received were far antecedent to the former accounts, many of them; and all of them, before the final account was given in, which was in 1772. The warrant for the allowances to be made to the defendant, I have stated to you. The form of attestation is a matter of law and practice exceedingly well known, they go before one of the Barons of the Court of Exchequer, and the form is this: they say, upon oath, before one of the Barons,- This book,' (or so and so, describing the account) is a just and true account, to the best of my know'ledge and belief." I thought it necessary, for the information of those who are present, to state these papers more particularly than I did the other day, upon the report. Now you will please to go on. Mr. Att. Gen. [John Lee]. My lord; I am called upon to show cause against an application made by Mr. Bearcroft on the part of Mr. Bembridge, which involves in it, as I conceive, two or three rules. Besides an address to your lordship upon the effect of what the judgment ought to be, if the court should be of opinion that upon the circumstances of the case they must give judgment for the crown, a great part of the argument of the learned gentlemen went, as I conceive, in arrest of Judgment upon this information. There was a motion for a new trial, and there was also an address to your lordship, in mitigation of the offence. My lord, the first matter in order, as it seems to me, is the motion in arrest of judgment; for my learned friend, Mr. Bearcroft, contended very seriously, and so did all the gentlemen after him,-that the offence, as charged in this information, is in point of law, no crime at all. My lords; Mr. Bearcroft observed, at the outset of his address to the Court, that the drawer of this information had varied his charge in different counts of it so much, that though it contains, seemingly, some serious charge upon Mr. Bembridge, yet before the close of the information, it is almost dwindled to nothing. Your lordship knows the manner in which these informations and indictments are drawn, is, that in the first count, they state with great particularity, all those facts and all those circumstances which it seems are necessary to be proved in order to make the person answerable for the crime, supposing in truth, in point of law, it be a crime. All this preliminary matter, stating for instance, that lord Holland was paymaster; what was the nature of the office; and that it was a patent office, and the like, which, by-the-by, my learned friend, Mr. Scott, took notice, in the argument, was not proved, or did not appear: Your lordship will recollect, they were all distinctly proved, or the papers, being in court, were admitted by Mr. Bearcroft, and taken down as read, every fact, and every date. Then the fact stated is, that Mr. Bembridge was in the office of accountant to the pay- a a penalty, and had not returned his warrant, officer; is a mere clerk, removable at pleaner made any return, or certificate at all; sure. I think several of my learned friends the defendant was found guilty, and the in- said that because he is removable at pleadictment removed by certiorari. The second sure, he is not punishable for misbehaviour, point* resolved by the court, is this, that | till that pleasure coines; that principle will where an officer neglects a duty incumbent go a very great way indeed. Your lordship on him, either by common law or statute, he knows that some of the most important of is, for his default, indictable : then he says, fices in the kingdom-some that are now, in this case, the indictment was not laid that always were, and probably are like to contrà formam statuti, nor need it have been, continue places during pleasure, during the though the constable had been named in the pleasure of the crown, at least; did any statute, because the constable is an officer of body ever hear that a judge was not impeachcommon law, and when a statute requires able or punishable for misbehaviour, in his him to do what, without requiring, had been office, before the statute of king William gave his duty, and he must have done, it is not him a tenure in his office? or that it altered, imposing a new duty, and he is indictable at in any degree, his responsibility to the public common law for it. I know, my learned for that which was improper conduct? Can friend will say to this, that I have selected any body contend that there is any difference an instance, in which the general principle between that situation now and what it was was laid down, that that was one of the in- then; or in the situation of a person in the stances in which he admitted the law to be ottice I unworthily hold, that it' I misbehave as I have stated it, but the same principle in my office, because I am removable at runs through every case, even where it does pleasure, that I am not responsible? not admit of that argument. But it is said, this is not such an office as : In 2 Lutwyche, 1523, Wilkes versus Kirby, that the defendant has any thing to do which it is said, that even if a man has a port be- this information supposes. Now, for a molonging to him, and if he did not repair it inent, let us see how the evidence