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ceeded so well, as I trust I have had the good Gentlemen, I am in the memory of his fortune to have succeeded, without the very lordship and of you, whether in my opening I great assistance I received from Mr. Bem- laid any foundation for the supposed pane bridge in so doing: I must say this, as a tes- gyric, that my friend ascribed to me, upon his timony that I think, in honour and conscience, majesty's late ministers. I said (I thought, I owe to his disinterestedness, that when it indeed, I could not say less upon the subject), fell to the most unpleasing part of my duty that the pains they were taking about last to reduce the emoluments of the principal Christmas, relative to the sub-accountants, officers in that office, very much below what were in my judginent laudable, and that was they had been before, this measure was so far | all I said : and, gentlemen, I will tell you from meeting any reluctance or opposition why I said no more ; because I do not believe from Mr. Bembridge, that I found not only that any one of those ministers are at all acquiescence but help in it; that after I was candidates for my applause; I assiduously out of office by the act not having taken place avoided saying any thing more than that at that time so as to affect me, I confided the upon the subject; I have not the smallest whole management I had of it, and it was a disinclination to do them justice; but they considerable trust of the public, much to Mr. would hardly thank me for it; and as I did Bembridge, which he executed in so just a say no more in the opening, I little expected manner, as to do himself great credit, and to my learned friend would have stated me as save me from discredit, when attempts might their panegyrist, holding forth to the eyes of be made to disparage me.

the public, the great and notable benefits that Thomas Caswall, esq. sworn – Examined by they have done. So much for that; I will Mr. Erskine.

say nothing at all about their partialities, that

at the time, when they were directing the Be so good as to state what you know of eyes of the public to matters of general reform, Mr. Bembridge ?-I have known him ever having in their own view nothing but insince June 1768, at the time that Mr. Rigby stances of partial reprehension, vexation, or did me the honour of appointing me deputy punishment, I say nothing about it, because paymaster to him, when he was himself ap- | i know nothing about it; and when I find pointed paymaster.

nothing in a man's act to blame, I do not Whit have you known of Mr. Bembridge's think it the mark of a generous mind to be character and conduct while in that office assiduous to blame the motive; as far as I During thirteen years, I have seen a great know, in this instance, they acted well; sure deal of Mr. Bembridge; I attended the office I am, that in this instance, it has turned out constantly, and can say upon my oath that beneficial for the public. he was always attentive to the duties of his My learned friend seems to have rested his office, and a very diligent and efficient officer defence of his client, not upon his client's as could possibly be in the office, under- innocence, which is somewhat unfortunate standing the office as well as any man possi- when you are to decide upon a charge of bly could do.

guilt, but upon something totally collateral You never saw any thing to lead you to either to his moral, or to his civil innocencethink he is not a man of perfect integrity? - something, which, if it be well founded, will Never, in any transaction I ever had. do as well for my friend, and that is his legal Hampern, esq. sworn.- , -Examined by

innocence:

: for, says he, he has done very Mr. Adam,

wrong; I confess, says my friend, that it does

appear to me, that he ought to have disclosed You know the defendant Mr. Bembridge? these sums which I admit he did not; but my -I have, since I had the honour of being friend said, he would, by-and-by, give a appointed deputy paymaster-general in April, reason why he did not blame him so very 1782. I always found him an able, diligent much as I did, and that is, because there officer, of great knowledge in his business, is something so generous, and so liberaland assiduity in his practice, and believe him minded about Mr. Bembridge, that though to be a man of very great integrity.

he ought, says he, to have done it, yet The end of the evidence for the Defendant. there was a conflict of contrary duties, he Reply

could not be a spy and an informer upon

the conduct of Mr. Powell. Now, gentlemen, Mr. Solicitor General.—May it please your let us examine this matter a little; the fact lordship, and gentlemen of the jury.-In any being admitted, for it is not at all disputed, that cause, but especially in a criminal one like Mr. Bembridge, in this office, was, for a long this, it is always a matter very unpleasant to time together, perfectly aware that all these me, to be led by any observations of my ad- sums ought to have been brought forward in versary, at all out of the way of it; and yet the account of lord Holland, as a charge my learned friend choosing to mix,-for the upon his estate, and he has not disclosed sake of jest, I should think, rather than any it: why, says my friend, Mr. Powell was thing else,-a great many personal observa- his constant associate, his liberal benefactions with the defence of his client, it may be tor, his bosom friend, and it is the excuse thought, perhaps, a little necessary for me to of a man in a public office, that he cor say a word or two about it.

