§ MR. EYKYNsaid, he rose to call attention to the case of "Regina v. Gurney and others." In bringing this most important subject under the notice of the House, he had been actuated by a sense of public duty. The Company had been started in 1865 with a capital of £5,000,000, and in May, 1866, it had become bankrupt, with engagements amounting to £15,000,000, of which some £4,000,000 had to be met by the shareholders. The truth was that the Company ought never to have been formed at all, because from the outset it was not in a solvent state. Had the Committee of the Stock Exchange compelled the directors to make good their undertaking by which they guaranteed all outstanding liabilities, they would have been unable to do so, and the shares would never have been floated on the market. In the year 1865–6, the Stock Exchange Committee had permitted companies whose aggregate capi- 976 tal amounted to £34,700,000 to come before the public, the whole of which were in liquidation within the following year. Under these circumstances it was clear that the initiation of these companies ought not to be left under the sole control and supervision of the Stock Exchange. The effects upon public morality of cases of this kind were most deleterious, and they created a most unfavourable impression abroad. The matter had passed through an ordeal which rendered it imperatively necessary that all proceedings in reference to it should be conducted by the Government, and not left in the hands of private individuals. Dr. Thorn had already expended all the money he could spare in conducting this prosecution, and an application he had made to the Treasury for assistance had been rejected. The Lord Chief Justice of the Queen's Bench had stated during the day that he must decline to hear Dr. Thorn otherwise than by counsel; and therefore, when the case came on to-morrow, unless the Government took the matter up, the prosecution must of necessity fall through. The case rested now entirely with the Lord Chief Justice, with the Government, whom he regarded as distinctly responsible for the issue, and with public opinion; and, if the prosecution were allowed to drop, it might be truly said that there was one law for the rich and another for the poor. He asked what was the meaning of "Regina v. Gurney," &c, if there was to be no prosecution at the instance of the Government? In most other countries there was a public prosecutor, and Lord Brougham and other eminent legal authorities had suggested that such an officer should be appointed in this country. Doubts had been expressed as to whether the prosecutor had not been requested to withdraw from this case, but he knew the character of Dr. Thorn and of the directors of the Company too well to give credence to the insinuation for a moment. A former Government had not hesitated to direct its Law Officers to prosecute in the case of the British Bank, and he did not see where the difficulty lay in following the same course in the present case. The outlay in that prosecution might have been enormous, but the effect in commercial circles was such that it was money well laid out. The Lord Mayor had investigated this case for seven days, and had 977 committed the defendants for trial. A jury of merchants had confirmed this course, and if the prosecution were not consummated it would be almost a scandal upon the Government. The hon. Member was proceeding to road his Motion when—
§ MR. SPEAKERsaid, the House having agreed to the Motion that he should, leave the Chair, it was not competent for the hon. Member to conclude with his Resolution.
§ MR. FOTHERGILLsaid, he could not agree with the hon. Gentleman (Mr. Eykyn) that those who went into this concern hoping to make large gains, but who made instead great losses, were to come to that House and ask them to supply the funds of the country to carry on a prosecution which was the result of their own angry feeling. He spoke on this occasion as a sufferer, for, contrary to his usual habits, he took 100 shares in the Company, whereby he had sustained a loss of £4,000. He had consequently taken a great deal of pains to understand the case, and if he thought he had been defrauded, he would have been one of the first to commence such a prosecution. He had not, however, as a shareholder, done what other shareholders had attempted to do—namely, to repudiate the debts of the Company. Of one thing he was certain that if that attempt had succeeded, they would have heard nothing of this prosecution. The reason why this claim was now made was on account of the magnitude of the operation and the disappointment of those who took part in it, but he did not see why the ease on these grounds called for any exceptional legislation. He was not acquainted with the defendants except in the ordinary course of business. He had, however, trusted them in the business transactions of many years with vast amounts, and he might have been plundered to almost any extent, but he had always found their honour perfect. This had, to his mind, too much of the character of a vindictive prosecution, and was only to be explained by the injustice and cruelty incident to angry disappointment; he therefore protested against the proposal that the money for carrying it on should come out of the pockets of the taxpayers.
