bottom of the office, who can read, and has access to these books; which furnishes this observation, that it cannot rationally be conceived that Mr. Bembridge meant any mischief in this, for he must know, if he had any common sense, that it was an absolute impossibility to keep the secret; if he did not intend to keep the secret, the crime is vanished in this business; but, no,' they will say, the crime has once existed; and if I can find a man who has committed a crime, though there is an end of it, and it has had no effect at all-the crime is complete, and I have a right to punish it at any time;' for the only way in which they can make this an offence, is, that Mr. Bembridge kept it back, when he ought to have disclosed that he had reason to suppose a crime was meditated by Mr. Powell. more, I can tell you of no more, go to Mr. Powell;' and the witnesses say, from that period, their constant intercourse, from time to time, was with Mr. Powell and nobody else. Then, in November, Mr. Bembridge was not so forward, as a spy and an informer, as he ought to be in point of law; but he says, apply to my principal, Mr. Powell, I have nothing to do with it; and that was true, Mr. Powell was the acting man, he was making up his accounts; I asked the question, whether Mr. Powell did not succeed to be cashier, after he quitted the office of accountant? the answer was, and the fact is clear, that he was so, and spent many, many hours, every day, at the office; the consequence of that was, that all these books must be there; they were in his custody, seen by Mr. Bembridge; Mr. Bembridge assisted, if you please, with all my heart; but Mr. Bembridge, upon that occasion, not being, what accountants frequently, in fact, have been,but Mr. Powell himself carried on the account; Mr. Bembridge was not interested with the passing of this account; if for a moment, a day, or a month, he assisted, there was an end of it in November, and then he refers you to Mr. Powell, who was himself passing his own accounts. Gentlemen, I beg you will distinguish between the situation of Mr. Bembridge and Mr. Powell; Mr. Bembridge has nothing to do with the public money; he was not interested in this, and was not advantaged by it at all; if there was a fault, a monstrous crime, as the solicitor-general has stated, that unhappy man, whose name has been mentioned so often, has pronounced and executed a sentence upon himself, severer than the law could inflict;*-there is a sacrifice to public Gentlemen, under this circumstance, for clamour, for it was so at that time. If Mr. God's sake, where is the mischief done to the Powell had been in existence to answer for public? where is the obstinate wilfulness that his crime, a prosecution against Mr. Bem- is to compose this crime? He had not the bridge, by the attorney-general, would not money; he could get nothing by it; nobody have been thought of, for that mere colour of could state the manner in which he was ada crime, for more than colour there is not. As vantaged; and at this moment, the whole to withholding it, if you suppose the great business, with respect to the public, stands in object and design of Mr. Bembridge was to the situation in which it did a dozen years keep this secret, he would have said, when ago, with respect to the payment of the mothe inquiry was made of him,' I know, posi-ney; for though it turns out that Mr. Powell tively, there are no more articles;' if his object had been to have kept it secret, would he have directed them to the man who would disclose it-who ultimately must, and who did disclose it? But at the time, I think, in November, when the clerks were worked up to a little more diligence than they had been before, in the auditor's office, they go to Mr. Bembridge about it; says he, I know of no In the General Advertizer of May 28th, 1783, is the following paragraph: John Powell, Esq. "Monday night, May 26, a very respectable jury, summoned by the coroner, sat upon the body of John Powell, esq. at his house in Bennet-street, St. James's, who that morning had, through extreme depression of spirits and despondency, put an end to his unhappy life; when it appeared, upon the clearest evidence, given by Mr. Rigby, Mr. Burke, Mr. Woodhouse, and divers other witnesses, that the deceased, since the time of his examination before the lords of the treasury, has been generally in a state of insanity. The jury unanimously brought in their verdict lunacy." has now acknowledged that there is a debt due to the public of upwards of a hundred thousand pounds, part of which, this additional 48,000l. is, it is not paid, but I can tell you that it is perfectly secure; and even this miserable Mr. Powell, whose character has been so reflected upon (I know it, for I have seen the accounts, that there is a hundred and odd thousand pounds that is a balance due to the country, though it stands upon perfectly as good security as any in this kingdom); Mr. Powell has never altered it, for it stands upon the same mortgages, and the same ample security, of every kind, exactly as it did in lord Holland's life-time. What has been the suggestion against this wretch? why, that he was, all along, cheating the public, and keeping back this account for the sake of making advantage of money, and turning it to his own purposes; it is impossible: it cannot