On March 13, 1812, Sir Francis Burdett tried to amend the Mutiny Bill, which was on its third reading before the House of Commons, to ban public flogging in the British Army. His attempt was defeated and it was only in 1881 that the practice was abolished.
MUTINY BILL—FLOGGING OF SOLDIERS.HC Deb 13 March 1812 vol 21 cc1263-92 1263
Lord Palmerston moved, "That the Mutiny Bill be now read a third time."
Sir Francis Burdett, in bringing the subject of military punishments again under the notice of the House, hoped he should be considered as performing, as was his intention, a duty to the army and to the people at large. He was persuaded that few gentlemen could be found who would differ with him in the sentiment, that they ought, if possible, to get rid of the punishment of flogging, or, as it was called by a circumlocution which seemed to imply that those who supported the practice were ashamed of the simple and direct word by which it was described, "corporal punishment." But imprisonment was also a corporal punishment; and his objection was not, therefore, to be taken as against this species of infliction generally, which he confessed to be necessary in the coercion of soldiers to their duty, which the slow progress of civil law would be inefficient in accomplishing. It was his object to contend, that there were other principles which might be acted upon, and other punishments, short of death, and even death itself, which might be inflicted more consistently with the good of the service—more consistently with the character and honour of the soldier, and more consistently with the character and honour of the nation. Gentlemen were not perhaps aware of the extent to which the present odious system led, or of its specific nature. Not only from the disgraceful kind of punishment, but from the manner in which it was considered by the civil law of the country, it was stamped with peculiar infamy, and this was the more important to be kept in view now, when the military system embraced the whole population of England, and every man above the age of 18 was liable to be brought into the ranks. Under such circumstances, it was indeed most important to bear in mind that legal disability went along with the infliction of the lash. Mr. Justice Blackstone put the individuals who had been punished by flogging on a footing with those who had been convicted of the worst and most disgraceful crimes, such as perjury and felony, and held it to be a just ground of challenge on a jury, that a person had been flogged. How the practice had crept into the army, he had, after the most diligent inquiry, found it impossible to trace; but he had every reason to think that it was not of many years standing, and that it was only during the present war that it had been carried to a great extent; and it was natural to believe that it had gone on, and would continue to increase, for it was in the very spirit of such punishments to require the greater severity, the longer they were established. What was at first sufficient to answer the purpose of terror, by degrees lost its force, till aggravated and more frequent examples became necessary, and humanity shuddered at the extremity to which cruelty and barbarity must be carried, and which after all, were unproductive of the effects anticipated from them. He was sure of being relieved from one part of the difficulty attendant upon the discussal of this subject, as every man to whom he addressed himself must view with disgust and abhorrence the abominable system of torture, at the abolition of which he aimed. His task would, therefore, be shorter, as he had only to shew the impolicy of what must be confessed, on all hands, to be inhuman and barbarous. Yet even here he felt a considerable degree of embarrassment, arising from the difficulty of applying reasoning to what one would think the heart must determine on instantly before the judgment could be consulted. If the mind did not revolt at once from the mere statement of a practice so abominable, it would be no easy matter to convince the understanding of those who could bring themselves to cold reasoning and calculation on the subject. He would, however, attempt to offer some arguments one case, and, to begin, would revert to his former position, that the practice was not sanctioned by its antiquity. That it was not an ancient practice, a reference to the statute book would sufficiently evince.
....He had heard from old persons, who had been long in the army, that they could remember but one instance of this species of punishment being inflicted, and in that one case the individual was sent out of the army. He himself recollected in his boyhood, having seen persons pointed out as having been drummed out of their regiment. To what then were they to attribute the change that had since taken place? There were no drummings out of the army now. This could be accounted for only on the supposition that they could not discharge the soldier from the army, without conferring a benefit upon him; and why? Because in that line of life his reward was not adequate to the services he performed, and they were obliged to compel him to his duty by torture. This was the sole ground-work for the supposed necessity for continuing this cruel mode of punishment. An officer was not flogged. To dismiss him was considered a sufficient punishment for many offences; but to dismiss a soldier was considered a reward. Here he could not help animadverting on what had fallen from an hon. and learned gentleman, the Judge-advocate, the other day. That hon. and learned gentleman had told them, by way of inducing a belief that flogging was almost extinct, that he had great consolation in stating, that only eight persons had in the course of the year been sentenced to receive lashes by general courts-martial, and that of these, the sentence had only been carried into execution (to the number of 700 lashes, a number he should have thought beyond all human endurance) upon one man, who had refused an offer of commuting the punishment into service abroad for life. What was the source of the hon. and learned gentleman's consolation he was at a loss to discover. It could not arise from a conviction of the decrease of this mode of punishment—for such sentences by general courts-martial were known never to be numerous. Would be tell them how many men were doomed to this degradation and infamy by regimental courts-martial?