stands; that he may be indicted for not doing it, be- Mr. Beinbridge has instructed his counsel cause it concerns the public. There is ano- now, to be sure,—and it is natural that he ther instance in Comberbach, 243, where should,- there is no imputation upon him, it is said, a woman was there indicted, for that he should instruct them to stale that for that she being duly required to watch and him, which should answer the purpose of a ward, she did not watch and ward; there was convicted criminal. Let us hear what Mr. po objection to this as an indictable offence; Bembridge says of himself, before he was but the indictment, it is said, was quashed, charged, when he was examined beture the because it did not say–nor procure one to do persons who had a competent authority to it for her—which, says the Court, she might, examine him, and when that examination too by law, have done. I do not find an inti- was solemn and upon oath. Mr. Bembridge mation of doubt about this, in any one book, is asked what he is? Why, says he, I am or in any one author; your lordship will find accountant in the pay-office. What is your it laid down in Lord Chief Baron Comyns + duty ? Why, says he, I make up the accounts, as a general, universal principle, that an in-1-This examinant saith, that'he carries on formation will lie against any officer what- and makes up the accounts of the payever, that either abuses or neglects his au- ' masters after they are out of otfice, as well as thority ; I take it, there can be no doubt at those of the paymasters in office.' Now, that all about the principle. is the account that Mr. Bembridge gives of Thus much (and more than enough I his own office, and of the nature of it, should think) I thought it necessary to say solemnly upon oath. Would Mr. Bearcroft, to your lordship upon this idea: but your and the other gentlemen, persuade your lordlordship threw out, that there was no occasion ships that he did not know his business, or for precedents, that it was as clear upon prin- his duty, or his eniployment? Or did he mean ciple as any thing could possibly be made to to say, for so my learned friend, it seems, be. If we were to look into any common- means to contend,- Why, I allow that I do place book, under the head of non-feazance it, but I have no business to do it; I in any public officer, we should find there a am paid for it 1501. a year, as it appears, constant set of principles; that where a man and 1,300l. in perquisites, besides the promisbehaves, does that which he ought not to digious sum he was paid for this specific do, or omits to do that which he ought to do business, which was never done, 2,6501. ? in any public station, in which the public But I do not mean, says my friend, in this, to is concerned, the proper remedy is by in- describe the nature and the duty of my office; dictment or information. But it is said, Mr. but I only tell them what I do officiously, in Beinbridge is in no trust at all; is no public the popular sense of that word, without any reference to my duty, voluntarily; sponta* This case of Reg. v. Wyatt is reported neously I do make up the accounts of the at length in 2nd Lord Raymond, 1189. See paymasters in office, as well as those who too Fortescue, 127. are out of office; but, in truth, I have no busi + 4 Com. Dig. 398. ed. of 1800. ness, I have no employment, I have no dute at all. It is impossible for any man who years ago, what do you come to me for? reads this, not to be impressed with a notion Finding this, and knowing this, for the first that Mr. Bembridge is telling these gentle- time these omitted articles are introduced, men what his office and duty is; if you want amounting to this large sum; as soon as this the man who is to make up the paymaster's is seen, Mr. Bembridge is called upon himself, accounts in office, and those who are gone to explain this; and, to be sure, my lord, out of office, I am he: but, says my learned there may be some censure, there has been friend, I admit, that in general, it has been some censure thrown out upon the subject, done by him, but there are some exceptions; which, if it lights upon any body, in my apin the case of Mr. Winnington and lord prehension, ought to fall upon me; for cerChatham, who chose their own private peo-tainly, if the evidence was what has been ple, and not the accountant, to make up their accounts; I think, there was nobody who was able to state, as far as I recollect, at the trial, what became of the fees in the case of Mr. Winnington: Lord Mansfield. Yes; they went to the officers. Mr. Attorney General. I understand they did in lord Chatham's, and they did too, now I understand, in Winnington's; what does the fact turn out to be? Why, that the officer was paid for neglecting his duty, and permit ting another man to do that which it was his own duty to do, that is the whole amount of the evidence. Upon what pretence did he take this fee for another man's work and labour, if it was not his duty to do it? If they had come to 500l. or 6007., and the man whom Mr. Winnington or lord Chatham had employed, had taken the money, this man would have brought an action for money had and received to his use; he would