he thought himself so; if he had thought Mr. Bembridge responsible, would he not have been happy to have referred them back to Mr. Bembridge? Would not he have said, why has Mr. Bembridge referred you to me? he is the accountant, it is his duty? he made no such reference back to Mr. Bembridge, and Mr. Hughes never went back to Mr. Bembridge, but the whole of the negociation went through Mr. Powell.

Upon these grounds, I hope that the first averment in the information, is not supported; if it be not supported, as your lordship told the jury, and have again said to-day, the other propositions will fall to the ground: but I hope, though it should be supported, that there are other considerations for your lordships in the present stage of the business; for there is another averment that he wilfully and corruptly concealed. Now it appears upon the evidence, as plainly as I ever saw any thing appear upon any trial, that all these items, which were not introduced into the charge upon lord Holland by Mr. Powell, were open to public view in the pay-office; every man saw them;-every man knew that they existed,-and when the witness was asked, why they were not introduced? Mr. Powell said the question was, whether lord Holland should ultimately be charged with them, because there were accounts respecting Paris Taylor, and until these were adjusted, he did not know whether he should be called upon to introduce them, as charges against lord Holland.

but from a man's neglect of his own duty. Unless, therefore, Mr. Bembridge was bound to do the thing himself, which Mr. Powell did not do, he cannot be subject to an information for not having disclosed this fraud, or the omission.--If, indeed, he was the check the public had provided; if being intrusted to make up these accounts; if, though it was his duty to make them up, he had intrusted it to another to do it, whose duty it was not; in such a case, whether he knew of the criminal neglect or not, he would be a criminal for having intrusted that to another which he ought to have done himself. Then, is there any thing upon the evidence that can warrant the court to say, that the jury have not done wrong in drawing such a conclusion? If it was the office of Mr. Bembridge, as accountant under any circumstances to make up these accounts, so that Mr. Powell could not make them up; if it was even criminal in Mr. Bembridge to suffer him to do it, what a number of criminals there must have been in this office, from its first institution! and if we should not be so happy as to persuade your lordships to give us a review of this cause, it will avail me at least to say, when I come to the other part of the subject, in mitigation of punishment, that he has only been doing that which the most upright men have constantly done before him-which lord Chatham did which Mr. Winnington did-which the auditor of the imprest suffered him to do—and which would have been a great breach of the duty of the public auditor so to trust the bocks, into private hands, if it was the official duty The items themselves, as they afterwards of the accountant to have made up this ac- were put in the balance, were open; every count himself; if every thing found on such person saw them; and how could Mr. Bemaccounts from which the public may suffer, bridge hope to conceal that, which there was shall be chargeable on an accountant, how not a clerk in the office who could not have incan it be in the power of that auditor of the stantly detected? and if I, or your lordship, imprest, without consulting him to deliver it were disposed to go into that office, there was to another? And, you see, the witnesses come not one of these charges that we should not here, and say, I accepted from Mr. Bem- have seen; but if you had asked Mr. Colbridge a reference to another, when I knew borne,—who, though he was clerk under Mr. it was criminal of me to do so. I left the Bembridge, was employed by Mr. Powell, man, who I knew was responsible to the and not by Mr. Bembridge, for that purpose, public, because the man who was so, thought-if you had asked him, why the items were ht to shove it off his own shoulders, and desired me to go to another, to whom we 'were not called upon to look!' I never can forget the distinction which I laid down, that if Mr. Bembridge is criminal for this misprision, he must have been criminal even if it had not been a misprision, he must have been criminal for the omission of the man to whom he intrusted it, if the public suffered for it: yet, in the whole course of the negociation with those persons who were called upon to animadvert upon this misdemeanor,-and which they niost undoubtedly were, if my argument is true,-not one of them ever said to Mr. Bembridge, you are referring us to another, to whom you ought not to refer us.' It is plain Mr. Powell thought himself responsible; there are many calamitous reasons why the Court will take it for granted, that

Lord Mansfield. Not upon Paris Taylor's consideration, because his accounts were questioned, as to what allowance was to be made and there was no relation to that. These items go to the discharge of lord Holland; Paris Taylor had nothing to do with

that.