....He would be asked "What will you substitute for the mode of punishment you take away—will you substitute death?" To this he would answer, that there were many intermediate steps of punishment that might be adopted. But were they sure that death at once would not be more humane, and perhaps not more fatal, than the system in use? He knew from authority on which he could rely, that a few years ago, eight soldiers had died at Gibraltar in consequence of the severity of the punishment to which they had been exposed; and if he was rightly informed, which he did not doubt, the officers who composed the court martial had refused to find a ninth man guilty as soon as they were aware of the fate, of the others. For this refusal they were superseded and sent over to England, but were soon after reinstated by the Commander-in-Chief. The surgeon had originally given in his report of the deceased soldiers—"Died of punishment," but, for reasons not explained, had afterwards altered it to—"Died of fever." The point to consider then was, if, under the existing military code, they did not kill more, and, at all events, render more useless, than even if they resorted to the punishment of death itself, for the commission of the higher crimes. But there were also other advantages which would arise out of the latter. Men would not condemn to the loss of life on light and inadequate grounds—they would weigh matters maturely and seriously, before they inflicted death; but they would go on flogging for the life of the individual, without ever giving his case that deliberation and grave consideration it merited....
....There were many other objections to the practice. The degree of punishment was unequal in severity; it was left to the caprice of the commanding officer, or the officers composing the court martial; and who could calculate the sensibility of the nerves of different men, which made that to one a slight, which to another was a mortal infliction? The instrument of torture was also liable to variation in different regiments, and even in the same regiment at different times. If such a mode of treatment was to be tolerated at all, which in his judgment it ought not, that House, which gave the authority and power, ought to take care and define the crime liable to this species of visitation—to prescribe the dimensions and sort of instrument—and to limit its application. They ought to see, that there were no variations, such as he had just noticed, and which were only to be accounted for on the ground, that the system altogether was an abuse which had crept into the army, and, like all other abuses, was unbounded; for what the law enacted, the law took especial means to limit and define. He now came to notice the arguments, if arguments they might be called, of those who had opposed the abolition of this detestable practice. They said, "You must have it; the army is composed of such a description of persons, that flogging must be allowed." How unjust such an assertion was to the English army, their conduct, on every occasion, completely manifested, and he would not enter into a refutation of the calumny. The gentlemen opposite, however, had done all in their power, by incorporating with it convicts from the hulks, to degrade the army to a degree so as to justify their argument, that the lash was indispensable. But could it be that the House would think, that for the sake of 2 or 300 wretches sent from these repositories of guilt, to increase the numbers of the army, but certainly not to augment its strength, such a system should be upheld? There were others so tender of life, though callous to the best feelings of the soldier, that they defended the present mode on the ground of this perverted humanity. Others again were its friends through economy, as they would do nothing which might deprive the service of a man. In the end, however, they would find their economical measures the most dear.
...But if, by a substitute, was meant a difference in discipline—let reward be that substitute. Give the soldier comfort and ease for the remainder of that life, worn out in the service of his country, let him not know want and penury; let him find his toilsome and stormy youth succeeded by an age of quiet and security. But what, on the contrary, did they see? Men, who, in these glorious battles, which were in every one's mouth, had lost their limbs, reduced to the miserable and scanty pittance of sixpence or nine pence per day. Was this an adequate compensation for the risk of life—for the loss of limb in bravely fighting to advance the cause of their country? It was true, that, after a longer period of service, they were entitled to receive one shilling, eighteenpence, and so much as two shillings a day; but those whose service had been short, were placed on the wretched allowance which he had described, and certainly afforded no example very seducing to others to embark in the same career. On the contrary, every one of these men served as a beacon to deter others from entering into the army, where dangers, exertions, and privations met with so ungrateful a return. Instead of always hearing of punishments, he would wish sometimes to hear of rewards for good conduct and gallant actions; of promotion for the display of courage and talent; and he was convinced, that a system of this kind would supersede the necessity for barbarous punishments. But if punishment and fear alone were to operate, the army would remain in its present condition; and it appeared to him that all other evils in life vanished, in comparison with those of a soldier. All was one gloomy scene, there was nothing of sweetness in the past, and nothing of hope in the future. And though, when brought face to face with the enemy, he seemed to forget every evil of his condition—to think only of his own honour and the honour of his country, and rush, with heroism, upon the opposing gun or bayonet; this only proved him more worthy of another sort of discipline, and of the gratitude of his native land, which he defended.
...He then proceeded to notice the hardship of inflicting a part of such punishment, and then commuting the remainder into foreign service. It was unnecessary to detail the melancholy effects which had been produced by this mode of punishment. Men had destroyed themselves through apprehension of it, and he firmly believed that no man, after suffering the lash, was ever fit to be trusted. He knew it was the opinion of all officers that the cat-o'-nine-tails spoiled a good soldier, and made a bad man worse. Excessive punishment always defeated its own object. No man would treat any animal in the way in which human beings were sometimes treated: and yet a horse might be whipped until be stood still. With regard to the plea of necessity, it was not for him to disprove it—but it behoved the gentlemen opposite to make out the position, that flogging could not be done without. Military torture ought to be as inadmissible as civil torture. He repeated, that the strongest part of the argument rested on the liability of the whole population of the country to be called out as soldiers. The father of a family might be dragged from his house to serve in the ranks, and put in a situation in which he would be subject to military flogging. There had been great sympathy excited a few years since on the subject of the Slave Trade, and he heartily rejoiced in the abolition of that inhuman traffic; but he did not believe that ever a slave in the West Indies suffered so much as the British soldier, for by the laws of Jamaica the number of lashes was limited, and they were inflicted, not by the party offended, but by a public officer. He hoped their humanity was not exhausted in getting rid of that traffic, but that there was still enough left to induce them to abolish an abomination even exceeding that in horror. He did not doubt but the practice would be defended under similar perverted pretences to humanity as had been used on the Slave Trade.
