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give in that account himself, he kept the I 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 Ile 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 argument of 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, be, 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 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 hands, 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. Bcarcroft. 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 i 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 doute 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 argı lute 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 judga 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
about to assert; I say, if this is an offence, it know it, that the public will never suffer is true it always was one, but it is newly either by the default of Mr. Bembridge or found out: your lordships have sat with some Mr. Powell, for there are standing securities degree of attention to consider the objection; for the balance of all lord Holland's accounts, - your lordships will take it, then, that this amounting to upwards of 100,000l., upon gentleman, at the time he was, I will call it, landed security, the same sccurities that they guilty of the omission, that he knew he was stood upon at the time of lord Holland's death; doing an illegal thing; in my apprehension, it is perfectly clear, therefore, that the public every offence which is to meet with the dis cannot lose by this. If your lordship should cretionary judgment of the Court, will be be of opinion that it is wrong, that it is against highly aggravated, if there are recent exam- principles, and for the sake of the public it is ples and punishments; there too the evil right to draw a line, Mr. Bembridge is unforerample comes in very materially, as my tunate, in point of law he inay be criminal; I friend mentioned; on the contrary, I con have an affidavit in my hand, to offer to your tend, that it is a very great mitigation of an lordship, which explains the nature of his offence, if it has not generally been in- business in the way I have shortly stated it. derstood to be one, and there has been no Lord Mansfield. You cannot read it. example, demonstrating to the subject, that Mr. Bearcroft. Then I shall not press it, it is one, and has been so treated by courts of but the fact is as I have stated, that he has justice : almost every topic of mitigation, been already turned in and out of his office, every ground for mercy in judgment exists in the manner I have stated; that fact is upon the present occasion that can exist. In extremely important, when your lordships point of law, shall it be said that Mr. Bem- have to consider of the guilt of omission in bridge ought to have done this? What a situa
such a party. tion 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 I lates to the present occasion, should be universpeak of it; I take it up from the ground sally understood with accuracy and precision. where I ought to take it, that is the evidence The matter now agitated comes before the in the cause; it stood in this way, that this Court upon two motions-to arrest the judg: was only a final account, in this sense of it, ment, and for a new trial-but I think it will that it was the last book delivered, and pur- be much more intelligible to invert the naported to be the last book of account then tural order of these two motions, and begin given, but it was by no means a final account, with that for a new trial. and so said Hughes and Wigglesworth, till The new trial is moved for upon two attested, which they explained to be, till it grounds; the first that the two counts, the was finally put down, and the party attesting second and the third are bad, therefore the swore to it, and signed it with his name. it verdict cannot be supported upon them, and passed at the time of the trial; and the attor- if it cannot be supported upon them, the Court ney-general so opened it, according to his cannot give judgment, the verdict being geinstructions, that that was the final attesta- neral, but it must go to a new trial. I am tion; then what was the great crime of wait not satisfied that either the second or the ing a little longer than this time, and that he third count is bad, but it is totally immaterial should not run, the first instant he could, whether they are or not, because I take the with his suspicions ? that is the whole amount | law in criminal prosecutions to be quite otherof the crime. Anotlier ingredient I mean to wise; and it is admitted, as to the arresting suggest; the discretionary punishment of the the judgment, the Court, wherever the Court will he greater where public mischief punishment is in their discretion, are gohas actually ensued, for these items were verned by the judge's report as to the count added to the account; the public can never upon which the verdict was taken, and the Lose a shilling by-it; the public could never evidence which was given to support it; but have got a shilling by his being carlier, for in this case it is immaterial another way, for thus was the faci, and thus I think it ap- it goes upon a supposition that the verdict peared upon the trial; for if Mr. Powell could cannot be supported upon the first count, and not pay immediately 68,000l., he was not that the party to support that, resorts to the likely to pay it immediately with the addition second and third; now, they have not argued, of 48,0001.; I have the pleasure to say, for I it in that way, and I am of opinion it ought
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 payaccounts 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 which 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 ihe consequence these propositions were supporterl 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 be will make up the paymaster: it is allowed, on all hands, no the accounts of the paymaster out of otice; 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 druwing 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 cominissioners of accounts, swears that he craved for upper and under officers 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 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, givmg an account of his office debit the paymaster with every just charye,
