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any thing pro bono publico, if he does not apply it accordingly, he may be indicted; and refers to that which I have just stated from 27 Assize; the distinction is very clearly taken too in 20 Hawkins, c. 25, § 4; he says in these words, “all kinds of interior crimes “of a public nature, as misprisions, and all ‘other contempts, all disturbances of the ‘peace, all oppressions, and all other mis‘demeanors whatsoever, of a public evil ex“ample, against the common law, may be “indicted; now I quote that for these words that follow:—“but no injuries of a private ‘mature, unless they some way concern the ‘king. In 6 Modern, folio 96, the count says: ‘If a man be made an officer by act of ‘perliament, and misbehave himself in his 'office, he is indictable for it at common ‘law; and any public officer, is indictable “for misbehaviour in his office,’ and there is to doubt but at all times, more especially in this, they whose offices give them such power wer the public revenue, the public are extremely interested in; therefore I am of opinion, that the crime found by the jury is an indictable offence. Mr. Justice Willes. I am of the same opition as to both points; about a new trial, and an arrest of judgment. Mr. Justice Buller. My lord has entered so fully into it, that it is impossible to add anything to what he has said; therefore, I shall only enter my assent to everything that has fallen from his lordship.
Mr.Justice Willes. Charles Bembridge;— Amidst the various frauds and corruptions which have crept into most of the public offices in this country, and which have long Preyed upon the vitals of our constitution, you are the only delinquent of this sort, within my memory, since Peter Leheup was brought up to receive the judgment of this Court, —a court, where neither favour nor interest on protect you; but where punishment will be impartially inflicted, according to every man's demerit; and I am sure, in this age of Itformation, when public economy and fru: can alone save this impoverished state; is no honest man who would wish to screen an officer of public trust, who has betrayed his duty, by endeavouring to defraud hisking and country; examples become neCossary, pro salute reipublicae. It is not in the Power even of this supreme Court of criminal Risdiction, considering the venality of the limes, to cleanse the Augean stable, and therefore our only consolation must be ‘est 'lliouod prodire tenus si non datur ultra.' And now, without stating the precise formal orges of the information, I will give you the *stance of them —The information alleges *You as accountant were invested with an “Fre of great public trust and confidence;
omish archers, et collector indicte pur onversion de ceo al son use demesne.”
and that it was your duty, in that employment, to settle the accounts of the paymaster, and to state them with integrity to the auditor of the imprest; in the execution of which duty, you were to take care that no articles of charge were omitted to the detriment of the state. The declaration farther alleges, that you were called upon by the auditor of the imprest, to execute with fidelity this important trust, and to disclose and make known to him any charges against lord Holland's representative, which ought to have been inserted in this ae. count; but that you with an intent to defraud the king, did wilfully, knowingly, and corruptly neglect and refuse to discover and make known the same, and did permit and suffer lord Sondes, one of the auditors, to proceed to close the final accounts, without bringin in the several articles according to ther truth: , lord Sondes did actually proceed to close the final account, by sending this imperfect account of yours into the treasury. That it was the duty of your office, as accountant, to settle the paymaster's balance, you have, in your examination before the commissioners of accounts, and afterwards before the treasury, on the 15th of February 1783, admitted. This examination at the treasury, the counsel have compared to a court of inquisition or star-chamber; but surely the treasury, without this severe and ill-founded reflection, had a right to inquire into the conduct of one of their officers. Evidence indeed was given that, in two instances, the ex-paymaster's accounts were passed without your assistance, though you acknowledge it was your duty, when called upon, to do it. Mr. Bangham, however, seems to think it was at your own option whether you would make up the accounts of expaymasters, or not; but it is admitted that whether you were concerned yourself in passing the accounts or not, that there was a fee due to you as accountant; if the fees were not optional, but must be paid on the part of the public, your duty, as receiving it, ought necessarily to be performed, and was not at your own option. Lord Holland's accounts were immediately under your care, and deserved a more than ordinary attention, as your superior officer Mr. Powell, the cashier, was, as lord Holland's acting executor, the person accounting. You were peremptorily called upon to take care that no charges were omitted; but, instead of complying with the auditor's earnest requisition, you referred him to Mr. Powell, whose interest it was to conceal the truth, or at least to delay the paying in the realbalance. As to the allegation that you did this with a view to cheat and defraud the king, I will endeavour to explain the meaning of it; by the 21st of the present king, chap. 48, it appears that the commissioners of accounts had reported that there remained at that time, in Powell's hands, as executor to lord Holland, a balance of 256,466l. 2s. 4d.; and
