give in that account himself, he kept the do it, but that it is the duty of his office to do books, he had been in the same office with it; it my arguments have succeeded to create Mr. Bembridge, he perfectly understood it; a doubt whether it is the duty of his office, his and this gentleman, though he knew the fact, receiving this sum does not prove it at all; it that he had not inserted the money and only proves that he received money for doing ought to do it, did not tell it when general that which he did not do, and it may be requestions were asked: but, what did he do? covered back again; that sum of money is lle referred to Mr. Powell, and from that given, according to my apprehension, and I time, they went immediately to Mr. Powell, trust it will appear from the memorial, in a and had nothing more to do with him. Then, way that confirms this argumentof Mr. Scott's, from that piece of evidence alone, have I not, for it is a large sum of money allowed to the with great submission to the Court, a right to person accounting; it was said, that cannot infer that it appeared negatively, in this case, bc, but the person accounting must account that he had not to do with the auditor of the at his own charge. imprest? For, when this message, upon which Lord Mansfield. All the items are given in all stands, comes to the auditor of the im- particularly; the memorial claims it in this prest, to his clerk, or somebody in the office, way—for himself

, as cashier, the accountant, he goes to Mr. Powell, and was never after re- clerks, and under officers employed in drawing ferred to Mr. Bembridge. Upon that evi- out and settling lord Holland's accounts with dence, it must be taken that he insists he had the auditor of the imprest. nothing to do with the auditor, he refers to Mr. Bearcroft. The observation that I Mr. Powell. Sir Thomas Davenport said, meant to make upon that, was this, that Mr. Bembridge by his clerk Colborne; surely, the allowance was not made nor paid by in exculpating Mr. Bembridge, I have a right government to these gentlemen directly, but to say, the auditor by his clerk Wigglesworth. it is an allowance to the party accounting. Another point, upon which not a word has Whether they had a good claim or a bad been said, is this: it cannot be Mr. Bem- claim against it, seems to me not material to bridge's duty to do that which it is not in his the question, to whom does the government power to do. I mean, it has been argued over pay the money: He might have employed and over again, that it was in proof that the any body else, he did do it himself, and did party who has the public money in his bands, employ others. the executor of the accounting person, has a

Lord Mansfield. They all give receipts to right to take the books away; I put the case him, which are vouchers for his having paid in trover, as your lordship recollects, and not it; and Bembridge's and Colborne's receipts a syllable has been said upon that subject, were produced. and that is, because it cannot be answered in Mr. Bcurcroft. But to that, I say the same point of fact. In point of fact, then, I have a thing that I said to his examination; you are right to take it, that the person accounting not to look to appearances, - to what appears has a right to make up the account himselt; from expressions out of the mouth of the if he has a right to say to the same accountant- | defendant, if the contrary is the fact; now, it general, you have nothing to do with it, and ; appears, from the prosecutor's evidence, that I will do it myself; how, then, can it be the this money is allowed to the person accountduty of the office to do that which depends ing for getting it done by somebody else, and upon the will and pleasure of another person? he makes a present to those persons; it seems If it is the duty of the office to do it, so that to me, therefore, that it can never be argued, you shall punish a man, at common law, for because money is allowed to the accounting not doing it, then I have a right to ask, where person, and he chooses to give part of it to is the common law process, where the arms | those clerks, that it is the duty of those and the instruments, which the law gives this clerks to do it; the contrary appears to be person, to compel him to do it? It is an abso- the case; this proceeding adds to my argulute solecism, that it is by common law and ment. I conceive, so far from proving it is custom the duty of a man to do that wbich be the office of the accountant-general, it shows never can do, if the parties are not so dis- it cannot be his office, and it is not in his posed.-Oh! but it is said, your mouth is power to do it if the other does not think shut; you, in this instance received 2,6001. proper to let him do it. for doing it, therefore it is the duty of the These are the objections which strike me, office; and 'my learned friend affected not to to the verdict upon the evidence. It is my understand Mr. Scott's argument upon that duty, because I am so directed by the Court, head; I think I understand it, and I think it to say a word hypothetically, if the Court a considerable one; it is one thing to be the should be of opinion this verdict ought to duty of an office, it is another that a party, in stand, and that they ought to pronounce judge a particular occasion, undertakes to do it; my ment. In obedience to the direction of the objection, be it remembered, all through, is Court, I have this to say, and I confess I this: that this answer is not proved; that his have not the smallest expectation that there answer is not that Mr. Bembridge undertook is any man breathing, that has attended to. to do it, and did not do it; not that he had a the circumstances of the case, that will ever great sum of money for doing it, and did not feel a contradiction in his mind to what I am

