§ Order read, for resuming adjourned debate on Amendment [19th February] to Question [17th February], "That an humble Address be presented to His Majesty, as followeth:—
§ "Most Gracious Sovereigh,
§ "We, Your Majesty's most dutiful and loyal subjects, the Commons of the United Kingdom of Great Britain and Ireland, in Parliament assembled, beg leave to offer our humble thanks to Your Majesty for the Gracious Speech which Your Majesty has addressed to both House of Parliament."—(Mr. Gretton.)
§ Which Amendment was—
§ "At the end of the question to add the words, 'and we humble express our regret that no prosecution has been institutted against the directors of the London and Globe Finance Corporatioin.'"—(Mr. Lambert.)
§ Question again proposed, "That those words be there added."
§ SIR ROBERT FINLAY, continuing his speech, said: When the House adjourned in response to the Motion of the hon. Member, I was addressing my remarks to the position of the Direction of Public Pro- 359 secutions. In this case it is a complete mistake to suppose that the action of the Direction of Public Prosecutions prevents any prosecution. The law of England is not the same as that of Scotland, in which the right of prosecution rests entirely with the Government. Anybody in England is at liberty to institute a prosecution, and my having held that this is not a case in which the Director of Public Prosecutions should move does not in the slightest degree interfere with the right of any individual, or any body or persons, who thinks that there is a proper case for a prosecution, to take action. I read in the newspapers that a fund is being raised for the purpose of a prosecution in this case. There is also pending a summons before the judge in the liquidation of the company, with the object of getting the judge to direct the Receiver to take proceedings by way of prosecution. I will not be betrayed into uttering one word which could in any way be considered prejudicial either to that application or to any prosecution, whether by the Receiver or by any private prosecutor, which may ensure under either of the proceedings to which I have referred. I should consider myself unworthy of my position if, even under the greatest provocation, I made a statement or advanced arguments which might be considered to prejudice either the prosecution or the defence in such a matter. Some things I might say might be damaging to a possible defender, and some things I might say might be considered to damage the prospects of a possible prosecution, and if I were to do so in an answer to the invitation of the hon. Member who brought forward this Motion, he would be the very first to denounce me. I trust I shall carry with me the feeling of the House when I say it is impossible for me under these circumstances to follow the hon. Member into the details of this case. I shall be perfectly ready at the proper time to state the reasons which guided my action, shall be prepared to state them fully, and, I hope, give satisfaction to those hon. Gentlemen who have the opportunity of listening to me; but I will not on this occasion enter upon a line which might entail results which, in the administration of the criminal law, I should deplore.
The fact that I considered that the Director of Public Prosecutions should not take up this matter ought not to pre- 360 judice, and, so far as I am concerned, will not be allowed directly or indirectly to prejudice, any proceedings which may otherwise be taken. With regard to may own action, the conclusion to which I came was not a hasty or ill-considered conclusion. The matter was most full considered by me, I had the very best assistance in dealing with this case, which is one of somewhat peculiar difficulty, and formed the subject of repeated and prolonged consultations. After I was able to arrive at a decision with regard to the matters first submitted to me, it was suggested that further evidence might be available. I invited the sending in of further evidence, and some further statements were sent in after an interval of several months. Those statements were carefully considered; and the conclusion I arrived at was that those further statements could not be allowed to vary the decision I had already arrived at, which was that
I could not properly say that the Director of Public Prosecutions should put the criminal law in motion in this case. In arriving at that conclusion absolutely no consideration influenced me, except the merits of the question. It is almost surprising that it should be necessary for one occupying my position to say that. Indeed, it is not necessary. The rumours to which the hon. Gentleman who moved this Amendment thought it necessary to refer reflect the utmost discredit upon those who concocted them, and upon those who put them into circulation. I say not a word more in respect to them.
But although I say no more about the details of the case, if the House will bear with me I will submit a few observations on the position of the Director or Public Prosecutions, and the Attorney General, whose direction he is bound to obey as to putting the criminal law in action. The duty which the law throws upon the Attorney General in regard to putting the criminal law in motion is one of the most anxious and responsible which any man could well have thrown upon him. It would be a great relief to every one filling the office, which I have the honour to hold, if it were left to the departments to determine whether there should or should not be a prosecution in matters relating to the business of the departments. A decision might conceivably be arrived at on the ground 361 of general policy, and because it was considered that, on the whole, it was desirable that the matters should be investigated. But the law has thought it right to say that before the machinery for the investigation of a crime was put into motion there should be the intervention of a responsible officer, who is answerable to this House, and that he should determine whether the case was one suitable for a criminal prosecution—whether on the merits of a particular case it was right that there should be a criminal prosecution. That is the only question which any one who occupies that office would consider. In discharging that duty the Attorney General is exercising a function of an almost judicial nature. It is his duty to consider the particular case; it is not his duty to consider whether, on general grounds of policy, or on grounds of popular agitation, an inquiry may, or may not, be desirable. In the discharge of that duty the Attorney General and the Director of Public Prosecutions will be actuated by no respect of persons whatever. I do not believe there is a single Member of this House, except the hon. Member who moved the Amendment, who would have insinuated the contrary. As long as the House honours me with its confidence I shall endeavour to discharge my duties in this respect without fear and without favour. In this matter I claim the support of every one who values the independence and the purity of the administration of the criminal law. The matter is one of principle, which far transcends the importance of the particular case out of which this discussion has arisen. And I ask the House with confidence to say that, in a matter of this kind, it is the duty of the Attorney General, discarding all side issues and all considerations which ought not to influence anyone in determining as to whether or not the criminal law should be put in motion, to arrive, to the best of his ability, at a decision on the merits of the particular case before him, so far as they bear on the question whether it is right that the Director of Public Prosecutions should be put in motion.