§ MR. D. DALRYMPLEsaid, that he also had been no small loser by the Com- 978 pany, but he would neither defend them nor would he, on the other hand, assist in supplying materials for the opening speech of a prosecuting counsel on the eve of a great trial. There had been too many sensation articles in a portion of the Press in this case, but he had not expected that an opportunity of raising a sensational discussion on this question would have been made in the House of Commons. ["No!"] That was, at any rate the effect of the discussion raised that night. He had had a life-long acquaintance with the gentleman concerned, and his opinion was that the prosecutor had no claim to ask for the public money to carry on this prosecution. Dr. Thom had appealed to the shareholders for money to carry it on, and whether the money had been otherwise spent upon the case, or whether they had not responded to Dr. Thom's calls, in either event he had no claim upon the public funds. If, after the trial, it should appear that there had been a default of public justice, that would be the time to raise the grave question of the appointment of a public prosecutor.
§ MR. FAWCETTsaid, there was nothing which independent Members of that House disliked so much as to see a fair issue upon an important question defeated by a technical artifice. He and others who supported the Motion of the hon. Member for Windsor (Mr. Eykyn) were anxious that it should be tested by a division. In order, however, to defeat that object an hon. Member on the Treasury Bench and another hon. Member connected with the Government challenged the Speaker's decision on the Motion of the noble Lord (Lord Elcho), and thereby prevented the present Motion from being put. That was a remarkably clever thing, and it got rid of the issue. In order to mark his sense of this proceeding, he should, before he sat down, strain the forms of the House, as an indirect way of expressing an opinion on the issue which he was led to raise, and his opinion of the tactics resorted to by the Government. He denied that the demand for this prosecution arose from any vindictive feeling. The strongest plea for it was that justice to those who were accused demanded a fair trial. Here were men of great name—almost of historic character and of European reputation — accused 979 of a terrible crime. If they were guilty, let them be punished as they deserved to be; but if they were innocent, let their innocence be proved in a way that could not be disputed. Let them not leave the Court with a stigma or a blemish on their character. If the trial went on to-morrow without the interference of the Government, the acquittal of the accused could not be satisfactory. The Lord Chief Justice had decided not to hear the prosecutor except by counsel, and no counsel without previous consideration of his brief, would have the hardihood to undertake the case. He therefore repeated that an acquittal under such circumstances would not be satisfactory to the public or the accused. The Secretary of State for the Home Department said, the other day, that there was a precedent which ought not to be followed, but avoided. That was the prosecution in the case of the British Bank; but he had heard it remarked by commercial men that no expenditure had produced a more salutary result than that which occurred in that case, because it proved that the Government were ready to prosecute men, however high their position, who had committed fraud against the public. The right hon. Gentleman said that this was not an. exceptional case. From that statement he emphatically differed. In an ordinary and. simple case, where no counsel appeared for the prosecution, the Judge would look over the depositions, or hand them over to a barrister; but, from the nature of this ease, it was impossible for the Judge to take that course in the present instance. He had now redeemed the pledge he gave not to show the slightest trace of vindictive feeling against the unhappy accused, and he would say, in conclusion, that no one could exaggerate the mischief which the break-down of this trial would occasion. It was all very well to say that if the Government interfered they would have to spend £5,000 of the public money; but the public would look over the Estimates, and, finding that on some items £5,000 were comparatively wasted, would come to the conclusion that it would have been infinitely better to spend the sum in the furtherance of public justice. The course which the Government proposed to pursue would cause a public distrust in the administration of the law, because people would 980 say that if the sum involved was small —some £5 or £10—the accused would have been brought to justice; but when millions of money were concerned, then the accused escaped altogether from trial. He trusted that in the interests of British commerce and the national reputation the accused might be declared not guilty; but he believed that it would be regarded as a great failure of justice and a national scandal if, for want of a public prosecutor, the trial entirely fell to the ground. He moved that this House do now adjourn.
§ MR. MUNDELLAseconded the Motion. He disclaimed the smallest vindictive feeling, but it was desirable in the interest of the accused, as well as of British commerce, and our national reputation that the gentlemen who were about to be put upon their trial should be declared not guilty. It would be regarded as a great miscarriage of justice, and a great national scandal, if, from the want of a public prosecutor, this trial should prove abortive.
MR. BRUCEsaid, that before going to the merits of the question, he was anxious to meet the charge made by the hon. Member for Brighton (Mr. Fawcett) against the Government. The hon. Member said that the Treasury Bench, for the purpose of preventing the sense of the House being taken on this question, negatived the Motion of the noble Lord, the Member for Haddingtonshire (Lord Elcho).
