The Sun.
London, England, 1857-05-22 00:00:00

bairn.; it was a sample of tb tf‘i4netsieelelit
law required. This was the na ee6-14,114010,i,
proposed to meet, but that the p.-414.:1'nritibia'
roughly how it came to pass that hete+eiel L
te
feet in our jurisprudence it was celerti*- '
little further before they prcceedede—tow&enatie lb.
They should know exactly, not only wombat it was, but
also the cause of its remaining in a state so calamitou e
and so opposed to all sound principles of legislation.
They endeavoured to comprehend in their statutes every
case that might occur. Therefore it was that the statutes
were so lengthy and so encumbered with words, but they
had never for a moment conceived that it was better to
define accurately the offence, and have particular case a
to fall within the scope of that definition. But where
they had made definitions they were singularly imper-
fect. Coke and Blackstone defined theft as the felonious
taking and carrying away the goods of another. Well
but what was meant by f-leniously taking and carrying
away the goods of another ? The definition involved the
very thing that it professed to define. Another writer
defined it as the unlawful carrying away the goods of
another, a definition which would be applicable to such
cases as a man unlawfully dietraining the goods of his
tenant. But the difficulty was this, that their indictments
had been framed in accordance with these definitions.
The party accused was charged with feloniously taking
and carrying away. But the law refused to recognise the
title of the individual who was entitled beneficially to the
property. The law refused to recognise, rave in one or
two instances, the distinction between trustee and cestui
que trust, and if he committed property into the hands
of a trustee, the law founding itself on the definition that
ho now stated, said, " Row can a man take away from
himself what he has already the lawful and complete posses. '
sion of" and therefore he is unable to commit theft of that
which he lawfully possesses. Accordingly, if he gave
10,0001. to hen to bold upon trust for his wife and
children, he was regarded by the law as tbe lawful owner
of that property, though he had not one particle of pro-
perty in it, and the property was in another. The law
refused to recognise that distinction. In Scotland the
law male a distinction between res aliente and res sum,
but in England a trustee who took the property of an-
other was held to take only that which was legally his
own. Front this narrow view they had arrived at the
conclusion that there could he no larceny of property
held in trust, because they did nth recognise the right
arid title of the equitable owner, and they took the
trustee to be the legal and abschete„owner. This was
the reason why the.sa anomalies had' been introduced
into the la--e. The length to which this was carried was
absurd. If he went to a man and borroWed a horse
with a view to ride to Richmond, and if, after he had
done so, he sold the horse and appropriated the money,
that, in the eye of the law, was no larceny. Again,
if a person sent a hamper of wine to a carrier to be car-
ried to a particular place, and the carrier stole the ham-
per, that, in the eye of the law, was uo larceny ; but if
he broke open the hamper and took a bottle, that was
larceny. (Laughter.) This was the state of the law on
the subject, and the origin of it. A very simple mode of
proceeding, one would imagine, would be to introduce
a new definition of larceny and to make it so extensive
as to comprehend property held in trust and the fraudu-
lent appropriatioti of it. But this would be so great a
departure from the ordinary principle oa which their
statutes were framed, that he had not felt bold enough
to make the experiment He had, therefore, in this
bill framed several clauses which would deal fn the first
place with fraudulent appropriations by trustees of pro-
perty committed to their charge. But he wished par-
ticularly to invite their attention to a number of diffi-
culties that would demand their serious attention before
they assented to the introduction of any bill on this sub-
ject. He had already adverted to one of the great
difficulties and the responsibility of introducing a new
principle of jurisprudence in relation to one of
the ordinary transactions of life. Now it was
essential that the honest and the well-meaning
should be protected to the discharge of their duties.
(Rear.) Great difficulties took place in respect to the
performance of his duty by a trustee ; and they must
consider whether if they introduced a law making
breaches of trust criminally punishable, they might ex-
pose trustees to persecution and to be dragged up with-
out sufficient reason before police courts, either from
violent passion, or misapprehension, or from a view to
textortion. He had thought it fit to introduce a clause
with a view to guard against that evil. That
clause enacted that no criminal proceeding should be
commenced against a trustee without the previous sanc-
tion of some one of the judges of the courts at West-
minster Hall, or one of the superior courts in Ireland, or
without the sanction and permission of the Attorney
General. He had introduced this as a sort of analogy
to the law relating to arrest. The act for the abolition
of arrest provided that a debtor who was about to leave
the country might be arrested by the sanction of one of
the judges of the superior courts. There would be no
impediment in the way of proceeding except that which
arose from the necessity of his stating the facts in an
affidavit to be produced before the judge in chambers or
before the Attorney-General, and taking tbe leave of
one of those functionaries before he proceeded. Whe-
ther that were or were not a proper precaution,
would be for the consideration of the house. The
next consideration was the nature of those trusts,
the breach of which should be rendered crimi-
nal. Breaches of trust were of various kinds. There
were some which were of a direct nature, as a
trustee appropriating property in his possession belong-
ing to another person. Those were breaches of trust of
a criminal character. But even these admitted of some
phases of distinction, to which he would call the serious
attention of the house ; for instance, if a trustee sold
the property, and did not convert it to his own use, but
gave it to another person, they would consider probably
that if a person were connected with the trustee, and
was not an object of the trust, that that was to be held
as a breach of trust. But suppose the trustee were
to take the trust money, and to embark in a specu-
lation which was successful, and that he restored the
trust fund, and no loss were incurred there-
by, but that the act was afterwards dis-
covered. Undoubtedly that act bad all the charac-
teristics of crime, but had resulted in no injury. Would
they, or would they not, have that act criminally pu-
nished ! Take another case. Suppose a trustee was en-
gaged in trade, and that he took the trust money and
embarked it in his trade. Many hon. members were,
perhaps, aware that by the rules of the Court of Equity
it was competent for the cestui que trust to adopt that
act, and to claim the benefit of it. He took the profits
made, he condoned the offence, and to a curtain degree
sanctioned it. But if that hed been done, not by all the
objects of the trust, but only by a few, would they, or
would they not, make the trustee criminally punishable?