§ SIR ROBERT REID said he regretted that he could not support his hon. friend who had brought this Motion on this occasion, 362 and he thought he would be running away from his duty if he did not say a word with regard to this extremely important subject. He was very sorry that the Attorney General had exhibited some warmth with regard to his hon. friend, who he did not think intended to make any insinuation against the honour of the Attorney General. His hon. friend had acted from a sense of public duty just as much as the Attorney General. There was another thing in regard to which he believed his hon. friend was right. Not speaking of this particular case at all, he did believe most firmly that, unless the sharp edge of the criminal law was applied, whenever necessary, for the purpose of suppressing abominable frauds, especially in connection with companies, they would never be able to deal with them as they desired. Since he had been in the House he forgot how many Acts they had passed for the purpose of suppressing frauds in prospectuses, and in other ways, that were so common. Unless they invoked the terrors of criminal prosecutions they could not prevent what was going on. So far he was heartily with his hon. friend, who had put the case forward in a most temperate way. But what they had really to consider now was whether the House should censure the Government for not directing a particular kind of prosecution by the Public Prosecutor—in fact, what might be called a State prosecution. The Attorney General, who was the responsible officer, declared that, after very careful investigation and after taking the advice of other very competent persons, he had come to the conclusion that this was not a case in which he thought he could direct the Public Prosecutor to act. He knew very well those who would advise the Attorney General—he had been advised by some of them himself; they were most competent advisers—and he knew that they were influenced by no desire except to see public justice done. The point that had to be considered was not simply the question whether a criminal prosecution was or was not to take place. The question was whether it was to be a State prosecution. It must be remembered that in this country it was open to any one to institute a prosecution, and if the case went for trial, and the grand jury returned a true bill, the prosecution would be paid for out of rates or local funds.
363 [An Hon. MEMBER: To what amount?] And quite apart from that, if people wished to prosecute they could do so themselves out of public subscriptions. He was rather surprised to hear that interruption. The cost of the prosecutions he referred to did come out of public funds, and if those who prosecuted thought that the public funds did not make an ample allowance, it was competent for them to use private subscriptions. That being the case, hon. Members had to ask themselves whether they were prepared to overrule the decision and declare that the Public Prosecutor ought to have taken it up. But let them reflect. What materials had they on which to overrule this decision? Would anyone ask himself what knowledge he had of a criminal case? He took a very serious view of criminal prosecutions. While he thought there should be no shrinking from inflicting the criminal law, he knew it was a grave and a distressing thing to have to order a criminal prosecution. For himself he declared that he did not know what the materials here were for a prosecution. He had heard his hon. friend state the facts very clearly from his point of view; he stated there was a balance sheet falsely made up; and that, he understood, was the main ground of his action. Were they, then, to accept that statement, and accept it as the ground for over-riding the mature decisions of the Attorney General and instituting a criminal prosecution? He was not prepared to take that course. He looked up to and respected the House of Commons above any institution in the country, but much as he looked up to it in his opinion it was not, and never had been, a reliable body to exercise any kind of judicial functions. From the time of Sir Robert Walpole, who was unfairly sent to the Tower on a charge of embezzlement, down to the proceedings about Mr. Bradlaugh, twenty years ago, the House had never distinguished itself in this way; and here they were asked to overrule what was stated to be, and what was, a judicial decision given. He thought this: that where a Government believed that criminal guilt existed in a case of this kind it was their duty to order a prosecution; but, if they did not do that, unless a clear case could be made out or some improper motive 364 shown—unless it was perfectly obvious that it was a case of neglected duty—he was not prepared to take the responsibility of urging that the terrible weapon of the criminal law should be used against a private person.
§ SIR FREDERICK BANBURY (Camberwell, Peckham)thougtht his hon. friend had an extremely good case for his Motion, and he had put it to the House extremely well. The facts were undisputed that a fraudulent balance sheet had been issued, and that on the faith of it credit had been obtained. With all due deference to his hon. and learned friend the Member for Dumfries, he thought there could be no worse offence than that. It was as grave an offence as obtaining money from a shopkeeper on a bogus cheque. He had not much sympathy with the shareholders of this company, because they ought to have known that it was a highly speculative undertaking; but the fact remained that they had been induced to buy its shares by the fraudulent balance sheet which had been placed before them. While he admitted that the Attorney General could have no object in view but to do what was right, he could not conceive on the facts how his hon. and learned friend arrived at the decision that a prosecution ought not to ensue. As to the statement of the Member for Dumfries that any person could prosecute in the case, and that the State would pay the expense, he would ask his hon. and learned friend whether he was prepared to take up the brief in the circumstances? If so, he had no doubt but a prosecution would be instituted.
