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may vary the construction of them; and if it is so understood in the office, it does vary the construction of them, or otherwise it is not possible to say that these people have not been guilty of perjury, and the others knew it and understood it, stood by, and were acquainted with it; one can hardly suppose, that with men of any description, in any office, that would be the course of the office; and therefore, in order to explain it at all, it seems to me it might be done in some such way.

Lord Mansfield. You do not understand it; there is no such thing in the office; the question is, whether there is any salvo? For, to be sure, a just and true account can never be sworn, to my knowledge and belief, if I know of 100,000l. being left out.

Mr. Wilson. Not unless it is understood by the party.

been no occasion to have inserted them in this last; indeed, his excuse would have been, when questioned upon this matter, You are now talking to me about transactions in 'former times, I have nothing to do with 'them.' He says no such thing; 'I consider the account as not finally closed;' and yet, in another part of the evidence at the trial, it did appear as if Mr. Bembridge himself considered as if the account was finally closed; he said to some of the witnesses, upon application to him, 'I can do no more in it, you must go to Mr. Powell;' that imported Mr. Powell's being the person to attest, that he had fully done all that it was his duty to do. Now, that was not so, because he had omitted to insert those several articles, which ought to have been inserted in the account, and were afterwards inserted; it seems to me, therefore, that there can be no doubt at all, that if this be an indictable offence, Mr. Bembridge is fully brought within it by the facts which were stated, and by his own admissions.

Mr. Baldwin. I am on the same side; I am equally apprized, as Mr. Cowper was, of the business of the Court; I shall make the promise, and hope I shall perform it better than he did.

Lord Mansfield. I want to hear if there is any salvo upon it; but, in the course of the office, the words are the same in every one, and no other; it requires precision, not imagination; but the attestations in every account are all in that form, and it is very easy to add new items; the accountant does not know of them, then there is no objec-like tion, it is very right; the objection arises from this, if I know that there is a vast sum omitted, how can I swear it to be a just and true account? It is like- -'s defence, who swore to one side of the account; he swore the man was indebted to him, and justified by one side of the account being the debt and not the balance.

Mr. Wilson. Unless, to be sure, there be some salvo, and some understanding about it. Lord Mansfield. It was from the other side I wanted the salvo; it is not your business to point it out; but I have particularly from the exchequer, and the office inquired, and the form of attestation is exactly the same; if there is any gentleman here who knows otherwise, he will do well to set me right, if I am not rightly informed.

Mr. Wilson. These are all, I understand, attested by the paymaster.

Lord Mansfield. They are attested by the debtor; if the real debtor is dead, they are attested by the representative; and any body can attest,-you observe, for it speaks only to knowledge and belief; the only question is, whether it is directly in his knowledge, or not within his knowledge?

Mr. Wilson. In this case, these articles were known to Mr. Bembridge; there is no doubt about that; there is no doubt but that they ought to be inserted in some account or other; there is no doubt but that Mr. Bembridge thought they ought to be inserted in the account, because, when an alarm was spread that the sub-paymasters would be written to, they are inserted in this account. If, my lord, it would have been any excuse to Mr. Bembridge that they ought to have been inserted in former accounts, there would have

On the motion for a new trial, Mr. Bearcroft alleges that this was not Mr. Bembridge's duty; in answer to which I say, that there was evidence before the jury, at the time of the trial, that it had always been done by the accountant; there was also evidence before the jury, that Mr. Bembridge had admitted upon oath, that it was his duty; upon this, the jury decided it; and I hope your lordship will not think now, in this case, where the jury have decided, and decided properly, that there is any ground for a new trial.

As to this, relative to the attestation, nothing was said about it at the time of the trial; the import of it, if I understand it, is this, that Mr. Bembridge has done wrong to permit other persons to attest former accounts; this last has never been attested at all.

Lord Mansfield. The former accounts were attested before Mr. Bembridge had any thing to do with it.

Mr. Baldwin. I don't understand the nature of your lordship's objection, and it does not seem to me, that any body before me understood it much better. I can only say this, that it does appear to me, that this is a distinct idea, that attestations have nothing to do with it, this has never been attested, and therefore that the crime has been substantially and fully proved.

REPLY.