§ MR. FAWCETTexplained that his remark applied only to a Member on the Treasury Bench and a Member of the Government in another part of the House.
§ MR. SPEAKERsaid, it made no difference whether anybody cried out "No" or "Aye;" because the noble Lord the Member for Haddingtonshire did not withdraw his Amendment, and therefore it had to be put to the House, and the House decided in favour of putting the original Question that "I now leave the Chair."'
MR. BRUCEsaid, he fully admitted the magnitude of the issue to be tried to-morrow in its bearing on the commercial morality of the country, and the importance which the public attached to the trial; but the question they had to consider was, whether the Government should treat this case in an exceptional manner, and supply for this prosecution 981 funds which had been almost uniformly denied in other cases. There had been for many years but one exception to the rule that the Crown never interfered in these prosecutions. That was the case of the Royal British Bank. Since that time there had been three very remarkable cases of alleged commercial fraud without any interference on the part of the Government. In the case of the Royal British Bank the cost incurred was £20,000. That was in 1857. Was it meant to be said that since that time there had not been great commercial frauds spreading deep disaster on all sides, and causing enormous losses to both rich and poor? Were not these cases entitled, on a fair consideration of commercial morality, to the interference of the Government, as well as this case? This was not a question of millions; the Government was bound to act on some definite principle. If the House was dissatisfied with the practice of the Government, they ought long ago to have raised this question. There had been cases of gross misrepresentation, cases of fraudulent dividends, cases of the grossest breaches of honesty and commercial morality; and on no occasion, except the one referred to, had the Government contributed to the expenses of the prosecution. And even in that case, upon a consideration of the whole facts, the Secretary of State who directed the prosecution was of opinion that the course then taken should not be repeated. Certainly, when an application was made last year in a somewhat similar case, that of the Leeds Bank, his predecessor in Office refused to take part in the prosecution. This was not a time to raise the question whether there ought to be a public prosecutor. There might be great authorities—perhaps there might be a preponderance of authority—in favour of the appointment of a public prosecutor; but, although the question had been repeatedly raised, Parliament had not thought fit to legislate on the matter. Had there been a public prosecutor the course of proceeding would have been very different from that which the Government was now asked to pursue. All the materials would have been submitted to a competent officer, and thoroughly examined into; and that officer would have determined what course should be taken, with a full knowledge of all the circumstances of 982 the case. He was told that in Scotland, in a case somewhat similar to this, though not of the same vastness, the facts which appeared very strong against the directors had been submitted to the Lord Advocate, who determined that they were not sufficient to justify a prosecution, and no prosecution was instituted. But here the Government were called upon to intervene, without a knowledge of the facts of the case, because in a private prosecution, upon evidence taken in a few hours, the grand jury had found a true Bill against the accused. It was quite possible if the whole of the proceedings from the first had been submitted to the judgment of a practised lawyer he might have been of opinion that there was no case at all. ["Oh, oh!"] He was not giving any opinion; he entirely applauded the conduct of those Members who had spoken in this case and abstained from expressing any opinion of their own; but, when the hon. Member for Brighton asked for a contribution of £5,000 towards the expenses of this trial, it should be remembered that the Government would not have the direction of the prosecution. He was not quite clear that the course taken by the Attorney General, in the case of the Royal British Bank, of filing an information might not have been taken in this case; but no application was ever made to the Attorney General to file an information. And when Sir Richard Bethell was applied to in the Royal British Bank case he stated that it was only after the most careful and thorough examination into all the papers that he was satisfied that there was a case that would justify him in undertaking it. But it was a very different thing to be asked to intervene at an advanced stage of the proceedings, and to give the weight of the Government to this prosecution. It should also be remembered that the persons interested in the prosecution had ample means to conduct it. In that very House they had the hon. Member for Merthyr (Mr. Fothergill), one of the largest ironmasters in the kingdom, and the hon. Member for Bath (Mr. D. Dalrymple), who were shareholders; yet both had determined not to contribute towards the expenses of the prosecution. Besides, since the prosecution in the case of the Royal British Bank, an Act had passed which gave great facilities to the prose- 983 cutor. By the Act of 1857, incorporated with the Criminal Procedure Act of 1860, proof of these cases was rendered more easy, and the Judge had power to give costs to the prosecutor, so that he did not carry on the prosecution entirely at his own risk. Under all the circumstances of the case, the Government did not think they were specially called upon to make this ease an exception to the ordinary rule. If the House was discontented at the possible failure of justice, they should long ago have legislated so as to prevent a failure of justice. Could it be said that during the last twelve years there had not been cases of alleged fraud, which had thrown an enormous expense on the prosecutors; and why was this case, of all others, to be chosen as an exception to the general rule with regard to Government interference? Was it because it stood at five to three or four to two? Surety, they must proceed on some other rule. If blame was due anywhere it was to Parliament that it must be attributed. The mischief arising from the want of a public prosecutor had been long known; but Parliament—he did not say the present Parliament—had shrunk from, applying a remedy; and, having done so, it seemed not fair or just to fasten on the Government a censure for refusing to bring funds and the weight of their influence to bear on this particular case.