that these items were kept back by Mr. | public issues money to a paymaster, the pubPowell, upon these considerations. lic expects from that paymaster, an account of the expenditure; but surely an officer of that magnitude is entitled to have an accountant and clerks, and to have several persons under him, who are, perhaps, entitled to have fees and perquisites; but still the paymaster, himself, is the responsible person to the public, and the accountant is not the check the public has imposed over him; it does not, in my humble conception, fall within the meaning of the word magistrate, nor is he that public man whom the law looks to for that particular responsibility; and although he might be subject to an indictment, if he refused the labour of making up these accounts, yet the question would still remain, whether he was answerable by indictment, or by information, for not giving intelligence of something that another person had done or had left undone relating to his own office? Now, none of the cases that have been cited by the gentlemen on the other side, at the trial, go this length. In the case of Mr. Leheup, it was an indictable offence; it was contrary to the form of the lottery act. In the case of Mr. Kennett there was a duty laid upon him by the statute, to read the riot act ; but suppose there had been no duty laid upon him by the statute, yet a man who is a common law officer, has a duty imposed upon him; what I mean is, that there is nothing specific in the duty of this officer, which can lead the Court to think that he is that official check upon the paymaster, and that he ought to have made up these accounts himself, so as to be answerable for the omission of another.

Mr. Erskine. Though the account of Paris Taylor had no relation to these particular items, yet it does not follow from thence, that Mr. Bembridge knowing there was something to keep the accounts open, was guilty of any wilful omission in not letting the public know there were these particular items; since the account was not closed, nor could be till the considerations of those items of Paris Taylor's account could be closed also. Therefore, it is evident that he had no corrupt motive for not doing that; for he knew there was an account, with respect to Paris Taylor, to a large amount, which was not finally settled; and as it was not known what allowance should be made to lord Holland, upon that account, he might naturally think Mr. Powell would deliver in those items as soon as the account of Paris Taylor should be finally settled. Nor is there any evidence to show that Mr. Powell could derive one farthing advantage from any such concealment.

Upon these two grounds, even if there were not a third, I should hope that your lordship would be inclined to grant this rule; but I shall certainly not forsake the ground that has been taken by my friends who spoke before me, namely, that this is not an indictable offence; and I am sure, that I should be the last man in the world to stand up to contend in any court, much less in a court filled as this is, that any person trusted by the public, either by the general imposition of the common law, or by any statute, any magistrate, in short, who has a name, or an existence in the constitution of the realm, be he what he may, should not be subject to an information, or to an indictment for a criminal neglect of duty. I certainly shall not contend that; my only reason, as my learned friends have contended before me, and in which I shall follow them, is, that Mr. Bembridge does not appear to be such an officer, or such a magistrate, as either the general law of the country takes any cognizance of, or by the specific institution of any statute. I think, to make this an indictable offence, they must maintain, not merely that the manual labour of making up these accounts was thrown upon him, as a clerk in the office, but that he was the official check; that the paymaster was not the person looked to by the public,-that he was not the person who was responsible to the public for the rectitude of his own accounts; whereas the office of the paymaster is a most important office, he is appointed by patent, and then he is an officer that the law takes notice of; and when the +

The sum of 2,600/. seems not to me to be considered as any salary paid by the public; it is part of the account of the paymaster; it is deducted from his funds, and is distributed, not only to the accountant, but to all the me nial servants in the office; the paymaster is the person who pays it, and it seems that the paymaster being responsible to the public, he has a sum of money issued to him, out of which he makes these deductions. Supposing the accountant and paymaster to be two distinct persons, and that the accountant is not subordinate, but superior to the paymaster, which he ought according to the information to be, if he is a check upon him; then certain sums of money would be issued to the paymaster, and certain sums to the accountant, for performing that duty; whereas he is considered as subordinate, and certain sums are deducted out of the paymaster's account, according to the abuse (as it should seem to me) of office; therefore, I should hope, that your lordship will not conceive this to be an indictable offence.

It does not appear by the evidence, that it was Mr. Bembridge's official duty to make up and adjust these accounts with the auditor of the imprest; and it not being his official duty, he himself could not be answerable for

an omission in another,—inasmuch as there Lord Mansfield. I do. can be no misprision in the English law, ex- Mr. Beurcroft. I am not prepared with be cept in treason,- for another person's conceal any thing of that kind, in mitigation. ing a thing, omitted to be done by another, Lord Mansfield. Have you any wish to 2:36 which it was his duty to do himself.

have an opportunity to make affidavits : you But inasmuch as your lordship has said,' can say, yes or no; or that you cannot tell. that we ought in this stage of the business, to Mr. Beurcroft. Most undoubtedly we 24 consider what the discretion of the Court shall wish to do so, in case we are brought 22 km would dictate as a punishment if we shall up for judgment.

