« VorigeDoorgaan »
serted ?-I asked Mr. Bembridge, whether he But in answer to a letter you had written had a doubt about the propriety of including to him, subsequent to the period we have any one of those articles in the account?- been speaking of?-Very likely. He said---no.
Saying, that 68,0001. was not the balance? Did he say, he had for weeks, months, or ---I cannot positively say that; if so, it is in years, or any time, known of those articles the treasury; every letter I received will, of that ought to he included in this account?-I course, be found there. asked him, if he did not know long before, This was before the examination ?-I canthat they ought to be inserted in this account; ( not say. he said, he did; I did not think to ask him to Before those voluntary articles of charge a month or day.
were introduced, do you remember writing a George Rose, esq. cross-examined by Mr. letter to Mr. Powell to pay in the balance? Erskine.
And do you not remember receiving a I observe, in looking over a minute I have letter from Mr. Powell saying, that 68,000). of the proceedings of the treasury-chamber. was not the balance, but that there was more at the time you are speaking of, that there to pay in ?-Very likely I might; but I do is no mention made, directly or indirectly, not recollect there was any such letter. of some of those circumstances which you Do you not recollect, he said in that letter, have spoken to?-Probably not; I included, that if you would turn to the book in the in these minutes, every thing I thought ma- auditor's office, you would find that ?-I have terial or important. I read over the minutes no recollection of such a thing. after I had taken them to Mr. Bembridge, But he told you it was not the final Mr. Powell, and the two deputy auditors; I balance ?-Ile repeatedly told me so; but I mentioned every thing in the minutes, that never understood the final balance to be appeared to me important at the time. otherwise than regarding the dispute between
Because, as Mr. Powell was examined at Paris Taylor and my lord Holland. the same time as Mr. Bembridge, and touch Mr. Sol. Gen. There is one question I ing the same matters, perhaps you may have forgot to ask you. Be so good as to inform my confounded the answers of one with the lord and the jury, about what time it was that answers of the other; for I have no trace of there was any known intention, in the board what you have mentioned; for instance, about of treasury, to institute an inquiry into the Paris Taylor's account? – It was certainly state of the sub-accountants ? -- Towards the examined; Mr. Powell, was the principal latter end of the last year; it was very early person at that time, considered to be a culprit. after my coming into my office that I men
I observe, in looking at the examination of tioned it as a most desirable thing to be Mr. Powell, several of those circumstances, looked into, a point I thought the public that you refer to Mr. Bembridge?--As well as would derive very considerable advantage my memory can go, I asked, I believe uni- from looking into. formly, of Mr. Bembridge, the same questions Was that pretty well known, and the subthat I asked of Mr. Powell.
ject of much conversation ?-A great deal. Did you take a minute?-A very rough Had you proceeded to take any account of one ; the minute that Mr. Winter has in his the state of the sub-accountant?-I cannot hand, I took in the evening; and as I did exactly say when there was any proceeding not take it at the time, I thought it im- upon it. portant to the parties to read the minute Was there any proceeding about the month carefully and deliberately over, to each of of December -- Yes; prior to that, there was them. The minute was taken on the Satur- an inquiry of the money in the hands of day; and on the Monday or Tuesday fol- several persovs unaccounted for. lowing, I read it to the parties, and the Were there any drawn out?-There was only thing Mr. Powell or Mr. Bembridge at none drawn out, I believe, so as to proceed all hesitated to admit, according to the mi- officially upon till after Christmas. nutes I had taken of what they had said, was Mr. Sol. Gen. There is a circumstance I am as to the account being final; they harped desired to mention to the Court, that at this upon that; they both of them then said that, very time, Mr. Bembridge admitted, that he relative to the account not being final. had himself, a very large balance in his
Did Mr. Bembridge say, that what he had hands to the amount of fourteen or fifteen done was under the direction of Mr. Powell? thousand pounds. He said, that Mr. Powell had been the ac Lord Mansfield. You will show that. countant before him, and he referred it to (A letter was put into Court, by Mr, Mr. Powell to make it up.
Chamberlayne, dated Pay-office, 19th of Feb., Do you remember, upon the 24th of Ja- 1773, from Mr. Bembridge to Geo: Rose, nuary, receiving any letter from Mr. Powell ? esq. --(It was read). -- I shall take it as a
- I cannot esactly ascertain any date; what particular favour, if you would be pleased to letter do you allude to?