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know it, that the public will never suffer either by the default of Mr. Bembridge or Mr. Powell, for there are standing securities for the balance of all lord Holland's accounts, amounting to upwards of 100,000l., upon landed security, the same securities that they stood upon at the time of lord Holland's death; it is perfectly clear, therefore, that the public cannot lose by this. If your lordship should be of opinion that it is wrong, that it is against principles, and for the sake of the public it is right to draw a line, Mr. Bembridge is unfortunate, in point of law he may be criminal; I have an affidavit in my hand, to offer to your lordship, which explains the nature of his business in the way I have shortly stated it. Lord Mansfield. You cannot read it.

Mr. Bearcroft. Then I shall not press it, but the fact is as I have stated, that he has been already turned in and out of his office, in the manner I have stated; that fact is extremely important, when your lordships have to consider of the guilt of omission in such a party.

about to assert; I say, if this is an offence, it is true it always was one, but it is newly found out: your lordships have sat with some degree of attention to consider the objection; -your lordships will take it, then, that this gentleman, at the time he was, I will call it, guilty of the omission, that he knew he was doing an illegal thing; in my apprehension, every offence which is to meet with the discretionary judgment of the Court, will be highly aggravated, if there are recent examples and punishments; there too the evil erample comes in very materially, as my friend mentioned; on the contrary, I contend, that it is a very great mitigation of an offence, if it has not generally been understood to be one, and there has been no example, demonstrating to the subject, that it is one, and has been so treated by courts of justice almost every topic of mitigation, every ground for mercy in judgment exists upon the present occasion that can exist. In point of law, shall it be said that Mr. Bembridge ought to have done this? What a situation was he in! he was to go to the auditor and say thus (he must have done it in a Lord Mansfield. Though the principle upon whisper, for no man could speak aloud), he which this prosecution is instituted, may be must have said this: My lord Sondes, I as old as the constitution, yet the specific suspect that this Mr. Powell, my old fellow case is new, and no instance, precisely and clerk, my benefactor intends mischief to exactly the same, is found upon the records the public;' he could not state it stronger. of Westminster-hall; therefore, it is not only I believe the fact, that Mr. Powell did me- important to the defendant, but highly imditate a fraud upon the public, and he had portant to the kingdom at large, that the facts not courage to go through with it, I suspect of this case, the evidence by which they are that to be the case myself; when we talk supported, the guilt which arises out of them, about the attestation, I wish to lay my idea and the law in consequence of that, so far as rebefore the Court, and with great deference Ilates to the present occasion, should be universpeak of it; I take it up from the ground where I ought to take it, that is the evidence in the cause; it stood in this way, that this was only a final account, in this sense of it, that it was the last book delivered, and purported to be the last book of account then given, but it was by no means a final account, and so said Hughes and Wigglesworth, till attested, which they explained to be, till it was finally put down, and the party attesting swore to it, and signed it with his name. It passed at the time of the trial; and the attorney-general so opened it, according to his instructions, that that was the final attestation; then what was the great crime of waiting a little longer than this time, and that he should not run, the first instant he could, with his suspicions? that is the whole amount of the crime. Another ingredient I mean to suggest; the discretionary punishment of the Court will be greater where public mischief has actually ensued, for these items were added to the account; the public can never lose a shilling by it; the public could never have got a shilling by his being earlier, for thus was the fact, and thus I think it appeared upon the trial; for if Mr. Powell could not pay immediately 68,000l., he was not likely to pay it immediately with the addition of 48,000l.; I have the pleasure to say, for I

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In oppos

not to be argued in that way, because, to be to the commissioners; it is impossible for any sure, my direction to the jury went upon the ingenuity in the world to torture it into a first count; the jury's verdict was found upon doubt; my business is to make up the ac.. the first count, and as to either of the others counts of paymasters out of office, as well as they never were considered, and therefore it the paymaster in office,' and it is impossible, inust stand or fall upon the first count. notwithstanding the pains that were taken, to