Mr. Bearcroft. I hope I am not mistaken when I suppose, as I do, that I am in a more than ordinary manner entitled to ask for, and hope to receive the particular attention of the court, as to what I shall submit in answer to

the gentlemen's arguments. The title I plead hand down to posterity the records of the to that is the course which this proceeding courts of common law. I say therefore, that has taken; I don't feel the least inclination it is of importance to see whether or not the to complain of it, it is strictly regular, but it verdict by a jury, being taken, that the deis not common; the effect of it has been un- fendant is guilty of all the charges that fortunate indeed to my client, for instead, appear upon the face of this indictment; as in the ordinary way it would have been, of whether your lordship is warranted, by the his having the advantage of the observations report of the evidence, to find it so. I conof all and each of his counsel, in answer to ceive, therefore, I have a right to put this the counsel for the Crown, he can claim the question to the Court; does the evidence assistance of only one, and that the least able. support the charge which is found by the

Lord Mansfield. He will never lose while jury, as stated by the attorney-general in the it is in your hands.

first count of the information for I am not Mr. Bearcroft.-In a cause too, where all so absurd as to be contending here that, the counsel for the crown have tried, as well because in point of form it appears that there as they can, the points of their daggers against are three different offences, that therefore the defendant now before the Court for judg- there must be evidence to support three ment, except indeed the last of them, who in different offences. In favour of the defendant a little scuffle seemed to quarrel with and the Court most undoubtedly will say, this is wound one of his friends; I am rather sorry what is the foundation of different counts, that that fell upon the gentleman whom it universally in indictments and informations; did, because I have an obligation to him which it is the attempt to state the crime in various I don't feel to the rest, which is, that he (Mr ways, because the transaction, when it comes Cowper) did understand my objection just as out in evidence, may bear various comI made it.—I trust I explained myself to the plexions; therefore it is, that in indictments Court so that they comprehended it, and it was for forgery I have seen (though I have this,-not so absurd a one as to object to the always been sorry to see it, I think it is carryjudgment of this Court, upon an indictment ing it to too great a length), no less than containing several counts, because one con- twenty counts for forgery, and the variations tained no criminal matter; but my objection are, an indictment for the actual forgery, to was this, in which I am serious, and I wish defraud A; the immediate variation upon for the sake of the profession, that it may be that is, for publishing it, knowing it to be understood whether it is founded, aye or no. forged (which is another offence equally capiMy lord, I say this; this is an information tal), with an intent to defraud A, the same containing three different variations of a person; but the nature of the transaction charge of one transaction; I admit the ver- proves it tends to defraud several different dict is general; it must be taken, therefore, persons, and therefore a man who is careful that the jury have found the defendant guilty in drawing those indictments, varies those of that charge, which, as Mr. Cowper very two charges, which are themselves different properly called it, is the most ample. I say, from each other, as often as the case, in fact, that after your lordships shall have pro- may be construed to tend to defraud any other nounced judgment (if that should be the mis- persons whatever. What is the consequence of fortune of my client), in this case, whoever that? Iamashamed to say what the practice is, looks with a lawyer's eye at this record, will though I know it is so, for it is a slovenliness have a right to say, this Court has pronounced in the profession, which, in my apprehension, this discretionary judgment upon the ground it is high time to leave off. I know very that the jury have found the defendant guilty well, that the practice upon those trials even of this first count. I will put a familiar in. for lite is, that if the jury say they find him stance that happens in practice every day, guilty, generally, they enter the verdict so an indictment for false imprisonment; what generally guilty; whereas, the judge who takes is the mode of drawing it constantly? the the verdict, the counsel who are concerned first count charging an assault and the false for and against him say that the point put imprisonment, the second count charging the to the jury is, perhaps, whether he is not simple assault'; but if the evidence does not guilty of the publication, knowing it be forged, prove the false imprisonment, but does prove where there is not a colour to say he is guilty the assault, how is the verdict taken? nega- of the forgery: then, perhaps, the question tiving the first count, not guilty-and finding will be asked me, Why are you so slovenly? him guilty upon the last—the assault only. Why do you take the verdict in that way? Why is that because if it was found gene- the only excuse for the counsel for the pri. rally, it must be taken that upon the face of soner in suffering it to be done, is, that he the record, the party was found guilty upon has looked at the indictment, and sees. clearly the charge of false imprisonment, whereas, beyond all doubt, that every one of the counts the evidence was not so. The conclusion I is sufficient, in point of form, to contain a would draw from that is this, that it is of great capital offence, and then it matters nothing importance that men should find the law of the with regard to the rest. I cannot account for land in the safest and the best repository, cal- the practice in any other way; but permit me culated by the constitution to preserve and to suggest this for the sake of other practis

