either the noble Lord at the head of the Government or the hon. Gentleman the Under Secretary at War. He did not complain of personal discourtesy, but the public interests were concerned, and he thought that some explanation ought to be given. He had asked for an explanation as to the discrepancy which had appeared in the different Estimates on account of this hospital. They had, in the first instance, been asked for a sum of £150,000 on account of the building of the hospital, and then they were afterwards told that the real estimate was £110,000 in excess of that, which would make the total outlay amount to £260,000, or at the rate of £260 per patient, as the hospital was to be built for the accommodation of only 1,000 men. For that sum a good house might be built for each of them. He had heard it stated, that it was the intention of the Government to discontinue the erection of this hospital--was this true? Above all, he should like to know the cause of so sensible a difference in the various estimates, as well as the name of the architect who was responsible for such discrepancies. SIR JOHN RAMSDEN said, he was obliged to the hon. Gentleman for giving him the opportunity of correcting an involuntary omission. The discussion on Friday night embraced a variety of subjects, and the questions put by the hon. Member were lost sight of. The discrepancy in the estimates of £110,000 arose from the circumstance that, when it was first intended to build the hospital for £1,000 patients an estimate of £150,000 was put into the Votes upon the usual computation of the cost of constructing an hospital upon the old plan, without the modern improvements. In the War Office £150 a bed was considered a proper estimate, and as soon as it was arranged that the building was to hold 1,000 men the sum of £150,000 was put down in the Votes. However, before any steps were taken to construct the hospital, a Committee of able medical and scientific men was appointed, who reported that great modifications were required in the original plan. There was no time before preparing the first estimate for the House of Commons to go into the elaborate detail and inquiry which had afterwards been made, and the result was, that a much larger estimate for the construction of the hospital was found necessary. The hon. Member appeared to think this an exorbitant charge. He could only say, that a grave representation had been stated to Lord Panmure relative to the improvements required, and that a Committee of scientific men, engineers and medical men, was appointed to consider that memorial. The Committee made a Report, in consequence of which certain alterations and improvements were made in the plan. He would add, that it was the intention of the Government to proceed with the construction of the hospital. ADMIRAL WALCOTT said, that, in reply to a question put on a late occasion, in reference to the defences of Woolwich, the noble Lord at the head of the Government observed very justly, that on the land side were hills of varying elevation incapable of a regular system of fortification, but tenable to a considerable extent by troops. On the water side, towards the river, the only possible defence which could be offered to the approach of an enemy must consist in the presence of block-ships and gun-boats. Now, at Woolwich upwards of 20,000 pieces of ordnance were collected besides material of war to the value at least of £20,000,000. It was, therefore, a subject deserving the most mature consideration to determine whether it was prudent to continue the present system of centralising stores of such magnitude and value in a position so exposed as Woolwich. Weedon was at a distance of from sixty to seventy miles from London, but it possessed the advantage of a railway and water-carriage by canal. In Portsmouth and Plymouth also, as possessing strong fortifications, might be established convenient depôts. He would, moreover, observe that the present number of ships, of the description to which the noble Lord had alluded, was quite insufficient to meet the demands which would be made upon them in the event of an emergency by ports of the highest national importance. He did not think that block-ships, such as we now employed, were adapted for this service, but he could entertain no doubt that scientific men would readily devise a floating battery equal to any fortification on shore, taking into account the extreme lowness of the land on either bank of the river. He would conclude with the hope that before the next Estimates were brought forward the Government would take the subject into their most serious consideration. SIR JOHN TRELAWNY suggested that the Government should reconsider the the expenditure was incurred. The hon. Gentleman also pointed out some discrepancies between the cost of barrack accommodation at Cambridge, Dovor, and other stations. At Dovor Castle an extra sum was charged for the adoption of the midiæval style of architecture for the barracks. House resumed. Resolutions to be reported on Thursday. FRAUDULENT TRUSTEES, &c., BILL. Estimate for the Hospital at Netley before | intent whatever. For instance, a Trustce might, without any fraudulent intent, lend the money of his cestuique trust, and by the loss of that money the cestuique trust might be ruined. A Trustee might use the money of his cestuique trust for his own benefit. That was a wilful breach of trust, although no loss should accrue to the estate. If a loss did occur, the Trustee would be obliged to make it good out of his own property. He (Mr. Serjeant Kinglake) should be rather disinclined to make that a subject of criminal law. On the other hand, a Trustee might use the money of his cestuique trust with an intent to defraud him, and it was to this latter Order for Second Reading, read, case he presumed that the Bill of his hon. MR. SERJEANT KINGLAKE said, it and learned Friend the Attorney General was not his intention to obstruct the pro- was