§ MR. O'DONNELL,
in moving—That an humble Address be presented to Her Majesty, that She will be graciously pleased to issue a Royal Commission to inquire into the administration of the Dunkeld Bridge Tolls, and to ascertain, with items in detail, the real state of the account of moneys received and expended by the Dukes of Athole in connection with the said trust,said, the question that they wished to be determined was whether the tolls levied should or should not cease to be levied. To ascertain that point an account would have to be rendered of all moneys received, and if there wore still any dues owing to the proprietor, then they would have to be paid; but, on the other hand, if there was any balance due and overpaid, then that would have to be refunded. The short history of this affair was this—In 1803 the then Duke of Athole set about obtaining an Act of Parliament to authorize the raising of money for the construction of a bridge across the Tay at Dunkeld. Up to that time there were two dangerous ferries at that place, and in view of the public convenience, the private convenience of the Duke of Athole, and supported also by public: opinion, and the desire of Her Majesty's (Javernment to have a readier means of conveying the military forces to the Highlands at that time, there was not much difficulty about obtaining this Ac(, and under it authority was given to 627 construct the bridge at Dunkeld for the sum of £18,000 at the outside. Previous to the passing of the Act a very careful survey had been made by the most eminent engineer of that time, Mr. Telford, and his estimate slightly exceeded £13,000. On further consideration, and taking some questions of approaches into account, it was considered that the estimate of Mr. Telford might be made more liberal. Accordingly under the Act £18,000 was authorized to be granted for the construction of the bridge, and the Duke of Athole and his heirs, being the proprietors, were entitled to levy tolls on the bridge until the full sum had been recouped. That amount of £18,000 became very considerably lessened when the Government granted £7,000 towards the expenses of the bridge; and when the profits arising from the rent of certain lands and various matters- of that kind were taken into account, it was very possible that the outside expenditure of the Duke on the bridge did not much exceed £10,000. Be that as it might, an Act was passed, authorizing the building of a bridge over the Tay, at a cost of £18,000 as he had said, and. under that Act it was provided that yearly exact accounts of the payments at the bridge should be lodged with the Commissioners of Supply. The most serious thing in connection with the question was that it was admitted that there had been an entire neglect on the part of the Athole family to lodge any accounts whatever with the Commissioners of Supply for no less than 43 years—from 1808 to 1851—from the passing of the Act. In this latter year local public opinion became very excited at the tolls continuing, at the neglect to furnish accounts, and at the interminable prospect of the tolls going on for ever; the consequence being that a legal and popular agitation commenced in Dunkeld, which had continued down to the present day. There had been actions in various Courts, but the attempts of the people to procure an inquiry had been again and again baffled by the large resources of the Athole family combined with the intricacies of Scotch Law. The result was that the tolls continued to be collected and the people to be dissatisfied until, in 1867, the Athole family were brought face to face with the Dunkeld complainants. In that year the Athole family, as proprietors of the 628 bridge tolls, amazed the people of Dunkeld by stating roundly that after GO years' collection of the tolls on a bridgo which could only cost £18,000 to start with, and the tolls of which had been variously estimated at between £1,000 and £2,000 a-year, the Athole family statistician fixed the exact sum still due to the Dukes of Athole at no less than £59,401 6s. 9d. It was not unworthy of the attention of the House of Commons to mark the accuracy of the 6s. 9d., especially when they found that the first glance cast upon those accounts by the accountant of the Court of Session diminished that remarkably exact sum by the bagatelle of £43,000. That was the position at the end of 1867. Although the people of Dunkeld had obtained that remarkable victory, there still remained a sum of £10,000 or £11,000 due, which they believed should not only disappear from the account, but should give place to a very large sum on the other side of the account. The phrase—"people of Dunkeld" was no vague or rhetorical expression; for this matter was supported by Petitions from Dunkeld, Dundee, and the people of the neighbourhood, asking that that House would make the necessary provision for seeing how its own Act of Parliament had been carried out by the Dukes of Athole. The belief that not only should this sum be wiped away, but a very large credit appear on the other side, was supported by the fact that even according to the very imperfect Returns obtained recently in reply to the Motion of Mr. Parker, the tolls collected up to 1851 amounted to £34,569"; while between 1851 and 1867 they were £19,612, being a total of £54,181; while during the last 11 years they could not be estimated, at the very lowest, at less than £8,000 or £10,000, making in all £62,000. Considering what the Dukes of Athole were authorized to spend in the first instance, and what they had since obtained in tolls, it was very difficult to see how there could be a balance in favour of the Athole family. But there was another matter—the trustee under the Act for the construction of the bridge—namely, the Duke of Athole—was authorized to purchase sufficient land for approaches to it. Of course such land as was not wanted for the bridge ought to have been sold, and the profits carried, not 629 to the private account of the Duke of Athole, but to the account of the bridge, and in diminution of its cost. A considerable piece of garden-land remained over after the purchase, and a number of houses, called Athole Street, had been erected on it; but not 1d, of profit from this source appeared in the accounts of the Duke of Athole, although the profits must have amounted to between£7,000 and £8,000'; so, upon the whole, the family of Athole had received from this source by pontage dues, and by the illegal reception of rents of trust lands, something like £75,000 or £76,000; and the people claimed that there should be some sufficient facilities given for obtaining exact information when there was such grave reason for discontent and suspicion. These were the broad and simple facts. Under the Act, not more than £18,000 was to be spent on the bridge, and no Act was passed authorizing any larger expenditure. There had been received, since the passing of the Act, a sum of £75,000 or £76,000, and instead of the bridge fund and the public being £45,000 or £50,000 to the good, the Dukes of Athole actually maintained that the public was in debt to the tune of £11,000. That statement was, after these figures, incredible, and it became still more incredible when they looked at the manner in which the accounts had first been withheld, and when filed had been at once subjected to a deduction of £43,000. It was not, however, so remarkable when they went into the facts and examined the accounts rendered by the Dukes of Athole. When they saw the items which were introduced for the purpose of giving some colour to this extraordinary claim, they found good reason for the suspicion with which this remarkable manufacture of the Athole family statistician was regarded in Dunkeld and the neighbourhood. He asked the House to remember that that account had been diminished by £43,000, and he asked them also to consider the financial exactitude of a family which did not render any account of its stewardship for half-a-century, and which, when it did, sentin an account claiming four-fold more than the debt now alleged as due to it by the public. In those accounts, even the whiskey supplied to the surveyors was charged. It might be argued that whiskey was necessary for the health of 630 the men working in that damp atmosphere; but there were items in the bill more curious than these charges for mutchkins of "Mountain dew." Among the approaches charged for was an item for cutting a road through the Warren Park, which was about three and a-half miles up the river above the bridge; and he left it to the House to decide the reasonableness and probability of allowing that approach to be charged for under the Act. This was an instance of the way in which these accounts had been bolstered up, and when they heard that they would not be surprised that the accountant had struck off the amount he had named. Why, it would be just as reasonable to charge the construction of a road at Hammersmith as an approach to Westminster Bridge. It could be proved that under cover of making similar approaches, the best portions of the charming Athole "policy" in the neighbourhood of Dunkeld were improved and beautified. In fact, while the Athole family had practically beautified their demesne at the expense of the public, they had the sublime self-possession to state that after receiving £80,000 for what did not cost them £18,000, the public still owed them over £11,000. He thought the bare outline which he had given of this remarkable case would be sufficient to induce this House to grant some substantial tribunal which would go into the whole of this matter, and allow the truth to be brought out without putting a lot of poor people, as these Petitioners mostly were, to the trouble and hard work of fighting their way through Scotch Law Courts against Scotch advocates and writers who were not the least acute members of their acute profession, and against a rich and powerful family like the Athole family. He contended that that House ought to do something to mitigate this scandal and grave public inconvenience, and to stop this illegal levy of tolls on a bridge which he maintained had been paid for five times. The hon. Member concluded by moving for the Address.
Motion made, and Question proposed,
That an humble Address be presented to Her Majesty, that She will be graciously pleased to issue a Royal Commission to inquire into the administration of the Dunkeld Bridge Tolls, and to ascertain, with items in detail, the real
state of the account of moneys received and expended by the Dukes of Athole in connection with the said Trust."—[Mr. O'Donnell.)