W.B have been so unfortunate as not to prevail in Lord Mansfield. If the Court should be the objections we have taken to the verdict. ' against you, upon all your grounds, I conIn that case I am sure we may safely rely sider you as brought up for judgment most *** not only upon the humanity, but even upon undoubtedly. Mr. Solicitor General, it is the most rigid justice of the Court, when the impossible to go through now, I see another * sentence is to fall upon a man, not only re- gentleman starting up, upon the same side; L. spected and beloved in his private life, but besides we shall have such a noise presently, who stands upon the evidence as a most in- you will not be able to be heard; and there is telligent and faithful servant of the public for are other motions; I propose to adjourn this a long series of years. Under such circum. till Saturday; have you any objection, that, ştances, your lordships will not suffer any, in the mean time, the defendant should conconsideration of the prevalence and the dan- ' tinue as he is, that he should not be comger of abuses in public offices (which, pro- mitted ? bably, led astray the jury in forming their Mr. Sol. Gen. I have no objection to what a conclusion) to affect your more calm and deli- ever the Court may think right to be done. berate judgments if his offence is not tainted Lord Alansfield. This is a matter of conwith the corruption imputed to him; and it sent; he comes here voluntarily; he is under is quite impossible the Court can believe that no bail; the consideration is, whether you if he had been conscious of even criminal consent? neglect, much less of a foul and sordid mis- Mr. Sol. Gen. If your lordship puts it upon demeanor, he would have spontaneously me, I do not think, in a matter upon which poured out a laboured accusation against the public eye is, and ought to be directed, himself before inquisitors who had no right that it would become my situation to consent to demand froin him any adınissions, which that Mr. Bembridge should go without bail; could criminate himself. "God alone can look but if the Court see no objection to his being into the hearts of men, but judges have a upon bail, I have no objection to that. constant recourse to the most lenient con- Mr. Blake. We have bail here. structions of human conduct when they sit in Lord Mansfield. Let the defendant give judgment upon their fellow-creatures'; and bail for his appearing here next Saturday, and even when they are brought to the most at such farther time as the Court shall direct; manifest conclusions of guilt, however hei- himself in two thousand pounds, and two nous, administer justice in mercy. I am sureties in one thousand pounds each. Mr. aware that a solemn duty is cast upon Solicitor General, if you had not consented, your lordships when you are executing the the Court must have committed him. laws, that guard the public revenue above all in times which call loudly for its sup- directed by the Court.

The proper officer took the bail as above port; but in a case like this, even the officers of the Crown, who are its guardians, Mr. Adam. If I were confident that I will feel themselves justified in leaving to the could add any thing to what has been said Court the full measure of merciful considera- by the Icarned gentlemen who have pretion, which it is always so pleasant to your ceded me, to give weight to the arguments lordships to exercise-but I conclude with ex- that have been urged,-especially when I repressing my hope, that the painful duty of flect I am called here, rather unprepared upon punishment will be spared altogether by your the subject, from an apprehension it would finding that there is no guilt in the defendant not have been gone into to-day,,I should to be punished.

bave requested your lordship, standing as I do, Lord Mansfield. I take it for granted, Mr. very young in a Court of justice, to have Bearcroft, that you have no intention or wish postponed to another opportunity, my delito file any affidavit.

vering any argument or sentiment upon this Mr. Bearcroft. I was furnished with an subject; but, as by that means, I should only affidavit; but I had some doubt whether make myself more responsible to my client, we could make use of it in this stage, because without adding any thing, perhaps to the it goes to contradict the evidence given. points that have been urged, I shall take the

Lord Mansfield. When I asked the ques liberty of stating, very shortly, what has oction; I meant those sort of affidavits that are curred to me upon this subject. commonly made in criminal cases; whether you have any wish?

* It being lord-mayor's day, and the lordMr. Bearcroft. I do not consider the de- mayor then in the hall. fendant, now, as brought up for judgment,

It has been stated by your lordship, that cess whatever, to compel him to make out the first question at the trial was, whether it those accounts; that if there is any neglect was the duty of the accountant at the pay-whatever, in making out those accounts, the office, to make up the ex-paymaster's accounts. That you stated to the jury, that if they did not find it to be the official duty of the accountant, at the pay-office to make up the ex-paymaster's accounts

Lord Mansfield. Mr. Bearcroft, I meant to direct, that if you had any affidavits, that you would be prepared with them on Saturday; you understood that?