*MR. DUKE (Plymouth)said it was the boast of our jurisprudence that the administration of the criminal law was free from the interference of Party or Government—free from the interference of any influence save that of the duty which was felt by an aggrieved person or public authority to bring an offender to justice. No private person had a right to institute criminal proceedings unless he believed that a criminal offence had been committed, and unless he proceeded with the sole purpose of bringing the offender to justice. He could not do it in order to expose a scandal, or to preach 365 a particular commercial or moral doctrine; and it would be setting up a grave danger in public life if the restraint imposed in the case of a private person were removed in the case of the authority which was entrusted with the enforcement of the criminal law, backed by all the resources of the State. He hoped the House would not take the perilous step of setting itself up as a judge on a case of this kind. What chance of escape would an accused person have, in a case arousing public excitement, if the indictment against him was endorsed by the House of Commons? He had defended prisoners in Treasury prosecutions, and no greater burden could be thrown upon a lawyer than that of defending a man against whom a responsible public authority thought there was a case upon which the jury ought to convict. Well, hon. Members from Ireland know something about this. Some of them knew it by practical and unhappy experience. [A NATIONALIST MEMBER: We have been condemned before we were tried.] They all knew quite well that it did not need a true bill from the House of Commons to enforce a conviction in some circumstances. Hon. Members thought it might result from strong feeling in some quarter or another. [NATIONALIST cries of "Hear, hear ! "] But where was the strong feeling in this case? As far as the facts relating to this matter were concerned, the chief centre of feeling had been in the City of London. There meetings had been held with a view to the prosecution of a particular person for the offences which were the subject of this Resolution. Among the aggrieved persons in this case were some of the wealthiest in the country, and no doubt they had been advised. He suspected that their real difficulty was that they had been advised that if they embarked upon a prosecution they would be undertaking a very difficult enterprise.
But was this a case which needed the intervention of the Public Prosecutor in order to prevent a miscarriage of justice? If the aggrieved persons were advised or were convinced that they had a case in which they might reasonably hope for a conviction, there was no difficulty in the way of taking action on the score of lack of funds. The aggrieved persons had been advised 366 and had not prosecuted. How could the Government be censured for not taking action when their legal adviser had told them that he did but believe there could be a conviction on any indictment he could tender to a jury? The Attorney General might have taken the easy course of directing a prosecution in order to shield himself from unworthy suspicions out of the House and unworthy attacks within the House; but, had he done so, could any action be more contemptible? It had been said that this was not an attack upon the hon. and learned Gentleman's honour. Then what was it? Was it an attack upon his judgment? It must be one of the two. The Attorney General's honour was established long before he became a Member of the House of Commons in a profession which was jealous of the honour of its members. The hon. and learned Gentleman had shown that he knew what the law was upon this question.
Before parting with the subject he would ask leave to deal briefly with the only grounds upon which any person could present an indictment to a jury with regard to this company. One of those grounds was the issuing of a fraudulent prospectus. He did not believe that anyone considered that any of the prospectuses issued by this company amounted to a criminal offence. Another ground was the issuing of a fraudulent balance sheet. Anything more scandalous than the matters which were proved in regard to the issuing of the balance sheets of the London and Globe Company and some of the other associated companies it would be difficult to conceive. But the legal offence, if it had been committed, could be proved in half-an-hour. The whole matter had been the subject of examination of the persons concerned before an official in the High Courts, and every relevant fact appeared in the shorthand notes of those examinations, which were open to everybody concerned to see, including the gentleman who held indignation meetings in the City. The Attorney General had come to the conclusion that in these depositions there was not a case upon which he could warrant the expenditure of the public funds. There was one other ground.
367 and that was a prosecution for "rigging the market." So far as appeared from any facts which had been published or discussed that offence was not alleged. He did not wish to apologise for the persons who were involved in this scandal, and who had issued those false balance sheets. If means could be found of bringing the persons implicated to justice, no one would be more delighted than he should be, but the question here was whether this House should intervene and, without evidence before it and without express knowledge, should censure the responsible Minister of the Crown because he, in the exercise of his judgment, found there was no case for a criminal prosecution, under the circumstances alleged, which he would undertake upon his responsibility. He submitted that such a censure would be unjust, and however desirable it might be that a prosecution should take place, this House should abide by the judgment of the chief Law Officer of the Crown, in whose honour and integrity they all had confidence.
§ MR. WILLIAM MCARTHUR (Cornwall, St. Austell)stating the view of the ordinary plain business man in this matter, said he never felt more strongly what am is fortune it was for the commercial community that they could not have in this House a commercial legal opinion rather than the purely legal opinion with which they had been favoured by the Attorney General. Personally, having lost no money over Mr Whitaker Wright, he had no vindictive desire to see him prosecuted; but statements had been made which to a pain layman were astounding. A sum of &5,000 was necessary to carry out the proposed prosecution, and subscriptions were invited from all the sufferers in this gigantic fraud, and yet his hon. and learned friend the Member for Dumfries told him that anybody could prosecute anybody else for nothing, and they the Government was bound to see anybody through a prosecution of this kind. To his lay mind that was a statement which was absolutely unintelligible. The Attorney General had treated the case as if it were a set of casual statements made by a casual Member of Parliament; but the facts 368 were not the facts of the hon. Member for South Molton, but of an officer of the law, the Official Receiver in Bankruptcy, backed by the opinion of three of the most eminent judges on the Bench. Those were the facts which the Attorney General held out as being the irresponsible statements of his hon. friend.
