30 MAY 1857, Page 13

SIR RICHARD BETHELL'S TRUSTS BILL.

IN every, respect the Attorney-General's bill to make provision for the punishment of frauds committed by trustees, bankers, and

other persons intrusted with property, Justifies the hope that it will work beneficially. With our immense mass of enactments unconsolidated, we hold every addition to the multitude to be in itself a positive disadvantage ; but this bill, by its great simpli city, reduces that evil to a minimum, and in a really small com pass provides for the protection of a large class of property, for the suppression of a very numerous class of offences. Its first eight clauses declare, that certain persons who commit certain acts shall be guilty of a" misdemeanour. Those persons are—a trustee who shall convert to his own use, appropriate, or destroy the trust property of another, "in violation of good faith, with intent to defraud " ; any banker, merchant, broker, attorney, or agent, who shall do the like ; any person holding power of attorney for sale or transfer, who shall fraudulently sell, transfer, or convert for his own use and benefit ; any person holding property as a bailee who shall do the like ; any director, member, or public officer of a public company, who shall fraudulently take or apply for his own

use the money of the company—who shall appropriate the money or property of the company otherwise than in payment of a just

debt—who shall cause the omission of a full and practical entry in the books of the company, or shall wilfully destroy, mutilate, or falsify, any of the books or accounts, with intent to defraud —and who shall wilfully make circulate, or publish, any written statement false in any material point, with intent to defraud. The thirteenth clause renders the receiver of property fraudulently appropriated also guilty of a misdemeanour. The ninth clause directs that "every person found guilty of an offence under this act shall be liable, at the discretion of the court, to be kept in penal servitude for any term not exceeding seven years, or to suffer such other punishment, by fine or imprisonment, or by both, as the court shall award."

All these declarations are exceedingly simple, and yet they ap

pear to be calculated to bring effectually within i the penal opera tion of the act all persons who can be permanently, n the condition of trustees or holders of property by proxy, bankers, attorneys, agents of all kinds, earners, and the officers of public companies, whether holding an office by name or merely as members. If this bill had been enacted in time, such scenes as we have wit-. nessed in the ease of the Royal British Bank would have been rendered impossible. Not only would some of the officers of the company have been deterred by the dread of punishment from the practices to which they resorted, but many a man who lent his authority, under the lax operation of the present law and the laxer customs that have grown up, would have been impelled to look closer after the acts of his agents, if he had this statute warning him that he might by deputy become involved, if not for conviction at least by accusation which would have placed him in the dock of a ezimmal court. Even among those who were originally engaged in getting-up the Royal British Bank, and who were more or less involved in the false representations there were some who would have hesitated to commit an act like that of forgery or theft; but the very acts of which they were guilty are now placed by this bill among the list of crimes which will render a man liable to punishment like a coiner or a pickpocket. The most active concoctors of that scheme, therefore, would have been alarmed, and must have desisted at the very commencement. But some others whom the Attorney-General threatens to involve in a criminal prosecution would have been made to pause : if they had seen this statutory warning before them, they would more strictly have called their officers to account ; and they would have fulfilled beforehand the office which a judge and jury are to perform after the fact. They would spontaneously have prevented the impositions for which they are now in some cases harshly enough punished. Few penal enactments have been better calculated to prevent crime than this which is before us. It is essential to .justice, however, that those who are innocent in degree or in spirit, though the letter be infringed, should have equitable protection; and, brief as the bill is, we find ample provision for this purpose. The whole gist of the criminal force of the measure lies in the enactment that he shall be held guilty of a misdemeanour who appropriates, converts, or otherwise uses trust property, "in violation of good faith, and with intent to defraud " ; who "wilfully " falsifies statements—who makes, or is privy to the making of any false or fraudulent entry, "with intent to defraud." The accused must be convicted of a criminal "intent," or "wilful" violation of good faith, before he can be held guilty ; and it will be for the jury to determine whether or not that charge of wilful intent is _proved against him. So the receiver is only guilty if he shall "know the same to have been fraudulently disposed of." But there is further protection for trustees in the ordinary sense of the word. No proceeding or prosecution for any offence included in the first section of the act—relating to " trustees " simply so called—shall be commenced without the consent of a judge of a superior court of law or equity, or of the Attorney-General, on an application by affidavit, showing reasonable or probable cause. A judge of one of the higher courts must be convinced that the charge is not simply caprice, malevolence, or revenge, before any accusation will issue against a trustee; and prosecutions under the act are limited to the higher courts, being interdicted at any court of general or quarter sessions. It may still be a question how far the very warning implied in this bill may not tend to check gentlemen of station from accepting offices involving, even constructively, such serious liabilities. Many a man will accept for the convenience of the public, of a company, of a friend, or even of an acquaintance, the onerous and sometimes disagreeable duties of trustee, because it is thought to be a social duty ; and we are well aware that in some cases persons who have accepted that office have paid severely for the default of ethers' even contributing very large sums to make good the object of the trust. Men will endure annoyance, trouble, and loss, to the extent of a large part or the whole of their private property ; but few men will venture to confront the mere chance of a criminal prosecution. That is the thing which will deter the Englishman when he will confront every ether species of risk or danger. And we can well imagine that even this moderate and clearly-defined enactment may operate in an inconvenient manner as a deterrent. Is it not possible to surmount the difficulty offered by the complicated state of our trust law ? It would, no doubt, take much time entirely to remodel that branch of our statute and unwritten law ; we must first get through the Lord Chancellor's lumbering process of consolidation, and bring the whole together, before we can mend it, much more revise it and reform it completely. But are we to endure all the inconveniences that may accrue in the mean time ? Many of them might be obviated by a very simple arrangement. It would be, to establish a public department for executing inanany definite cases, public as well as private, the office of .trustee. Some considerable portion of the Public Funds may be said to havemccrued for trust purposes.' Persons leave property for the use of others, and the confidence which is felt in the State induces them to "invest their money in the Public Funds," in other words, to place their money in the hands of the State ; and the State enjoys the use of their funds, paying-them moderate interest. Why should not the same State perform this social service making the requisite charge for that service, and so at a moderate cost undertake to dispose of property according to the dictate of the bequeather ? The subject is at all events worth consideration, and it is brought to our recollection by a very probable tendency of this most desirable reform.