. inform the lords of the treasury, that in In the end of January ?-I cannot upon my three weeks at farthest, I certainly will pay memory say.
the balance due from me, as one of the
deputies of Henry lord Holland, deceased, gentleman, see whether he is guilty of the as paymaster of his majesty's forces.' facts charged by this information, or of any
Another letter, dated 3d of March, 1783, 'thing that is the fair object of an information, from Mr. Bembridge to George Rose, esq.
or in other words, whether he is guilty of an 'I request it, as a particular favour, that you indictable offence. I take the liberty to lay will be pleased to inform the lords of the it down,--and, I presume, I shall meet with * treasury, that I have paid to Mr. Powell, the assent of Mr. Solicitor General to that the balance due from me, as one of thc proposition of law ;-that nothing can be the deputies of Henry lord Holland, deceased, object of a criminal prosecution, by way of ' late paymaster of his majesty's forces.'] information, unless, at the same time, it can
Lord Mansfield. How does it appear what be the object of an indictment; the only the balance was?
difference is, that it is the privilege of Mr. Baldwin. In the second letter, your the attorney-general to proceed by inforlordship sees, he states that he had paid it to mation, without the intervention of a grand Mr. Powell. Now we will show that three jury; in the case of indictment, a grand days after, Mr. Powell paid in 20,0001. jury must first find the charge against the
Lord Mansfield. That does not show the defendant; but you will be pleased to sum paid by the defendant, he might have take as a main ground, upon which I build many other sums.
much, that I shall offer both to my lord and The end of the evidence for the Crown. you upon this occasion, that this is not an FOR THE DEFENDANT.
offence that can be prosecuted and punished
by information, unless, by law, it is liable to Mr. Bearcroft. May it please your lordship, be prosecuted and punished by indictment. and gentlemen of the jury; I am counsel for Gentlemen, it behoves me, in endeavourthe defendant, Mr. Bembridge, who labours ing to do my duty to my client, to endeavour under the weighty misfortune of being the that you should be somewhat more particuobject of a prosecution, by the attorney- larly and minutely acquainted with the charge general, for a supposed omission of duty in contained upon the face of this information, the pay-office, at a time when great pains and the effect of it, than, I am sure, at prehave been taken to alarm the public, and to sent, you are. The charge in words and in turn the eyes of every man upon that office. substance that must be made out, is this, that
I am as willing as Mr. Solicitor-General to the place of accountant in the office of the contribute my share of praise to the zeal of paymaster-general, is a place of public trust the lords commissioners of the treasury, to and confidence, touching the making up the inquire into the state of the public accounts; accounts of the receiver and paymaster-gehe praises them much for it; it was an obvious neral, and the adjusting and settling the same duty, it is a pity that it had not occurred a with the auditor of the imprest; these words little earlier; if all public accountants were to are very important; and it will be for my be proceeded against
, it is somewhat extraor- lord's direction to you, whether the evidence dinary that they pounced at ouce upon my that has been given of this place of accounlord Holland's accounts, rather than any tant in the pay-office, shows it to be a place other man's ; but so it was.* Al that end, I within the legal import and description, upon cannot call it, but in that middle, they chose the face of this information. to begin.
Gentlemen, they are generał words, Gentlemen, you will strip yourselves of all place of great public trust and confidence; prejudices, and of all clamour, and you will, the law is more correct, and unless my lord before you pronounce a verdict against this shall tell you, that this place of accountant
in the office of the paymaster-general is of See in Woodfall's edition of Junius, vol. such a nature, that the breach of the duty of 1, p. * 174 and p. *175 note A, some interesting it, amounts to an indictable offence-I beg particulars respecting the accounts of Henry leave to say, that it is not a place within the lord Holland, as paymaster-general of the meaning of this information, of great public forces, published in consequence of the Ad trust and confidence. To explain myself, dress of the city of London presented to his and for his lordship's direction, what I aim majesty, July 5, 1769, in the following pas- at, is this; I do not believe it to be law, that sage of which address lord Holland conceived every man, in every public office, that has himself to be alluded to.
relation even to the public money, in every “ All this they [his majesty's ministers] breach of his duty commits an offence in. have been able to effect by corruption; by dictable; there are other ways of punishing a scandalous misapplication and embezzle- that man. ment of the public treasure, and a shameful Gentlemen, I ask of my learned friend, to prostitution of public honours and employ. tell me in what book of criminal law, in what ments; procuring deficiencies of the civil list adjudged case, he finds that general propoto be made good without examination; and, sition? For if it be generally true, that instead of punishing, conferring honours on a every inan, that every clerk, that every paymaster, the public defaulter of clerk's clerk in office, whenever he wilfully counted millions."
neglects to do his duty, is liable to an inVOL. XXII.