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tioners it will be always proper for the counsel | to ask the jury, What do you find him guilty of? Is it of the forgery or publication to defraud A. Take it guilty upon that count, and not guilty upon all the rest; the advantage is this, it may turn out that that count, upon which only you are entitled to enter the verdict, may be wrong in point of form.

been successful to show this, or it proves nothing at all against my client), that it is, and was before Mr. Bembridge was born if the office existed before, the duty of the person in that station of accountant-general to the pay-office, not only to settle the accounts of the ex-paymasters, but to have to do with the auditors, touching the settling of these I feel a repentance, in my own mind, that accounts; for it is an essential part of the alI sometimes have not done it myself; I make legation, not only that he is to do it as a trust this observation by way of meeting any an- and confidence from the public, touching the swer that may be attempted to be given to making up the accounts of the paymaster, but me, with respect to the practise; I know the touching the adjusting and settling the same practice is so, but it is slovenliness and inat- with the auditor of the imprest. That stands tention; and your lordship has repeatedly in the first count. Now my lord, let us see said, when motions have been made here in whether I am not perfectly right in making arrest of judgment, in an action upon the case my objection, not in arrest of judgment, for for damages, in which there has been a gene- I never did; I know perfectly well, if I had ral verdict, here is a wrong count; why did made my objection in arrest of judgment, I not you look at the declaration, and take it must have taken every thing that is charged 'right at the time? The counsel are to blame.' here, to be proved in point of fact, most unI trust no argument, therefore, from the prac-doubtedly, the objection, if well grounded, tice will have any weight; but that the principle and the law of the land will be looked to, which is this, that if I find upon the indictment, a general verdict, and find a charge in any one count that imports criminality, I have a right to object to the standing of that verdict, if I can show the Court that there was not sufficient evidence to support that

count.

It is in that way therefore I stand, making my ground of objection to the present verdict, to the first count: your lordship will be so good as to understand me; if I have not a right to do that, for God's sake, how came it to be the practice of that able hand that drew the present indictment, in this instance, to vary it at all? It is for this reason, he conceives that a circumstance that is stated in the first count, may not be proved, therefore he leaves it out in the second; he conceives that two or three circumstances in the second may not be proved, and therefore he leaves them out in the third.

goes to a new trial,-and to say this, that the charge which stands in the first count, is not supported by evidence.

My lord, a great deal has been said about Mr. Bembridge's examination, which has been given in evidence, and said with a degree of cheerfulness and wit, which I am glad to see, it hetokens good humour in the prosecutor, which I trust will rise yet higher, if any sentence is to be pronounced. It is said that his evidence is decisive against himself, because you may believe what a man says of himself; and it is thought to be a good joke to conclude a man, that he never shall be admitted to explain what he says, but it shall be taken, as he puts it, against him, though whatever he says for himself shall not be taken for him: This is a harsh and severe rule and ought not to be extended by practice; but it is extended indeed, if it is to be carried so far as this, that a man shall not be permitted to explain his own words, that he shall not be permitted to show, if the fact exists, that plain as he has stated the fact, though it is against himself, it is untrue, and it is a mistake.

Estoppels, in criminal law, I never yet met with; I allow the force of an observation against any man who admits a circumstance against himself; I feel the strength of the presumption that arises against him, but, like every other presumption, it will admit of explanation; and I beg leave to say, that if the case exists, that a defendant had in the broadest and most incontrovertible terms, stated a fact which decides that he is guilty; yet if he could prove, in point of fact, that that is not true, that he should be permitted to do it; it is a burthen, I admit, but it may be done in some cases, and I trust it will be done in this.

I will suppose therefore that I have made this my ground, that the charges, especially those that I shall lay my finger upon in the first count, must have been supported by the evidence given, or that this verdict must be set aside. Now, I will tell your lordship, in a word, why it is that I labour this ground; it is this; I say it is an important, essential allegation, the foundation of all the rest of the superstructure of the criminal accusation here, the allegation of the nature of the duty of the place of accountant, and that is stated in these words; The place and employment of ac'countant, in the said office and place of re'ceiver and paymaster-general is of great pub'lic trust and confidence, touching the making 'up the accounts of the receiver and paymas- I am not so absurd as to be contending that *ter-general, and the adjusting and settling the when that examination is read, it does not at same with the auditor of the imprest.' Now, first import a very strong idea that he is statis not this the foundation of the whole charge?ing the duty of his office; I agree that it does; undoubtedly it is, in point of fact; for all the but if it will bear another interpretation, and evidence tends to show this (and it must have the evidence shows that that interpretation is

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therefore, evidence got at in that way, I am sure my learned friend would not wish to produce. Take it in another line-were the proceedings, as in truth they were, for the crimination of Mr. Powell? was not there an idea, that Mr. Bembridge was in the nature of an accomplice to the guilt? Did we ever, till to-day, hear of evidence extracted from an accomplice, given against himself?