That first point is totally immaterial. The extort any other meaning for it, shows that second and the material objection, upon which it is not in human power to do it. the motion for a new trial is grounded, is an sition to this, it is proved that, in passing Mr. objection to the sufficiency of evidence to Winnington's and lord Chatham's accounts, maintain the verdict, that is, that it is a ver- the accountant took his fees, while others did dict against evidence. In behalf of the de- the business, which I fear is too often the fendant, they contend that there are two pro- case of public officers, and therefore proves positions averred in the charge, both which nothing; had they who took the trouble, remust necessarily be proved, but the proof, as ceived the accountant's fees, it would have to both, is defective. The two propositions been material. are, first, that the office of accountant was a Another objection made is, that it is not in place and employment of great trust and the power of the accountant to settle the acconfidence, touching the making up the counts with the auditor, because the pay. accounts of the paymaster, and the adjust- master may keep the books to himself and ing and settling the same with the auditor lock them up; that would have been a deof the imprest. The second proposition fence, if the accountant had been questioned is, that the defendant, contrary to the duty for not passing them; he is arraigned for not of his office and employment, knowingly, acting honestly in that part wbich it was in wickedly, and corruptly withheld and con- his power to do; if he can defend himself by cealed from the auditor the sums, stated in saying I could not do it, and gives proper the manner in which they are stated in the notice of that, it is a clear justification and information; and, most undoubtedly, both defence; but what would be the consequence these propositions were supporteil by evi- to the public if the paymaster were to do dence, or the verdict is not sufficiently that? The moment he told the auditor he grounded.

could not get the books, they would force the As to the first, it is denied that the office paymaster to produce them by legal process, of accountant is proved to be an office of pub- therefore that is no answer. Bangham swears lic trust and confidence to make up, prepare, that it is entirely, as he believes, at the option and settle with the auditors the accounts of of the accountant, whether he will make up the paymaster: it is allowed, on all hands, no the accounts of the paymaster out of ottice; money passes through the hands of the 'ac- if it is at his option, the defendant has elected countant, therefore his stipend, and the name and undertaken it from the year 1776, when of his office and employment, show that his he was appointed accountant; he has transoffice relates to, and concerns the accounts of acted every thing which has been done with others: and the evidence proved, to be sure, a the auditor touching the paymaster; when I great many other accounts to which his office say the paymaster,' I mean those accounts; related; there is no written constitution and when I say “the king,' or 'public,' I which enumerates the various branches of his mean the same thing. Touching the passing duty; what is his business, then, can only be these accounts, there is no evidence of any learned from what he has always done, and thing done by Mr. Powell, nothing was left been considered as entitled to do in respect for Mr. Powell to do but to attest, and as acof the profit arising from the gratification he countant the defendant has received of the may receive, or what he is bound to do in public money 2,6501., and his clerk has rerespect of the trouble. Hughes, the deputy- ceived 5001., craved, professedly and expressly auditor, swears that they always send their for the accountant, clerks, and under officers observations upon the paymaster's accounts, employed in drawing out and settling these acto the accountant to clear them. Upon the counts with the auditors of the imprest; though, 20th and 22nd of March, 1781, the defendant, besides this 2,0501. paid to the accountant, upon oath, in his examination before the and 5001. to his clerk, very large sums are comunissioners of accounts, swears that he craved for upper and under oficers in the carries on and makes up the accounts of the pay-office, of every denomination, who do paymasters in and out of office. Many ob. nothing at all; yet, it is under pretence of servations have been made upon this, some that business, which is, and can only be done of which I was sorry to hear, as an arraign- by the accountant. The duty of that capacity ment of the commissioners of accounts, under in which the defendant acted is very obvious; the authority given them by the parliament, though paid by the public, he was in the nato ask the public officers what their business ture of an agent to, and trustee for the king is; for this is all that is asked; it happens and the paymaster; he was to take all necesthe questions are not taken down, so it is a sary pains to inform himself, and being incontinued examination, and manifestly, from formed, as an honest man, he was bound to the state of it, giving an account of his office debit the paymaster with every just charge,

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one of 9001, and the other 4001., and Colborne, the defendant's clerk, brought back the book with those two items carried into the balance, though not inserted, and the balance struck in penciled figures, 68,000l. odd money.

