§ On consideration of the Bill as amended.
§
MR. HADFIELD moved to insert the following Clause after Clause 3, page 2, at the end of line 4:—
Any person entrusted with any property of any description for the purpose of performing, or causing to be performed, any work or labour upon, to, or in respect of the same, who shall fraudulently sell, transfer, pledge, dispose of, or convert, in point of law or of fact, to his own use or benefit such property, or any part thereof, shall be guilty of a misdemeanour.
He observed that the Bill as it stood was
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by no means clear, and if the hon. and learned Gentleman wished to render it so, he trusted he would accept the suggestion.
§ Clause brought up, and read 1o.
THE ATTORNEY GENERALsaid, he should oppose the Motion, as a clause to the same effect had already been inserted.
§ Motion made and Question, "That the said Clause be now read 2o," put and negatived.
§ MR. BUTTsaid, he rose to move to omit Clause 10, which interfered with a principle that had hitherto been respected, namely, that no person should be obliged to answer any question the tendency of which was to criminate himself. Up to this moment that principle had never been departed from. There were but two Acts which appeared to be departures—namely, the act against bribery at elections, and the Bankrupt Act. In the former case, however, there was a distinct provision that no proceedings should ever be taken against the person for the matters in respect to which he should have been compelled to give evidence; not that his evidence should not be used against him, but that no proceedings should ever be taken. In the second case also, that of the Bankrupt Act, it was provided that if he answered fairly and truly, no subsequent proceedings should be taken. It was true that the clause went on to provide that his evidence should not be used against him on any criminal proceeding, but he thought that provision was insufficient, as though the evidence could not be used, yet questions might be put with a view to obtain information that would enable parties to get up evidence against him. He did not say that the change ought not to be made, the innovation might be a wise and proper one, though he did not think so; but he wished them to consider that they were reversing an old-established principle, and that they ought not to do so without due deliberation.
§ MR. HADFIELDseconded the Amendment.
§ MR. JOHN LOCKEsaid, he was at a loss to know how the clause as it stood altered the law with regard to a witness criminating himself.
MR. SERJEANT KINGLAKEsaid, the principle of the law was that a witness should not be involved in a predicament by any answers he gave on examination, or in other words, that any particular question 1418 he may have answered shall not be used against him. But it did not go on to provide that if a Trustee were compelled to disclose certain matters which would involve him in a criminal prosecution, he should be therefore held to be exempt from punishment. All he proposed to do was this—That a Trustee should be bound to answer faithfully and fully as to the management of the trust property, and that he should not, by reason of his being a trustee, take advantage of that position to commit a fraud. He wanted to carry out the great principle that a man should not set up his own wrong to enable him to escape from being punished.
THE ATTORNEY GENERALsaid, the hon. and learned Gentleman (Mr. I. Butt) had mistaken the object of the clause. What he proposed was that a Trustee, being already bound by civil contract to answer faithfully and fully every question which might be put to him concerning the use which he had made of the property entrusted to him, when he had committed a crime by stealing some of that property, should not afterwards be allowed to set up his theft as a defence to a civil suit in which he was required to make a full discovery. The clause was intended to apply solely to proceedings in a court of equity.
§ Question, "That Clause 10 stand part of the Bill," put. and agreed to.
THE ATTORNEY GENERALsaid, it would be in the recollection of the House that when the 20th Section was under consideration a good deal of discussion took place with regard to it, and the result was-that it was postponed. The preceding clause declared that no prosecution should be proceeded with until the matter had been brought before a Judge of one of the Superior Courts, or the Attorney General, or the Solicitor General, &c. The Committee thought it might be desirable that the accused party should have a bearing previous to an indictment being preferred, and, in order to meet its view, he should propose the insertion of the following words: "But he"—that is the Judge— or the Attorney General, or the Solicitor General—" shall in every case give the party accused an opportunity of answering the charge, where the same can in his opinion be done with a due regard to the interests of justice."
§ Amendment agreed to. Bill to be read 3o on Thursday.