§ SIR PATRICK O'BRIENsaid, he thought that the effect of the Limited Liability Companies' Act of 1856 should be jealously watched by the Government. Widows, and persons of small means, had been induced to invest their money in such undertakings, and were thereby reduced to absolute poverty. In his own country, the accused would be prosecuted by the Attorney General for Ireland. No one asked the Government to commence a vindictive prosecution; but it was a case in which the Government should see that justice was done, and that a proper investigation took place.
MR. GILPINsaid, he had not heard the whole of the debate, and he regretted it because he should like to have learned from the hon. Member who had opened it (Mr. Eykyn) what end he intended to serve by bringing this subject before the House. The public had not undertaken this prosecution; the Government had not undertaken it; a private individual, 984 injured in his own opinion — and he (Mr. Gilpin) was not prepared to say that that opinion was mistaken — took the opportunity of prosecuting those who he believed had injured him. That gentleman got the supposed offenders committed for trial, and the Government had nothing to do with that. And yet the Government were asked at this stage of a prosecution, to which they were no parties, to carry that prosecution to an end—and to what end? The hon. Gentleman, who had last spoken, appeared to urge the Government to undertake the prosecution on behalf of certain persons who had suffered by the failure of Overend, Gurney, and Co. He (Mr. Gilpin) had always advocated the appointment of a public prosecutor, but he objected to a prosecutor being appointed ex post facto for a particular case. Let it not be supposed that he was one of those who had not suffered. Members of his family had been reduced to the very verge of ruin by the failure of Overend, Gurney, & Co.; but those who had so suffered would not add a feather's weight to the humiliation and suffering which had already attended the members of that firm. He was not acquainted with all its members, but he knew the Gurneys; he called them friends in the hour of their prosperity, and he should be ashamed of himself if he hesitated to call them friends in the hour of their adversity. Within the last few days he had seen two of the persons whose conduct had been impugned, and he knew that they were desirous that the trial should proceed. He knew that they were confident that they could vindicate themselves. Well, then, let the trial be carried on by those who had conducted it hitherto. If they could not carry it on, they should not have instituted it; but he most respectfully protested against the power of the State being employed in sustaining a prosecution begun by a private person. He recollected it had been so employed on a former occasion, in which it was his opinion that, after an expenditure of £38,000, they got hold of and punished the wrong man.
§ SIR PATRICK O'BRIENexplained that in what he had said, he guarded himself against expressing any opinion as to the guilt of those gentlemen. He should be very sorry to think they were guilty.
MR. STAVELEY HILLsaid, he wished to add to the authority of the right hon. Gentleman the Secretary of State for the Home Department any little weight his testimony could give. It never had been the practice of Government to take up a proceeding of this sort, at the stage at which it had now arrived. Whenever a prosecutor intended to call in the assistance of the Government, it was usual to do so before going before the committing magistrate. When a private prosecutor had gone on to the eleventh hour, it was too late to call on the Government to take up the case.