The defendant did not examine Mr. Colborne to explain or qualify this transaction; and as it stands, it is not an omission, it is not a neglect, but a gross and actual deceit, if the defendant knew the truth; for the sending back the penciled balance, after all that had passed, was a solemn averment by him, that all was finished, and that the defendant knew of no error, no item, which ought to be surcharged or falsified.

The book of accounts was returned, to have the two items of 900!. and 4687. inserted: Upon the 4th of January, as is proved, Colborne, the defendant's clerk, brought back the book of accounts, with the penciled balance effaced, and no official mark, and with the items of surcharge in question, to the amount of 48,7997., and a fraction; all the additional items in the hand-writing of Colborne, the defendant's clerk; Colborne is not examined to explain how, or when, or why he drew out those items, and inserted them.

and give him credit for every just allowance; the first steps he must have taken, if he did his duty, were to see what accounts had been given in, and what had been done upon them; to peruse the pay-office books (he could prepare no account without doing that); and to get all the light and information he could from Mr. Powell, who had been accountant before him, and who was the party accounting; if he did so, and he did if he acted honestly and fairly, then he saw that all the accounts, eight in number, had been given in; he saw that the final account from the 25th of December 1764, to the 24th of June 1765, had been given in so long ago as the 11th of January, 1772; he saw that all the accounts, except the last, had been attested; he saw-for it is proved they were visible to be seen, he saw many items previously entered in the pay-office books, amounting to a large sum, with which the paymaster is not charged; he saw that these articles were receipts prior to the accounts attested, and I have already told you the form of attestation, This is a just and true account, according to the best of my knowledge and belief. If Mr. Powell knew of those items, I think there is no justifying his attesting the prior accounts; if he did know, and had a salvo any Upon the 15th of February, 1783, the dething like what Mr. Wilson suggested for his fendant, in his examination before the lords attestation, that salvo would equally do for of the treasury, owned that he was perfectly attesting the last account. If the defendant apprized of those additional articles, long premade this discovery, he could not avoid com- vious to the penciled balance being drawn municating it to Mr. Powell for an explana-out; and makes no excuse in respect of his tion; it is impossible, if he made the discovery, if he did communicate to Powell, and afterwards withheld the discovery from the auditors, consequently from the lords of the treasury and the parliament, but that his motive must be corrupt. That he knew of the omissions and studiously concealed them from the auditors is manifest; for, first, if he did his duty and looked at the pay-office books, he knew of the omission soon after he was made accountant; many years passed and nothing was done; at last, the account is upon the point of being closed, and upon the 15th of May, 1781, a memorial is given in for the allowances, by Mr. Powell, suggesting that the whole was finished and closed, and the order of the lords of the treasury is on the 1st of September, 1781, for payment of all that money, which was received by each of them immediately after.

In September, October, and November 1782, the deputy-auditors often attended the defendant, and pressed him peremptorily, to settle and close the account; the defendant said he could do no more in it, which was a representation that the account was just and true, according to the best of his knowledge and belief: he referred them to Mr. Powell, with whom it rested to do the last act, and finish the whole, by attesting it. If he knew of those items he could do more, because he was to add them to the charge; the account was sent to the defendant to insert two items,

not having full information for many years before; he admitted, likewise, he knew it was his duty to take care that all the articles to charge were included: he makes no excuse, but that he left all to Powell. Now, supposing him to have knowingly deceived and misled the auditor, consequently the lords of the treasury and the parliament, with this concealment, which is a material circumstance, the motive with which it is done, upon the evidence, could only be with a view to defraud the king, either of the whole sum, or of the interest during the time which it would be concealed; if upon the same salvo which warranted Mr. Powell's attesting the prior account, he had actually attested the last, the whole sum omitted might have been lost, but if that never was intended, the money not brought in lay dead, in respect to the public, while money was borrowed by the public at high interest, for the public service.