be so: it is out upon the same securities and mortgage (I repeat it again) that it existed upon in the time of my lord Holland; he had not had it in his pocket, he could not play with it, nor did he. To advert still to the point-Mr. Bembridge wilfully assisted in this concealment, for the sake of a man who could get nothing more principal; Mr. Hughes and Mr. Wigglesworth by it than he did; Mr. Powell, in fact, brought conceded to it, for away they go, and from it forwards. Let me now consider of it (with that time to this moment, they had no inter a view to my lord's direction to you) again, course with Mr. Bembridge at all; but this what sort of an offence this is, in another way has been, all of it, extorted at a board of of considering it; I have stated to you, and commissioners of the treasury, from the de trust I have satisfied you, that, at the utmost, fendant himself. It might be their duty; I this was an intent to commit an offence; I dare say, they had nothing but public views take the liberty to lay it down as clear, indu- in it; they aimed not at particular men or bitable law, that an intent to commit an of things; all persons of a certain description, fence, unless that offence be treason, is no you know, never cast their eye upon any thing crime by the law under which we live, and of that sort. I will admit, if you please, that by which we are governed. If Mr. Powell it was perfectly proper to make the inquiry intended to secrete this from the public, and for the sake of the public, and for the sake of Mr. Bembridge meant to assist him in it, his compelling the payment of the balance; but offence could not go farther than the principal can you conceive that it becomes commisin this sort of thing, for it was but intention, sioners of the treasury, if in the course of which intention, in fact, was not carried into inquiries of that kind of pursuing money, execution. I desire to know, what colour they stumble and kick up a crime, to send there is to say (if it was in proof) to you, their clerk to give evidence of this? I have that this is an offence criminal and indictable no difficulty to say, that I cannot conceive by the common law of this country. "0! that it was either necessary or becoming. If but,' it will be said, 'Mr. Bembridge stands they were in the prosecution of the money, in a peculiar situation, he is to do his duty / let them make use of any thing that they correctly; if he omits any part of it wilfully, think proper to that end; but that sort of that omission is, in effect, a positive crime. inquiry and examination appearing to aim at I know that is the way in which my learned one thing, and, in truth, looking after another, friend will talk to you by-and-by; that is in my apprehension, does honour to no men, measuring strangely indeed; if that should let their characters and stations be what they be conceded to be law, it is a very severe one, will; but if they will descend to give the eviand where men prosecute upon a severe law, dence, we must consider it. Now, gentlemen, it behoves them to have their evidence com- what is it that Mr. Bembridge says :—I sufplete and decisive; if the execution of the fered Mr. Powell to pass his own account; and law is severe in itself, you ought to be per- can you conceive, when Mr. Bembridge gave fectly satisfied, before you convict, that you that answer, that he thought he was accusing have facts and evidence which prove the himself of a crime, whatever the commiscrime beyond all doubt. Now, as I have said sioners of the treasury were aiming at upon so often, and cannot repeat it too often, it is that occasion? Mr. Bembridge is not a fool; the design of the party, the wilfulness, that I claim that, therefore, as evidence for the constitutes this offence, and unless you are defendant; he answers the questions at once, perfectly satisfied by the circumstances, that and states the fact. Consider his situation; it was absolutely wilful and designed, there is had he been conscious of any crime or offence, not a colour to convict Mr. Bembridge of this would he have been so ready to answer the charge. It is contended, -and it may be so, question? he made no difficulty to tell them for what I know, it may be my lord's opi- all . It is necessary for you, therefore, under nion, and yours, when you come to give your the circumstances of this case in the first verdict,—that it is the duty of the accountant place, to decide from the whole complexion of of the pay-office, to pass these accounts; but it, whether you are satisfied that this was a the essence of the ottence is the wilfulness of wilful concealment of this transaction, which the omission; it ought to appear to you, was for a time wrong, but is followed by no ill therefore, beyond all doubt, that Mr. Bem- consequences. It will be for my lord' to tell bridge knew and thought it to be the duty of you, whether I am right in the law I have his office. Can you, after the evidence that taken the liberty to lay down for his lordship's has been given, conceive that he was con consideration; I am not ashamed of it, I am vinced that it was the duty of his office, when serious in it, and it does not misbecome an the officers from the auditor's-office, which is advocate, nor does it misbecome a subject of the proper place to compel the making up this country to say, that it is of the utmost this account, tell you, that when they applied importance to every individual in it, that the to him, he refers them to Mr. Powell himself? criminal law of the country may be known and Now, some of these gentlemen have been traced, and that it may be found somewhere. acquainted with the office thirty-six years; I say this law is to be found nowhere, and I did not one of them say, 'what, Mr. Bem- have a right to say it, for unless my friend bridge, would you send us to Mr. Powell to can show it has been determined by some make up and pass his own accounts?'