THE LORD ADVOCATE
Sir, I shall endeavour to explain very shortly the grounds upon which the Government cannot assent to the Motion of the hon. Member for Dungarvan. It is quite true that at the beginning of the century the then Duke of Athole obtained an Act by which he gave up certain rights of ferry, and obtained power to build a bridge, and to apply the tolls in repayment of the cost of the erecting, maintaining, and repairing of the bridge; the further provision being that when that cost was fully repaid, the tolls should be reduced by a third, and £1,500 accumulated for the future needs of the bridge. The hon. Gentleman is in error in saying that by the Act the outlay on the bridge was limited to £18,000. That sum was the limit imposed, on the amount the Athole family were permitted to borrow from time to time during the existence of the trust on the security of the tolls; but, in point of fact, the erection of the bridge cost nearly double £18,000. I am not going into details about all this, because it would occupy a very long time, and because in the year 1868 a number of residents in the neighbourhood of Dunkeld instituted an action in the Court of Session directed against the present Duke of Athole, who had just then come into possession of his estates. The object of that action was to have an investigation of the whole of the accounts connected with the erection, maintenance, and repair of the bridge, and to have it declared by the Court that the whole debt due to the family had been paid off, and that the bridge was free, the Duke of Athole making good any sums received in excess of the expenditure. The litigation went on very actively for three years and a-half, both sides being represented by active agents and very able counsel, and it was brought to a termination by a final judgment of the First Division of the Court of Session, pronounced in January, 1872, which might have been appealed against; but as it was not appealed against within the period prescribed by Statute, has now become final. In that action almost every one of the points set up as grievances now were examined and disposed of by that 632 Court. There was a very full inquiry before an accountant. There were detailed objections to his report by both parties interested. It was fought most vehemently both in the Outer House and in the Inner Court, and the proceedings finally ended in a judgment which no proceedings have been taken to challenge or set aside. It repelled a number of pleas, and found the balance due was £18,116. I am not aware, starting from that point, that there is any complaint as to the management of the bridge or as to the lodging of the accounts. I understand the object of this Motion is to rip up all the previous questions judicially settled, and to try again by Royal Commission the question of the liability of the Duke of Athole after that question has been decided by a competent Court, and after full discussion of the points involved. Since the date mentioned, the accounts have been regularly kept, and from the accounts lodged, it appears that the debt in April, 1877, was reduced to £11,721, the large reduction being due to the payment by the Highland Railway Company of £5,000 as compensation for their interference with the traffic, which they had agreed to pay, but refused to hand over until they knew who were the proper persons to get the money. Upon these grounds, I say, the question has been settled by competent Courts, and we should not attempt to upset in this House the judgment which should be regarded as final.
§ MR. M'LAREN
May I ask my right hon. and learned Friend the Lord Advocate, if he will be good enough to say how many pounds were cut off by the Court from the claim of the Duke?
THE LORD ADVOCATE
The claim made by his Grace gave rise to a good deal of suspicion, and naturally so, because the claim made was something like £56,000, and that was reduced to £18,000. I think it only fair to say that the Duke was unable to make a more satisfactory account in consequence of the state of the trust.
