Bill tends to promote. I am not aware that the Chairmen of Quarter Sessions in Scotland or the Commission of the Peace have anything to do with crimes of this description, which are entirely dealt with by the Public Prosecutor and the Supreme Criminal Court of the country. I can only say this, that I trust the noble Lord's statistics, which he gave with regard to England, have something more of substance in them than his statements with regard to the country from which I hail. So far as I know, the sentiment of those who have come in contact with this class of crime in Scotland is that there will be a feeling of satisfaction that there they are by the last clause exempted from the operation of the Act.
§ LORD COLERIDGE
I should not have addressed your Lordships but for the mention of my name and the reference which has been made in the course of the debate to an opinion which I am said by a noble Lord on the other side of the House to have given on this subject. I am sorry to say I do not know exactly what it is I am accused of having said or done, because one noble Lord said I had stated one thing, and another noble Lord stated that I had said another. They could not both have been accurate; but, as far as I can gather, the accusation is that some time ago I gave my opinion in favour of the deterrent effect of flogging. My Lords, that must have been a very long time ago; it must have been before I was appointed a Judge. I think I re-collect the circumstances under which I 482 made that statement, if statement it is to be called. I think it was in answer to a letter addressed to me by Lord Cross, and probably he will bear me out in my recollection that what I said was that I had at times seen cases in which even capital punishment seemed to be an inadequate lex talionis, or a reasonable public revenge for the intolerable sufferings which the criminals had inflicted upon their victims; and that, giving expression to a somewhat natural feeling of indignation, I thought I should have liked to give the criminals something of the misery and torture they had inflicted on others before they were hanged. But, my Lords, that was not intended to be given as a fixed sentiment, or as being really an expression of opinion upon a matter of legislation. It was a long time ago, and since that time if I have not become wiser I have become a great deal older. I must now frankly admit that if that ever was my opinion I have changed it, and I shall now vote with all my heart for the Amendment of my noble and learned Friend the Master of the Rolls, on the ground that I consider the Bill of the noble Earl would be retrograde, anomalous, and useless.
§ LORD MORRIS
I hope the House will excuse me for venturing to intrude in this debate; but as I have served for some years as a Judge in the Sister Country, I think it may be of use to express my own opinion in the matter. I regret to find myself entirely opposed to the noble and learned Lord the Master of the Rolls, not alone in the opposition which he has given to the Bill, but in regard to a good many of the reasons which he has assigned for that course. There appears to me to be a great deal of confusion of thought in his remarks, if I may say so with respect to him. Most of them would have gone to the complete abolition of all punishment. He began with a dissertation upon his objections to the infliction of personal pain. I do not very well understand what would be impersonal pain. I have always understood that all forms of punishment were certainly not meant for pleasure, but for pain. He wound up by stating that these who would support this Bill should be discredited as a hysterical party; and, as if for a living commentary upon that observation, the noble and learned Lord Bramwell, whom I do not look upon ex- 483 actly as having a hysterical nature, got up and supported the Bill. In my opinion, the hysteria and the sham sentimentality lies much more with those who would get rid of all punishment, and who suggest that we should adopt a grandmotherly mode of treating criminals, when anybody, with far less than the 22 years' experience which I have had, well knows there is nothing that will deter criminals but the fear of personal pain. As I understand, the noble Lord who has brought in this Bill introduced it at a time when this crime of burglary and firing at the police when endeavouring to arrest the burglars became so common that there was a sort of panic about it in society. Well, of course, at present that may have ceased, as the noble and learned Lord opposite said. But that statement may be open to this comment, that possibly this Bill which was then pending in your Lordships' House may have had some effect in the matter. That may be said to be a somewhat far-fetched observation, but I think it is not half so far-fetched as the remarks which I have heard offered against the Bill. Persons were no doubt hanged formerly for very slight offences, such as stealing a small amount of property out of a house, and it was found necessary to abolish capital punishment for those offences; but is that a reason for abolishing hanging in all cases? Is not the question, not whether this is a brutal punishment, but whether it is the punishment which alone will deter brutes? Punishment must be adequate for its object, which is to prevent crime; and I can only offer against what the noble Lord has said the observation that this will deter for the simple reason that there are persons who can be deterred by nothing else but the fear of physical bodily pain. That is well-known; and in cases where they will not be deterred by anything else, that must be the punishment resorted to. We have been asked by the noble and learned Lord why, in the case of attacks on women and young children, should not the criminals be flogged? I can only say that there is very good reason for it, and if he will bring in another Bill for that purpose I will second it. We all know that even in what is called society there are persons who are only prevented from annoying ladies by the fear of receiving summary chastisement, which is often 484 administered in such cases without any law at all in the matter. That reminds me of a story which I heard from, one of the most experienced police magistrates in Dublin, who had acted there for 40 or 50 years. There had been a man who had been continuously annoying a lady, an offence which sometimes occurs, I