...The opposition to the system was founded on humanity: and in that point of view, needed not the aid of argument; it was also founded on policy, and in that point of view, could be supported by irrefutable reasoning. If the country would but do justice to the army—if a reward was held out for good conduct—if those, who had served 30 or 40 years, instead of being sent abroad to hard garrison duty, were allowed to pass the rest of their lives at home and at ease, there would be little necessity for resorting to severe punishments. Far different was the present fate of the veteran. When he had exhausted the strength of his youth in the service of his country, that ungrateful country, instead of affording the means of comfort in his age, availed itself of his last and feeble efforts, and sent him to a distant and baleful clime, there to descend into an unwept grave. Had the plan originated some years ago by a late right hon. gentleman (Mr. Windham) been persevered in, the good effects would by this time have been strikingly manifest. It was a plan which no consideration of economy ought to have interrupted. That right hon. gentleman had, for the first time, (however imperfectly) impressed this great principle on the military service of the country, namely, that the only rational foundation on which the good conduct of the soldier could be expected, was to better his condition. He must know very little indeed of the character of mankind, and of Englishmen in particular, who did not know that it was much easier to lead than to drive. To lead men by a principle of honest emulation was infinitely preferable to driving them forward under a system of terror like that embraced in the maxim of Caligula, "Oderint dum metuant." To none was this remark more applicable, than to those engaged in the military profession. It was to satisfy his sense of duty upon the subject, that after the third reading of the Bill, it was his intention to propose a clause, the effect of which would be to declare that the punishment of flogging rendered the person on whom it was inflicted infamous, and liable to the challenge of a jury; and that the same ought to be abolished.
Mr. Manners Sutton observed, that the hon. baronet set out with professing that what he had to say would be an appeal rather to the hearts than to the understandings of members; and in truth his speech had been addressed to the passions rather than reason. He was persuaded that, however conscientious the motives of the hon. baronet, there was no degradation from which the British army would recoil with more disgust and impatience, than from the description which the hon. baronet had been pleased to give of their situation. What was it true that a British soldier was subject only to punishment? Was he entitled to no reward? Was he in a worse state than an African slave? He would venture to say, that there were no assertions so untrue, so calculated to incense the feelings of the British army, and indeed to reduce them to real degradation, as many of the statements of the hon. bart. The hon. baronet had hazarded opinions not founded on any enquiry. He had said, that no soldier who underwent corporal punishment could ever raise his head again among his friends and companions. If he had investigated the fact, he would have found that in many regiments soldiers who had suffered proper corporal correction, so far from having become worthless, had afterwards conducted themselves in such an exemplary manner as to become noncommissioned officers, and in that new situation to fulfil all their duties irreproachably.
....If the hon. bart. had condescended to be present on that occasion, he would have heard how the subject was introduced, and in that case he would, perhaps, not have deferred his present proposition to a time when it could not with consistency be possibly received; for certainly nothing could be more ridiculous than to suppose, that after the House had read, for the third time, a Bill which recited corporal punishment as intimately connected with its provisions, they would agree to tack to it a clause by which corporal punishment should be wholly abolished.
...The hon. baronet had talked of the impolicy of subjecting the men to the caprice of their officers. Such an insinuation was dangerous, for it would have the effect, by insinuating that the British officer was capricious, of taking away that affectionate attachment which generally was found among all ranks of the army to the commanding officers. The arguments which he advanced to shew the danger, by stating that the men were bad in consequence, was not fair; for if the hon. baronet had been present on the former evening, he would most undoubtedly have been satisfied that such an imputation was directly-inconsistent with the general feelings of the House. He would have learnt from the discussion of that evening, that the men introduced from the hulks, so far from their furnishing bad materials for the army, had, on the contrary, turned out some of the best soldiers. Indeed the whole of his arguments seemed to have no other tendency but to the conviction, that it was impossible the House should adopt his clause. Where, for instance, could he have discovered the opinion of judge Blackstone, namely, that corporal punishment incapacitated a man from sitting on a jury? Certainly not in his writings; for he (Mr. S.) had no recollection of such an opinion, nor did he believe the fact was as stated. However the hon. baronet had used it as one of the most weighty of his arguments in support of his proposition. If the House would estimate the importance of the hon. baronet's other arguments by to is one, they would see that the proposition was perfectly unsupported by reasoning or authority.—The proposed clause was wholly inadmissible; it was most desirable to diminish corporal punishment, by commutation for imprisonment, at the discretion of officers—but the option should be always held out ad terrorem; and it would be totally subversive of discipline, and ruinous to the best interests of the army, to do away altogether the principle of corporal punishment. He would, when the opportunity should occur, give his most unqualified dissent to the motion.