My lord, these are hardships; I do not object to them in point of competency, I cannot do it, I could not do it at the time; but I claim this consequence from these observations, i they are founded, that they entitle me to ask of the Court to be still more careful and more attentive to construe those expressions in the mildest sense that can be; I would make use of them only in that way

fair, are not every man's expressions to be taken, when you are about to charge him with a crime, in the milder sense? It is perfectly true that he has to do with the paymaster s accounts;-and your lordship will see it there be occasion for me to produce an affidavit, which I trust there will not, in a subsequent proceeding, if your lordship should be against me upon the present proceedings-and it appeared in evidence upon the trial, that, out of all doubt, he had to do with the ex paymnasters' business, for there is a great deal of business which, in the nature of it, after displacing the paymaster, must be carried on by him, and by his agents; but he is no longer paymaster; the accountant who continued in the office, under the new paymaster, is no longer his servant; if therefore he does the business, keeping the accounts of the staff-officers, and I was a little surprised, and I confess someother matters, not settling the accounts, but what hurt, when Mr. Attorney General, in going on with the business, which is actually his strong way said, I do not believe that the carried on by the ex-paymaster, it is fit he doubt of this being an offence, in point of should be paid by the ex-paymaster; in de-law, ever suggested itself to any human scribing therefore the duty of the ex-paymas-being. My lord, I am not ashained to be ter, he might, properly enough say he goes on with the accounts, and does the business of the ex-paymaster; it seems to me to import no more than that.

Mr. Justice Buller. Do you state that from the first count, as to its being an office of great public trust and confidence, touching the making up the accounts?

Mr. Bearcroft. Yes. While I am considering this evidence, tha is given against Mr. Bembridge, out of his own mouth, I do again complain of its being given; I will not use that reprehensible word, the inquisition, for which, according to my memory, am answerable; yet, my learned friend is at tacked about it;-but I do say, that I verily believe that, if the examination had happened since April last, whereas it happened before, the learned gentleman who conducts this prosecution, would have felt that he had somewhat more power, and somewhat more jurisdiction over him than he thought as the case was, and that he would, in his own judgment and propriety, hardly have produced it, and I will tell your lordship why. It is true he was examined in a mode of inquiry in which it was not improper, perhaps, to examine him; but it cannot be doubted that the persons who did examine him, saw that the questions that they put upon that occasion, tended to criminate the person under that examination. What does your lordship do in that situation? What does every judge do, even down to the lowest justice of the peace, even to committee men upon elections, whenever a question of that sort is asked of a witness? Stop; understand that you are at your own discretion whether 'you will answer that question or not; you need not accuse yourself;'-the law of England is, that no man is bound to accuse himself, and the man who administers that law best, always takes care to give that caution;

that, if I am that, first human being; but 1 have a right to retort the observation; for I have a right to say, and it is a truth, that I believe it never did occur to any human being before, to make such an accusation as this; if it did, it is to be found upon some record; and none is produced. I beg leave to say, that the cases which have been quoted, do not, in any degree, apply to the principle. I am in your lordship's recollection and memory, whether I did not forestall, by admission. every thing that these cases go to prove : did I not say, that I admit that a constable, an ancient common law-officer, is bound to obey the warrants of the justice of peace? I did not quote any case to warrant that admission, I made it. Did I not say, that justices of the peace, if they pervert their office and their power, contrary to the duty of it, are clearly liable to be punished? But this is the question that I asked, and to this question, yet, I am furnished with no answer. Where is the precedent that shows me, that every crime against the public, the omission of duty by a petty clerk in office, is punishable in a court of justice? That is the question I have asked, and it is not yet answered; for as to the cases that have been quoted, they do not amount to it at all. A man, for not repairing a highway, is punishable; how? because it is a common nuisance, and it must be laid so; I could arrest the judgment in a prosecution for not repairing a highway, unless it were laid to be a common nuisance; then that is classed,— you know in what order and rank of offences that it is to be found; so in the case of a port, upon the same principle undoubtedly, a port the public have an interest in; and it is exactly upon the same principle as suffering highway to go out of repair."