THE ATTORNEY GENERALsaid, that in the first place it should be borne in mind that there were two distinct questions raised in this discussion; one was the general question of the appointment of a public prosecutor, and the other the conduct of the Government with regard to this prosecution. As to the appointment of a public prosecutor, he had once or twice before expressed a strong opinion that such a public functionary was desirable, and he had seen no reason to change that opinion. But it must be remembered that we had no public prosecutor in this country. The Government was not a public prosecutor. The Attorney General was not. It was only in rare and exceptional cases that the Government had conducted prosecutions, and here he would observe that the application now made to the Government was entirely unprecedented. No Government had ever subsidized a prosecution. They either prosecuted or they did not, and if they did prosecute, the proceedings were conducted under the direction of the Secretary to the Treasury. For a prosecutor to go to the Government and say— "Give me so much money, but you shall have no control over the prosecution," was entirely without precedent. Then came the question whether the Government themselves ought to have under- taken the prosecution. The principles upon which the Government proceeded were these—first they had reference to the public importance of the prosecution, and secondly to the probability of a conviction. In order to enable the Crown to determine whether they would prose- cute or not it was absolutely necessary that they should have the evidence be- fore them; and, therefore, if Dr. Thom 986 and those who were conducting the prosecution had wished the Government to take up the case, they should have furnished the Law Officers of the Crown with all the information which they possessed respecting the case before the matter came before the Lord Mayor, or else have sent the depositions afterwards. Neither of those courses had, however, been adopted, and the result was that they were totally without information to enable them to judge whether there was a good case and whether it would be desirable for them to undertake the prosecution or not. It was impossible for the Crown to go into Court to-morrow morning, knowing nothing of the case, and say that the prosecution was now going to be conducted by the Government. Therefore, under these circumstances, however much hon. Members might regret the absence of a public prosecutor, they most feel it was impossible for the Government to have pursued any other course than the one they had adopted in the matter.
§ SIR JOHN PAKINGTONsaid, he was quite aware of the importance that attached to the opinions of the hon. and learned Member behind him (Mr. Staveley Hill) and to that of the Attorney General, but it appeared to him, with all submission, that those hon. Members had overlooked the precise practical question before the House. He had not had the advantage of hearing the earlier part of the speech of the right hon. Gentleman the Secretary of State for the Home Department, but to the latter portion of that speech he had listend with great regret. This was a most important and extraordinary question, and one which touched the interest and the honour of this great country from one end of the country to the other. The failure of this great house had inflicted ruin and misery throughout the length and breadth of the land. Personally, he was not affected in any degree by the question, and therefore his opinion was free from any taint of partiality; but he was convinced that, if this prosecution were to be allowed to drop for want of funds, a deep blow would be inflicted upon the laws of this country, and great dissatisfaction would be felt by the public. If there was no precedent for the course the Government were asked to take, they might—as they had done in another case that night—make 987 a precedent. He hoped nothing so scandalous would occur as a failure of this prosecution from want of funds to carry it on.
§ MR. BUXTONsaid, this subject was to him a peculiarly painful one, but he must express the deep regret which the directors and their friends would feel in the event of this prosecution not being proceeded with. They had been advised not to enter upon their defence before the Lord Mayor, in the belief that they would have an opportunity of setting themselves right with the public on their trial. He was intimately acquainted with the details of the defence; and, putting aside the errors of judgment which he was afraid the directors had fallen into, he could confidently assert that they were as free from all imputation of fraud as any hon. Members in that House. If the defence were to be entered into it would have an immense effect upon the public mind; and therefore he trusted in the interest of the directors, that the prosecution might go forward in order that their honesty might be triumphantly vindicated. If the prosecution were to drop through it would be by reason of the conduct of the rich shareholders, who were content to express their belief of the guilt of the directors without contributing 1d. towards the expenses of the prosecution. During the prosperity of the directors they were generally respected and beloved, and no persons had so much reason to deplore the ruin of the undertaking as the multitude of those who had participated in their bounty.
§ MR. BARNETTsaid, that having heard a good deal said on both sides of the question, he had come to the conclusion that the Government had exercised a wise discretion in not undertaking the prosecution. In the case of the Western Bank of Scotland where the ruin was equally great with that resulting from the failure of Overend and Gurney, no prosecution had been undertaken by the Government. He might say he had heard during the day, from a gentleman well acquainted with the case, that the prosecution would be proceeded with.