Mr. Abercromby was disposed to think that advantage had arisen from the many discussions which had already taken place on the subject. At the same time it was a subject, of all others, on which, in the discussion, great caution ought to be used. With respect to the question, he was happy to concur in the course which had been adopted by his Majesty's government, not at all questioning the purity of the motives which had induced the hon. baronet to bring this subject under the consideration of the House; but wishing, however, that it might not again be brought before parliament. He differed from the hon. baronet in the mode most likely to effect the object which he had in view. If the condition of soldiers was considered, it would appear that it was indispensibly necessary to resort to a different mode of punishment than was adopted in ordinary society. He saw no good that could attach either to the civil or military government, by the introduction of a tone and spirit; in the army such as was attempted to be introduced; it was holding out both to the army and the country, that the present code was not desirable, and therefore ought to be dispensed with. He conceived that the discretion could not be in better hands than in those of a British officer; and he therefore should object to the motion.
Sir George Warrender begged leave to correct the hon. baronet in what he had said respecting promotions, by stating that after the battle of Albuera, and after many other battles that, had been fought in Portugal, lord Wellington ordered the list of Serjeants to be sent to him, for the purpose of promoting those to be officers who had behaved well—and be also, as colonel of a militia regiment, had had an opportunity of promoting three into the line, who now held commissions in the regular army. The hon. baronet had also wished that monthly returns were sent in to the Commander in Chief, specifying the number and nature of the crimes committed, the punishment inflicted, &c. He could inform him that half-yearly returns to that effect were now sent in to the office of the Commander in Chief. He expressed his regret that the hon. baronet should have relied on the publications of certain officers, and he also regretted that those officers high in rank should have made public their opinions on the subject; it would have conduced more to the benefit of the service if they had stated those opinions to the government, or to the Commander in Chief, for he well knew that illustrious person had the most sincere desire to abolish corporal punishment. The right hon. and learned gentleman had completely answered most of the hon. baronet's arguments. He had never understood there was any difference in the instruments by which punishments were inflicted. The distinction between 1279 punishments in foreign service and the British service, was that a British officer dare not lift his hand to strike a soldier, and that in the French service the men were cruelly beat by their officers. The condition of the British soldier was this, that he felt himself not degraded but much elevated above the soldiers of every other nation in Europe, in every point of view. In illustration of this assertion, he might refer to the character of the 15th dragoons, in which regiment discipline was strictly enforced; and that regiment had distinguished itself during the war on various occasions, in the most exemplary manner.
Mr. C. Adams observed, that corporal punishment had been inflicted in the reign of queen Elizabeth, and in the war of Marlborough, and yet the army, as might be seen in the history of Sully, in the former reign, was distinguished for valour and discipline before Rouen. And on their conduct in the latter period, it was unnecessary for him to say any thing. It had been said on a former night, by an hon. and learned gentleman (Mr. Brougham), that it was owing to the opinions of Mr. Cobbett that corporal punishment was abated. He did not know what might have been the military education of Mr. Cobbett, but he believed, that if he bad felt the terror of the lash, he would have been deterred from publishing many of those opinions, which, since he left the army, had involved him in so many awkward predicaments; and might new be dwelling in other lodgings than those which he had provided for himself. The hon. baronet, in the course of his arguments, had not noticed or proposed any remedy for corporal punishment in the navy. What had the navy done that they were not to be included in the hon. baronet's proposition? He did not impute any bad intention to the hon. baronet in bringing forward this motion. It could not be a love of popularity certainly, for he had already a large stock of that material on hand:—whatever were his motives, be was convinced however, that this discussion must do mischief, because it tended to raise hopes in the minds of the soldiers which could not be realised.
General Loftus , after the speeches of the night hon. and learned gentleman, and of the hon. baronet (sir George Warrender), should not have been inclined to trouble the House, as these hon. members had 1280 given so full and satisfactory an answer to all that the hon. baronet had advanced; but he could not avoid expressing his concern that questions of this nature should be brought forward. He could not see any good that could arise to the service or to the country from such agitation. On the contrary, he saw the possibility of infinite mischief. He had always been averse to severe corporal punishments, and had always opposed them when he was able to do so without affecting the discipline of the army. But there were situations in which officers commanding corps throughout the army were sometimes placed, in which it became absolutely necessary to punish for the sake of example. He would venture to say, that there was not one man in ten thousand so punished, who was not thought by his comrades to be deserving of it. Every man who heard him, who knew any thing of the service, must be convinced that all courts martial were favourable to the prisoner; every thing which told in his favour being attended to. The hon. baronet, no doubt, was historian enough to know that the freest states were those states the most strict in military discipline. An army without discipline was the greatest enemy which a state could have to contend with. He could not think that the object which the hon. baronet had in view was to lessen the security of the country, by relaxing the state of the discipline of the army, but such would be the effect of his proposition, and under that impression he must oppose it. In respect to there being no rewards for meritorious soldiers, the hon. baronet (sir G. Warrender) had given three instances of promotions of non-commissioned officers from his own regiment, to commissions in the line. He (general Loftus) could state, that in his own regiment he had officers who had risen from the ranks to commissions, for their good behaviour; besides, was there not provision made by the means of Chelsea? He had supported the liberal plan of Mr. Windham; and the more he thought of it the more he was satisfied that it benefited the soldier. He wished corporal punishment could be abolished, but experience had shewn that it was impossible to do so without lessening the discipline which had brought our army to that degree of vigour of which it now boasted.