intended to apply. But the objection gress of this measure, the importance of to the first section of this Bill was thiswhich could not be exaggerated. On the that while it attacked fraud, and fraud contrary, he wished to give it his fullest alone, it did not attempt to interdict the support, believing that in its general com- act which was the source of the fraud plexion the Bill was a good one. The at- itself. Would it not be better to apply tention of the country having been pain- the axe to the root of the evil, to inquire fully directed for some time past to the what it was that induced the fraud and gross and scandalous frauds connected with enabled and encouraged persons to do that certain Banking Companies, the House which finally ended in fraud? Great fawould no doubt be disposed to receive with cilities were afforded by the laws of this great favour any measure directed to the country to trustees to apply trust moneys prevention of such reprehensible transac- to their own purposes, and the first clause tions. There was, no doubt, that many enacted that only in the case of a fraudu of the clauses of the Bill were directed to lent intent should the trustee be guilty of such frauds as had recently so much as a criminal offence. This Bill only dealt tounded the public mind, and those clauses with the fraud, and a trustee might emhad his entire approbation. But one of ploy the trust money, but would not be the clauses of the Bill dealt, for the first amenable, if he stopped short of fraud. time, with what were called ordinary IIe would suggest whether it would not be breaches of trust, not such as might be wise to introduce a clause, making it a committed by Bankers or persons of that criminal offence for any person to apply description, but by ordinary trustees with the funds of his cestuique trust to his own reference to the management of property. use, if the result was that a loss accrued There was this great anomaly in the Eng- to the cestuique trust. The first clause lish law that, while a parish lad for steal- was in these general terms: "That ing a loaf of bread, or an humble clerk for every trustee who should either approwrongfully appropriating a shilling belong-priate or use or employ money belonging ing to his employer, to meet some sudden to the cestuique trust for his own use, with and pressing necessity became amenable to the criminal law, a Trustee, however flagrant and criminal might be his act, could not be touched by that law. But he (Mr. Serjeant Kinglake) doubted the prudence of the course proposed by one of the clauses for the repression of breaches of trust. The shades and differences of breaches of trust were so various that it was impossible to classify them, but, no doubt, there were many recognized as such by Courts of Equity, which might be committed, nevertheless, without any criminal intent to defraud, should be liable to an indictment for misdemeanour and to seven years' penal servitude." Now, after a long experience in the criminal courts, he undertook to say that it was impossible to define what was an intent to defraud. If the first clause were passed as it stood, that want of preciseness would hang in terror over trustees, and there was not an honourable or sensitive man who would not at once give up his trusteeship. A jury would have to be appealed to in order to ascertain whether there had been an intent to defraud, and | alienation by trustees of the money of the character and liberty of every trustee the cestuique trust. in the country would thus be put in an extreme jeopardy. If, then, the House meant to protect honest trustees they ought to interdict the act which led to or permitted fraud, and not to deal with cases of fraud alone. Again, the twelfth clause showed that the framers of the Bill had no confidence in it, because that clause enacted that no prosecution under this Bill should be commenced without the sanction of one of Iler Majesty's Judges of the superior courts of law or equity or of the Attorney General. Against that clause he protested, as it was manifestly in direct opposition to the whole spirit of the English law. It was the office of the Judge to act rather as the advocate than the prosecutor of a prisoner brought before him for trial; but it might be, if this Bill were passed as it stood, that a trustee might be arraigned for trial before the very Judge who had sanctioned his prosecution. If the hon. and learned Gentleman would consult the common law Judges, he would find that the great majority of them would be very much disinclined to undertake the duty which he sought to impose upon them. The minds of the Judges ought to be free upon the trial of a prisoner, and not biased by having expressed at a preliminary stage an opinion of his guilt. He hoped the fifteen Judges of the common law courts would never be placed in the invidious position of being supposed to have prejudged a case in which they were sitting in judgment. In conclusion, he trusted that the Attorney General would introduce a clause into his Bill to stop the source of crime by interdicting the facility with which trustees might now use the money of the cestuique trust, subject only to the interference of a court of equity. MR. NEATE suggested to those hon. Gentlemen who were members of the Bank Charter Committee whether it would not be well to abolish that rule of the Bank by which they refused to take notice of private trusts. That was a rule which opened the door to fraud; and as it was better to look to the prevention of such offences as those with which this Bill proposed to deal, than to punish them after they were comitted, he thought if this rule were relaxed, and regard were had to the fact of whether stock was held in trust or other wise, accounts would be placed on a sounder footing, and much would be done towards excluding the possibility of the MR. ROLT said, that it was not his intention to oppose the second reading of the Bill, but