dictment, it is astonishing what an infinite charge, in every one of the counts in that number of the subjects of this kingdom must information is, that what he did was contrary be comprehended within such a law, and it to the intent and meaning of the act of paraffects them and no other subjects of the liament that created the offence, and which kingdom, in the manner that soldiers are is recited in the information; and, not conaffected by the mutiny-act; there is a severe tent with that, in each count it is included law that hangs over the heads of men of this over again, in manifest violation of that act description, to infinite numbers, if it be law; of parliament. It was not clear, that even I desire not to be misunderstood; I do not in that cross offence, Mr. Leheup was guilty mean to contend, that the law of England of an ofience known to the common laws of does not consider the situation of men in this country, but that he was upon the staoffices, and does not punish them for a breach tute, no man could doubt. It is a clear prinof their duty in their office; but read our ciple of criminal law, that if an act of parliabooks, and look at our precedents, and tell ment commands a thing to be done, or proine upon what principles, and how that law hibits it to be done, and does not direct a is confined. Persons of high trust in judicial pecuniary penalty, or a particular mode of offices, if they purposely offend, they are prosecution, whoever acts contrary to that liable to indictments; they are liable to im- act is indictable; Mr. Leheup, upon that ocpeachments; and to be prosecuted as crimi- casion, clearly acted contrary to the spirit of nals. Common law officers, of various kinds, the act, for being named as a trustee for the who are necessary for the public admi- public, he acted for his own benefit, in subvernistration of justice, are undoubtedly liable; sion of the act of parliament. Upon the ground, justices of the peace, who pervert the duty of therefore, of being appointed by the act of partheir offices, they shall be punished when liament, and acting directly in open violation they thus offend; even a constable, if he of it (which is perpetually repeated in the does not obey the warrant of a justice, shall indictment), it was, that he was found guilty. be punished, because the common and ori- I call upon the knowledge and experience of ginal law of this land, has known these my learned friend, the solicitor-general, to offices from ancient time; they are created show me a single instance of a prosecution of for the purposes of assisting public govern- a clerk in office, by way of information or inment, and it is upon that principle that they dictment, for wilfully omitting to do his duty. may be prosecuted for a criminal offence, Gentleman, this is not, and it is fit you should when they wilfully do not fulfil their duty: attend to that (and with great submission, I Neither the paymaster nor his clerk, the ac- hope my lord will do it too), that this is not countant, nor any of his clerks, come within a crime of commission; here is nothing done, this description. The paymaster himself, is nothing executed, nothing perfected, no mis a modern officer, with respect to the points chief done to the public, no loss whatever upon which I now speak, created within about follows from it. I ask of my learned friend, these hundred years ;—where do we read then, if he cannot produce a precedent to of him in our books? Where do we read of tell me upon what principle does it stand? any such description of men, that by the Says my learned friend, no man can doubt common-law is indictable for any offence about it; every man's understanding must that he commits? I have tasked my me teach him, that an officer in the public office mory and recollection, to go back to what of the paymaster, who has to do with public precedents can be found upon this occasion; accounts, must be a criminal if he wilfully the first that occurred to my mind, was a Mr. omits to do his duty. Why must he? because Leheup, who certainly was prosecuted for a it strikes you to be a wrong thing.--Numepublic offence, with regard to public money: rous are the cases I could state to you, that it struck me the moment I recollected it, would strike a man infinitely more, concernthat that prosecution was right, and clearly ing which, there is not a colour to say, that founded in law; for the history of Mr. Leheup they are indictable offences. It is not then was this; he was appointed and named, by the disapprobation of mankind; it is not your special act of parliament, for the purpose of saying this thing is not decent or proper, you receiving subscriptions for the lottery for the should not have done so, that makes an inpurpose of purchasing the museum; he dictable offence. It is of the utmost imporabused that trust, for finding the tickets bear tance to every subject of this country, that a premium, he got a parcel of sham names, somewhere or other, he should be able to and represented them as the names of real learn what the law is upon all subjects, but subscribers and contributors given in to him, above all others, upon criminal subjects. by which means, he got possession of the Again, I call upon my learned friend, most setickets, and sold them to an advantage; I riously, to state to me, if he can, a precedent, have seen the information that was filed a principle, a line, or word, that is to be found against him and though it consists of a in any law-book, upon which he can found great number of different charges, I think the legality of the present charge.--I say this nine, at least, it will be in the memory of his for my lord's direction, not that I conceive lordship, I am sure); it turned out to be ex- that even this evidence proves the fact, in the actly as I suspected, and the point in the manner in which it is charged against Mr.