§ MR. ANDERSON
said, the right hon. and learned Lord Advocate complained that the question ought not to be brought forward, because it was a claim already settled by the Court of Session; but he (Mr. Anderson) thought he could show that that ought not in this case to be any bar. He would like to make a few re- 633 marks on the way in which it was brought before the House. It might be in the recollection of the House that for two Sessions he had had a Motion on the subject on the Paper. He had balloted for it, and on one or two occasions he had been fortunate enough to gain a time to bring it on; but on those occasions he was obliged to give way to Government Business, which he could not but admit was much more important. On the present occasion, the question had passed into other hands without any communication whatever being made to him, without any request, he was informed, from the inhabitants of the district; but at the request of some committee in London, of whom he knew nothing. He made no complaint of this nor of his having been treated in a manner different from that which usually prevailed in that House, simply because the Member who did it was a raw Member, and evidently knew nothing about the courtesies of the House. Beyond that he said nothing of the matter, except that he was glad to have assistance, and was particularly glad to see an Irish Member taking such interest in a Scotch grievance. He contended, in answer to the argument of the right hon. and learned Lord, that the question having been decided in a Law Court was no longer a case to be brought before this House, that that was not so. Although half-a-dozen actions had been settled in the Court of Session, it would be open for any man to raise a new action on the same ground. It was therefore equally open to any man, and therefore for the House, to raise the question in a public manner, especially in a case where public money was at stake. If it had been a legal question between one man and another, then the decision of the Court of Law would have been final; but it was different where the public was concerned. The Dukes of Athole had reason to know that not only the Scotch but the English public had wide privilege of raising such actions as these. As against the Dukes of Athole the case was very scandalous indeed. The hon. Member for Dungarvan had stated the facts correctly, but he did not state all. At the time the Duke John began the bridge he had it in contemplation to build a palace for himself at a cost of £400,000, and he had a great desire to get this 634 bridge made as an approach to that palace. That palace was never finished to this day. It was now an unfinished ruin. But his wish was to build the palace himself and to get the bridge built by public money. He got himself by the Act made sole trustee, and the moment he got himself made trustee he began ignoring the position of trustee, and spending money in every way he pleased. He was his own contractor, supplied wood and lime out of his own grounds, and charged his own price for them, instead of having estimates and public tenders as a trustee should. He got grants of stone from a neighbouring proprietor for the bridge, and used them for other purposes. Then he bought land for the purpose, and used it for other purposes. More than that, he did not build the bridge across the river at all. He actually built it on dry land, and then diverted the course of the river to run under the bridge. There was no need to divert the river to meet the wants of the public. He put the bridgo in such a place that it might make an approach to his palace when it was built, and a great part of the expense was for making and cutting this alteration in the course of the river. He was his own contractor, he employed his own men, and paid them. There was no separate record kept of how the men were employed and how they were engaged. One of the worst of the charges, and one the House would admit the Court of Session acted very improperly in not going into, was that he borrowed money as a trustee. The words of the borrowing clauses of the Act were that he was entitled to borrow on behalf of the trust £18,000 at a rate not exceeding 5 per cent. But what did this Duke do? Part of the money he lent himself, and part he borrowed from other people at low rates of interest, and charged the trust for that 5 per cent. If that had been done by a Jew moneylender it would have been called swindling; but it was done by a great Duke, and it was overlooked. As a trustee, he took private pecuniary profit out of his trust. Scotland was a tolerably democratic country, but even there a great Duke had great power, and he was able in the Court of Session to have his case considered with a great leaning towards himself. For nearly 50 years he had not rendered accounts as required annually 635 by the Act, and when he was asked by the Government to render them they did not exist. It was believed that the accounts were manufactured by one of his own agents, and thus could, not be otherwise than unfair to the public. These circumstances ought to have put him out of Court altogether, and so they would if he had not been a great Duke. Then the borrowing of money at a low rate and charging a high rate was going on for some 50 or 60 years, and the amount on that account that this bridge-trust had been unjustly charged woxid show now over £100,000. Each Duke of Athole had continued the practice till he had called attention to it, and then to get over the difficulty the present Duke paid up all the loans and lent the money himself, and still charged 5 per cent, without ever attempting to ascertain whether on the security of the pontages he could not obtain money at a lower rate than 5 per cent. As a trustee, he was bound in common honesty to try to find out if he could get money at a lower rate than 5 per cent. Each of the Dukes of Athole had acted wrongly in the trust, and, in his opinion, there was very good ground for the granting by the House of Commons of a Commission to inquire into the manner these accounts had been manufactured, and particularly as to the payment of the interest, for that was never properly gone into by the Court of Session; for both as regarded that, and as regarded the rents of certain houses, the accountant employed by the Court passed them over as not in his remit. These were strong points, and should be properly gone into. He considered the public interest was at stake, and that the House would be justified in granting this Commission.
THE LORD ADVOCATE
May I be permitted to explain that in Scotland the public have the right to sue as individuals—that is to say, the individual member of the public may vindicate the rights of the public at large; but I entirely demur to the statement that an individual proprietor may be sued again and again as many times as there are members of the public. Fortunately there are limitations to that right. I will only add that it never occurred to me, and I do not think it would occur to anyone who reads the papers, of a trial which extended from May to December, 1872, to say that the 636 pursuers of the action did not do the best they could on behalf of the public.