§ SIR ROBERT FINLAYI never said anything like that.
§ Mr. W. MCARTHURsaid that when, in these circumstances, the Attorney General got up and said there was no case for a prosecution, he could only ask — "What is the good of the law as a protector of ordinary honest commercial men of business?" His hon. friend the Member for Plymouth said that the interest in this matter was confined to the City of London. He begged to assure him, from personal knowledge, that he was absolutely wrong.
§ MR. DUKEI did not say that it was confined to the City of London. I said that it chiefly centred in the City of London.
§ MR. MCARTHURsaid he had had letters from all parts of the country from people who had been adsolutely ruined by this fraudulent swindle. If the law was helpless in a case of this kind, and the House of Commons ought to do nothing but accept the assurance that it was powerless, then the law was no use to the commercial community of the City of London, and the sooner it was altered the better. For his own part, not being a lawyer, and therefore not bound by that code which appeared to make lawyers always defend each other, he should, in the interests of ordinary commercial morality and the protection of honest people, most unhesitatingly vote for the Amendment.
§ THE SOLICITOR GENERAL (Sir EDWARD CARSON,) Dublin UniversityI may perhaps, be allowed to intervene in this debate for a very few moments, because, of course, the House will readily understand that I was associated in the 369 consideration of the course the Attorney General ought to take, and in the consultation to which he has referred, and although the responsibility for the action taken rests, and must rest, upon him, my hon. and learned friend, in this case, as in all cases of importance, consulted not merely myself as a Law Officer but also others who were eminent in the criminal law and in the administration of it in this country. In the first place let me say that this is not an Amendment directed against the Government but against the Attorney General. [An HON. MEMBER: "NO."] I will tell you why it is not directed against the Government. It is one of these matters in which the sole responsibility for what is done must rest upon, and must be taken by, the Attorney General, and if the Cabinet tomorrow were to order and direct the Attorney General to institute a prosecution in this or any other case he should refuse, and rightly refuse, to do so unless it commended itself to him upon a full consideration of the facts and the law appertaining thereto. What is the reason why the hon. Member who has just spoken is going to vote for such a Motion? Because he says that the commercial world has been shocked by the revelations.
§ MR. W. MCARTHURThe Official Receiver has been shocked.
§ SIR EDWARD CARSONVery well, that the Official Receiver has been shocked. Is the hon. Member aware that one of the persons called in to advise and to express his opinion with a view to guiding the Attorney General was the Official Receiver, who, he says, has been shocked by this case? Is the hon. Member aware that the Official Receiver brought all the documents before that officer to the notice of the Attorney General and those engaged with him in the consultation? Therefore, if that is so, and if the Attorney General has not overlooked these matters, and has taken the proper course in consulting these parties, is the hon. Member, who confessed that he is not a lawyer, going to set up his judgment in the matter against that of the Attorney General, who has had all the facts before him in coming to a conclu- 370 sion in the matter? From what I know of my hon. friend, I think that before he does so he will ask himself on what grounds he does so. Of course the hon. Member has a right to do so. Is it because the hon. Member believes that the Attorney General has acted dishonourably in the exercise of his discretion? Does he believe that he acted to the best of his ability? I am perfectly sure that the hon Member does. This is not a matter of one, two, or three hours consultation or consideration at all. The decision was arrived at in the most deliberate way in the investigation of the facts which the officials were able to bring before the Attorney General in his official capacity; and, therefore, as far as honesty of opinion, care, and caution in the framing of that opinion are concerned, I am sure the hon. Member would say that no case can be made out as against the Attorney General. What is the Attorney General blamed for? Is he blamed for having come to a wrong conclusion? [Cries of "Yes."] I hear hon. Members say "Yes." Do hon. Members think that upon a short debate in the House, without having the facts or materials before them, they are able to re-try a case which the Attorney General has at great labour already tried for the purpose of seeing whether it would exercise his discretion to order a public prosecution or not? I say that is absolutely ridiculous. You might as well at once abolish the office of Attorney General in relation to these prosecutions if upon each occasion when certain hon. Members think he has come to a wrong conclusion, they upon statements brought before them, and upon such a discussion as is taking place in this House, take upon themselves to review the decision he has come to, and ask the House to vote that the Attorney General was wrong after having honestly, and to the best of his ability, come to a conclusion. That is really what it comes to. It is said that Mr. Whitaker Wright published a false balance-sheet. I believe that he did. I think that it is an admitted fact that this was done; but will any one get up and say that a man can be prosecuted because he publishes a false balance-sheet? [Cries of "He ought to be," and "Why not alter the law?"] Then the House must pass a law. But surely, if it is necessary to pass a law for 371 that purpose, there ought not to be a vote of censure on the Attorney General because he does not prosecute under a law that does not exist. The hon. Member for Peckham, who, I am sure, has no ill-feeling towards the Attorney General, says that certain persons were, by reason of this balance sheet, induced to give credit. Is that an indictable offence?