Bembridge, in the present accusation. The | its being the duty of the accountant, in this charge is this; that it being his duty to dis-pay-office, to settle the accounts of an ex-payclose these items, he wilfully (which is the master out of office, or a dead one with his reessence of this and of every other crime, for presentative. I desire to learn of my friends, no man can commit a crime, unless his will what law, what process there is to enable him goes with it, and he knows what he is about; to carry this into execution; what duty can perhaps, it is not necessary that he should there be upon that officer, who either may do know, that in point of law, it is a crime, but it or let it alone, at the option of another perhis will must go along with it, and he munst be son? The charge is, that it is the clear and conscious at the time, that he is doing absolute duty of the office of an accountant something grossly wrong) concealed them to settle the accounts of the paymaster, and Now see what evidence you have of that, the to act in adjusting them with the auditor; if story stated to you is this: lord Holland was this is the ancient course of the exchequer, there a great public accountant; when his lordship is some process which can compel the party to went out of office, and still when he died, do this; where is that process from the exthere was a vast account with the public, in chequer that can call Mr. Powell, or any body the common and ordinary course of the ex- else, to come before the accountant of the chequer; Mr. Powell alone was the acting pay-office to settle and pass his account? Is executor, and the single representative of lord | there any such law? Is there any such proHolland; Mr. Powell was in a very peculiar cess? No; a paymaster and his representasituation; and, gentlemen, if you will do me tive, like every other accountant for public the favour, and my client the justice to attend money, is obliged to account with the exto me, I'am persuaded, from that peculiar chequer, according to the ancient course of circumstance of Mr. Powell's situation, you it, and all that process of law to extort an acwill see a complete excuse for the present de- count from those who have public money in fendant. Mr. Powell had been accountant in their hand, must come from the exchequer, this office for many years, he was now compelling the party to account with the aucashier, but the same Mr. Powell was likewise ditor. the executor and representative of my lord Gentlemen, it is perfectly true, that it has Holland; now, what an absurdity would it be been very frequent, in point of fact, for the to require of a man, who was himself to ac- accountant in the paymaster's office, to assist count, and who was better able to make out in making up and adjusting the accounts of the account than any man in England, from ex-paymasters, but it does not, therefore, the nature of his office; what an absurdity to follow that it is their duty to do it; why the require him to go and present himself to a thing has happened, is very easily accounted man to do that business, who did not under- for; they are the best judges of this kind of stand it so well as himself. The commission account; they can do it quickest, they are the ers of the treasury thought they had reduced most able at it, and, therefore, it happens, Mr. Bembridge to an absurdity, when they that nineteen times in twenty, for what I asked the question, whether it did not occur know, if it could be traced so far back, the exto him, that it was wrong to suffer Mr.Powell, paymasters, or their representatives, have apbecause he was the person accounting, to draw plied to the accountants to do this for them ; up the account? Mr. Bembridge said, it did but they may do the reverse if they think pronot occur to him; he would not tell the lords per. I take the liberty to say, that it was that sat at that board, that the reverse was law, till altered by an act* that has passed what occurred to him; but to any man, who only this session, that a paymaster, upon gounderstands the nature of this office, who ing out of office, or, if he was dead, his rewould advert to the particular situation of presentative, had a right to take every book, Mr. Powell himself, it would have been an and every scrap of paper that would serve to absurdity, if Mr. Bembridge had called upon make up his account, away from the pay-ofhim, to permit him, Mr. Bembridge, to do fice, to his own closet. I will go farther; I will that which the other could do so much better. state a case, and put it in the form of law,
Gentlemen, it is not an offence charged by If the representative of a dead paymaster had the present information the taking fees for got hold of a book in the office which connot doing the duty of the office, that has been tained only his accounts, and was going out frequently done; in the case of Mr. Winning at the door with it, and the then paymaster ton, his representatives chose to pass his ac was to run after lim, and say, “Sir, I want that counts by a person they employed themselves, book, it is mine;'no,' says the other, “it is the accountant received fees for it, and it never occurred to any man, to prosecute him for it; * See stat. 23 Geo. 3. c. 50. intituled, “An but that is not this prosecution. There was act for the better regulation of the office of the much stronger reason that Mr. Powell should paymaster-general of his majesty's forces, and be permitted to draw up this account; I say, the more regular payment of the army; and to Mr. Powell had a right to do it, and it was repeal an aet made in the last session of parnot in the power of any man breathing, by liament, stat. 22. Geo. 3. c. 81, intituled An any law in existence, to compel it to be done act for the better regulation of the office of by any other man. This is a strange idea of paymaster-general of his majesty's forces.'”.