and give him credit for every just allowance; one of 9001., and the other 4001., and Colthe first steps he must have taken, if he did borne, the defendant's clerk, brought back his duty, were to see what accounts had been the book with those two items carried into given in, and what had been done upon the balance, though not inserted, and the bathem; to peruse the pay-office books (he could lance struck in penciled figures, 68,0001. odd prepare no account without doing that); money. and to get all the light and information The defendant did not examine Mr. Colhe could from Mr. Powell, who had been ac borne to explain or qualify this transaction; countant before him, and who was the party and as it stands, it is not an omission, it is accounting; if he did so, and he did if he not a neglect, but a gross and actual deceit, if acted bonestly and fairly, then he saw that the defendant knew the truth; for the sendall the accounts, eight in number, had been ing back the penciled balance, after all that given in; he saw that the final account from had passed, was a solemn averment by him, the 25th of December 1764, to the 24th of that all was finished, and that the defendant June 1765, had been given in so long ago as knew of no error, no item, which ought to be the 11th of January, 1772; he saw that all the surcharged or falsified. accounts, except the last, had been attested ; The book of accounts was returned, to have be saw-for it is proved they were visible to the two items of 9001, and 4681. inserted : be seen,--he saw many items previously en- Upon the 4th of January, as is proved, Coltered in the pay-office books, amounting to a borne, the defendant's clerk, brought back the large sum, with which the paymaster is not book of accounts, with the penciled balance charged; he saw that these articles were re- etfaced, and no official mark, and with the ceipts prior to the accounts attested, and, I items of surcharge in question, to the amount have already told you the form of attestation, of 48,7991., and a fraction; all the additional * This is a just and true account, according to items in the hand-writing of Colborne, the
the best of my knowledge and belief. If defendant's clerk; Colborne is not examined M. Powell knew of those items, I think there, to explain how, or when, or why he drew out is no justifying his attesting the prior ac those items, and inserted them. counts; 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 disco- not having full information for many years very, if he did communicate to Powell, and before; he admitted, likewise, he knew it was afterwards withheld the discovery from the his duty to take care that all the articles to auditors, consequently from the lords of the charge were included : he makes no excuse, treasury and the parliament, but that his mo- but that he left all to Powell
. Now, suptive must be corrupt. That he knew of the posing him to have knowingly deceived and omissions and studiously concealed them misled the auditor, consequently the lords of from the auditors is manitest; for, first, if he the treasury and the parliament, with this did his duty and looked at the pay-office concealment, which is a material circumbooks, he knew of the omission soon after he stance, the motive with which it is done, upon was made accountant; many years passed the evidence, could only be with a view to and nothing was done ; at last, the account is defraud the king, either of the whole sum, or upon the point of being closed, and upon the of the interest during the time which it išth of May, 1781, a memorial is given in for would be concealed; it upon the same salvo the allowances, by Mr. Powell, suggesting which warranted Mr. Powell's attesting the that the whole was finished and closed, and prior account, he had actually attested the the order of the lords of the treasury is on the last, the whole sum omitted might have been 1st of September, 1781, for payment of all lost, but if that never was intended, the that money, which was received by each of money not brought in lay dead, in respect to them immediately after.
the public, while money was borrowed by the In September, October, and November public at high interest, for the public service. 1782, the deputy-auditors osten attended the Universally at the common law, when a detendant, and pressed him peremptorily, to large balance appears due to the Crown, settle and close the account; the defendant though the account is not finally closed the said he could do no more in it, which was a lords of the treasury may call for the whole representation that the account was just and or part, and ipforce ihe payment of it, so far true, according to the best of his knowledge as the court of exchequer should think proper and belief: he referred them to Mr. Powell, to be paid; but the situation at that time with whom it rested to do the last act, and of a great part of it, was very particular, for finish the whole, by attesting it. If he knew an act passed in the year 1780,-- long before of those items he could do more, because he these material facts happened, which I have was to add them to the charge; the account been stating, which were at the end of 1782, was sent to the defendant to insert two items, an act passed, the 20th of his present
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 ut many balances, 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, fraud, or an imposition in a subject concern and knew of this act ander which the coming 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 inent, 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, that at most this be clear that an indictment would lie for an amounts to a breach of trust, a concealment, omission or concealment of a pecuniary a fraud of a pecuniary nature, which is a nature, to the prejudice of the king; and 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 purpunish 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 il ne ceo imploie equally by whomsoever or howsoever
accordantment il poet estre
cte, come pointed to the ottice, by whomsoever the office est en 27 Ass, car la fuit deniers collectes a