Mr. Bearcroft. I did.

Mr. Adam. That if the jury did not find it to be the official duty of the accountant, to make up the ex-paymaster's accounts, it would be incumbent upon them to find the defendant not guilty; but if they understood it to be the official duty of the accountant to make up the ex-paymaster's accounts, then, to find him guilty. To that point, I shall beg to make one or two observations.

process issues from the exchequer, not against the accountant of the pay-office, but against the principal accountant himself, the paymaster out of office, or his executor. When I consider that, I think it fortifies this argument that it is not the duty of an accountant of the pay-office, to make up the accounts of a paymaster out of office.

evidence that is adduced to show he took that duty upon him, was not, I apprehend, warranted by the information; and, there fore, ought not to have had any effect in this cause.

Then the case reduces itself to this, that if it was not his duty, he took it upon him, first of all, by acting in that capacity by the orders of Mr. Powell, and afterwards by receiving a sum of money for having done that duty. Now, let us refer to the state of the information upon the subject, and I apprehend your lordship will find that there is not any count whatever in the information, that states it as a duty that he himself took upon him, for which he was to be rewarded, for which he First of all, the proof that was brought, actually was rewarded, and of which he comthat it was the duty of the accountant to mitted a breach; there is no count to that make up the ex-paymaster's accounts, was purpose; the information confines itself from the accountant's own confession, in two merely to its being his official duty, as acdifferent places; first of all, from his confes-countant of the pay-office; therefore, all the sion upon oath before the commissioners of public accounts; and secondly, his confession before the lords of the treasury. There is a material difference in his account at these two places; for in the place where he was examined upon oath, and had warning that I will venture to state another circumhe was to be examined as to the duties of stance to your lordships, which strikes me his office, he merely states the point of fact, as very material in this cause,-as a very that he did make up the accounts of the pay-strong evidence, that in spite of Mr. Bemmasters out of office, and that he was, at bridge's declarations before the treasury, that time, employed in making up the ac- made in the manner which I have already counts of the paymasters out of office. In stated to the Court, that he actually did not the other situation, where, from the circum-conceive it to be his official duty, nor did the stances of the case, he was necessarily and deputy-auditor of the imprest conceive it to naturally agitated, when he had not time to be his official duty, to make out those acrecollect himself particularly, when the ques-counts.-When Mr. Bembridge is spoken to tions were put to him in a style to extort from him a confession which he did not mean to make, he states it, there, to be his duty to make up the ex-paymaster's accounts. Then in such case I conceive, if we can produce proof that this was no part of the duty of the accountant, this confession, extorted in such a manner, ought to be taken with such grains of allowance, as to have induced the jury to rest their judgment of the fact upon what was said before the commissioners of accounts, and not on what was said before the lords of the treasury. I do think, that what has been said by the learned gentlemen who have gone before me, with respect to the duty of this office, is perfectly correct; that it was no more than this, that he was bound, manually to make out that by order of the ex-paymaster, if he chose it; but the ex-paymaster had it in his power to put that duty into the hands of another person; therefore, I conceive it never can be taken to be an essential official duty upon his part, especially when I join to that this circumstance, that there is no proVOL. XXII.

by Mr. Hughes and Mr. Wigglesworth, relative to the giving in these items, and making up and passing the account, he refers them, as has been already stated by the learned gentlemen who preceded me, to Mr. Powell for that purpose; these gentlemen never returned to Mr. Bembridge; they never conceived it to be his official duty; he never states it to be so; and they rest perfectly satisfied with his answer upon the subject. Therefore, though he stated in his examination, that he did make out the accounts of the ex-paymasters, and though he did make out the accounts of lord North and others, yet that does not stamp him with being authorized officially, and consequently responsible criminally for a duty which belonged to that office of accountant of the pay-office : it remains, no doubt, for an information to be brought against Mr. Bembridge, for the purpose of charging him with having taken upon himself a duty which he did not execute faithfully, and evidence may be brought to that point perhaps upon a future occasion;

I

but I take it for granted, there is not a single comes the act of parliament, and directs those count, in this information, that proves the balances to be paid into the Exchequer, in point attempted to be proved, that he was which, my lord Holland's balances are menresponsible for making up the accounts of tioned. the ex-paymasters.