- mine, I have a right to make use of it;' if the sworn to the truth of it. Now, then, let us paymaster, in office, were to snatch that see the offence of Mr. Bembridge; it consists book and take it away, I take the liberty to in this ; Mr. Powell had delivered in many say, that the representative of the paymaster, books of accounts; he had omitted several out of office, might bring an action of trover articles, amounting, I confess, to a large sum; for it; it is his absolute property; why, gentle- Mr. Powell might have inserted them, Mr. men, it is the means of his doing that which Powell ought, if you please (I will go so far), the law says he is bound to do; the man who to have inserted them before; Mr. Bemreceives money, must account with the ex-bridge knew that they ought to have been chequer; shall he leave all his vouchers, all inserted before, and Mir. Bembridge did not his books, which enable him to make up that turn a spy, and go and tell the auditor that account, in the hands of any man? Such an his predecessor at his office, Mr. Powell, inabsurdity requires stronger proof than any tended to commit some offence; for if Mr. that has been adduced to day ; 0!' say, the Bembridge had been base and mean enough gentlemen, “Mr. Bembridge has admitted to feel it a duty to make some information that it is so.' It has escaped me, if Mr. upon the subject (but how can a man feel Bembridge has admitted that it was the duty such a conduct to be his duty, which he of the accountants, whether they would or would spurn at the idea of?), if he had been not, to pass the accounts of the ex.paymas ever so willing to make a charge against Mr. ters; he has said they make up the accounts; Powell, he could not have put it with any in fact, they do so; and I have accounted to colour of truth, in any other form than this, you, rationally, I trust, and fairly, how that to my lord Sondes : I believe Mr. Powell in happens; but I say, it cannot be their duty, tends to commit some offence, some fraud unless it be in their power to enforce it, and upon the public ; why? Because he has my learned friend will tell you, if there be any omitted to insert, in the proper place, a great process of law to compel that.
number of articles, amounting to a large sum Now, gentlemen, permit me a word or two of money; I believe he means to close his more to that which is the essence of this, and account, finally, without doing it ;-that and of every crime; and that is the wilful- / would have been Mr. Bembridge's charge; ness of this concealment by Mr. Bembridge. and for not having that trifling merit it is, As to the wilfulness, you will recollect the that he is prosecuted. What a figure would story, and understand it. Mr. Powell, the Mr. Bembridge have cut in the world, when, representative of lord Holland, is to account in point of fact, it turned out that the sus for great sums of money, delivered into the picions were false, for that, in truth, Mr. possession of lord Holland, for the public use; Powell did insert this? O!' says my learned when he is called upon to do it, he delivers in friend, · he did not do it voluntarily; the actwo books to the auditors of the exchequer, tivity of the then lords commissioners of the one of which is called the final account; Now treasury frightened all the world, and brought it is necessary here that I should beg your them in' Gentlemen, it may be so, for any attention, lest you should be misled, as the thing that I know; but do you make a crimipublic has been, very much, by the abuse and nal charge, not against Mr. Powell, but misunderstanding of that phrase, “ final ac- | against Mr. Bembridge, for not telling of Mr. count;' and to do justice to my friend the Powell? It would be too hard to take that for solicitor-general, he has stated it so; if final granted, and the whole fault of Mr. Bemaccount means (which it certainly does) no bridge seems to be, that he was not too formore than the last book of account; that is, ward to tell tales, and to create suspicions I bring here my last book of account, which which were not founded in facts. It is not comes down to Michaelmas, 1765, which is necessary for the government of this country the close of my account; in that sense it to be carried on by a generation of spies and is a final account; but, if it is meant to be informers; it is not the spirit of an Englishsaid to you, as it has been published all man, and I trust, you, gentlemen, who are so, over the world, in all the newspapers, that will make due allowance for that. Will you the account was finally closed, it is perfect suffer a man to be convicted of a crime for nonsense; and then the clerks in the office not doing that, which if he had done, all manare wiser than all the world; they think, be- kind must have hooted and hissed him for cause there is a penciled balance struck, it is doing? a final account. Now, I ask you, gentlemen, Now a few words as to the wilfulness of it. if you do not reason the contrary way; that it must be wilful, say they, because he was in because it was written in pencil, it was not a the pay-office, because it appeared in the final account; it was written in pencil, be- books, and he must know it. Is that the cause it was liable to be altered ; indeed, the foundation of the criminality? Is that the eswitnesses, on the part of the prosecution, have sence of the crime? Is it because, receiving said it was not a finally closed account, and money of the public, he knew of something they have told you, as the truth is, that their that he might have disclosed, and did not? accounts were never considered as a finally If so, my friend will have enough to do with closed account, till the par himself, who is inforinations, for they ought to file criminal the acting person, has set his name to it, and informations against every man, from top lo