MR. GLADSTONESir, I am very glad to hear upon the high authority of the hon. Member who has just sat down —and upon questions of this kind there could be few higher—that there is great likelihood the prosecution may proceed, 988 notwithstanding the decision at which the Government have arrived. That statement mnst have been heard with satisfaction in all parts of the House, and not least by my hon. Friend the Member for East Surrey (Mr. Buxton) who, in all the expressions of sympathy he used towards the members of the late firm was felt by the House to be discharging a duty in every way appropriate and graceful for him to undertake. The question is, as the hon. Baronet the Member for Droitwich (Sir John Pakington) says, one of very great importance, and I trust the House will even at this hour listen with patience to the considerations I am anxious to lay before it. The Government, whatever they have done, have not acted lightly or unadvisedly, or without a strong conviction. I must own, in passing, that the strong and positive assertions of the right hon. Baronet the Member for Droitwich appear to me to be a little out of place, when we consider that it is admitted on all hands that the proper time for undertaking these affairs on the part of the Government is at the earliest stage of the proceedings, which happened in the present case when the right hon. Baronet was a Member of the Government. The first difficulty I feel is the form of the Motion in which my hon. Friend invites the House to do that which it has an undoubted right to do— namely, to interfere with the discretion of the Executive Government in the discharge of its executive functions and with respect to the administration of justice. No doubt the House has a perfect right to take that proceeding if it pleases; but it is at the same time an extreme right—a right, I mean, which the House on the rarest possible occasions even dreams of exercising. And when the House finds occasion for exercising such a right, what I think is obviously according to the dictates of Parliamentary justice and of the public interest is, that the Government should have clearly before it the Motion by which it is intended or desired to override their discretion, and that they should have the power not only of representing in speech the views they may take of the Motion, but the power also of amending the Motion and proposing to the House to substitute some other issue. But this is how we stand — Notice of a Motion having been given by my hon. Friend 989 the Member for Windsor (Mr. Eykyn), which the forms of the House unhappily prevented him from moving, the hon. Member for Brighton (Mr. Fawcett) who acts with him, has substituted a Motion for the adjournment of the House, and he announced in his speech that he should consider the carrying of that Motion as equivalent to a distinct direction to the Government to institute this prosecution. I regard that as a very great aggravation of the difficulties of the case, and I am bound to say it is due not to the Government as individuals, but to the Offices they hold that they should enjoy the usual and ordinary freedom of seeking to vary the terms of Motions to which they object. As at present advised I do not very well see now it would be possible for us to waive the judgment at which we had arrived, and to take a course opposed in our opinions to the public interest and the clearest dictates of expediency. The difficulty is still further increased by other circumstances of the case. With regard to the precedent of 1857, I cannot admit its authority. It has not been followed up, and it appears to me to have been a most questionable conclusion that was then arrived at. I claim the right to review the precedent, and to ask the House to consider this very grave question upon its merits. The general rule which charges the expenditure of criminal prosecutions upon the public does not ordinarily apply to frauds, and we are therefore now called upon to make an exception. What I want to ask the House to consider is, if exceptions are to be made—apart from the question of a public prosecutor, on which at present I give no opinion— what are the grounds upon which such an exception is to be based? I must say, before proceeding, that I impute no motives to the Mover, Seconder, or supporters of the Motion before the House other than a desire to see justice done. To proceed—One of the grounds on which such an exception as the present would be claimed would be sure to be the moral enormity of the offence committed by the supposed and imputed delinquents. That certainly cannot be alleged in the present instance without an inconsistency into which I am sure the House would not wish to fall, whatever be said as to the magnitude of the ruin and the amount of the scandal. I 990 apprehend there can be no doubt at all —even without entering upon the more sanguine and charitable view we must all hope will ultimately be realized— there can be no doubt that cases of a far darker and far different complexion in commercial morality have been before our eyes and blazoned to the world year by year in this country without any call for interference on the part of the Government. It is not, therefore, for the vindication of public morality that you interfere, for you cannot give a more questionable place to public morality in your proceedings than by interfering with the arm of authority for the purpose of branding milder forms of offence while you leave the graver forms of guilt to pass unquestioned. A most important element in the case is the certainty of result when you call upon the public exceptionally to interfere—I mean the certainty, or the probability, of a favourable result. Even were you to establish a public prosecutor you could not call upon him to undertake everybody's case without first examining rigidly into its first inception, and inquiring whether there is a fair probability of his proving the justice of the case to the satisfaction of the Court. It is perfectly evident that nothing could more rapidly damage and destroy the authority of the Crown than its ill-advised exposure of doubtful cases to the conflict with arguments of greater authority, and the consequent failure of cases to which its dignity had been committed. The duty of a public prosecutor or Crown prosecutor clearly is to examine into all matters ab initio, and make up his mind upon it before taking a single step to commit the Government; and