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As to the case in Comberbach, it will be a sufficient answer to say, that that was quashed upon another objection, that the point in this

case was not considered; but I am glad the case was quoted, because it shows the distress my learned friends were put to when they were called upon for a case, that they could not find one which answers the purpose, except one that was quashed.

Mr. Attorney General to-day, as he did before, said something about it being a nonfeazance; I agree to that, but it does not go to the question at all; I know a man may be guilty of an indictable offence by an omission as well as he may by a commission; the observation therefore, of giving it that old fashioned term, non-feazance, does not mend the case at all, for it remains to be made out, that this person, in this situation, and (what is of more importance a great deal) hundreds of others, in the same situation, are besides being turned out of the office, to have all the thunder of the exchequer, and the terror of the green wax; are liable to informations from the attorney-general, to prosecutions, for years to come; not so many, I hope, unless my learned friend rises higher; not so frequent as they have been when the attorneygeneral, as he says, dictated the punishment to the Court.

Now to see whether this is an important offence; I take the liberty to say, if it be so, a clerk in office, down to the lowest exciseman, is a subject in a peculiar condition. | I said, and it is true, that soldiers are governed by the mutiny act, a law that does not affect other subjects: but then, hard and severe as that law is, it is contained in a small volume; every man may read it, and every man may understand it: but where is this law that takes all the clerks in office, from top to bottom, in what statute is it? Certainly none; it is at common law, that the principle is to be found; and he supposes the principle is to be found in the case in Salkeld; I beg leave to deny it. Nothing is more necessary for the honour and for the character of judges, than that when their dicta are quoted, you might have something of the matter stated upon which they are speaking, and what they are speaking. Constables are common law-officers. Will any man say, the judges then had such a case as this in law? undoubtedly they had not. I beg to say, in point of fact, in point of precedent, it is a new case; in point of principle, the question is, whether it is or is not indictable? and if your lordship shall be of opinion that it is liable to a criminal prosecution, the defendant hopes and the world will expect (with great deference be it spoken to the Court), that that principle should be laid down correctly, and defined exactly, that if there be a common law that comprehends vast numbers of the king's subjects, and puts them in a condition different from the rest, that it must be known and understood for the future.

What must the principle be? Is it this:that every man who has any thing to do with VOL. XXII.

the accounts of the public, is liable to an indictment if he swerves from his office, in any one article? Is that the principle? That will take in every man, for every little peccadillo: surely there can be no such law as this; it ought to be made out therefore here clearly, that this is a case that falls in with some principle of such importance to the public, that every man, when it is stated, will feel it, and say this must be law, it were nonsense if it were not. I wait to hear whether any such principle will be laid down from my friends; most undoubtedly, I have not heard it from any one of them; for will it be said to be this, that every man who is a clerk's clerk in office, where the head officer has a place under the great seal, is answerable by indictment, for every fault he commits? If that be the ruling principle, it is a strange thing we find that in no book whatever.

I will tell your lordship why I laboured the description of this officer; I meant to say, that he is that sort of man to whom the law cannot be supposed to advert, or to take any notice of his little faults in office; I meant to say this, that he is a mere clerk, appointed to-day and turned out to-morrow; in point of fact it is the history of this unfortunate gentleman, he was put out one day, in the course of a fortnight restored, and in a few days put out again. Is this the sort of great officer whom the law, over and above all other, hangs over this kind of prosecution? It seems to me, he is not a subject worthy of such kind of solicitude; unless, therefore, there is some broad principle that comprehends every clerk's clerk, every deputy substituted, ten degrees down from the principal, in every office that has to do with the account of public money, Mr. Bembridge is not within it. What is the offence that is charged to him, in the utmost way that any man can state it? It is this: he knew, that at the time Powell gave in the account (I avoid any phrase that may create doubts at this moment, an account), that he ought to have inserted this 48,000l.; he knew it. It was the duty of his office to have to do with the auditor of the imprest, whose duty, out of all doubt, it is, to adjust all accounts with people having the public money, and he ought to have informed him of that; what is his duty with the auditor of the imprest? Does your lordship find that in the examination? There is not a word of it, that that was his duty. When was this office of his created? What had been the practice before? Is it set down in any law book, or in the books of the office, what the duty of this office was? No evidence of that sort is stated, but it is to be taken for granted, without evidence, as it should seem to me, that he had to do with the auditor of the imprest in the making up this account.

What is the offence, when you come to state it fairly, reasonably, and candidly? Mr. Powell, the person who ought to have accounted for the public money; Powell would

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