Mr. Bennet agreed with the arguments, and would support the motion of the hon. baronet. From the tone and manner assumed 1281 by the hon. and learned gentleman Judge Advocate), it would almost seem, that the question was not for the destruction of an evil, but for the continuance of a blessing in the army. The system of punishment against which the clause was levelled, was one which was already abandoned in principle by many great military characters; and be should not, therefore, take any abstract views of it. He did not either conceive it necessary to trace this mode of punishment to its origin, although it might not be amiss to say, that it was first introduced here by king William amongst his Dutch troops; it was sufficient for the House to know that it now existed in England alone: that it Was not practised in France, nor in the military states of Germany; and that so far from corporal punishment being upheld in foreign armies, an officer would be likely to fall a sacrifice to the indignation of the soldiery, if he dared to raise his hand against a person in the ranks. He believed, contrary to what was said by other gentlemen, that the discussions on this subject were productive of great good. Was it not in consequence of them, that courts-martial were now sworn,—that the evidence before them was obliged to be given on oath,—and that the discretionary power of commuting punishment was in existence?—He particularly objected to regimental courts martial, and to corporal punishment generally, which was inflicted for trifling offences—such as the soldier being too late at drill—too late on parade, and being asleep on his post. He had the honour of belonging to the 1st regiment of foot guards formerly, when the late duke of Gloucester commanded that regiment; that illustrious person never interfered but to do some good to the regiment. Such was the case with his royal highness the duke of York.
Lord Palmerston was glad to see that the discussions on this subject had been productive, at least, of one effect; it was now in fact, avowed on all sides of the House, with scarcely any exceptions, that the abolition of the species of punishment under consideration was quite impracticable. The hon. baronet had spoken in just terms of praise of the memory of Mr. Windham; but if he (lord P.) knew any thing of that high character, he was Convinced that that right hon. gentleman could have heard nothing with more indignation than the hon. baronet's comparison, this night, of the soldiers of England 1282 to negro-slaves. Nothing could have been more repugnant to his feelings, than to hear the hon. baronet describe the army as the most degraded and most wretched of human beings. The whole of the hon. baronet's speech was made up of a series of contradictions; every sentence, in fact, seemed to be filled with propositions hostile to each other; such, for instance, as saying in one breath, that the condition of our army was most degraded—and in the next, that this degraded army performed the most glorious exploits. He did not think it fair to argue from analogy against this mode of punishment. In foreign armies, where corporal punishment was not systematic, there existed what was still more degrading to men—a system of wanton and capricious ill-usage.—Trial by courts-martial was governed by the strict principle of justice, and therefore could not be said to overthrow the energies of the men. With respect to corporal punishment, it was not coeval with the present war as had been asserted, but had existed in all times when the military service was called into action. The House, upon the mere assertion of the hon. baronet, would not, he trusted, abolish the practice, unless some satisfactory proposition was brought forward, and the hon. baronet had declared, that so far from making any such proposition, "he would not trust himself to reason upon a substitute." With respect to promotions, an hon. baronet, and, a gallant general, had stated some instances of privates being elevated to commissions. He should state another fact. After the battle of Busaco, the Commander in Chief sent to lord Wellington, ten ensign's commissions, as rewards for so many non-commissioned officers who had greatly distinguished themselves.—Would any man, after the instances they had heard related, say that the British army received punishment and not reward? The hon. baronet had talked of the mea dragging out a miserable existence in the veteran battalions, after 30 or 40 years service; He was mistaken, in asserting that fact: the men were certainly placed in those battalions, from incapacity, either by wounds, or other infirmities, and they were not called upon to do foreign service. The pressure of war had, however, been so great, as to call forth the service of two of those battalions abroad, where they were stationed; but, in point of fatigue, garrison duty was not so great. As to Chelsea hospital, the men 1283 were well satisfied with that as a reward for having ably served their country; they were grateful for it, and considered it adequate to their wants. An hon. gentleman, (Mr. Bennet) had noticed the punishment for a soldier's being found asleep on his post. Was the hon. gentleman aware, that by martial law, the offence was one of the greatest in the catalogue, and was punishable with death? Did not the security of the army depend on the watchfulness of the sentinels? At home, to be sure, where so much care might not be requisite, discretion in apportioning the punishment might be tolerated. Conceiving that the existing military code was necessary for the security of the country, he should oppose the hon. baronet's clause.
