CO885(2-3) — Page 413

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in certain cases to do so. Both English and Colonial experience seems to show that when the sentence is at the discretion of the Judge some Judges will not inflict whipping. The Judges in Jamaica indeed, if not in other Colonies, have gone far to nullify the laws by It is probably

which whipping is authorized. disagreeable to all or most of them to pass such sentences; and some of them are willing to believe that it is not their duty to pass them.

There are offences in respect of which it would be, expedient that the law should authorize whipping with some reserve, leaving a loophole; and there are others in respect of which whipping should be the inevitable consequence of con- viction, whatever might be the particulars of the individual offences. As to the latter class of offences the law should allow the Judge no dis- eretion. As to the former, the difficulty of getting ̧ the Judge to perform a disagreeable duty (sup- posing such a difficulty to exist), might be met by putting some difficulties in the way of evading the duty. There is, perhaps, a wider difference than we are wont to take account of, between evading a duty by an easy and off-hand omission, and evading it by a deliberate and elaborate act. What I would propose for consideration is, whether the law should not compel the Judge to pass the sen- tence in every case in which whipping was the appointed punishment; and at the same time authorize him, in any case in which he might think that there were special grounds of exemp- tion, to suspend the infliction of the whipping for

Commensuration of punishments

by option given.

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a limited time, and refer the question whether or not the whipping should be inflicted, to the Governor of the Colony or to a Tribunal charged with the duty of considering such reserved cases. But in so referring the question, the Judge should be required to submit to the authority with whom the final decision is to rest, his notes of the evidence, with a full statement of his reasons for advising the exemption; and the final decision should not be given without summoning the public prosecutor and hearing what he might have to say one way or the other.

An objection is sometimes made by Judges or others to corporal punishment on the ground that it varies in severity with variations of the nervous fabric, and that it is thus a punishment of which the severity cannot easily be estimated by the Judge so as to apportion it duly to the offence. There is no possible punishment which is not more or less open to such objections; and the commensuration of punishments is one of the problems of which Bentham has rather magnified the importance than suggested the solution.

There is one method of commensuration to which it might be possible to have recourse in certain limited kinds of cases, and which has not been, so far as I am aware, brought into view by Bentham or others. In those kinds, or some of them, in which the Judge is enabled to exercise a discretion in suspending corporal punishment during reference to higher authority, he might

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