—No. court of law, or is to be found in some book -From Mr. Bembridge's acts, at the mo- of authority upon the subject of criminal law, ment, it is plain he did not consider it as a I have a right to say there is no such law, part of his duty, but referred them to his and I am sausfied that you will not find any 61] for a Misdemeanor. the inspection of the whole, the business entirely lies upon him. principle or precedent of the kind. Gentle- accounts of all regiments, troops, and commen, I will examine witnesses, who knew the panies, in the pay of Great Britain; to settle nature and practice of this office for many and state the accounts of all the deputy payyears; they will tell you what the business of masters that are employed abroad by the paythe accountant is, and it certainly is very great master-general; to state the pay and clearand extensive; they will, however, state to ings of all the garrisons at home and abroad; to settle and correspond with all the deputy-you, particularly, the points which are his paymasters likewise abroad; to examine all duty, and they will tell you that they never understood that this was his duty, but that, in their accounts; to check all receipts that are truth, it was, as I have contended that it made out for the general and staff-officers in must in point of common sense and law be, Great Britain and North America, and to see that the party accounting, may either make that the deductions taken therein, are proper; to examine and state the account of extraor the account out himself, or employ any person he thinks proper to do it for him; that is dinary services every year; in short, the aca strong proof of it in the case of Mr. Win-countant of the paymaster-general's office has nington's representative; he gives the account to Mr. Bangham, the deputy-auditor, and gives the pay-office the go-by; he chooses his man, but did the paymaster interfere? No. Oh! but he took an allowance for it, and that is to be clear evidence that he did his duty. Gentlemen, I acknowledge that taking fees is evidence, that there is a duty for it, but that is not the crime that is imputed to the present defendant. This is not an information against him for not doing the general duty of his office, and yet the essence of the crime is what I have already mentioned to you, that it was a wilful concealment, in point of fact. I trust, upon the circumstances of the case, from the evidence I shall produce, you will be convinced it is not the duty of the accountant; you will have good reason to think that Mr. Bembridge so apprehended it; it will not stand on your being told, whether it was, or was not his duty, but you will see every reason to think he did not apprehend it to be his duty. Gentlemen, you observe this is the case of a man who gets nothing by it, who does not touch the money at all, and if there be any thing wrong in his conduct, it is only, at most, an intention to commit an offence, which, in point of fact, never was committed. This is the nature of the case, which I have to lay before you. I trust, that neither in point of fact, have they made out a case upon this record, and if they have, I submit to his lordship, that in point of law, it is not an of fence for which an information would lie. EVIDENCE FOR THE DEFENDANT. Thomas Bangham, esq. sworn.-Examined by Mr. Scott. You are, I understand, employed in the pay-office-Yes; I am. How long have you been employed in that office?-Thirty-three years. What is your office now?-Ledger-keeper. Are you acquainted with the duties of the office of accountant-general ?-Of the accountant. Will you be so good as to state to the Court what are the duties of that office?-I take the duties of the accountant of the paymastergeneral's office to be-to state and settle the + What is the duty of the accountant, with respect to making up the accounts of paymasters who are out of office?—I really be lieve it is entirely at his own option whether he will or will not do it. Have you always understood that to be so? -I have. What fact is the reason of your believing that it is at the choice of the paymaster to employ whom he pleases?-I will mention one circumstance; it was before I was in office, to be sure, and that was with regard to Mr. Winnington's account. Mr. Sol. Gen. The witness cannot state that, as of his own knowledge. Mr. Bangham. The deputy-auditor, who made up the account, was a relation of mine, he was employed by Mr. Ingram, who was the executor of Mr. Winnington. Lord Mansfield. It is nothing of your own knowledge No. Then do not say any thing that is not of your own knowledge. Mr. Scott. Did you know Mr. Nicholl ?