Mr. W. Smith , though agreeing with the hon. baronet in the general dislike which he felt for this mode of punishment in the army, could not vote with him, on account of the manner in which he had brought forward his clause this night. He contended that the hon. baronet had, instead of mischief, done great good by urging these discussions; but he was at the same time convinced that no discussions ought to be more cool, nor any more tempered by moderation. He thought it quite ill-timed to introduce this clause on the third reading, when it might have been with infinitely more advantage brought forward in the Committee. It appeared that all person; wished that this punishment could be dispensed with, and he was convinced that it one day would be dispensed with: but to take an illustration from the Slave Trade, as others had done, he thought that the existence of flogging was just in the same predicament as the existence of slavery. Though the Slave Trade was abolished, who was there that would venture to say that it was practicable to emancipate the slaves? He was afraid that there was something in the character of slavery which rendered it dangerous to give immediate freedom to the slave. As long as there existed a mass of baseness and profligacy in some of the soldiery, he was afraid that flogging must exist. A friend of his had told him, that in his Highland regiment nothing formerly was considered more disgraceful than a flogging. The highlander who had the misfortune to be submitted to the punishment, would in fact be for ever ashamed to hold up his head or return to his family. The principle of honour, therefore, which animated those 1284 men, used to render flogging unnecessary; but the case was now changed: his regiment had been recruited from the refuse of some manufacturing towns, and the want of a sense of honour in such men was obliged to be supplied by punishment. The greatest objection which he had to this punishment was the effect which it was likely to have on the peasantry of the country in the local militia. He did not think that the peasantry ought to be submitted to the degradation of such a punishment: it must ultimately prove detrimental to their character. There was one argument of his hon. friend (sir F. Burdett) which was not treated fairly by the noble lord, and he should notice it. His hon. friend had said, that the condition of the army was degraded by this punishment, at the same time that he acknowledged the glorious character which our army had obtained. He would ask the noble lord, was not this union of degradation and glorious character possible? Was it not plain that both could be co-existent in the same army, when it was recollected how well the Saxons and others fought against their own country, when forced into the service of Prussia?
General Tarleton approved of the Bill in its present form, and objected to the introduction of the clause proposed. He thought the system of education introduced into the army would tend to do away the necessity of resorting to that mode of punishment complained of. The soldiers' in our service had great rewards to look up to; not only might they rise to be non-commissioned officers and afterwards advanced to the rank of ensigns, but they might even rise from the ranks to be generals. A general died but the other day who had risen from the ranks, and who had acquired a large fortune, and left behind him 80,000l. The private men, instead of being in a miserable condition, were better paid, clothed, and attended to, than the soldiers of any other country in the world. An hon. gentleman, who had anticipated three debates, in a speech which he made on this subject, had stated sir R. Wilson, general Money, and another general, whose name he did not recollect, to be enemies to the present system of punishment. He had to contradict this, as far as related to general Money, as he had a letter from him on the subject, part of which he then read, which was to the following effect:—"Crown Point, Norwich, March 11, 1812.—My dear 1285 general; I hare seen in the; public papers my name mentioned as an advocate for the abolition of flogging. I enclose a few lines, to shew you what my thoughts are on the subject. It certainly would be a good thing, if it could be abolished; but I agree with you, that it cannot be done without great injury to the discipline of the army."—He proceeded to state to the House the case of a serjeant Phillips of his regiment, who was once severely punished for the escape of a man who had deserted to the enemy with five hundred pounds belonging to the corps. The innocence of the serjeant was subsequently proved, and the moment he (General Tarleton) was apprised of this, he made him a serjeant of cavalry, and a braver soldier was never furnished by the British army, than he afterwards proved himself. In one action he received six wounds in his head, and succeeded in bringing safe a particular dispatch, with which he was charged. This case was sufficient to prove, that punishment did not so degrade a man that he could not afterwards distinguish himself in the service.—The hon. baronet had asked why officers were not flogged? he would answer, from their education it became unnecessary. Without discipline had been preserved, the army would never have obtained the glory they had gained; and the privates were better situated than any other army in the universe. He had beard much of the French discipline, but he liked nothing French, and it had been proved by the valour of the army, that the discipline of this country had the superiority. Under those considerations he was of opinion, that the proposition of the hon. baronet was inadmissible.
Sir S. Romilly said, he thought it his duty to support the motion; but in so doing he did not wish it to be supposed that he adopted all the opinions of the hon. baronet by whom it had been brought forward. Those opinions he had not heard: but he had been informed by some friends near him that they could not vote for the motion, because of the opinions by which it had been introduced. He should therefore vote for the motion on its own intrinsic merit. The real question was, whether flogging should be continued or abolished. For his own part he could have no hesitation in saying, that he thought it ought to be abolished. It was a most disgraceful and degrading mode of punishment, and it was impossible it should not have the effect of de 1286 basing the mind of the man on whom it was inflicted. But this was not all—what he more particularly objected to was, the excess to which the punishment was carried. He adverted to a case which he had seen published lately by a missionary, who bad just arrived from the Cape of (rood Hope, in which were related the sentences passed on two soldiers of our army there. One of them had deserted, and was sentenced to be shot, which was carried into immediate effect; and for this, the highest offence a soldier could be guilty of against the discipline of the army, he was sent out of the world in a moment. The other for some crime of much less magnitude was doomed to receive a thousand lashes; but when he bad suffered 224, the surgeon represented he could not hear any more at that time. He was therefore remanded to prison till he should be able to receive the remainder; but such was the effect which in that climate was produced by this primary laceration of his flesh and his feelings, that he died in a few hours; and thus for the lesser crime of the two he suffered death aggravated by the pangs of the severest torture. Thus was a human being, for an offence which ought to have been visited with a mild punishment, sentenced to bear four times more than God had enabled him to endure. Who could deny that it would have been much better to have brought out the poor wretch and shot him at once? It was horrible to think of a man's receiving several hundred stripes given in the manner in which he had been informed this mode of punishment was generally administered. In his opinion, 100 lashes was a punishment of excessive and monstrous severity; and could not fail to excite in those who suffered it, a dissatisfaction with, and a contempt of themselves; in short, they must feel themselves incapable of afterwards entertaining any honourable feeling. He should be sorry to speak too warmly on the subject, but he totally differed in opinion from those who thought the discussion of the subject imprudent or impolitic. He was of opinion, on the contrary, that it had already been productive of very salutary consequences. If the arguments of the hon. baronet were such as had been represented to him, he totally disagreed with them; but he by no means could agree with the objection to the clause, because it was brought forward on the third reading of the Bill.
