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Flogging Of Juvenile Offenders

Volume 162: debated on Friday 26 April 1861

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Observations

said, he was anxious to call the attention of the House to some Returns which bad recently been laid before them in respect to the floggings inflicted on children in the various gaols of England. Hon. Members had just been expressing their indignation at the barbarity of the Chinese; but be hardly knew whether indignation or pity was more roused in considering the subject to which his question referred. That, in this nineteenth century, children who ought to be under tender surveillance, of the ages of 8, 9, 10, 11, and upwards, should be ar- bitrarily exposed to the lash in private in our gaols was an abuse of law which ought no longer to be tolerated. At Knutsford, according to the Return (and he would only take a few cases), a child of eight got 24 lashes; at Faversham two boys of nine got 15 lashes each; at Spilsby three boys of eleven, ten, and eleven got 10 and 12 lashes each with the cat, an instrument which inflicted immense pain. At Leicester a boy of eleven got 20 cuts with the cat, and when the wounds inflicted by those cuts were healed he had 14 more. At Morpeth a child of ten got 10 lashes with the cat, and another of ten 6 cuts with a new kind of instrument—a leathern strap. At Newcastle there was a perfectly scandalous list of floggings ordered by petty sessions. A child of eight was ordered 8 strokes with the eat, another child of eight 4 strokes, two children of ten and eleven 6 strokes, and three children of thirteen 15 strokes each. At Oxford two children of nine were ordered 24 strokes with the rod, and at Petworth children of seven, nine, and nine years were ordered 13, 10, and 15 strokes respectively. He had had forwarded to him an account of a private flogging at one of the gaols, written by a magistrate, which he would read to the House—

"I saw a boy marched along in custody, and was told that he was going to he flogged. His age was said to he eleven, but he was a little and delicate-looking child. He was committed the day previous for three days and to be once whipped for stealing. The boy was ordered to take off his trousers, and he was fastened by his wrist to the halberds, arms extended, and further secured by straps. The person who had to administer the punishment was a strong, stalwart man, and he was armed with a huge birch rod, about two feet six inches in length. The child received eight strokes, and then presented a picture of agony and terror, his eyes almost starting out of his head. I inquired how many such strokes constituted a flogging, and was told eighteen, and that that number was always inflicted if the prisoner's physical power would admit of it. I appealed to the surgeon, who said he could not interfere, so long as the boy was physically capable of enduring the punishment. I asked whether we, as magistrates, could not prevent its proceeding further, and was then told that we had the power to mitigate the sentence. This, of course, we at once did, as we should certainly have done at the first stroke had we received that intimation previously. I never witnessed so pitiful a scene, and hope I never shall again."
Here was another instance—
"I once witnessed its infliction with the birch on three youths of about eighteen or nineteen. They had eighteen strokes each, and their screams, and writhings, and cries for mercy, testified to the severity of the punishment. One of them, after violent and fruitless struggles, fairly groaned with pain. The foregoing punishment is light compared with one with the cat, which a friend gave me an account of."
The place were these floggings took place was a vaulted chamber under the gaol, where no sound could reach beyond those present. He could scarcely believe that such a thing was possible. The Returns, which he was glad had been printed for general circulation, read more like old tales of slavery, or of Eastern torture than of anything which could take place in England. It could scarcely be said that such punishments were necessary; for they were con fined to a few districts, mostly in the north, while in other districts they were not used at all. He did not deny that, in extreme cases, the thing ought to he done; but, that it should assume this ordinary character, and be inflicted on children of such tender years, who were often not themselves to blame, because they had been brought up in misery and crime was a national disgrace, and could never have been intended by the Legislature. He should be glad to hear from his right hon. Friend that he had had the subject under his consideration, and that he would be prepared to take some steps to put a stop to the practice.

said, he wished, before the right hon. Gentleman the Home Secretary rose to reply to ask him a question on the subject of the practice of flogging in prisons. The Returns already referred to by his hon. Friend (Mr. Kinnaird) near him related to 137 prisons, in sixty-three of which no flogging whatever had taken place either by sentence of the Courts or by order of the visiting justices. In twenty-two others there had been no corporeal punishment by order of the visiting justices. In twenty-six others the punishment had been inflicted partly by order of sessions and partly by the visiting justices, and in the twenty-six remaining prisons the punishment had been by order of the visiting justices only. Now, he submitted that it was never intended by the law that the punishment of whipping should be indiscriminately inflicted upon our criminals by order of visiting justices only. Another matter of which he complained was that no limit was placed on the visiting magistrate as to the number of lashes he might direct to be administered, or as to the instrument—cat-o'-nine-tails or birch—with which the punishment was to be inflicted; and, furthermore, that the punishments were inflicted in private, by which the public eye was drawn away from them; and the press was not allowed to report the proceedings. In many of the cases to which he had directed his observations, the infliction of the lash, no doubt, took place according to the caprice and temper of the visiting magistrate, and not in accordance with justice or the actual merits of the case. In the West Riding of Yorkshire prison, at Wakefield, whipping was entirely abolished, and, with few exceptions, that degrading punishment was disallowed in the county of York. He hoped, therefore, that the attention of the Home Secretary would be at once directed towards abolishing a power which in itself was manifestly tyrannical and susceptible of such great abuse.