He mentioned these instance only for the purpose of
pointing out how many were the grades of distinction,
and how necessary it would be to attend with more than
ordinary care to the language of the rule that they would
think proper to lay down. Trusts, as they knew, were
of various kinds. There was the direct trust, which he
had explained. Besides that, there were trusts known to
the law as resulting trusts. If any property remained
after the object of the original trust had been fulfilled,
then a resulting trust arose. That resulting trust might,
in like manner, be violated, but if it were violated for
the benefit of the trustee, it did not appear to him that
that ought to be exempt from the rule, because crimi-
nality attached immediately when a mac appropriated pro-
perty to the purpose for which it was not intended. There
were, however, trusts which the law called constructive
trusts, and he had not thought it proper to include them.
These were the general provisions that they would have
to consider if they permitted the bill to be brought in, so
far as it related to that particular subject, to property
held in trust by one person for the benefit of another.
But he had not thought it right that the bill should
stop there. There were other breaches of trust of a much
more criminal nature, because more extensive in their
consequences, and yet committed by persons who did
not exactly stand in the relation of trustee. It was re-
quisite, therefore, to introduce some peculiar law in
order to meet that delinquency. He meant persons who,
in the prosecutions of those great undertakings which
were peculiar to this country, had formed companies,
and placed themselves in the situation of directors or ma-
nagers of those companies. (Hear.) He had introduced
into the bill clauses intended to deal with delinquencies
which, he was sorry to say, were frequent and gigantic.
Of course, when persons fraudulently appropriated the
money of others, there could be no doubt that they ought
to be held liable to punishment ; but these persons had
not recourse to anything so clumsy and so common as
directly taking the money of others. Their criminal acts
were effected by means of false accounts and false entries.
He had therefore introduced a series of clauses which
rendered criminal the presenting of false accounts and
making false entries, disguising transactionsrtwo
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giveltt ecolour words ; and be bad introduced o
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byl falser t o
representations to
cover
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withfr
committed
acts to
them, such as the fraudulent statement of the affairs of at that
t extensive
accompaniedsy'teof
company by paying dividends out of capital. (Hear.)
Whether the law were or were not strong enough to meet
the case at present, there could be no harm in making
that particular mode of robbery the subject of direct
legislation. (Hear.) Now on this subject he might ven-
ture to advert to a subject in immediate connexion with
it. He wished to state his regret that in an answer which
he gave to a gentleman the other day who invited him to
state whether it was his intention to proceed against the
directors of a particular company, that at that time he
ha .I read none of the evidence, and had kept his mind
free from the impression produced by newspaper reports,
and he was not in a condition to state to the house whe-
ther he should institute proceedings. He had since in-
formed himself of the nature of the case from the docu-
ments submitted to him by the solicitor, and he bad no
hesitation in saying that he would try without a mo-
ment's delay whether the law as it now stood was not
strong enough to meet that case. He regretted that he
was not in a position to give an answer at the time, bat
at the same time he must beg to say that he would not
be dictated to by the newspapers as to the course that
he should pursue. The bill would not merely deal
with the class of trustees, with the class of managers
and directors of companies, but also with the
class of assignees of bankrupts and insolvents. The
'aw as regarded bankers and agents was greatly amended
some years ago by the introduction of an act, the 42d
Gen. 111., which passed that house on the occasion of
a fraud committed by Mr. Walsh, a stockbroker. But
that act onlyapplied where theinstructions to the banker
or agent were given in writing ; and ouch was the feel.
ing of the day that clauses were introduced exempting
trustees. That act was repealed by the 7th and Bth
Geo. IV., which substantially re-enacted its provisions.
He would not therefore tell the house that the bill which
ne proposed to introduce would extend the law to all
cases of fraud committed by agents, although the agente
might not have received iustructions in writing. But
„hen came another subject to which it was necessary to
call the particular attention of the house. In the first
place, he would observe that he unquestionably recog,
iised the principle of law that no man should be put ook
ais trial on evidence procured by his own cbufession 11;
a civil suit. He quite admitted it was desirable