Lord C Somerset was certain that the infliction of 224 lashes could not have caused the death of the man at the Cape of Good Hope of whom the hon. and learned gentleman had spoken. If in his punishment there bad been any impropriety, he was sure there was a commander in chief there, who would report the case; and he was equally certain, that there was a commander in chief here, who would not pass it lightly over. He strongly opposed the clause, being firmly persuaded that corporal punishments were never inflicted in the army, but from necessity, and in mercy. Every other punishment had been tried without effect; and it was not possible to send soldiers to wait till the assizes for having made free with his comrades' necessaries, and for other minor offences for which this punishment was used. He should be glad if it could be dispensed with, but it was impossible to preserve discipline without it.
Mr. Wilberforce said, when he considered what a huge and multifarious body an army was, he should be afraid of adopting suddenly so material a change in what was deemed to be so essential to its discipline, on which depended entirely the management and government of it. He could wish, however, that corporal punishment might not be enforced but by the sentence of a general court-martial. He understood it was now thought to be less necessary than it was formerly; and it would, in his opinion, be safer and better if it were hereafter inflicted only on an average opinion of the officers, which he thought would have the effect of rendering this punishment less frequent.
General Phipps observed, that the sentences of general courts martial were more severe than those of others, and he had never heard any complaints against regimental courts martial. There would be great difficulty in most cases in obtaining officers enough to form a general court martial, so that the wishes of the hon. number for Yorkshire could not in that respect be complied with. With respect to the man who had been spoken of, he might have died after receiving 224 lashes, but they could not be the cause of his death. The surgeon present at the time they were inflicted was responsible for the number given, and would always interfere before the production of any fatal effect.§General Porter bore testimony to the leniency with which courts martial acted. 1288 He knew a man who had been corporally punished, who was now a captain, which proved that flogging was not a bar to advancement in the service. The discipline had been getting milder and milder ever since 1775 up to the present time. With in the last half year the punishments bad been so few, that be had hardly thought it worth while to notice them in a regular way, in his reports to the Commander in Chief.
Mr. Whitbread said, he hoped he should not be induced to express himself warmly in consequence of what had fallen from the two last speakers. The hon. general who had just sat down had informed the House, that he had never seen this punishment inflicted but with the greatest leniency. On the contrary, he (Mr. W.) had heard general officers of the very first character and respectability, and of as long standing in the army as the last speaker, say otherwise. That hon. general, as well as the noble lord opposite (C. Somerset), had as much under-rated the severity of the punishment as it had perhaps been over-rated in other quarters, for which he was very sorry as, when these statements of the hon. generals came to be made public, they might have a bad effect, and produce considerable indignation in the minds of those who had expressed their opinions on the subject in terms so widely different. When the hon. general on the opposite side of the House asserted, that it was impossible a man should die from receiving 224 lashes, he must differ from him in opinion; he had beard from very good authority many instances in which this had been the case. He did not mean to impeach the character of those officers who inflicted it: as long as it remained as the punishment for certain degrees of offence, they must do their duty in administering it. Notwithstanding the letter which had been read by the gallant general near him (general Tarleton) general Money had certainly published his pointed disapprobation of this punishment, and had said that desertion was the only crime for which it ought to be inflicted. He (Mr. W.) did not mean to say that the situation of the British soldier was in itself degrading, but he was certainly of opinion, this punishment was very degrading to the character of a British soldier. Was it known, that in every regiment there was a thief's cat, and that according to the manner in which the knots Were tied, and their number, the 1289 severity of the flogging was greatly increased? Was there not also a mode of prolonging punishment? These were the circumstances which constituted the degradation, as they rendered the soldiers liable to suffer by the caprice of their officers, who had the power to increase these knots, and to prolong the punishment. Discussion had done infinite good in this, as it did in every case. Some years ago, when this subject was brought into discussion, it was not denied, that the punishment did exist, and that very generally; but now it was declared to be the pride of several regiments, not to have such punishment attached to their discipline. There were no regiments now that boasted of being what were called flogging regiments." He must again declare, he could not agree with the hon. general that a man could not die from receiving 224 lashes. He would, on the contrary, undertake to prove at the bar, that such had been the case. The repetition of punishment for the same offence was in his eye an act of wanton cruelty. He declared he was so great an enemy to this punishment that he would give it a deathblow, if he could, without thinking it at all necessary to find any substitute for it. In the case of torture, if he were asked what he would substitute for it, he would directly answer—"nothing." Torture ought not to be any where allowed; but if it had been so in this country, and there was a question as to abolishing it, he would disdain to point out a substitute for that which ought never to have for a moment been endured. On the grounds, therefore, which he had often before expressed, he would vote for the clause.
Colonel Frankland defended the present system, as greatly to be preferred to that of France, or any other country. He contended that imprisonment would not answer the end proposed, and that the best soldiers in the army would oppose that sort of punishment as useless to reclaim the negligent; and that they would prefer the present system.