said, that before the question was answered, he wished to ask the hon. Member whether, before a flogging was ordered to be inflicted, an examination must not take place on oath before the visiting magistrate; the proceedings taken down on paper; and the whole matter conducted in a proper and judicial manner? He also wished to ask whether any complaint had been made by the Inspector of Prisons as to the severity of the punishment inflicted by order of the visiting justices? Whether he was not aware that the birch-rod, and not the cat-o'-ninetails was the instrument usually employed in the punishment of boys? And, finally, was he not aware that the children of the nobility and higher classes were subjected to corporeal punishment, inflicted generally in private by the head master of public schools, in a much more severe form than that employed in public prisons?

said, that he should lose his self-respect if he remained silent with the convictions which he had in reference to the subject introduced by the hon. Member for Perth (Mr. Kinnaird). They often indulged in vituperation of foreign states, and talked of the cruelties practised in the gaols of Naples and Austria. He would plead for the infants, children of tender age, in English gaols. Could it be believed that not a birch-rod, but a cat-o'-nine-tails, was laid on a child? It should be remembered that one stroke of the cat gave nine lashes, and, therefore, twenty strokes inflicted 180 lashes. [Laughter] It might be a matter of merriment to some hon. Gentlemen, but no one would be allowed to treat an animal with such cruelty. He hoped to hear from the right hon. Gentleman, the Home Secretary, that a change was intended which would put an end to such disgraceful proceedings.

Lieut-Colonel J H Keogh And The Encumbered Estates Court, Dublin—Observation

said, he rose to call the attention of the House to the matters alleged in, the petition of Lieutenant Colonel John Henry Keogh, presented to the House on the 14th day of March last. It appeared that the petitioner was entitled to two estates—one in the County of Carlow and the other in Kildare. A petition was presented to the Encumbered Estates Court, Dublin, for a sale of the property to pay debts contracted by the petitioner's father, and an order was pronounced in August, 1851. The Kildare estate was sold in 1852, and it was found to realize more than sufficient to discharge all the claims of the creditors, and amongst them the particular debt which was the subject matter of the petition. It was a judgment debt in the penal sum of £2,000, the bond having been given to one Anne Garstin. The gum due on the bond was £1,061, principal and interest, and the Judge ordered that that amount should be set aside for the personal representative of Anne Garstin, and directed that letters of administration should be taken out to her. That was done in May, 1853, at which time there was no legal personal representative. By the practice of the Encumbered Estates Court, when once the money was allocated by the Court the petitioners received no further notice with regard to it, and did not know when it was drawn out. The trustee of the judgment debt was a clergyman who proceeded to take out administration on the 8th of December, 1853. But before the representative could obtain payment of the money other persons wrongfully did so from the officers of the Court, and when those persons were called upon to refund it, it was found that they were insolvent, and, consequently, only £60 was obtained from their estates instead of £1,100. The trustee of the judgment then applied to the Encumbered Estates Court for an order to sell the estate in Carlow, and the Court could not refuse to make such order on the ground that money had once been allocated for the payment of the debt. Proceedings were then, by order of the Encumbered Estates Courts, commenced in the law courts by the trustee, and the result was the Court of Common Pleas held he was entitled to judgment for the amount claimed, the Judges saying that the money having got into the hands of the wrong person was no answer to the case made by the trustee, who was the right person, and that Lieutenant Keogh must obtain redress elsewhere. That gentleman had had to pay the sum of £1,650 10s. 5d. to the trustee, and £222 16s. 10d. costs to his attorney, in consequence of an error committed by an officer of the Encumbered Estates Court. The reason why Colonel Keogh could obtain no redress was that the 15th Section of the Act of Parliament enacted that neither the Commissioners of the Court nor any person acting under the authority of the Court should be liable for anything bonâ fide done, or omitted to be done, in the exercise of the provisions and powers of the Act. The officer having acted under the powers of the Act, there was no redress at law to Colonel Keogh, and the question was whether he was to have any redress rendered to him elsewhere—that was to say by that House? If there was a fund in court Colonel Keogh ought to be paid out of it; but if there was no such fund, then, as the House had compensated Mr. Barber for injuries done to him, so the Government ought to put Colonel Keogh's name upon the estimates for the amount which he had lost through negligence of an officer of the Court. There could be no doubt that a grievous injustice, under the Act of Parliament, had been done to Colonel Keogh, and he hoped the Government would give a satisfactory answer with regard to it.