Universally at the common law, when a large balance appears due to the Crown, though the account is not finally closed the lords of the treasury may call for the whole or part, and inforce the payment of it, so far as the court of exchequer should think proper to be paid; but the situation at that time of a great part of it, was very particular, for an act passed in the year 1780,-long before these material facts happened, which I have been stating, which were at the end of 1782,

an act passed, the 20th of his present

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majesty, c. 54, for appointing commissioners, is given. There are many offices of a public of accounts, who, among other things, were nature that concern, in various ways, the to report what balances were in the hands of whole kingdom and the king as the executive accountants which might be applied to the part of the constitution, which are not given public service; another act passed in the directly by the king, and not given by letters year 1781, the 21st Geo. 3d, c. 48, reciting patent; many that have the grants of offices; the report from the commissioners, stating the lord steward has the grant of the judge of many balanccs, and among them the balance the marshalsea ; the lord chancellor appoints which appeared in the hands of Mr. Powell, the masters in chancery, and I have the apand ordering it to be paid into the exchequer pointment of a great many officers belonging on or before the 24th of October 1781, and to this court; and there is a precedent. in to be applied to the public service, this was

Vidian's Entries, * an information against the to be paid on or before the 24th of October custos brevium for so negligently keeping the 1781, and it is very remarkable, that upon records of the court, that one of them was the 22nd of March 1781, the defendant, in lost; had that been the steward of a manor, his examination before the commissioners of who had lost one of his lord's rolls, an action accounts, told them the only obstacle to the would have laid; but the duty of this office final adjustment of Mr. Powell's account, concerning the public, it was a matter of an was a dispute relative to the balance in the information, and yet the office was appointed hands of Paris Taylor

, one of his deputies, by the chief justice, not constituted by the which was an allowance claimed by Powell, king. and therefore was so far in his favour, and

There is another principle too, which I yet at this time he knew there remained a think applicable to this prosecution, and that great sum not brought in, which would in- is this; where there is a breach of trust, a crease the balance considerably in his hand, traud, or an imposition in a subject concernand knew of this act under which the com- ing the public, which, as between subject and missioners acted, and the purpose for which subject, would only be actionable by a civil they acted. Upon the whole, 'I think there action, yet as that concerns the king and the can be no doubt but that the jury had suf- public. (I use them as synonimous terms), it ficient evidence to warrant the conclusion is indictable; that is another principle of they have drawn by their verdict, as to both which you will make the application to the those material propositions.

present case, without my losing time in doing What remains is the motion in arrest of it. And there are some authorities; though judgment, and that comes properly after con

I should think the principle so essential to sidering the objections to the verdict, be- the existence of the country and the consticause in arguing the motion in arrest of judg- tution, that, without any authority, I may ment, we must take the facts charged in the fairly say the constitution would not exist indictment, and found by the verdict to be without it,,but I think there are authorities true; therefore we must find the two pro- that support that principle. So long ago as positions that I particularly stated, to be the reign of Edward the 3d, it was taken to true; the objection then is, ihat at most this be clear that an indictment would lie for an amounts to a breach of trust, a concealment; nature, to the prejudice of the king;

and

or concealment of a pecuniary a fraud of a pecuniary nature, which is a civil injury, and therefore not indictable; therefore, that in 27 Assize, Placito 17, it was that he is accountable,-an agent, a trustee presented that such and such had levied a that embezzles money, or by neglect suffers hundred marks of the county for the array it to be lost, is accountable,- for a civil of certain archers, which money had never injury, and not for a public offence; and come to the profit of the king; had this been farther, they add that there is no precedent between subject and subject, it would have exactly the same. The law does not consist been an action for money had and received; in particular instances, though it is explained that would have been no crime, but barely by particular instances and rules, but the keeping the money in his own hands which law consists of principles which govern spe- belonged to another; but concerning the cific and individual cases, as they happen to public, -concerning the king, --so long ago arise. Now, there are two principles which as the reign of Edward the 3rd, it was held seem to me clearly applicable to this prosecu- to be indictable. In first Rolle's Reports, tion; the first I will venture to lay down is, folio 2, lord Coke says, that either the col that if a man accepts an office of trust and con- lector for murage or any other, who collects fidence, concerning the public, especially when it is attended with profit, he is answerable to * See the information against Pagitt, this the king for his execution of that office; and custos brevium.-Vidian's Entries, 213. he can only answer to the king in a criminal + The following is the passage referred to: prosecution, for the king cannot otherwise • Et si cest corporation, ou le collector pur punish his misbehaviour, in acting contrary murage, ou ascun auter que collect ascun to the duty of his office, and that this holds chose pro bono publico, si îl ne ceo imploie equally by whomsoever or howsoever he is ap- . accordantment il poet estre indicte, come pointed to the oftice, by whomsoever the office est en 27 Ass, car la fuit deniers collectes a