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Feature article

United Kingdom:
The birching of adult men for robbery with violence

By "Diogenes"




1. In 1962 four adult men were birched in English prisons.(Note a) They were the last of hundreds of grown men birched on their bare buttocks over the previous hundred years. The four 1962 birchings were for offences against prison rules. This category covers the vast majority of men birched between 1862 and 1962. In the twentieth century the birch gradually came to be used more frequently in prisons until by the 1950s it had virtually superseded the "cat". In the year ending 31 March 1911, of the 23 men flogged for offences against prison rules, no fewer than 11 received the birch. This prompted "The Humanitarian" to "regret to note that the disgusting practice of birching grown men is on the increase".(Note b)

[a. Report of the Commissioners of Prisons, 1962, Cmnd.2030, p.827.]

[b. The Humanitarian, November 1911, p.179.]

2. Those men who were birched for offences other than against prison rules had been convicted by Quarter Sessions or Courts of Assize of an offence for which the statutes gave judges the power to impose, in addition to a period of imprisonment, an order that the prisoner also suffer a flogging. The most numerous of men birched by order of superior courts were the "incorigible rogues" flogged under section 10 of the Vagrancy Act of 1824, which made possible a sentence of corporal punishment for such things as indecent exposure, sleeping out, begging, or exposing an indecent print or picture. In the majority of such cases of "unmanly" offences, judges usually preferred to specify that the prisoner should receive the birch rather than the "cat". Details of such a sentence in 1901 are included in Appendix E. As late as 1935 at the Birmingham City Sessions a man of 59 was sentenced under the Vagrancy Act of 1824 to 12 months' imprisonment and 12 strokes of the birch.(Note c)

[c. Report of the Departmental Committee on Corporal Punishment, March 1938, Cmnd.5884 (hereafter cited as Cadogan Report), partic. pp.67-70,]

3. Although considerably less frequent than birchings in categories 1 and 2, a few dozen men were birched for "importuning" or "procuring and living on immoral earnings". The vast majority of men so birched were sentenced under the Criminal Law Amendment Act of 1912, which passed as a result of the public alarm about the White Slave Traffic.(Note d) Once again, given the "unmanly" nature of these offences, a majority of men so convicted received the birch rather than the "cat". At the London Sessions in November 1912 Mr A.J. Lawrie ordered several young men to receive 25 strokes of the birch for "frequenting Hyde Park with an immoral purpose". In November 1914 one man received 30 strokes of the birch for living on the earnings of a girl. (Note e)

[d. Ibid., pp.72-7.]

[e. The Humanitarian, December 1912, p.92; January 1914, p.3.]

4. One significant fact has not previously been observed by historians of judicial corporal punishment: the offences for which men were most frequently ordered to be flogged by superior courts, namely robbery with violence, was the one crime least likely to earn a birching. Although hundreds of men received the "cat" for robbery with violence, only a handful were birched for this offence, and consequently these few cases are interesting historical curiosities in themselves.

 

5. Men flogged for robbery with violence had been sentenced under section 1 of the Garotters Act of 1863. This act extended whipping to the penalties already available to garotting (under section 21 of the Offences Against the Person Act, 1861) and for robbery with violence (under section 43 of the Larceny Act, 1861). As the Cadogan Committee of 1938 later explained:

Robbery with violence is a general term covering three specific offences -- i.e. (a) robbery, or assault with intent to rob, by a person armed with an offensive weapon or instrument; (b) robbery or assault with intent to rob by any person in company with one other person or more; and (c) robbery accompanied by any personal violence used either at the time of the robbery or immediately before or after it ....

....The Act of 1883 required the court to specify in the sentence the number of strokes to be inflicted and the instrument to be used, and prescribed a maximum of 25 strokes of the birch for offenders under 18 years of age and for older offenders 50 strokes of the cat or of the birch. (Note f)

[f. Cadogan Report, pp.77-8.]

 

6. In any one year the overwhelming majority of sentences of flogging for robbery with violence were imposed at the Central Criminal Court. Between 31 March 1898 and 31 December 1899, over the country as a whole, 65 men were ordered to receive a total of 1012 strokes under the legislation of 1863 extending corporal punishment: 44 of the 65 convictions and 626 of the 1012 strokes were ordered at the Central Criminal Court. The maximum number of strokes ordered did not exceed 25. But not one of these sentences was inflicted with the birch. (Note g) Indeed, a thorough examination of the Home Office Criminal Registers for the period 1875-1900 inclusive has not revealed one single adult male sentenced to the birch at the Central Criminal Court for robbery with violence. During that period hundreds of men were sentenced to the "cat". (Note h)

[g. "Returns of Sentences of Corporal Punishment under 26 and 27 Vict. c.44 from 31 March 1898 to 31 December 1899", Parliamentary Papers, 1900, vol.88, p.291.]

[h. Criminal Registers are in Public Record Office, Home Office Papers, H.O.140/vols.31-274 (1875-1909).]

 

7. On 20 November 1901 an interesting, and we believe unprecedented, sentence was passed in the Central Criminal Court: two men, one 20 and one 31, convicted of robbery with violence, were ordered to undergo 12 months' hard labour and to each receive 18 strokes of the birch (see Appendix A).

 

8. The reasons for this departure from tradition are unclear: there was nothing particularly "unmanly" about the crimes involved; the presiding judge had previously always ordered the "cat"; although the elder man had no previous convictions, the younger man had two offences proved against him; other contemporary evidence does not suggest that a prison birching (as opposed to one ordered on a juvenile by a magistrates' court and inflicted by the police) was significantly less severe than a flogging with the "cat", indeed some evidence argues to the contrary.

 

9. There was, however, universal agreement that a birching on the bare buttocks was more degrading than being whipped across the shoulders. Perhaps the presiding judge decided to make an example of the elder prisoner, William Bowker, because of statements by him, which were reported in court, on the subject of flogging. At the time of his arrest Bowker is alleged to have exclaimed "Highway robbery means a flogging, don't let them take me for this boys, this means something"; furthermore, after being charged Bowker allegedly threatened "this means a bashing, the man that flogs me won't live another day". Bowker was "bashed" on the birching pony in Pentonville.(Note i) Unfortunately, neither "The Times" nor even "The Police News" reported this significant event, which was to prove a precedent for three more birching sentences on adults at the Central Criminal Court over the next four years on men respectively aged 19, 22 and 24 (see Appendices B, C and D).

[i. See Appendix A.]

 

10. The five men birched by order of the Central Criminal Court between November 1901 and April 1905 are significant individuals in the annals of judicial corporal punishment. Over the next four years (after which the Criminal Registers are still closed to public inspection at the time of writing), 32 men received the "cat" for robbery with violence but not one was birched. (Note j)

[j. Corporal Punishment Returns 1906-1910 in Parliamentary Papers, 1907 vol.69 p.177; 1908 vol.69 p.31; 1909 vol.72 p.151; 1910 vol. 75 p.9.]

 

11. At a later date, when Sir Ernest Wild was Recorder at the Old Bailey, he passed several birching sentences on men, noting on one occasion that he would have ordered the "cat" had it not been for the offenders' previous good characters (unlike those of four of the five birched in 1901-5).


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