Mr. Herbert of Kerry was an enemy to corporal punishment if it could be avoided, but experience had proved it to be necessary. All other modes of punishment had been resorted to without success, and he should therefore vote against the clause proposed to be introduced.
The question being loudly called for, Sir. F. Burdett rose.
The Speaker .—Sir F. Burdett, to exlain.
Sir F. Burdett said, he rose to reply to the arguments brought forward against his clause.
The Speaker observed that a reply was allowable only on an original motion.
Lord Cochrane hoped that by degrees this punishment might in time be abolished, but declared that it was impracticable to govern any large body of men without having the power of recourse to it. He believed, however, that much of the mischief as to this punishment of flogging, especially in the navy, had been caused by the influence of that House. Great parliamentary interest had enabled the first families in the kingdom to force their children into the service, who were too young to understand the authority entrusted to them. Many of them insisted on their decks being as clean and as shining as the floor of a drawing room in the summer season, and that their' kitchen utensils should be scoured as bright as silver, with a variety of other useless and fantastic commands; and if such commands were not obeyed, they flogged severely those who had those articles in charge. The discipline of the navy depended on the commanding officer of each ship; and if they continued to flog for such offences the navy must soon go to ruin. It was going, he said, as fast as possible. Gentlemen might think otherwise, but he knew it to be true, and he was afraid they would all be convinced of it too soon. The family interest he had alluded to prevailed also to such a degree, that even the Lords of the Admiralty had lists made out; and when an officer went to offer his service, or to solicit promotion for services performed, he was asked—are you recommended by my lady this, or miss that, or madam t'other; and if he was not, he might as well have staid at home. He could not, however, vote for the motion. It would be better to look to those to whom power was trusted, than to take away the power of punishing altogether. If it were so taken away, it would ruin the service. The best men in the navy would say so, and if put to the vote among the sailors, he was sure the decision would be in favour of the present mode of punishment, but they would tell the Lords Commissioners of the Admiralty that they ought to be commanded by persons of experience, and not by young men appointed by parliamentary influence, or any other influence. He hoped he should see the practice of flogging 1291 abolished, while the power of inflicting it was suffered to remain.
Mr. Yorke was almost in doubt after what he had heard, whether the noble lord, as the debate had run to a considerable length, bad not had a dream while it was going on. In the first instance, he had stated that the sailors were foolishly employed in cleaning the deck, &c.; that in consequence, frequent punishments were inflicted, and this through the appointment of young officers; and finally, he had spoken of a register being kept at the Admiralty for the recommendations of lords and ladies. In each instance the charge preferred was unfounded. He did not know where the noble lord had been since he left the service, nor where he gained his information, but there was no foundation for any one of his statements. He regretted that the noble lord had relinquished the command of one of the finest frigates in the service (why, he professed himself at a loss to tell), for employments in which he was by no means likely to prove so eminently useful to his country. With respect to the mode of promotion in the navy, he did not know of what time the noble lord was speaking—whether of the present or of the time of his own promotion. He did not know whether his promotion had been hastened in the way he had mentioned, but he had certainly been one of the youngest officers in the service. When however he was told in the navy that no person could rise to the rank of a lieutenant, till after six years service, nor till the party was 19 years of age, that after that, two years were necessary to raise him to the rank of commander, and one more then before he could be made a post captain; if he would put these together he would find that officers could not be promoted without having some experience. The punishments in the navy were not more frequent than formerly; but though in these particulars he was obliged to contradict the noble lord, he should agree with him in his vote. To lay aside that discipline by which we had risen to our present height, would be an act of political suicide and madness unparalleled even in this age of experiment.
Mr. Kemp expressed himself hostile to the abolition of corporal punishment.
The Bill was then read a third time, and passed.
Sir F. Burdett rose to propose his clause, in doing which he made a number of observations on the arguments adduced against it. With respect to the effects of corporal punishment, the hon. baronet desired the House to bear in mind, that eight men died of it at Gibraltar, and that officers were actually dismissed for refusing to inflict it. It was impossible: to say what its consequences were in the West Indies and other hot climates. Whether the House would say that it ought to be done away altogether, or not, he was sure that many would agree that the crimes for which it was inflicted should be specified, and the extent to which it should be carried, and the instruments used for that purpose defined. He read the passage from Blackstone to which he had before referred; and contended that it could not be difficult to devise other modes of punishment by the privation of ordinary privileges and enjoyments. He should certainly take the sense of the House on his clause.
Mr. Abercromby, though he did not think it desirable to vote the abolition of the punishment: altogether, thought it very proper to know the number of such punishments by courts-martial. It had been properly said by an hon. member (Mr. Wilberforce) that the House should have the means of judging what modifications might be enacted. He should therefore ask the Judge Advocate whether any serious inconvenience would occur, by giving a return of the number of punishments by regimental courts-martial, limiting it to the home service.
Mr. Manners Sutton would have no objection to lay this document before the House, but really the accounts of regimental courts-martial did not come officially before him. All he could say, was, that he understood generally that corporal punishments had decreased in regimental courts-martial.
The House then divided, when the numbers were, Noes 79, Ayes 6; Majority 73.
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