it was a measure requiring great consideration, and he thought it in its present form open to such grave objections, that, unless it underwent considerable alterations in Committee, he should feel it his duty to oppose it at some future stage of its progress. The Bill embraced several classes of offences-offences by trustees, by bankers, brokers, and other agents, and by directors of joint-stock companies. He should only trouble the House, however, with some observations by way of illustrating his objections to the measure, in reference to that part of it which affected to deal with the offences of trustees. His objection to this part of the Bill was that it would infallibly tend to deter gentlemen of character, station, and responsibility from accepting any office or duty connected with an important or compli cated trust; that it would necessarily tend to throw those offices and duties upon persons of inferior responsibility and station, or to place the administration of this property in the hands of some legal tribunal or of some Government Department; and which of these alternatives would be the worst he could not say. The offence on the part of trustees provided for by the Bill was, as he understood it, this-the appropriation of money or other property for his own benefit by any person who was rightfully the owner of it at law, but who in justice and in conscience held it for the benefit of some other person. The Bill did not attempt to impose a punishment for any breach of trust not committed for the benefit of the trustee. This was quite clear. But what would be the consequence even upon this clear construction of the Act? An attempt was made to fence round the breach of duty by defining the wrongful act. This act was not only to be for the advantage of the person doing it, but it was also to be "against good faith and with intent to defraud.” Now, he did not quite agree with the hon. and learned Member for Rochester (Mr. Serjeant Kinglake) in his view of these words; but he certainly thought they would either reduce the Bill to a nullity or would be of no meaning and effect at all. In legal consideration, if you proved that money belonging to another had been appropriated, you proved" the intent to defraud.” If this view were not to hold good he knew not how "the intent to defraud" was to be proved, because he ventured to say it was not in one case out of a hundred that you could establish by evidence, over and above the commission of the act itself, that there was any intent to defraud. The wrongful act was generally done in the confident belief that the next week or the next year the trustee would be able to replace the funds confided to him; and he apprehended the intention of the Bill was, not that the crime should depend upon the result, or that the restoration of the property should remove the offence. If a trustee, then, appropriated money to his own benefit, this would be an offence which under the Bill would subject him to seven years' penal servitude. Now, let the House consider the cases to which that would apply. He did not mean to represent that in those cases the parties were innocent; but, though they might have committed an offence, he thought the House should hesitate before it decided to deal with them criminally. For his part, he should desire to draw a distinction between cases in which parties were intrusted with money and those in which they were intrusted with stock or chattels which might be converted into money. In the one case, by misappropriating the trust fund, and not satisfying the obligations of the trust when he was bound to do so, a trustee was guilty of criminal insolvency; in the other case he was guilty of a crime which resembled theft or forgery, and should be punished accordingly. Now, he did not intend to enter into the question whether the law at present was of sufficient stringency in its bearing upon criminal insolvency. If, however, the offence they were dealing with-namely, that of having money confided to your possession and not performing the solemn obligation of paying it when it was due-if this offence belonged to criminal insolvency, he objected to take it out of that category and to deal with it by some exceptional law merely because of some recent instance which had produced a panic in connection with this subject. He would submit one or two cases which would show the consequences of taking this particular class of offence out of the category of crime to which it properly belonged. He would suppose the case in which it was the duty of the trustee to receive money and when it amounted to a certain sum to invest it in a particular In that case it was the duty of the way. trustee to keep the money separate from his own; yet, talk and preach as they might to the contrary, the most innocent person would at the outset place the money which he so received in small amounts to his own account at his own bankers; and there would be nothing criminal in that it might be a breach of trust, an error, and if the banker failed he would be responsible, but there would be no criminality. The next step easily followed. The trustee wanted to draw upon his banker— he knew that if this money were not there his banker would accommodate him, but as it was there he drew upon that. It might be that that was an irregular act, though scarcely a criminal offence, but let them follow it a step further. The trustee took the money intending to replace it in a few days from securities which he had in his possession-the securities might fall in value, the man might fail, and he would become criminally insolvent. Now, how did that case differ from that of a man who, engaged in commerce, entered upon some speculation in which he knew that if he won the gain would be his own, and that if he lost the loss would be another's? He would be criminally insolvent. So, if a man incurred debts which he had no reasonable prospect of paying, he was criminally insolvent. Let