it becomes almost impossible that that duty can be rightly performed when once proceedings have reach a certain stage. But what is the case as it stands now? There is a Motion before us which we are told to read like a palimpsest under a recent writing. We are told under a Motion for adjournment to read a Motion of my hon. Friend the Member for Windsor (Mr. Eykyn), which closes by saying that the case is to be conducted by the Law Officers of the Crown—my hon. and learned Friend the Attorney General, and my hon. and learned Friend the Solicitor General. That might have been all very well if done at the proper time; but at the present moment it so happens that the de- 991 fendants being anxious, and very naturally anxious, to secure the advocacy of my hon. and learned Friend the Solicitor General in his capacity as a private practitioner at the bar, he has, I believe, for months past been engaged on their side in this case, and will be bound to appear for them, notwithstanding any Motion which directs that he as counsel for the Crown shall assist in conducting this prosecution. ["Hear, hear!"] What I mean is not to use any exaggeration, but to convey the exact and literal meaning of the Motion. It is not possible for the Government to depart from their judgment in obedience to a presumed and undefined opinion of the House; all they can offer is that, when that opinion is expressed, it shall be taken into their most respectful consideration. But what is now proposed is that, without any judgment as to the propriety of the prosecution, without any power of examination as to the probability of a successful issue, my hon. and learned Friends, on the part of the Crown, shall rush into the midst, and charge the State with the responsibility of all that has been done and all that remains to be done. So much with regard to the probability of a favourable result. I now come to a third ground for exceptional interference, which is one of very great plausibility. It is said that the case where interference takes place should be one in which the parties are poor, and destitute of means to vindicate their interests. But is that applicable in the present case? The fourth and great ground alleged is that the interference of the Crown is desirable because of the magnitude of the case. What does magnitude mean? It means that the scale of the transactions was enormous, for the figures were counted almost by tens of millions; and, further, it means that whilst a large portion of the suffering shareholders may be persons of small or moderate means, a large portion of them also are persons of great and almost unlimited wealth. I do not think you can name a case where there has been imputed commercial delinquency, and a body of sufferers by the delinquency, in which those sufferers were so unquestionably possessed of ample resources for the vindication of their rights. This is a consideration of the greatest importance. The hon. Member for King's County (Sir Patrick O'Brien) calls on us 992 to interfere on behalf of poor persons who have lost their money; but if we are to interfere on behalf of the poor, this is not a case in which we ought to interfere. There are multitudes of cases in the private walks of honourable commerce where a man is stripped, through the delinquency of others, of every farthing he possesses, and has not the means of invoking public justice. There are multitudes of other cases in which you have the principle of joint-stock liability, but the whole body of shareholders are persons of such humble means that they would not increase their strength if they were to club together those means for the purpose of vindicating their rights. But here it is an undoubted fact that there are a number of shareholders perfectly able, if they think fit, to vindicate the interests of themselves and their fellow-shareholders. They do not choose to do it; and a proposition is made that the Government should step into the places of those wealthy persons, and seek for them that redress which they are able, but not willing, to seek for themselves. I wish in the most dispassionate manner to join issue on the question of the moral result which is to be attained by our undertaking—I do not say at the present stage of the proceeding, for that is another matter—but our undertaking at all the conduct of this prosecution. My hon. Friend has a moral good in view, and wants to remove a scandal and a disgrace. It is my opinion that in all these cases of the administration of justice, the same rule ought to be adopted as in determining the punishment of crime. When we have a case of enormous guilt, we do not attempt to proportion our punishment to the guilt; what we look solely at is the effect upon the future—it is our business to deter and repress crime. Now, what would be the effect on the future prudence and self-restraint of a generation too greedy of money and too ready to adopt one of the most doubtful means of making money—that of placing their investments in concerns of which they know nothing at all, with the view of making large and easy gains, of reaping the fruits of industry without its toil—what would be the effect if you said to all the class of persons who have such views, "Despise the rules of prudence and duty, whereby patient toil and frugal habits may see the rewards 993 of labour growing up around them and reap the fruits they deserve; look only to the best prospectuses and try the utmost limit of speculation without caring whether you know anything about it at all; the advertisement will stand instead of funds. Great and noble names, which Englishmen are only too fond of seeing, will stand to you instead of commercial knowledge, experience and skill; and you will have this advantage over your humble and obscure competitors in the race for wealth who carry on a regular trade—that if they fail they must take the consequences, but you, if you fail, will fall with a tragic splendour; the whole nation will feel the shock, and the attention of Parliament will be roused by the magnitude of the transactions—benevolent men in the House of Commons will be excited to make Motions invoking for you the assistance of the State; and for your neglect of the rules of prudence, and your hasty and unrestrained indulgence of the pursuit of gain, you will receive the exceptional favour of the State, and the British taxpayer will be at the expense of carrying your cause to a successful conclusion?"