§ MR. LAMBERTIt is an attempt to defraud.
§ SIR EDWARD CARSONThe question is not so simple as hon. Gentlemen imagine. These are all matters with which the Attorney General is competent to deal—at all events, as competent to deal as the ordinary layman; and, once you admit that the Attorney General is honest and competent, you cannot review his action in this House without turning the whole legal procedure of the country into a farce. We are told that a large number of shareholders have been injured by reason of this false report, doctored report, fraudulent report, if you like. Is it not an extraordinary thing that not a single shareholder in this company has, upon that report, taken a civil action to get back his money from Mr. Whitaker Wright, who is perfectly well able to pay? Is it because they have sympathy with Mr. Whitaker Wright, or is it because they have the same advise that such an action is not maintainable? It is also said that there are a number of shareholders and creditors burning to take action, and that what deters them is the cost of the proceedings. Personally, I venture to say that the cost of the proceedings has little to say to it; but the House should not imagine that the hon. and learned Member for Dumfries has stated what the rule is as to the demand for cots when private individuals take these proceedings. The London and Globe Finance Corporation is in liquidation; and I am told that the liquidator has spoken very strongly of the frauds committed by Mr. Whitaker Wright. It is open to any of the shareholders to go before the liquidator and ask him to allow a prosecution to be brought, and to have the costs defrayed out of the assets of the London and Globe Corporation. Has any shareholder done that? And if not, why not? Everybody is burning for a prosecution, and yet no one will take the responsibility 372 for it. There is also the power of charging Mr. Whitaker Wright with malfeasance, and having the matter investigated by the liquidator; and if any material facts can be brought out, they can have them so brought out, and subsequently laid before the Public Prosecutor. The truth of the matter is that there is remedy after remedy open to the parties who are said to complain of the decision of the Attorney General; and yet not one of them has moved a step. It is said that the shareholders are writing every day to Members of Parliament. I think hon. Members would find in some cases that they were men who bought their shares as a speculation for a shilling or eighteen pence, when the London and Globe had practically smashed up. All these circumstances tend to show that the advisers of those who have remedies open to them and do not take them have come to much the same conclusion as that of the Attorney General, on whose shoulders rests a very much greater responsibility. What the House is now being asked to do is what the Press has been doing for months past, and what makes the administration of the law all the more difficult—and that is to force the hand of the Attorney-General and to overrule the discretion which he properly exercises on the facts which are laid before him.
*SIR JOHN BRUNNER (Cheshire Northwich)said they had heard from the hon. and learned Member the Attorney General that reprehensible things had been done; they heard also from the hon. and learned Member for Plymouth that scandalous things had been done, and that it was quite obvious by whom they had been done. They heard from the Solicitor General that a fraudulent balance-sheet had been published, and that it was quite obvious by whom it was published. They heard from the Attorney General that the persons who had done this deserved to be punished. The Solicitor General had tried to persuade the House that this Amendment was an attack upon the honour of the Attorney General. That was said merely to prejudice the case. It was not an attack upon the honour of the Attorney General, but what they did find fault with was that, according to 373 the law, the person who was to blame could not be prosecuted by the authorities constituted to perform that duty, and that the Government had made no proposal to amend the law. The Solicitor General said this was not an attack on the Government.
§ SIR EDWARD CARSONI did not say so.
*SIR JOHN BRUNNERsaid he would repeat that the hon. and learned Gentleman said this was not an attack on the Government. Well, it was the first time he had heard that doctrine enunciated in that House. An Amendment to the Address is always held to be a censure of the Government, but he was prepared to denounce that as an absurd fiction. He thought the House ought to be able at all times to express an honest opinion in an Address to the Crown without its being represented that they intended to attack the Government.
*SIR ALBERT ROLLIT (Islington, S.)said that no one could enter into this debate, after what had been said, without a compelling sense of public resposibility. It had been asked what was the law worth if it could not meet such a case; and it might well be asked what was the Public Prosecutor worth if he could not deal with a question of this kind. While he had every respect for the numerous counsels' opinions offered gratuitously that evening, he must say that he ventured to respectfully differ from them, unusually unanimous though they were. The Solicitor General had said that it was clear that a false balance sheet had been published, and he had also said the Act had yet to be passed which would make that a criminal offence. He differed from the hon. and learned Gentleman. He believed that the publication— and he said it with a high written authority—of a false balance sheet, which was the means of obtaining almost millions from the confiding public, was an offence at Common Law. At any rate it might be, in his view, made the subject of a conviction for conspiracy at common law, and when there were several defendants, in one sense there was less difficulty in establishing conspiracy. He believed the case also to be within the terms of the Criminal 374 Law Consolidation Acts of 1861, and also the Companies Act, 1862. But he rose very largely that night to say that if that were not the case, it would be a great discouragement to those Members who had served upon the Departmental Committee of the Board of Trade only a year or two ago—in 1889—to revise the Companies Acts, and to frame a Bill, which afterwards became an Act, containing a clause which, at any rate, had apparently been overlooked by the Solicitor General, when he said that the Act had yet to be passed to deal with what he admitted to be a false balance sheet. The material part of the clause ran: "If any person in any return, report, certificate, or balance sheet, makes a statement, false in any material part, knowing it to be false, he shall be guilty of a misdemeanour." He failed to find a difficulty in interpreting these words; and having served on the Committee, and having had the advantage of discussions with Mr. Justice Buckley, Lord Davey, and other colleagues like Sir John Hollams, he belived it to be largely declaratory of what was the Common Law bearing on the subject.