the act directs that so much of the balance of such money as remained unapplied, should be paid into the exchequer, on or before the 24th of October, 1781; these accounts, which under that act of parliament, ought to have been passed, and the balance paid on or before the 24th of October, 1781, were not delivered in till the 27th of October, 1782; and, by various arts and subterfuges, the real balance was not disclosed till the 4th of January, 1783; during all which time, Mr. Powell availed himself of the interest and profits of 116,000l., of which the public was defrauded. Can it be said, that was not a fraud on the Crown You were privy to this cheat, and were at least a principal in the second degree: what share you had in the plunder is best known to yourself; but the Court cannot suppose you were weak enough to be concerned in so gross a fraud without receiving some private advantage from it. In one respect, your conduct was more criminal than Mr. Powell's, because, to an act of notorious dishonesty, you super-added a breach of trust: that you did this wilfully there can be no doubt, as the accounts lay open in the office, and were obvious to every clerk's inspection in the office, and you yourself acknowledged to Mr. Rose, that you were perfectly apprized of each article. The jury have likewise found that you did it corruptly, and we think there is evidence sufficient to support that part of the charge; the error, though I ought not to call it so, was not an omission of a few small articles, or one gross sum, but a variety of charges, at different times, amounting to 48,7991, so that there was an omission of half, and near a third, of the balance that was delivered in. Was this a little peccadillo? In the execution of your office, in my opinion also, the delivering in a penciled balance, which could be afterwards easily obliterated, was a proof of a fraudulent intention; and yet, for want of a better, the account, in this imperfect state, was sent by the auditor to the treasury. Negligence you cannot plead, after having been so often earnestly requested to do your duty. Ignorance is a plea equally false, as the fact of concealment was so notorious; and when the account was afterwards carried in, the penciied balance was rubbed out, and the additional articles inserted in your own clerk Colborne's hand-writing; and this account, at the end of the transactions, was clandestinely given in to the auditors office, and given to one of the clerks, in order, if possible, that it Inight escape notice. Your collusion and con
federacy with Powell, in this iniquitous busi ness, is self-evident and beyond a possibility of doubt; and what aggravates your crime is, that you received as your share for examining this account, 2,600l.; whereas you were at that time in league with the defaulter to conceal his omissions. And now, I cannot help lamenting the unhappy state of this country, that in these times of necessity and public distress, the passing the accounts of a paymaster should cost the state, in fees paid to its officers, the enormous sum of 14,900l., as appears by the warrant read. The right to these extravagant fees ought to be, and I hope will be hereafter, a subject of parliamentary inquiry. Your good character, as proved by several respectable witnesses, has been mentioned by your counsel as a ground for mitigating your punishment: in a doubtful case, a good character will have some weight with the Court, but in so clear a conviction as yours, it can be of no avail. What remains for me, therefore, is only the irksome task, which falls to my lot, of passing sentence upon you; and the judgment of the Court is—That you, Charles Bembridge, be committed to the custody of the marshal for six calendar months; and that you pay a fine of 2,650l.; and that you be imprisoned till you pay your fine.
The proceedings against Messrs. Powell and Bembridge occasioned much animated discussion in the House of Commons, in which Mr. Burke warmly supported the accused. See the New Parl. History, Vol. XXIII. pp. 801 et seq. 900 et seq. The compassion which on these and all other occasions was manifested by Mr. Burke for the sufferings of those public delinquents, the zeal with which he advocated their cause, and the eagerness with which he endeavoured to extenuate their criminality, have received severe reprehension, and in particular when contrasted with his subsequent conduct in the prosecution of Mr. Hastings.
Respecting the office of paymaster-general of the forces, see the debates on the bills for regulating that office, 23 New Parl. Hist. pp. 134. 988.
I regret that the report of sir Thomas Davenport's argument, p. 126, et seq. is not more intelligible; perhaps, however, the confusion observable therein is not wholly to be imputed to the Short Hand Writer.
569. Proceedings against Philip Lord Wiscount STRANGrond for acting criminally and corruptly as a Lord of Parliament in Ireland: 24 George III. a. o. 1784. [Journals of Lords and Commons in Ireland, and Statute Book of Ireland.]