§ MR. R. N. FOWLERsaid, he was acquainted with four of the persons to be prosecuted. One of them, long a Member for King's Lynn, was one of Ms oldest friends, and, having called him his friend in prosperity, he should be ashamed not to do so now, believing in his honour. However much the directors might have been mistaken, he felt sure they never intended to commit a fraud on the public, and that the result of the trial would vindicate their character.
§ MR. MORRISONsaid, the hon. Member for Brighton (Mr. Fawcett) was not responsible for the form the Motion had taken. He should vote for the Motion of the hon. Member if it went to a division, because he wished to express his censure, not only of the present Government, but of past Governments also. He had come down to vote with the hon. Member for Windsor (Mr. Eykyn) to which he felt impelled by a sense of duty. He must respectfully submit that the concluding remarks of the First Lord of the Treasury had very little direct bearing on the present question. The question had come round to a very small point—whether, owing to a technical rule of practice in the Queen's Bench there should be to-morrow an 994 absolute failure of justice? It would be very unseemly in any way to discuss the question of guilt or innocence. He most honestly inclined to believe that there was weakness rather than guilt in the directors; but, if the trial should break down in consequence of the absence of counsel, those gentlemen would have no reason to congratulate themselves on a verdict of "Not proven." He believed it was not correct to say that Government had never intervened in a prosecution started by a private individual, as they had intervened in the trial of Palmer for poisoning Cooke.
§ MR. CLAYsaid, he was certainly not about to prejudge the case; but he could not allow that debate to close without expressing his opinion that the course of the debate tended to show a triumph of commercial delinquency. If it should be proved that that had been done which was currently reported, he thought they could hardly share in the indignation expressed at the poor men who had been deceived. The right hon. Gentleman said if men would desert quiet and unostentatious industry—if they would seek a higher road to wealth by indolence and avarice, we could have no pity for them. ["No! "] He should be exceedingly happy to learn that he had placed a wrong interpretation on the language of the right hon. Gentleman the First Lord of the Treasury. He certainly should have expected that the indignation expressed would have been at the guilt which might be proved, although he hoped it might not be so. The folly of the poor men who had been deceived was that they believed in the word and prospectus of those whom they considered men of honour.
§ MR. MUNTZsaid, they were not there to try the directors, but to discuss whether Government ought to take up this prosecution and pay a private solicitor to carry it on. He entirely agreed with the Attorney General and the hon. Member for Coventry (Mr. Staveley Hill) that if the Government should have taken up the prosecution, they ought to have done so at the beginning. He was not prejudging the case, but, however bad the case might be, it was too late for the Government to undertake the prosecution. He must give credit to the right hon. Gentleman the First Lord of the Treasury for the remarks he had made; for it was well known so wealthy was 995 this concern only five years ago that few hon. Members would have declined to take shares when they stood at £12 per cent premium. Why, he himself had been ridiculed because he would have nothing to do with it. At that very time and afterwards savings' banks were failing, by which poor men lost every shilling; but who came forward to invoke a prosecution by the Government? This was a limited liability concern; but do not let them find fault with limited liability, but rather with the unlimited fools that took shares in businesses of which they knew nothing. He should not vote for the Adjournment, or for the Motion of the hon. Member for Windsor. It was no reason they should do wrong because others had neglected to do what was right. He hoped the hon. Member for Brighton (Mr. Fawcett) would withdraw his Motion.
§ MR. FAWCETTsaid, as he had taken a somewhat exceptional course, perhaps the House would allow him to explain.
§ MR. SPEAKERsaid, the hon. Member could only be heard if he wished to explain his grounds for desiring to withdraw his Motion.
§ Whereupon Motion made, and Question, "That this House do now adjourn," —(Mr. Fawcett,)—put, and negatived.
§ Question again proposed, "That Mr. Speaker do now leave the Chair."
§ Question put and agreed to.
§ SUPPLY considered in Committee:
§ Committee report Progress; to sit again To-morrow.