He was very far from partaking in any censure on the Attorney General, either officially or personally, or the Government for their inaction in this matter. In any case he would be very reluctant to do so; but he nevertheless thought it would not be consistent with loyalty to his profession of the law if he were to give or not to give a silent vote without expressing his individual opinion on this most extraordinary case of all stupendous fraud, followed by absolute impunity. He asked the House to dismiss from their mind the fringes of the case and the mere phrases used by his hon. friend. He was quite sure that his hon. friend did not intend to impute anything to anybody in bringing forward this Motion, and he was also sure that references to personal honour were altogether out of place. The suggestion of a Government conspiracy to suppress the consequences of a crime was equally absolutely inadmissible, and he certainly would not recognise, in such a non-political matter, the technical suggestion that in taking a particular course one was expressing censure. He preferred 375 to accept the words of the Attorney General himself that he was responsible to the House. He agreed with the Attorney General when he said that a Prosecution would be a very serious responsibility; but, it should be remembered, that there would be previously a searching magisterial investigation. And, in his opinion, if the admitted falsity of the balance-sheet were proved, coupled with the inevitable inferences of fraud from the vibrationof paper balances, just at the moments when they were financially required, and with the other circumstances detailed in the reports of the Official Receiver, and the examinations before the Registrar, the onus — which was always, in such cases, an important consideration—of displacing those inferences from facts, and of rebutting the presumptions of intentional fraud, would be shifted from the prosecution to the accused. He maintained that on the facts as presented by the Official Receiver, there was a Prima facie case— and, after all, that was the whole question — which demanded investigation in the interests of justice and of this House, whose concern it was to see that justice was impartially administered without regard to persons or to classes. They were not trying the case, and he quite granted that the mode proposed in the Amendment of dealing with the case was not the only one, for not only could any individual, technically, prosecute, but the Liquidator might do so by leave of the court, but, in any event, there would be almost insuperable difficulty in dealing with the matter from that point of view. He ventured to say that even if there were any funds, as suggested by the Attorney General, they would be quite inadequate for justice to be done to the public. The very expensive preliminary investigation alone involved such large sums that no individual ought to be asked to assume the responsibility. Therefore, it was that the Public Prosecutor existed, and they were asking him to vindicate his existence and his utility. He also ventured to say that if the law confessed itself important to deal with a matter of this kind it would be a great reflection upon the administration of justice in this country. He had felt great reluctance 376 in dealing with this subject, but it was necessary to protect large bodies of men and women, shareholders, and creditors and the public, who, if they were speculative, were nevertheless entitled to justice. They were a body of people who had no cohesion; and when it was found that the result of transactions like this was illimitable misery in numerous directions, great damage to the commerical character of our country, a deterrent to the investment of capital, and a reflection on our whole public judicial system, something should certainly be attempted to remedy the grievance, and to put to the test of legal judicial inquiry and investigation in the magisterial and other courts, whether there had, in fact, been falsity and fraud, and, by argument in open court, whether or not, in point of law, there had been a criminal and indictable offence.
§ MR. A. J. BALFOURI need hardly say that I do not intend, Mr. Speaker, to obtrude any legal opinions upon the House, not merely because the hour is late, but because I am incapable of giving an opinion on such a subject which is worth listening to. But I think I have gathered what it is that has influenced most of the speakers, and many of those who have listened to them, who feel that the House of Commans ought to take some action on the present occasion. I do not misinterpret the feeling of the House when I say that there is no man on either side of the House who, either in public or in private, or even to himself, has made any suggestion of suspicion as to the motives by which the Attorney General was actuated in the course that he has taken. There is probably no man in this House, not even those who, like myself, are entirely ignorant of the law, who doubts that the Attorney General's advice has not only been honestly given, but has been given by a man eminently qualified to give advice upon any matter connected with the laws of this country. The third observation I think I may make with general assent is that it is not intended on this occasion to make an attack upon His Majesty's Government. It is perfectly true, as an hon. Gentleman said opposite, that every Amendment to the Address is an attack upon the Government, and in that sense, of course, this is an attack upon the Government; but it is not an attack upon them in a matter in 377 which they have any discretion. It is due to the Attroney General to say in the clearest manner, not only in the interests of the Attorney General but in the interest of all, that his position as the District of Public Prosecutions is a position absolutely independent of any of his colleagues. It is not in the power of the Government to direct the Attorney General to direct a prosecution. No Government would do such a thing; no Attorney General would tolerate its being done. Though it is, I believe, peculiar to the British Constitution that political officers, like the Lord Chancellor or the Attorney General, should occupy what are in fact great judicial positions, nobody doubts that in the exercise of their judicial or quasi-judicial functions they act entirely independently of their colleagues, and with a strict and sole regard to the duty they have to perform to the public. That is the position of my learned friend, and that is the position of the Government in connection with this subject.
