§ Mr. Drummondrose to move for leave to bring in a Bill for more effectually preventing the Embezzlement of Securities for money, and other effects, left or deposited for safe custody, or other special purpose, in the hands of bankers, merchants, agents, brokers, attornies, or others. Without referring to a late case which had made much noise in the country, it was well known, that a number of instances had occurred within these few years, of violations of trust, for which there was no existing punishment; and it became therefore necessary for the legislature to interfere, that the subject might have that security for his property to which he was entitled. The Bill now proposed to be brought in could hardly be said to be an addition to the criminal code of the country; it was more properly an extension of an act already in existence, by which it was made felony for servants or clerks to embezzle or misapply the property of their masters entrusted to them.
Mr. J. Smithsaid he felt particular pleasure in rising to second the motion of his hon. friend. There were many recent instances, and particularly one glaring instance, (that of Mr. Walsh) which proved the necessity of the introduction of this Bill. As the Bank of England made it a point not to keep any account for certain securities, it was ne- 944 cessary for individuals to lodge Exchequer Bills, India Bonds, &c. in private hands, and many frauds were the consequence, which, as the law now stood, were not properly prevented or punished. The object of the present Bill was in a great degree to assimilate the law which now punished the master, to that which punished the servant. It was known to the House, that if a servant embezzled property entrusted to his care, he was thereby guilty of felony; whereas the master for the same act was only adjudged criminal for a misdemeanor. He thought it extremely strange that one law should exist for one part of his Majesty's subjects, and another for another. It was an anomaly which ought immediately to be done away with. After the Bill was introduced, he was aware that it would require much attention to render it effectual in all its provisions, and in order to prevent its throwing a degree of responsibility on any class which they were not in fairness bound to support. In the opposition, which it was natural to expect would be made, either to the Bill itself, or to some of its clauses, he hoped that much benefit might be derived from the counsel and opinion of different persons in the views which they might take of the question.
Mr. Morristhought there was a singularly disgusting anomaly in the law on this subject as it at present stood. The servant of the party entrusted with money could be punished for a breach of trust, while the master escaped with impunity. He feared this anomaly would not altogether be removed by the Bill about to be brought in. He certainly did not mean to oppose the motion, but he thought many of the inconveniences at present complained of might be traced to a want of caution in the parties depositing their money, and he would not give them a penal statute to guard that which with prudence they might guard themselves. They ought to be discreet in the choice of their bankers, to watch over their conduct, and see that their securities were forthcoming; and that would be more likely to prevent the evil complained of, than the making of it a capital offence. He thought there would be less objection to making such an offence a misdemeanor, than to making it felony. The law proposed, might have the effect of making the parties depositing money more supine than they were at present, more negligent 945 instead of more discreet. Many difficulties would arise from the existence of this law, which it would be impossible to get over. If the House were to legislate on every particular case of moral depravity which occurred, there would be no end to our penal code. If every breach of trust was to be considered a capital felony, why should not an executor, for instance, who was the means of reducing a number of children to beggary by his conduct, incur the punishment of death.
The Chancellor of the Exchequersaid, that he was glad that the hon. gentleman did not mean to oppose the introduction of the Bill, whatever he might think of its efficacy. He was aware that there was much difficulty in rendering it perfectly calculated to meet the evil it was proposed to remedy; but there would be ample opportunity for giving it a full consideration. With respect to the argument, that no advantage would arise from making the crime a misdemeanor, he conceived that the punishment of transportation would be a sufficient ground of terror, as it regarded those who might be disposed to commit this description of crime. The hon. gentleman also seemed to imagine that the Bill would tend to make individuals more lax and careless; but he did not apprehend that such a consequence would follow, and be was of opinion that the attention of those individuals whom the Bill regarded, would be awakened more to a sense of duty than by any possible attention of those to whom property-belonged. Besides, he apprehended it would he impracticable to make a law obliging persons to be more attentive to their property. The necessity of some measure like the present, appeared more strongly, from two recent instances: but his hon. friend could not be charged justly with legislating on the spur of the moment, as neither the case of Mr. Walsh nor any other recent failure, pointed out the necessity of a legislative enactment, more than what had occurred for many years to the ruin of several individuals, and no doubt existed in any one's mind of the enormity of the offence. He conceived, that the present measure would have the most beneficial effects in causing an inquiry also into the practicability of making all the offences under this denomination rank as misdemeanors. On the whole, the Bill had his full concurrence: in the committee, it would unquestionably require all the attention of professional 946 gentlemen to see that the purport of it was carried into effect.
§ Mr. Horneragreed with the right hon. gentleman who spoke last, that they were not legislating on an individual instance; for there were, unfortunately, but too many instances attended with sufficient distress to call, on the legislature for a remedy. He had, however, doubts of the expediency of the present measure. There was a danger lest they should overstep a salutary line in legislation, by attempting to do for individuals what individuals ought to do for themselves, and carrying penal laws to such an extent as to place mankind in a state of tutelage. The act against servants differed from the present; for it did not create a substantive class of offences, but merely reduced a particular offence within the head of felony which, by legal subtlety, could not be considered as such. He had seen the present Bill, which he believed to be drawn up with great care; but there was one observation he could not help making respecting it, that its provisions extended to all sorts of property entrusted to another. Now, when he recollected the amount of the property held in trust in this country, he was afraid of the effect it might have in depriving the courts of equity of the power of affording redress in cases of abuse of trust, from the principle of a person not being obliged to state what might criminate himself. In this manner the present Bill might introduce more insecurity into property than could be compensated for by any benefit which it might in other respects produce.
Mr. Baring, while he expressed the obligation which he felt as a merchant, to the hon. gentleman who introduced this measure to the attention of the House, yet feared that the great difficulty which would occur was in the distinguishing common commercial trusts, and trusts on deposit. The case of Mr. Walsh, however heinous, he conceived it impossible to provide against. In the case of common commercial trusts a sum was deposited with the merchant, who entered it on his books, and the money went into circulation. Whatever difficulties might arise in this and other points, he thought the commercial world much indebted to the hon. gentleman.
§ Mr. Manningspoke in favour of the Bill, which, he contended, was more intended to secure the money deposited for safe custody, than to operate in any other case.
§ Leave was given to bring in the Bill.