have said, if Mr. Winnington has a mind to employ you, I have no objection to your saving me the trouble, but I will be paid for it, for I claim it as part of the perquisites of my office; if you do not do it, I am bound to do it; and though you do it, you shall not be paid, for I myself in the situation of accountant have a title to do it, have a title to be paid for it, and no man coming in officiously, being desired by the ex-paymaster so to do, shall deprive me of the perquisites and salary of my office, merely because he wishes to save me a little trouble. In this case, what is strongest of all, Mr Bembridge, acting in this business, is applied to, from time to time, as appears in the evidence; your lordships will recollect how that came out; for in fact, as has been just now stated by the papers, your lordships see here has been a failure of the production of this sum to the public, for now many, many years, it was unseen and unsuspected, on account of the negligence of these officers; there had been an order, in consequence of an act that had passed, for bringing in balances; orders were sent by the solicitor of the treasury, to the sub-accountants, to pay in their balances; the necessary consequences of that order would be, that all those men, whose sums constitute those items, that make up, in the whole, 48,000l., would be instantly applied to; the answer they would have returned would be this: why, I owe the crown nothing; I paid it in to the paymaster two, four, five, six represented, reprobated particularly as it was by my learned friend Mr. Scott, I think, as a public prosecutor, some degree of blame falls upon me; but I cannot say that I feel much upon that head: what was the consequence of this? They find the sum of 48,000l., that ought to have been returned years ago, and it is now, for the first time, introduced; why, says he, Mr. Bembridge, how comes this about? Pray were you aware, at the time that this final account was sent, and as a final account to the auditor of the imprest, that none of this ought to be included? Yes; I was perfectly aware of it.-Why, had you any notion that any of the articles were of that doubtful nature, as to make it questionable, whether they ought to be inserted or not? Not the smallest doubt about any of them.Why, then, how came you to do it? Why, I left it to Mr. Powell, and I thought but little about it; besides, I considered the account as not finally settled. That is his answer. Now these questions, and the answers given to them, are stated, truly, by my learned friend Mr. Scott, as more like the proceedings in the inquisition than any thing that has happened in modern times. I formerly read the history of the proceedings of that court, and confess I was much surprised to find this assimilated to them, for it is the case of the conduct which every private man, in consequence of the duty owing to himself, to his friend, or the public, either would, or could not but have pursued in the like case. I am perfectly sure, that if my learned friend had had a servant whom he had found reasonable ground to suspect had purloined any thing, he would have said, how comes this? Did you know that my things were in your box? Yes; I knew it very well. Where is there any thing very oppressive? If Mr. Bembridge had been won upon by any insinuation; if he had been seduced by any artifice; if he had been cajoled by any promise; if he had been intimidated by any power; then I should have thought there would have been matter of imputation on the proceedings in this inquiry; but there was nothing of that sort. The question was asked, how comes this about? and he tells them, why, I know that perfectly well. It amounts to this; I do not pretend to have been active in the discharge of my duty; I know I did very wrong; I had some little leaning to a brother officer, and trusted Mr. Powell would see it all right in time, and, in truth, I was perfectly well aware, that when I did it, I did wrong, when I did not do it, I omitted to do my duty. It seems to me it is not possible for any mortal man, to produce evidence in any case more decisive, that the duty was not performed; equally decisive at the same time, that it was not performed, voluntarily, knowingly, and with the most thorough consciousness that, at that time, he was doing wrong. My learned friends seemed to intimate that it was but an offence of omission at the most, and therefore was not very criminal and deserving of very severe punishment. I confess, myself, that it strikes me, that in any state of a country, but I am sure in the present state of our own, this sort of thing can not be treated as a light matter. It was ob- | served, and it was observed very truly, that Mr. Bembridge had an exceeding good character, as ever man had: my lord, I never heard any thing against it, but this fact; and I should be very sorry to deprive him even of that consolation to his mind, that may arise from the consciousness, that in every instance of his life, except this, he may have deserved the good opinion of the wisest and the worthiest man in life; that may be a great satisfaction to him, but it is no argument to the justice of a country, upon