Now I pass to what I believe to be the animating motive of almost all the speeches we have heard tonight in favour of the Amendment. I think that motive is a feeling of deep and profound indignation at the fraudulent transactions in which Mr. Whitaker Wright has been engaged. Nobody can have even a most cursory knowledge of those transactions without being conscious that if these are things which can be done in a great commercial centre like London, in connection with a vast transaction like that of the London and Globe, and can be done with impunity, a great fault lies somewhere. The only question is where that evil lies. I venture respectfully to say that no man can have listened to the debate tonight and have weighed—I will not say the reasoned legal view of my learned friend the Attorney General, because I imagine he was precluded by the fact that there were proceedings pending in this matter from going into the details of the reasons which have influenced his judgment—but have listened to what he said, or what the Solicitor General told us of the enormous pains taken by the Law Officers of the Crown in examining this case, without admitting that the fault does not lie either with the Director or Public Prosecutions, or with those who advised him. The fault lies in the law. [An HON. MEMBER on the OPPOSITION side of the 378 House: No, no.] Is that a lawyer or a layman? Does the hon. Gentleman imagine that it is the jury which make the law? My hon. friend below the Gangway says that in his view an offence has been committed.
§ MR. A. J. BALFOURWell, both the question of Common Law and the question of Statute Law have been critically and carefully examined by the Law Officers of the Crown, and they, rightly or wrongly, take a different view from that held by my hon. friend. Whilst all admit that if such scandalous frauds are allowed to go unpunished the fault lies somewhere, I venture to say to the House that the fault does not lie with my learned friend, but with the language of the statute. The phraseology of the statute is evidently intended to protect the shareholders in a company and the creditors of a company against fraudulent prospectuses; and it is a very grave omission in the framing of the statute that it does not provide an adequate remedy against fraud, however gross, however scandalous, which is not directed against these persons. My learned friend's attention has been called to this defect in our law by the very scandalous and painful case of Mr. Whitaker Wright and the Globe Finance Company; and he has expressed his opinion to the Government that there ought to be an amendment to the law making such practices absolutely impossible. The Government, advised in that sense by my learned friend, entirely share his view, and think that an amendment of that kind ought to be introduced as soon as possible. I need hardly say we shall take steps to carry that view into effect. Meanwhile, what 379 I ask the House to do is to make the law what it ought to be, and not to attack a judicial officer whose duty it is to administer the law as he finds it. I cannot imagine a worse precedent than that this House should constitute itself a kind of grand jury in criminal matters; that, moved by passions which in this case we all share, and which, I believe, are amply justified by the facts, we should endeavour to compel a judicial officer to do that which, in his conscience, he believes he ought not to do. Let the House reserve itself for the function for which it is fitted—the amendment of the law—bringing it into a condition to meet the needs of the community, and into harmony with the general principles of justice. I hope and believe the House
§ will not differ from the general principle I have laid down, and will be content with the pledge I have given, that we shall endeavour to amend the law in accordance with that broad view of commercial morality so ably defended by my hon. friend. We shall do that which it is our function to do, and not set a precedent which, in this case, may only do an injury to the Government and my hon. and learned friend, but which, followed in different circumstances by the House, may inflict a real blow on the criminal jurisprudence of this country.
§ Question put.
§ The House divided:—Ayes, 115; Noes, 166. (Division List No. 4.)
| NOES. | ||
| Anson, Sir William Reynell | Fison, Frederick William | Percy, Earl |
| Archdale, Edward Mervyn | Flannery, Sir Fortescue | Platt-Higgins, Frederick |