I shall, with the same degree of want of Proceedings in the Court of King's-Bench, preparation that I had upon the other head,

November 22nd, 1783. say a very few words relative to the mitigation of punishment. If your lordships consider the Lord Mansfield. I will, for the sake of the situation Mr. Bembridge has been in; "if you bar and of the auditors, state the contents of consider the manner in which he was proved the papers produced, which before I only just upon the trial, to have acted during every part mentioned. All the accounts given in on of his preceding conduct at the pay-office; if the part of my lord Holland, were produced you consider the respect he has been held in in court; but to save trouble, a paper was by all who knew him; if you consider the read, containing the dates when they were fidelity with which he has always acted;-1 given in, and when they were attested, and the conceive your lordships will (if we should period of time which they comprised, and I ultimately fail in the application for a new think it proper to state to you an account of trial) render the punishment very, mild them. against him, if you add this very material cir- The first account was from the 25th of cumstance, that the public has not been June, 1757, to the 24th of December, 1758, injured, in any one iota, by what he has done; which was given in on the 17th of May, 1768, that the account could not have been made and attested upon the Srd of November, 1778; up sooner, even if he had done what he has a like account, from the 25th of December, said he thought to be his official duty, by 1758, to the 24th of December, 1759, was bringing forward those items, at an earlier given in upon the 28th of July, 1768, and period of time; that that account could not attested upon the 7th of March, 1772; a like be made up sooner; that the balances could account, from the 25th of December, 1759, to not be paid in sooner; that he, and the the 24th of December, 1760, was given in on persons connected with him in office, received the 30th of March, 1769, attested the sih no benefit from that concealment;—when you of March, 1773; a like account, from the consider these circumstances, that he acted 25th of December, 1760, and ending the 24th agreeably to what he thought the duty of of December, 1761, was given in on the 12th his office; that he acted as others had be- of July 1769, attested the 4th of March, 1774; fore him; that if there has been any abuse a like account, from the 25th of December, in this office, he did not introduce it; there- 1761, to the 24th of December, 1762, was fore I conceive your lordships will not inflict given in on the 15th of December, 1769, a severe punishment upon Mr. Bembridge: attested by Mr. Powell, on the 21st of Decem: that if you cannot set aside the verdict that ber, 1774; a like account, from the 25th of has been given, you will, at least, cause the December, 1762, to the 24th of December, punishment to be as mild as possible. 1763, was given in on the 27th of October,

Lord Mansfield. Are there any books, any 1770, attested by Mr. Powell, the 27th of directions given about the paymasters' paying June, 1775; a like account, from the 25th of in their balances ?

December, 1763, to the 24th of December, Mr. Sol. Gen. Directions have been given 1764, was given in on the 7th of May, 1771, for paying in the balances remaining in the attested by Mr. Powell, on the 27th of Fe hands of different persons.

bruary, 1776; the final account being half a Lord Mansfield. Do you know, Mr. Cham- year from the 25th of December, 1764, to the berlayne, whether there are any regulations 24th of June, 1765, was given in on the 11th by act of parliament?

of January 1772, never attested; this is the Mr. Chamberlayne. No; there have not been | last and final account, which was with respect to this office.

attested. The defendant came in as Lord Mansfield. Do you know whether countant, in the year 1776. The next paper, any of the acts give directions about paying I think particularly proper to read to your in balances ?

contains the additional articles with which Mr. Chamberlayne. There is an act direct the accoumt was surcharged, after the book of ing balances to be paid in, pending the accounts with the penciled balance was sent accounts, upon an examination taken before to the defendant, and returned by bim the commissioners of accounts; that act has besides three new items surcharged, and the passed within these two years.

two items which the book was sent back to Lord Mansfield. I mean a general act? have inserted, that is, of 900l, and 4651. there Mr. Chamberlayne. No.

are inserted the articles in question, amount Mr. Adum. That act passed the last session ing to 48,7991. and a fraction; and it is ma of the last parliament.

terial to state when these items were received Mr. Chamberlayne. It was but two sessions they were received in 1759, in 1760, 1761 ago. Upon the commissioners reports, stating 1762, 1763, 1764, and the last was in 1765 balances of the several accountants, then 90, you see, that the times when they were

never

ac