believe, on this side of St. George's Channel, and nothing would prevent him from continuing his offence. He had been frequently sent to prison for it, but he did not c ire about that. Fortunately, the lady had a brother, who, on the next occasion, inflicted summary chastisement upon the man. He was brought up for it before my friend the magistrate, who, as he was, of course, bound to do, read him a homily upon the impropriety of taking the law into his own hands, telling him that no provocation would justify an assault. After leading him that lecture, in vindication of the law, the magistrate told him that he would fine him 6d.,and gave him a caution—I told him," said he, "if the prosecutor annoys your sister again, and you give way to passion and again commit the same offence, if you are brought up before me, I will be obliged to double the penalty.My Lords, I need not say that the lady was left unmolested for the future. The noble and learned Lord who sits below me says this Bill recites several Acts of Parliament. I think it recites only one, the 24th and 25th Vict., but several sections. All his observations have been addressed as if this were a punishment awarded by the Judge. It is a cumulative punishment, which is left in the discretion of the Judge, who, in the words of the section, "may in his discretion" add this flogging. But it is said this is a discretion which ought not to be left to him. I do not know whether it should be said to be left to them or imposed upon them; but as the law stands at present great discretion is left to the Judges. Is it not a wide range, for instance, in cases of assaults and manslaughter, where the discretion vested in the Judge extends from a fine of 6d. to penal servitude for life? Therefore, leaving the punishment in the discretion of the Judge is no objection to this Bill which the House will pay attention to. It is to be presumed that every Judge will perform his duty and will exercise 485 proper discretion; and this is only a power given to him which he will not object to if he is a sensible man, and, of course, all Judges are sensible men. I think Judges may be trusted not to inflict this punishment in a case where a man simply had an old pistol in his pocket unloaded, for which he had no ammunition, and which there was not the slightest probability of his using. This measure is not intended to be applied in exceptional cases, and in those cases where the punishment ought, in the opinion of the Judge, to be given, why should not it be awarded, unless we are to allow criminals to go unchecked and get rid of punishment altogether?
§ * LORD BRABOURNE
My Lords, I last year opposed this measure, and I wish shortly to state the reasons why I intend now to persevere in the same course. My noble Friend invites us to enter on the path of retrogression. What is the proof of that? Say for the moment that my noble Friend has introduced this Bill for the purpose of inflicting a particular form of punishment for this one offence. Several other noble Lords have immediately suggested that they are quite ready to carry it out in other directions. There is no logical reason why you should stop at this particular offence. My noble Friend Lord Norton stated that he objected to the punishment of penal servitude, because he said it was not a re-claiming punishment. Does my noble Friend believe that the lash is a reclaiming punishment? Is the man who has had his back lashed and who comes out of the punishment with every atom of self-respect flogged out of him reclaimed? Does the punishment have a deterrent effect upon him? We have been told that certainly there has been no increase, but that a decrease in these offences has occurred during the past year. I cannot endorse the view of my noble and learned Friend, whom, we have all, I am sure, heard for the first time to-night with so much pleasure, when he says that the fact of this Bill being even threatened may have been efficacious. If the throat has been so efficacious, for goodness' sake let us be content with the threat, and not carry out the Bill as proposed by my noble Friend. But there is one other argument 486 which I will venture to submit to your Lordships. When I heard the enthusiastic advocates of the lash cheering just now every allusion to this particular punishment, I asked myself whether, if we were a representative House, and those noble Lords had been representing popular constituencies, the s line cheers from the same men would have been heard, and whether those men who cheered would wish to stand before any public meeting of their countrymen and say that they desired to enter upon a course of retrogression from the legislation which has characterised this country for years past. If there is one truth greater than another in this matter, it is that the gradual abolition of this barbarous punishment has been endorsed by the people; and I venture to say that if yon are going to enter upon this course which is suggested by my noble and learned Friend, it would be wise, and it would be your duty, to make the fullest inquiry, conducted with the authority, and by the agency of the Government, before you venture upon such a path. I do not suppose that anything I can say is likely to influence your Lordships. The advocates of the lash, I know, are strong in this House. It is possible as time goes on that they may not be so strong. If you enter upon this path, where are you to stop? I do not pretend to discuss whether one punishment or the other is more deterrent; but of this I am certain, that the men who go out to commit burglaries do not weigh these things very nicely. The one thing that does prompt them to crime is the idea that they will not be detected. They will have that belief whatever punishment is to be inflicted upon them, and I, myself, believe that the infliction of this particular punishment will not have the effect of deterring criminals from this particular crime. I do sincerely hope that your Lordships will take into consideration the fact that there is no urgent public demand, or indeed any real demand, from any quarter for his Bill, and that you will not pass so retrograde a measure. It is a measure which, in any case, the House ought not to sanction without inquiry, and which it would be a great pity that your Lordships should pass.
§ Bill read 2a accordingly, and committed to a Committee of the Whole House on Thursday next.