| Arkwright, John Stanhope | Flower, Ernest | Powell, Sir Francis Sharp |
| Arnold-Forster, Hugh O. | Forster, Henry William | Pretyman, Ernest George |
| Atkinson, Right Hon. John | Galloway, William Johnson | Pryce-Jones Lt.-Col. Edward |
| Bagot, Capt. Joseceline FitzRoy | Gardner, Ernest | Randles, John S. |
| Bailey, James (Walworth) | Gibbs, Hn. Vicary (St. Albans) | Rasch, Major Frederic Carne |
| Bain, Colonel James Robert | Godson, Sir Augustus Fredk. | Reid, James (Greenock) |
| Baird, John George Alexander | Gordon, Hn. J. E. (Elgin…Nrn) | Reid, Sir R. Threshie (Dumfries)) |
| Balfour. Rt. Hn. A. J. (Man'r) | Gray, Ernest (West Ham) | Renshaw, Sir Charles Bine |
| Balfour, Rt. Hn. G. W. (Leeds) | Gretton, John | Renwick, George |
| Banbury, Sir Frederick George | Greville, Hon. Ronald | Ridley, Hon. M. W (Stalybridge) |
| Bartley, Sir George C. T. | Groves, James Grimble | Ritchie, Rt Hon Chas. Thomson |
| Bentinck, Lord Henry C. | Guest, Hon. Ivor Churchill | Roberst, Sumuel (Sheffield) |
| Bignold, Arthur | Hambro, Charles Eric | Robertson, Herbert (Hackney) |
| Bigwood, James | Hamilton, Rt Hn Ld. G. (Midx) | Ropner, Colonel Sir Robert |
| Blundell, Colonel Henry | Hanbury, Rt. Hn. Robt. Wm. | Royds, Clement Molyneux |
| Bond, Edward | Hare, Thomas Leigh | Rutherford, W. W. (Liverpool) |
| Boscawen, Arthur Griffith- | Harris, Frederick Leverton | Sackville, Col. S. G. Stopford- |
| Bousfield, William Robert | Hay, Hon. Claude George | Sadler, Col. Samuel Alexander |
| Brodrick, Rt. Hon. St. John | Heath, Arthur H. (Hanley) | Samuel, Harry S. (Limehouse) |
| Bull, william James | Henderson, Sir Alexander | Sandys, Lieut-Col. Thos. Myles |
| Butcher, John George | Hobhouse, Rt HnH (Somrst E) | Seely, Maj J. E. B. (Isle of Wight) |
| Carson, Rt. Hon. Sir Edw. H | Hope, J. F. (Sheff. B'tside) | Sharpe, William Edward T. |
| Cautley, Henry Strother | Hoult, Joseph | Shaw-Stewart, M. H. (Renfrew) |
| Cavendish, V C W (Derbysh.) | Hudson. George Bickersieth | Sinclair, Louis (Romford) |
| Cecil, Evelyn (Aston Manor) | Hutton, John (Yorks, N. R.) | Skewes-Cox, Thomas |
| Cecil, Lord Hugh (Greenwich) | Jessel, Capt Herbert Merton | Sloan, Thomas Henry |
| Chamberlain, Rt. Hn. J A (Wore) | Kenyon-Slaney, Col. W. (Salop) | Smith, H C (Northmb. Tyneside) |
| Chapman, Edward | Kimber, Henry | Smith, James Parker (Lanarks.) |
| Charrington, Spencer | King, Sir Henry Seymour | Stanley, Lord (Lanes.) |
| Cochrane, Hon. Thos. H. A. E. | Knowles, Lees | Stirling-Maxwell, Sir John M |
| Churchill, Winston Spencer | Law, Andrew Bonar (Glasgow) | Stock, James Henry |
| Coghill, Douglas Harry | Lawrence, Sir Jos. (Monm'th) | Stone, Sir Benjamin |
| Cohen, Benjamin Louis | Lawson, John Grant | Strutt, Hon. Charles Hedley |
| Collings, Right Hon. Jesse | Leese, Sir Jos. F. (Accrington) | Talbot, Lord E. (Chichester) |
| Colomb, Sir John Chas. Ready | Legge. Col. Hon. Heneage | Thornton, Percy M. |
| Corbett. A. Cameron (Glasg.) | Llewellyn, Evan Henry | Tomlinson, Sir Wm. Edwd. M. |
| Corbett, T. L. (Down, North) | Lockwood, Lieut.-Col. A. R. | Tuke, Sir John Batty |
| Cox. Irwin Edwd. Bainbridge | Long, Rt. Hn. W. (Bristol, S.) | Valentia, Viscount |
| Craig, Charles C. (Antrim, S.) | Lonsdale, John Brownlee | Walrond, Rt. Hon. Sir Wm H. |
| Cranborne, Lord | Lucas. Col. Francis(Lowestoft) | Welby, Sit Chas. G. E. (Notts) |
| Crossley, Sir Savile | Macdona, John cumming | Willoughby de Eres by, Lord |
| Cubitt Hon. Henry | Majendie, James A. H. | Willox, Sir John Arch bald |
| Davenport. William Bromley- | Maple, sir John Blundell | Wilson, John (Falkirk) |
| Denny. Colonel | Martin, Richard Biddulph | Wilson-Todd, Wm. H. (Yorks) |
| Dorington, Rt. Hon. Sir J. E. | Mitchell, William | Wodehouse, Rt. Hn. E. R. (Bath) |
| Doughty, George | Montagu, G. (Huntington) | Wortley, Rt. Hon, C. B. Stuart- |
| Douglas, Rt. Hon. A. Akers | Morrell, George Herbert | Wrightson, Sir Thomas |
| Doxford, Sir Wm. Theodore | Morrison, James Archibald | Wylie, Alexander |
| Duke, Henry Edward | Mount, William Arthur | Wyndham, Rt. Hon. George |
| Faber, George Denison (York) | Mowbray, Sir Robert Gray C. | Wyndbam, Quin, Major W. H. |
| Fellowes, Hon. Ailwyn Ed. | Murray, Rt Hn A. Graham (Bute) | |
| Finch, Rt. Hon. George H. | Nicol, Donald Ninian | TELLERS FOR THE NOES— |
| Finlay, Sir Robert Bannatyne | Parker, Sir Gilbert | Sir Alexander Acland- |
| Firbank, Sir Joseph Thomas | Parkes Ebenezer | Hood and Mr. Anstruther- |
| Fisher, William Hayes | Pemberton, John S. G. |
§ Main Question again proposed.