that class of offence, then, be properly defined, and he contended that the crime with which the Bill was intended to deal would come within the category of criminal insolvency. He would cite one more case which was of common occurrence, and it should be the last. A man in trade made his will, and directed that at his death his property should be realized for the benefit of the adult and infant members of his family. Death happened earlier than he expected; the elder branches of his family were the trustees, and the trusts of the will were, that his assets should be realized, and should be divided as he had stated. The trustees knew that in the then state of the assets, if they were realized, there would only be a few hundred pounds for each of them, while, by carrying on the trade for their mutual benefit much greater advantages would accrue. They might be told that if they did so, they would be guilty of a breach of trust; but nobody could say that they would be morally wrong, and the advice generally offered to them probably would be, "If you like to take the responsibility, do it." He (Mr. Rolt) was not sure that that would THE ATTORNEY GENERAL said, not fall within the category of crime as that this was a Bill which required the laid down in the Bill; but, even suppose most scrupulous and careful attention was that it did not, what possibility would no more than he had stated to the House there be of persuading sensitive and ho- when he obtained leave to bring it in, and nourable men to undertake trusts of this that he should have the assistance of all description when there was any doubt in sides of the House in the consideration of the matter, and when actions perfectly in- it he then expressed his confident hope; nocent upon their part were liable to be but he begged to point out to his hon. and looked upon as criminal? It was vain for learned Friends that that assistance would that House to endeavour to draw distinc- be given in the most creditable and effections between offences which really belong- tive manner if they would only take the ed to the same class of crime; they could trouble to embody their objections, and to not weigh the niceties of intent and of give expression to their doubts and diffimoral effect; the distinction was so fine culties by framing Amendments on the Bill that they could not do it; and, if upon the as it stood, and by the introduction of occasion of any panic being created, or of clauses which would be necessary in their some crime being committed characterized judgment to give a more safe, cautious, by more than usual enormity, they were and effectual operation to the measure. called upon to pass some extraordinary He confessed that he had been quite unmeasure of legislation to meet it, he able to attain to the meaning or to undersubmitted that that was not, to say the stand the purport of the arguments of his least of it, a scientific mode of dealing hon. and learned Friend the Member for with the amendment of the law. Let Rochester (Mr. Serjeant Kinglake). No them clearly ascertain and define to what doubt his hon. and learned Friend had class of crime offences belonged; let them favoured them with a good deal of elofix plainly the punishment for each class; quence, with many appeals on behalf of the let their views be general and universal- Judges, with much excellent advice, and not exceptional and they might hope to with a pretty long sermon upon a text pass a law which would repress crime, and which was no doubt familiar to all of which would not defeat its own objects by them—namely, that prevention would be undue stringency and severity. He thought, better than cure. The hon. and learned however, that there were many parts of the Serjeant had told them that they had Bill which might be made useful, but there much better "interdict the source of the were other portions to which he strongly crime" with which the Bill proposed to objected, and he did not think that the deal. What the meaning of those words provision which referred the matter to the was his stupidity had rendered him unable Solicitor or Attorney General, or to one of to ascertain. He did not know how to inthe Judges, would relieve the objections terdict that source of crime except by which he entertained to those particular stopping altogether the relations between portions. On the whole, the Bill, in his trustees and cestuisqui trustent. As long opinion, required the most anxious and as those relations existed there would be careful consideration, and unless such ob- that source of crime, and the only way jections as he had urged-which applied in which he could interdiet it would be by not only to trustees, but to bankers and doing that which would incur the pointed agents also could be remedied in Com- reprehension of his other hon. and learned mittee, he feared that it would lead to Friend, whose great difficulty and alarm some great scheme of a Government Trust was lest the Bill should interdict the source Board; perhaps the Board of Trade might of crime which the hon. and learned Serbe requested to undertake the whole sub- jeant was so exceedingly anxious to interject; or the execution of trusts might be dict. He might interdict the source of referred to some legal tribunal, possibly; crime if he annihilated the office of trustee and he was satisfied that neither of those and substituted for these private obligameasures would be beneficial to the coun- tions the appointment of some general try. Still, if the objections which he office or board to superintend all trusts, entertained could be removed, he would and to take upon themselves the duties of gladly assist in passing a measure which trustees. Now, undoubtedly, he should would really and effectually repress crime, not desire that he never should wish to and prevent persons from enjoying the see a Government Board perform these obfruits of their fraud with impunity. ligations and duties of private life. |