It appears by the journal of the House of Lords in Ireland, that a writ of error from the Court of King's-bench, in a cause wherein Gustavus Hume, esq. was plaintiff in error, and William Burton, esq., was defendant in error, had for some time been depending in that House. On Friday, the 5th day of March, 1784, counsel in the cause having been on that day, as well as on preceding days, heard upon the case, the two following questions were put to the judges:—1st. Whether in a case where the vouchee in a common recovery appears by attorney, the caption of the warrant of attorney, appointing, such attorney, aping upon the record to be taken by the chief justice of the Common pleas out of Court, be conclusive evidence of the capacity of such vouchee, as to the soundness of his mind, to make such attorney and suffer such recovery £nd. Whether upon the face of the record which was before the Court of King's-bench, on the issue joined between the plaintiff and the defendant in error, as sent to and now be
fore this House on the present writ of error, there be any and what matter, which in law was conclusive evidence in favour of the defendant in error, so as to preclude the plainis from giving the evidence offered in the Cortof King's bench?—And the judges were ordered to give their opinions on the same upon Friday next, the twelfth. On which day the lord chief justice of the common pleas acquainted the House, that the judges were not prepared to give their opinions upon the questions ordered to be to them on Friday last, and that they desired - time might be allowed them, for giving their opinions upon the said questions. Whereupon it was ordered, that the consiion of the said cause be adjourned till Tuesday next, and that the judges do then give their opinions upon the said questions. On which day the lord chancellor acquainted the House that the lord chief justice of the ommon pleas had informed him, that the judges differed in their opinions, on the questions proposed to them. Whereupon it was ordered. that the judges * deliver their opinions seriatim, with their *sons, which was accordingly done on the !oth, 17th, and 18th of the same month. Mr. Justice Crookshank, Mr. Baron Metge, Mr. Justice Kelly, Mr. Baron Hamilton, Mr. Power, and the lord chief baron of the out of exchequer delivered their opinions WOL. XXII.
upon both questions in the negative, assigning their reasons. Mr. Justice Hellens delivered his opinion, that the caption of the warrant, as stated in the first question, is conclusive evidence of the capacity of the vouchee, assigning his reasons. The lord chief justice of the Common pleas delivered his opinion upon both questions in the affirmative, and gave his reasons. The farther consideration of the cause was adjourned until Thursday next, the 25th of March. On Wednesday, the twenty-fourth, a motion being made to reverse the judgment of the Court of King's-bench, to set aside the verdict mentioned in the record to have been given in that Court, and that the parties may proceed to a new trial on the issue belore the Court of King's-bench, A long debate arose thereupon, and the question being put, The House divided: and the lord viscount Enniskillen reported, that the contents before the bar were 16; and the non-contents in the House were 15. It was resolved in the affirmative.
R. Dublin Farnham
Char. Cashel Clifden
Then the following order and judgment was made:— Whereas, by virtue of his majesty's writ of error, returnable into the House of Lords in parliament assembled, a record of the Court of King's-bench was brought into this House on the 11th day of November last, wherein Gustavus Hume, esq. is plaintiff, and William Burton, esq. is defendant; and counsel having been heard on the 27th of February last, 1st, 2nd, and 5th days of March instant, to argue the errors assigned upon the said writ of error; and the judges who were ordered to attend, having been heard seriatim, as well on the 16th, 17th, and 13th days of this instant March, to deliver their opinions, with their reasons, upon two questions of law, to them proposed, and due consideration had of what was offered on either side in this cause : It is hereby ordered and adjudged by the Lords spiritual and temporal, in parliament assembled, that the said judgment given in the Court of King's-bench be, and the same M
is hereby reversed; and that he verdict, &c. be set aside, and annulled. And it is further ordered, that the parties do proceed to a new trial, upon the issue joined between them, as in the said record, and that the said Court do proceed therein according to law, and that the record be remitted.
The tenour of the judgment to be affixed to the transcript to be remitted, is as follows, yiz. At which day, before the said parliament aforesaid, at Dublin aforesaid, came the parties aforesaid, by their attornies aforesaid; whereupon the said Court of Parliament, having seen and fully understood all and singular the premises, and having diligently examined and inspected the said verdict of the said jurors, the judgment thereupon given, and the said bill of exceptions, under the seals of said justices of our said lord the king, before the king himself, and also the causes and matters above assigned in the said Court of Parliament for errors, by the said Gustavus Hume, in this, that the chief justice, and justices of our lord the king, before the king himself, upon the trial at the bar of the Court of King's-bench to the jury there sworn to try the issue joined between the said Gustavus Hume and the said William Burton, declared and delivered their opinion to the said jury, upon the said trial, that the evidence in the said bill of exceptions mentioned and offered to be given in behalf of the said Gustavus Hume, to prove the facts in issue aforesaid, was illegal and inadmissible evidence to go before the said jury; and declared that the record referred to and mentioned in the said bill of exceptions, and brought here before our lord the king, and the lords spiritual and temporal, upon the writ of error by the said Gustavus IIume against the said William Burton, and now remaining in the Court here, was conclusive evidence to the jury, to find a verdict for the defendant; and the chief justice and justices of the said Court aforesaid accordingly directed the said jury to find a verdict for the defendant; and according to the said direction, the said jury found a verdict for the defendant; without any evidence whatsoever, save the said record, it appears unto the said Court of parliament, that the said verdict of the said jurors ought to be set aside and annulled, and that the judgment thereupon given is erroneous, and that in the record and process aforesaid, and also in giving the aforesaid judgment, there is manifest error: therefore it is considered by the same Court of parliament aforesaid, that the verdict of the said jurors be vacated and annulled; and that the judgment aforesaid, for the errors aforesaid, being in the record and process aforesaid, be reversed, annulled, and altogether held for nought, and that the . said Gustavus Hume be restored to every thing he hath lost on occasion of the judg. 1...ent aforesaid. And it is further considered,
that the said parties do proceed to a new
: to your particular care, andam, with esteem, • Sir, your most humble servant, * STRANG Fond.”