—I did. Do you know of his being employed in making up the accounts of an ex-paymaster? I do; he was employed in making up the accounts of the late lord Chatham. What was Mr. Nicholl?-Accountant in the paymaster-general's office; Mr. Nicholl died; Mr. Sawyer was then cashier in the pay master-general's office; when Mr. Nicholl died, Mr. Sawyer was employed, and Mr. Sawyer, I believe, employed Mr. Lamb as the principal person to assist him in making up those accounts of my lord Chatham. And Mr. Sawyer was not accountant at that time?-No; cashier. Do you know Mr. Bembridge?-I do. What is his general character?-I never heard any ill of him, never; he is a very honest, good officer. How long have you known him?—I was in the office before him some years; I have known him ever since he has been in the of fice, and he has been a very able man, in every department he has been in. He is an honest, good officer?—Yes; I never heard any objection to him, Crawfurd, esą, sworn.—Examined by auditor's office?-It has been done by different fact, settled the paymaster's account in the Mr. Erskine. pecple. I believe you have been in the pay-office Has it not, since you came into office, been for many years ?—Ever since November, done by the accountant?- Mr. Nicholí bad, 1761. I believe, the making up lord Chatham's acIn what situation there !—In different counts; he was in various departments; he situations. changed, according to his health, from an What situation have you now?-Cashier of active to an office less active, and in all his half-pay. offices, he continued to conduct the making You must, of course, be acquainted with up lord Chatham's accounts. the different offices of that department. Do Tell me whether the accountant has ordiyou know the nature of the office of accoun- narily, or as far as you know, always carried tant ?-I do; I have some memorandums in and settled the account with the auditor? here, if you will permit me to refer to them. -I cannot speak certainly to that; there are [Refers to his memorandums.] I consider few have finally passed. the duty of accountant of the pay-office is, to But whether final or not, in the progress of examine and state the accounts of the several the accounts have not they been universally garrisons at home and abroad, and to see that the persons?-I believe they are generally the the proper deductions are made; to examine persons that do it, unless the ex-paymaster and state the claims of the several general | thinks proper to appoint another. and staff-officers, and officers of hospitals at That is a matter of opinion; but have you home and abroad, and to see that the proper ever known a man, who, being paymaster, deductions are made therein; to examine and ever substituted, or attempted to substitute state the account of the army extraordinaries any other person whatever-I cannot speak that annually occur; to settle the several re- certainly to what situation Mr. Nicholl was mittances to be made to the paymasters in when he conducted the accounts. abroad; to examine the accounts of the se- Then it comes to nothing. I ask you wheveral deputy paymasters; to examine every ther, as far forth as this duty has been permemorial and report; to do the official cor- formed at all, within your knowledge, it has respondence in general; and he has the ge- not been by the accountant?–1 really do not neral superintendence and direction of the know who has passed the accounts. office. There have been several paymasters in Do you know what is his duty, if he has your memory. Now, for instance, do you any duty at all of that sort, relative to the ex- know who settled and passed Mr. Rigby's acpaymaster's accounts!—I always have under-counts, as far as they were ever settled and stood that the making up of the ex-paymaster's passed ?—They are not passed yet. accounts rested with himself or his personal None of them? -Not final accounts. representative-if dead, to put his accounts But as far as have been carried in ?-lr. in what hands they pleased. Powell first, and Mr. Bembridge assisted, I Did you ever conceive, from any observa- understand. tion you have ever made upon the accoun- Let us see if we can take things separately. tant's-office, or any thing you have ever When Mr. Powell was accountant, did he do known of it, that he can compel the ex- it for Mr. Rigby?-Yes. paymaster to bring in his accounts before When Mr. Bembridge was accountant, did him to be settled ?-I have never thought so. he do it or no?--I believe, he and Mr. Powell How long have you been acquainted with jointly: Mr. Bembridge?-Ile was abroad when I In the time of Mr. Townshend, whom were came into the office; but very soon after I the accounts settled and passed by ?-I believe came in, early in 1762, Mr. Bembridge came by Mr. Powell. home, I believe from Belleisle. He being then accountant; now, who was And you have been acquainted with him, the accountant in the time of lord North and in office, ever since?-Yes. Mr. Cooke?-I believe Mr. Powell 100. As far as your observation has extended, Then in all these instances, as far as you how has Mr. Bembridge conducted himself know, the person filling the office of acin that department? --- Like a most able and countant did this duty?-I should generally active officer. think they would, they are the properest for it, Did you ever see any thing that gave you Mr. Erskine. During times you have the least reason to doubt of it?