EXECUTION OF THE NEW TRANSPORTATION BILL. AN act of Parliament may be more or less good or bad ; in the case of police enactments especially, the larger half of the matter lies in the method of execution. The Transportation Bill is, as as we have said, a dilatory measure ; its practical working will depend on the regulations adopted by the Home Office to carry it into execution. Now the bill originated from the Home Office, and it might be presumed that the corresponding half of the whole measure is ready : what are the regulations? This inquiry is of the very greatest importance. In the first place, although rationally we should presume the Home Office to be prepared, as a matter of history we have some reason for doubting whether it may not be unprepared. We have it on the authority of Colonel Jebb, that the regulation of the Home Office by which tickets-of-leave are withheld from convicts adjudged to penal servitude was not made till more than two years had elapsed after the passing of the act of 1853. We have therefore some right to ask whether the Home Office regulations are ready —whether they have even been settled ?

But everytlun,g in the execution of the present bill depends upon those regulations. They are virtually, although not technically, a constituent part of the bill, which is at present left in entire obscurity until we know how it is to be carried out. For instance Sir George Grey has announcedthat the tickets-of-leave, which will now be extended to penal servitude, will only be granted after two-thirds of the sentence have expired ; and he speaks very gloomily with respect to the tests for judging the conduct of prisoners, although, in the Report of Captain Walter Crofton on the Convict System of Ireland, Sir George has in this very year continued evidence of the efficacy of a system combining the principles of restraint and hope. How has the new regulation on that point been finally settled ? Again, transportation and penal servitude are now fused, the distinction between the two being abolished: what is the test to be used in the selection of convicts for transportation ? Sir George Grey has admitted that the worst convicts must not be sent abroad, in justice to the Colonies—nor suffered to go at large, in justice to the community at home : what regulations are to be adopted to carry out that admirable pair of rules ?

There is a special importance in raising the inquiry now. We have reason to know that the Home Office is in a condition not very unlike that ascribed to the Horse Guards : the chief would be quite prepared to carry out general reforms—is indeed anxious for them, but he is obstructed by his subordinates. Sir George Grey is by no means adverse to reformatory progress, but there are those about him who are adverse ; and they use the ready weapon of commonplace obstruction—they raise difficulties of detail. Any pressure upon Sir George Grey, therefore, urging him to reformatory progress, is only to strengthen his hands. At the same time the regulations intended by the Home Office form so constituent a part of the measure, that, before passing the bill, Parliament ought to know what this supplemental portion is. Is there no Member who can extract the information?