a matter clearly made out by evidence, that my learned friends hardly attempted to observe upon: they did not deny the accuracy of the representation, Mr. Bembridge does not deny it, I will venture to say, that he would not. There is an affidavit, I find, but he will pay a great deal more attention to the character he has hitherto had in life, than to say, that (however well he behaved) after the evidence in this case, he could think, in his own mind, that he had behaved well in this instance; it is impossible. Then, this being a fact undoubted, and confessed by himself, proved beyond a possibility of doubt, Mr. Bembridge has received, in his pocket, for this very thing which my friend says is a non-entity, which nobody can tell what to make of, -an accountant is nothing at all, he is here to-day, gone to-morrow, verbally nominated, verbally dismissed, is entitled to no profits, and liable to no duties or obligations.-Mr. Bembridge, in a paper which was given in evidence, in which there are cravings for all the business done on the score of all these accounts, naming all the officers, with the particular sums annexed to each, and signed by himself too, there is to the cashier, Mr. Powell, 2,6501.; accountant, Charles Bembridge, 2,650l. signed by himself; and then go through all the clerks to the lowest clerk in the of fice, and they divide the sum of cravings among them; in that proportion this 2,650l., was paid for this very thing that was not done; so, it is plain, that he received this sum for settling those very accounts, upon which he now rests his defence I did not settle 'them; I have been paid for them, it is true; but I never did settle them; I was not bound to settle them; I have no duty; am a mere servant; in no public responsible situation or station at all; therefore, though I did pocket this money, yet, I neither admit to have any obligation upon me, nor is this any evidence that I had any obligation upon me to do this act;' that is too much, I conceive, to be heard in any court of justice. Mr. Erskine, in arguing for this gentleman, said, 'I do admit that the paymaster may be guilty of a great offence, indictable, in appointing negligent people to do the work. Why, my lord, if that be so, and to be sure, if he did it knowing that they would be negligent, he certainly would be indictable; but it would be a strange thing to say, that a man should be indicted for appointing a negligent person to do a public duty, and that the very person, himself, who neglects to do the duty, and is in the office and station, should not be indictable for not doing it; that would be a singular proposition, that a man put into the of fice for doing it, stating himself to be that officer, and that person shall not be punishable for not doing that duty that it was incumbent upon him to do, when another man should be indictable for ordering him to do it, if he omits to do it; and admitting that, seems to me to be admitting a great deal more than is necessary for the maintenance of this prosecution. My learned friend, stated, I believe, in one part of his argument;-but I am rather inclined to believe I misunderstood him;-I thought he meant to state, that if any one of these counts were not sustained by proof, that this not being good in point of law, that this being a general verdict, the whole prosecution would fall to the ground. I take the contrary of these propositions to be perfectly clear; I have always so understood; I shall not cite any cases or authorities about it, because I take it to be a settled principle, there is good reason why it should be otherwise in the case of a civil action, where I take it, that if there are a number of counts Lord Mansfield. I have always doubted that. Mr. Just. Buller. It is only in one species of civil actions; I don't take it universally so in civil actions; if it is an action upon the case where you can recover nothing but damages, it is upon this ground, because, if a general verdict is found, the Court cannot take upon themselves to say upon which count the jury have given those damages; but, suppose an action for debt, where each demand is specific, and there is a verdict, if four or five counts are bad, they may give judgment upon the rest. Mr. Attorney General. I have known it in cases of slander, where one count has been thought not to be actionable; if there is a general verdict, it is conceived, if one count is bad, all the rest will fall to the ground. I should rather have thought there was more reason in this, that a general verdict, which finds the whole, finds all the parts, and if there are any of the parts good, the party shall have his remedy; I should have thought it would be more reasonable and sensible so to argue: but in criminal cases I take it to be good, the proposition involving no more than this, that this gentleman was in a public station, which is proved, which he has not denied; that it was his duty to do it, which he has not only said, but sworn that he did not do it, which is confessed by himself; and that it is a matter of public trust and confidence, because it respects no private man; the paymaster cannot appoint him as a private gentleman, it