MR. O'CONNOR POWER
Sir, I cannot remain silent after the language applied to my hon. Friend the Member for Dungarvan (Mr. O'Donnell), who, whatever might have been his method of introducing the question, will, I am sure, be prepared to justify it here or anywhere else. It appears to me that when the hon. Member for Glasgow (Mr. Anderson) acknowledges that for two years he has failed to find any substantial or suitable opportunity for bringing the matter forward, he has to a certain extent justified the belief that he was not prepared to go on with this question, or deal with it, and for that reason my hon. Friend felt justified in taking the course he has. I certainly think the hon. Member for Glasgow did not show his courtesy when he said that my hon. Friend knew nothing of the courtesies of this House. This is not the first time I have heard language of this kind from the hon. Member directed to Irish Members, and I rise to tell him once for all that he occupies no position in this House which entitles him to lecture hon. Members about courtesy, and he is not likely to be selected as a model of courtesy here or anywhere else.
§ MR. O'DONNELL
I only want to say a few words about the rather unprovoked attack made on me. So far from my thrusting myself into this business unsolicited, it is, on the contrary, true that I was requested by one who has suffered very much by the dispute between the people of Dunkeld and the Duke to take up this case, and the main reason why it was pressed on me was that it was believed that the hon. Member for Glasgow (Mr. Anderson) was not particularly anxious to press the matter. Of that I know nothing; and the reason I took it up was practically in fulfilment of statements I have made that, considering the obligations Irish Members are under to English and Scotch Members, where there was a good cause for my interference in English or Scotch affairs I should be happy to interfere. I do not care to say more of the hon. Member for Glasgow, than that I am sure he is as courteous as he is accustomed to be. One word in reply to the right hon. and learned Lord Advocate. I very carefully avoided impugning the good faith of the Court of 637 Session. Such Courts, though not immaculate, are so perhaps in theory, and it is well in this House not to interfere with the rights of judicial personages. It is, at the same time, quite right to lay stress on the fact that a Court under certain pressure may or may not be able to give substantial justice where there is a powerful party on the one side and a party by no means rich or influential on the other. The right hon. and learned Gentleman bears out my theory of the case in stating that the litigation went on for so many years, and produced an amount of litigation that only one side was able to bear. An appeal to the House of Lords was not one that the other side could possibly prosecute. The House has passed. Acts defining the position of trustees, and there is overwhelming evidence that their provisions have been violated. For half-a-century it is admitted that the Dukes of Athole have violated this trust by not rendering any account. I hold, therefore, that there are overwhelming reasons why this House, as the guardian of the public interest and the public moneys, and the guardian of its own Acts of Parliament, should interfere on behalf of the poor people of Dunkeld.
§ MR. M'LAREN
said, there was one thing which the right hon. and learned Lord Advocate, in his clear and able address, had omitted to mention, and that was that there was a Parliamentary grant of £7,000 given in aid of the cost of this bridge. Whenever Parliament gave a grant of public money, Parliament had a right to know how it had been expended. One might well be tempted to use harsh names when one found a claim was made for about £60,000, and that the highest Court cut it down to £18,000. One need not use very soft words in describing such conduct when this fact was looked at. There was strong reason for inquiring as to whether the public had had the benefit of this Parliamentary grant. Another point which the right hon. and learned Lord Advocate did not touch upon was, that allegation of the hon. Member for Glasgow (Mr. Anderson), that if the interest had been charged at the low rate at which the money was borrowed, instead of being charged 5 per cent, it would have made a difference of nearly £100,000 in the time over which it had extended. The accountant ap- 638 pointed by the Court to report said it was not in his power to take this question up under the remit to him, and therefore that question still remained in abeyance. Taking into account, first, the Parliamentary grant; and, secondly, the allegation that the Duke had not only in past years but was now charging 5 per cent for money borrowed; whilst, with such undoubted security it could have been borrowed at a much lower rate—taking these things into consideration, he thought the House had a right to inquire into the whole circumstances.
§ Question put.
§ The House divided: —Ayes 79; Noes 189: Majority 118.—(Div. List, No. 5.)