-No. spoken of (Mr. Townshend, Mr. Kigby, lord Crawfurd, esq. cross-examined by Mr. North, and Mr. Cooke), was not Mr. Powell Solicitor General. very much experienced in that office?-Yes. But you say he continued to do this busiMr. Bembridge was deputy paymaster at ness while cashier, when he was not accounBelleisle ?-Yes. tant ?-I understand exactly the same; I un. I will not ask you your opinion about the derstood so. duty of a man's office, but, perhaps, you can Mr. Sol. Gen. You see the witness knows tell me, during your experience, who has, in nothing of it. Mr. Erskine. You have told us, in point Lord Mansfeld. You have certainly set. of fact, that lord Chatham's accounts were tled that fact, and need not examine to it. settled by Mr. Nicholl ?—I was a young officer at the time, and was very little employed in The Right Hon. Lord North sworn.--Exathe business. mined by Mr. Scott. One of the Jury. What is your reason for Do you know the defendant, Mr. Bemthinking Mr. Powell did all this? You say bridge ? –Yes. you understood so?-Because I always saw How long has your lordship known him? him busy with the accounts, and have spoken | Ever since the year 1766, when I was apto him upon the business. pointed joint paymaster with Mr. Cooke. Mr. Erskine. After he ceased to be ac. What do you take his general character to countant?—Yes; I have spoken to him se- be?-I always understood him to be a very veral times upon the business of the accounts, honest, and a very able officer. and have carried sections of the accounts to The Right Hon. Lord Sydney sworn.-Exahim. Then you know, that after Mr. Powell mined by Mr. Erskine. ceased to be accountant and was cashier, he Your lordship was formerly paymaster! Tras still employed upon those accounts?- I succeeded lord North as joint-paymaster Yes; with the assistance of the accountant. with Mr. Cooke. Mr. John Lamb sworn.--Examined by Mr. _I knew him when I was in that office; I You are acquainted with Mr. Bembridge ? Adam, never heard any thing the least to the disWere not you employed to pass my lord paragement of either his integrity or ability; Chatham's accounts as paymaster?-I was. he always appeared to me to be a very honest Who employed you to pass them?-I was man, and attended his duty with great puncemployed by lord Chatham, at the recom- tuality and diligence. mendation of Mr. Sawyer, who was, at that The Right Hon. Richard Rigby sworn-Exa time the accountant in the pay-office; I made mined by Mr. Adam. out the whole of my lord Chatham's accounts. I believe you have known Mr. Bembridge Did you do the whole of th business of a great many years ?-I knew him before I passing lord Chatham's accounts ?-I did the was appointed paymaster-general, which was whole of it; I had the books of the pay-iy the year 1768; from that time down to office. this, I have had occasion to know him intiDid any body interfere in that business, or mately well, and never knew a more indusassist you ?-No. trious, capable officer any where than Mr. What were you at that time? I was, at Bembridge. It happened in the year 1766, that time, in particular friendship with Mr. that Mr. Sawyer, who was, at that time, Sawyer; I was an army-agent, and not having cashier, being grown old and infirm, he wroté more than a regiment to be concerned for, i to me, and desired to resign his office; I gave assisted him at the pay-office, and he recom- the office in succession, and there was no post mended me, from a knowledge of the busi- I thought I disposed better of, than to Mr. Dess at the pay-office, tu make up the ac- Bembridge, because I considered him as cacount. pable of filling it; without any disparagement Had you frequent intercourse with the au- to the gentlemen who are now in the office, I ditor's-office, at making up that account?- did think him the fittest and ablest that could Mr. Hughes knows, I believe, that there was be put into the office. robody ever attended them but myself, I ap- The right_hon. Edmund Burke sworn.peal for the truth of it to Mr. Hughes. Examined by Mr. Scott, Please to state what you know of the character of Mr. Bembridge. When I sucI see you were recommended by the ac- ceeded Mr. Rigby in the office, about last countant?-Yes; to my lord Chatham. July twelvemonth, I had received from Mr. Why did not the accountant do it himself? Rigby the strongest recommendations of Mr. I never conceived it was the accountant's Bembridge's diligence, fidelity, and ability; business; I apprehend the business of his and in the time that I was in the office, I office will not allow him to do it. had all the reason in the world to be perHe had not time and leisure for it?-No. suaded that he perfectly answered that cha Otherwise it belonged to him to do it, Iracter and description, in every respect. I suppose?-I do not know that he would. must farther say, that it having fallen to my Then how came the business to prevent his lot to do something for what I considered as having time?-I do not know. the improvement and reformation of that lir. Ingram sworn.—Examined by Mr. Scott. dered to be, that it had been rather like a pri office, the principal fault of which I consiYou were executor of Mr. Winnipgton? vate office of account, than a public adminis. My father was. tration - I could not hare, in my opinion, sucVOL. XXII |