is derived from his public office, just as much so as any officer your lordship would appoint in your judicial character here, which could not be appointed in your personal character, if the judicial character were at an end. So it seems to me, there is no dif. ference between the one count and the other, that this man being in a situation, to which a public duty is annexed, has not done it, but has very wilfully and injuriously neglected to do it. upon, than here; what that may be, I submit to your lordship, in general, praying the judg ment of the Court. Sir Thomas Davenport. I am, of counsel on the same side; I think it my duty, to state to the Court, any observation that occurs to me as essential in this prosecution; and, if I rightly understand the objections, and the form in which they are made, the first is, that Mr. Bembridge is no officer accountable at all, but if he was, that the account was not closed, not finally closed, and, therefore, this information is not made out; but, thirdly, if he was an officer, and if it were contrary to the duty of his office, and a closed account, yet, it is not indictable, and therefore, not liable to this prosecution by information. As to its being an office, and he being the officer, as these matters are involved in the same question, I would only state to the Court, the first description of himself, and his office, upon oath, under an act too, as it was said in the case of Leheup, that he became a statute officer in the case of lotterytickets, that it was his duty, under that act, to have done directly contrary to what he did do. There were commissioners, by an act of parliament, appointed to examine and state the public accounts of the kingdom; they cannot take, examine, nor state the public accounts without going to the officers, who are the sub-accountants, or the original accountants; they go to the pay-office, the first person is Mr. Powell, as cashier; then Mr. Powell, as cashier, upon his oath, gives them the account to enable them so to examine, to take and state to parliament, and to the public; and the next person they come to is Mr. Bembridge (this is under act of parliament too) the title is, 'The examination of Charles Bembridge, esq.; accountant to the Your lordship desired the whole case might be gone into, that they might offer what could be in mitigation, as well as on a motion for arrest of judgment, and a new trial. I have always thought when a person has been tried before a Court and a jury, and comes up for judgment, that it is not a very becoming thing for the officers of the Crown to press for any specific punishment; I believe, in former times, it was done; there was a good deal of indecorum when it used to be, I mean in very bad times and very remote ones, when the judgment seemed to be little more than what the Crown officers prayed; but that, thank God, has not been the case a great while, and I am persuaded, from what I know of the Court, and what I know of my-paymaster-general of the forces;' when he self, that the criminal is, for the public as well as for himself, in far better hands in the court, than in any other. Your lordships know what sort of an offence this is; of how dangerous an example; and what an encouragement it will be in a country that has offices out of number, and duties as various as the stars of heaven, vastly complicated and extensive, and of various importance to the nation, if an offence, to this amount, were either to meet with impunity, or with a trifling and small animadversion; it would certainly be a great encouragement to people to do the like; and if it were, it would operate to prodigious burthens upon the subject, and in the end, to great oppression, and perhaps persecution to private per sons. What your lordship may think to do with the gentleman, I cannot say, nor have I any wish about it; I am persuaded, your lordship will do what you think right; and I am sure nobody in the world, will conceive that there can be a tribunal where that right is more likely to be seen, to be fully discovered and acted t is examined, he says, I carry on and make up the accounts of the paymasters, after they are out of office, as well as those of the paymasters in office; the only obstacle to the final adjustment of the late lord Holland's accounts is, a dispute relative to the balance in the hands of Paris Taylor, one of his deputies, the final adjustment by him; why by him? Mr. Paris Taylor is the only objection; has this any thing to do with Paris Taylor, or with his accounts? Then there was no obstacle to the going on of this account, to the closing and finally settling of it, because the only obstacle was, what related to Paris Taylor, and this does not. Then he gives the history of his duty, and of the several transactions that ought to be comprehended in the performance of that duty, and the mode in which it can only be performed; the accounts of the paymaster-general are sent from the payoffice to the auditor of the imprest, to have all the payments inserted that came, at that time, to the knowledge of the auditor; if any doubt arises, queries are made against them; if they are not answered to his satisfaction, |