said, that there could be no doubt that a great hardship had been done to this gentleman. He had to pay twice over a sum of money through the negligence of a public department, and had failed to obtain redress, in consequence of an Act passed by that House. He (Mr. Cogan) thought it was a fair case for the interference of the House, with the view of affording some redress for the wrong that gentleman had sustained. He believed there were funds at the disposal of the Court by which that gentleman might be compensated without putting any burden upon the country. If the Secretary for Ireland saw any difficulty in dealing with the case now, he (Mr. Cogan) trusted that the right hon. and learned Gentleman (Mr. Whiteside) would be granted a Committee to inquire whether public justice could not be done?

said, that his part in the case of Colonel Keogh was a very slight one. Such a case, indeed, had no connection with the ordinary departmental discretion of the Treasury. The case of Colonel Keogh was certainly a very grievous one, and he should feel himself unable to oppose an investigation with a view, in the first instance, to the establishment of the facts. At the same time the matter involved many difficult and important questions which could not be decided off-hand. It would be impossible to take any step which, by recognizing any claim upon the public in such a case, would simply announce to the officers of courts of justice that they might with impunity commit any neglect or misconduct as long as it could not be proved wilful fraud. The difficulty of such cases was increased by the fact that officers of courts of justice were not under the control of the Executive Government. The vote of the House in the case of Mr. Barber was proposed with doubt and misgiving; but it was clearly established in that case that the wrong inflicted upon Mr. Barber was inflicted by persons who were under the direct control of the Executive Government. In the Irish cases to which reference had been made no claim upon the public was recognized.

Duties On Traders—Reply

said, as he could not address the House again, he would answer by anticipation a question of which notice had been given by the hon. and learned Member for the Tower Hamlets—namely, Whether it was his intention to lay before the House the Bill regulating the imposition of the Duties on Traders mentioned in the 8th, 9th, and 13th Resolutions before taking the opinion of the Committee on those Resolutions? In reply he had to say that it was not in his power to present the Bill to the House until the Resolutions had been passed and reported.

stated that last Session the right hon. Gentleman first read a somewhat similar Bill the second time, and then passed his Resolutions on the subject in Committee of Ways and Means. He wanted to know whether the right hon. Gentleman was going to pursue the same course on the present occasion? He wished to know the grounds on which the Chancellor of the Exchequer had selected the three classes of traders mentioned in his 8th, 9th, and 13th Resolutions specially as the subjects of taxation? and he thought the best mode of obtaining that information would be from the Bill itself; but, as the right hon. Gentleman declined to lay the Bill on the table, he would put the question in another shape, which would enable him to get the information he wanted in an oral form.

Appropriation Of Seats

said, he did not rise to pursue the subject of flogging. Most hon. Members who had been at public schools had had the advantage of personal experience of what a flogging was before they entered that House. The question he had to submit to them was a much more important one; it related to the postponement of the Appropriation of Scats Bill. That seemed to be the only Reform Bill they were to have during the Session, and it had hardly met with the respectful treatment from its parents which it had a right to expect. It received a second reading on the 25th of February, and was put down for Committee on March 7th. It then stood No. 1 on the Orders, but it was postponed to the 11th; then it was postponed to the 14th, and then to the 21st of March. Before the 21st came it was postponed to April 15th, when it stood low down among the Orders, and it was then postponed to the 25th, when there was no chance of its coming on. The right hon. Gentleman the Secretary for the Home Department had stated that the Bill would not come on until after the financial statement had been disposed of, but, as there was no chance that the debate on the Budget would be over before the following Thursday it was evident that a still further postponement must take place. Under those circumstances, and as the measure was one which excited considerable interest, he trusted the right hon. Gentleman would fix some day definitively for its discussion. He would remind the right hon. Gentleman that independent Members had not the same inducement as the occupants of the Treasury bench to remain in the House until two o'clock in the morning to watch the Bill.