Then the said Memorial was, by order, read as follows, viz. “To the Right Honourable the Lords ‘spiritual and temporal, in Parliament ‘assembled;’ ‘With the utmost deference, lord Strang'ford presumes to lay before their lordships ‘his absolute inability to obey their orders, ‘having been severely attacked by the gout ‘in his stomach, one fit particularly, so re“cently as Monday last ; for which, and other ‘complicated disorders, he is following thrice 'a day a course of Dr. Harvey's prescriptions, ‘which might, on attempting to go abroad, produce most fatal consequences to the short ‘remainder of a very declining life. He still “trusts, under God, their efficacy will restore ‘him to such a portion of health as shall 'release him from present confinement, ren‘dered infinitely more afflicting by its depriving him of an opportunity of learning ‘the real cause of accusation, and conse. i. taking the liberty of offering some ‘defence in his vindication, to mitigate their ‘lordships displeasure, happily never incurred ‘before in the course of upwards of forty years “he had the honour of a seat with their "lordships.’ James Corry, being by order called in, was sworn at the bar, and proved the service of the order of this House, of Saturday last, on lordviscount Strangford, to attend in his place. Ordered, that Dr. William Harvey do attend this House to-morrow, at three o'clock. George Rochfort esq. being by order called in, was sworn at the bar, and proved the receipt of a letter, dated South-Hill, 10th Jan. and signed Strangford. Ordered, that the order for lord viscount . to attend at his place in the House this day be adjourned till to-morrow. . On Thursday the eighth, the House proceeding to take into consideration the excuse made by the lord viscount Strangford for not attendog in his place according to the order of this House, and having examined Dr. William Harvey respecting the same, do conceive *ich excuse not to be well-founded, and thereote do order, and it is hereby ordered, that the said lord viscount Strangford be taken into the custody of the gentleman usher of the black rod for his contempt of the order of this House. On Saturday following, the tenth, the gentoman usher of the black rod acquainted the House, that he had taken the lord viscount Songsord into custody according to the order of the House on Thursday last, for his con*mpt in not obeying the order of this House. ordered, that the lord viscount Strangford be." brought to the bar of this House, by the ushes of the black rod. Whereupon the lord viscount Strangford
being brought accordingly, and making an apology for not attending in his place pursuant to the order of the House, he .." pardon of the House for such his diso dience. Resolved, that the lord viscount Strangford be discharged out of custody for his contempt in not obeying the order of the House. The House then proceeded to take into consideration the matter of the letter heretofore produced to this House, and remaining with the clerk of the parliament, directed to George Rochfort, esq., with the name, “Strangford,' appearing at the foot thereof; and the same being produced to the lord viscount Strangford now in his place, he viewed and perused the same, and afterwards the said lord viscount Strangford acknowledged that he wrote the said setter, and sent it as directed, but he declared he had no corrupt motive or intention in so doing. After which he retired by leave of the House, and the House proceeded further in consideration of the said matter. The said letter was then read, as follows, viz
“Dear Sir; As a busy scene is likely to “open after the recess, which will bring on ‘momentous transactions to individuals, I “could wish by regular attendance to frame a ‘right judgment on the different cases will ‘ be brought forward; but as distressed cir‘cumstances deprive me of means to appear, “shall I be deemed too presumptuous in “looking up once more to that friendship I ‘ experienced early in life?. I am conscious ‘that on a former application you assigned ‘such reasons for a denial as silences aii “reply, but as probably since that time, rents “ have been more punctually paid, I am en“couraged from that consideration to hope “forgiveness, by renewing a request produc‘tive of too many advantages to enumerate : * 200l. would fix me in the most enviable ‘ situation, and one hundred would surmount “some pressing difficulties, and enable me by ‘ daily appearance to express my gratitude ‘ by doing justice, when I flatter myself to see ‘success crown the undertaking. Be so good ‘to favour with a line one who you may be ‘assured is, with the sincerest regard, dear ‘Sir, your very faithful and most humble * servant. SI RANG Ford.”
“South-Hill, 10 January.’
Resolved, by the lords spiritual and temporal in parliament ...o. nemine dissentiente, that it appears to this House, that the lord viscount Strangford in writing and sending such letter as aforesaid, hath acted crimimily and corruptly. Resolved, that the lord viscount Strangford be committed to the custody of the gentleman usher of the black rod. Resolved, that this House will, on Monday next, proceed to take into consideration, what further becomes the justice and dignity of the House to be done on this occasion; and that