Sir, I am not conscious of having behaved, as the hon. Member for Knaresborough (Mr. Collins) has alleged, with any want of respect to the House in regard to the Bill for the Ap- propriation of seats. In the beginning of the Session an opinion was expressed, somewhat in terms of censure, that the Government were to blame if they did not introduce their Bills at an early date. In accordance, therefore, with what I thought the general wish of the House I introduced the Bill in question at a comparatively early period of the Session, and it has been read a second time. If I had seen an opportunity for the consideration of the Bill in Committee, I should not have failed to have availed myself of it. The House, however, is aware that the Government are in a more unfavourable position than private Members with regard to the consideration of their Bills at that period of the year. A private Member can put down his Bill for Wednesday, and if sufficiently high on the list it will come on, but it is impossible for a Government Bill of this kind to be taken up when there is important business on the paper, such as Committee of Supply, when a couple of nights are sometimes occupied with preliminary Motions. I am not aware that I have failed to avail myself of any opportunity of bringing on the Bill, or that I have postponed it on any occasion when it could seriously have been expected to come on; I can only repeat that as soon as the financial business shall have been concluded I will fix a day for the Bill. As to the flogging of prisoners I would observe that there are two classes of cases in which that punishment is inflicted: one is where the Judges at assizes or quarter sessions have pronounced that sentence after an indictment. The law in certain cases allow this punishment to be inflicted on adults, and more frequently on children. That is the sentence of a competent Court; and it is inflicted by the gaoler, just as a capital sentence would be if pronounced by a competent Court. In that case, then, it is not in the power of the Executive Government to interfere with the mode of its infliction, although the Crown may remit it. As far as legislation on this subject is concerned it is under the consideration of the Committee which is now sitting on Offences against the Person. This punishment, more than any other, has been under the consideration of that Committee. They will, no doubt, make certain recommendations which will come before the House, and without anticipating their decision, I think the House may dismiss the subject, leaving it to the consideration of the Committee. The other class of cases is where flogging is administered by order of visiting magis- trates on prisoners for prison offences. There is obviously a difficulty with respect to prison offences, because punishment has to be inflicted on those who are already in a state of punishment. Ordinary modes of punishment being thus taken away the law confers on the visiting justices the power of flogging for prison offences. Before inflicting that punishment the visiting justices, as has been correctly stated by the hon. Baronet (Sir Baldwin Leighton) take evidence as to the offence, which is accessible to the prison inspector. I am not aware that any case of excessive flogging by order of the visiting justices has been reported by the prison inspectors, or made the subject of special complaint to the Home Office. If any such complaint had been made it would, of course, have been attended to. From the returns it appears that a boy of a tender age has been subjected to flogging with the cat, which is certainly a severe instrument of punishment. In the New Bailey Prison, Salford, in November, 1857, a boy aged fourteen years seven months, was sentenced to eighteen lashes with the cat. His offence was, "shouting repeatedly in his cell at night, after having been cautioned by the watchman, this being the seventh report since conviction in May, 1857." He was probably an incorrigible boy, who had given a great deal of trouble to the prison authorities. In March, 1858, in the same prison, a boy eleven years old was sentenced to thirty-six lashes with the birch-rod, for "shouting loud in his cell to other prisoners, this being the ninth similar offence in four months, in addition to other disorderly conduct." In April, 1858, in the same prison, another boy, thirteen years eight months, was sentenced to forty-eight lashes with the birch for whistling and shouting in his cell, that being "the third similar offence (incorrigible), and eighth offence in seven weeks." That is the nature of the offences for which corporeal punishment is inflicted on prisoners by direction of the visiting justices. If the House thinks fit, it can, of course, impose some restriction on the discretion of the visiting justices by defining the instrument to be used in different cases, and limiting the number of lashes to be administered. It would be competent for the Home Office to inquire into any particular case of cruelty and to take steps in consequence; but not to issue a circular letter to the visiting justices, limiting their discretion in the execution of the law. I will, however, consider whether I can make any suggestion on the subject. It certainly appears that in some prisons this punishment is inflicted more frequently than in others, but that is sometimes owing to the defective construction of the prisons, and not to any fault of the officers.

said, that last Session he had brought this subject under the notice of the House, when he had shown that the system of flogging children was most tyrannical, brutal, and of a disgusting nature. In the army a court-martial, which could order a soldier to be shot, could only direct the infliction of fifty lashes. But in Lancaster gaol there appeared to be no limit to the authority of the visiting magistrates. He had never heard of a boy being flogged with a cat-o'-nine tails in the army at all. A soldier entered the army at the age of eighteen, and must be a most accomplished blackguard to earn a flogging within a year. So that it might be said that nineteen was the earliest age at which a soldier was liable to flogging. But the Return before the House showed that a lad of fifteen years and two months had received forty-two cuts with a cat-o'-nine-tails for defacing some books in prison. Another boy, of sixteen, for refusing to work had received sixty cuts with the birch. He observed that 190 of the floggings took place in Lancashire. The hon. Member for Birmingham, therefore, would have been much better occupied in his own county than in dragging before the country General Sir Richard Dacres, the commandant at Woolwich, for having flogged the greatest ruffian that ever disgraced the army. It was all very well to talk of the brutality of flogging in the army, but what could equal the brutality they had heard of that evening? If he commanded a regiment at Oxford, he, as colonel, could not flog any man in the regiment without a regimental court-martial; but as a visiting justice, he could go to the prisons and flog as many men as he pleased. He was an advocate for flogging in the army, because he did not believe they could govern the men without it; but he would never consent to place it in the power of any one man to subject another to the lash, except in a case of mutiny when instantaneous example was necessary to suppress it.