nives at public crimes, because his friend commits them. Now, what an apology is this for a man standing in a public office, and accountable to the public for the accurate performance of his duty; let who will gain by it, let who will lose by it, his duty calls for it, and I think it has appeared, in evidence in this cause, that he is liberally rewarded by the public for other things than the connivance of his associate's crimes. However, gentlemen, this is represented by my learned friend, with an air of great triumph, to be a matter that, however morally guilty he may be, there is no law against; the law written in men's minds, may remonstrate pretty strongly against it, but my friend says, there is no law of England against it. Undoubtedly, if there is no law against it, not only this man must go unpunished, but all the people in offices, in this kingdom, of the same sort, may do the like with impunity, for, to be sure, there is not one rule of action for Mr. Bembridge, and another for people in the same predicament. My learned friend says, he challenges us to produce a book, an authority, a dictum, any adjudged case in point; I take it to be a clear, fundamental, settled principle; if my friend means to call for a case, in which an accountant of the payoffice was punished, I can hardly do that; but I will tell you what he will find in every law book upon the subject, from the very first, down to, I dare say, Mr. Justice Blackstone's Commentaries, which is one of the latest books containing the elements of the English law, that in all those situations in which men are retained to act for the public, and are paid by the public (all men in offices have duties annexed to those offices), I have learned, from these books, that for what the law calls mis-feazance, or non-feazance, the party is responsible. My friend put numbers of cases, such as a constable not doing his duty when required to do it; what, for instance, was the case of the non-feazance for which a great magistrate,* in London, was punishable lately? he was not active; he sat still in the time of the riots,† or was not so bold, enterprising, vigilant, and active as his duty called upon him to be, that was a misbehaviour in a public station, as such. Gentlemen, it is very singular, that even with respect to the common subjects of England who are not bound by any peculiar duty of their situation, but by the general principles of public law, why, if they omit their duty, even to the degree of letting a road go out of repair, the public being interested in it, it is cause for indictment, be it the inhabitants of a place, or be it any person upon whom that duty lies, even the omission is a cause of an indictment for the non-feazance of it. If this is a public office, it appears to me, to be a

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principle that it has public duties belonging to it, and the violation of those duties, whether it consists in doing a thing that ought not at all to be done, which is what the law calls mal-feazance; or the doing a thing that may, and ought to be done, and he does it in a way it ought not, which is mis-feazance; in either of these cases, I take it to be a clear principle, universally prevailing, that an indictment will lie for it. My friend and I are at issue upon that matter, for I take the principle of law to be perfectly clear, and so far from its being found in no book, that there is not a book written upon the law, in which it is not to be found; but my learned friend says, that it is not the defendant's duty, at all, to do that which we charge him with not doing. Recollect, gentlemen, what the charge is; it consists in his not disclosing to the auditor of the imprest, that which he was bound, by his duty, to disclose, knowing that the facts existed; the knowledge is not disputed at all; his not doing it is not disputed; but it is said, that it does not lie upon him to do it. Gentlemen, it puts me in mind of a case that I remember was determined before a learned judge, and which, I believe, came here afterwards upon the statute of bribery, which is specifically penal; a man was punished to a certain amount (as this is an arbitrium of the Court); a man was prosecuted for taking a bribe; the statute punishes a man for having, or claiming a right to vote; in this case, the action laid that he had a right to vote; but the learned judge, who tried the cause, was clearly of opinion, that it was not competent for a man, who takes money as a vote, to allege that he had not a right to vote; that was said, I think, by Mr. Justice Yates. Now what a strange thing is it for Mr. Bembridge to say he is no public officer, though, under his hand, you have a receipt for 2,600l., for doing this very business, and now in this court he says, it did not lie upon him to do that, which he has received 2,600l. for doing. He has called several witnesses to prove that there is no duty in this office, relative to these matters of guards, and garrisons, and regiments, and deputy-paymasters, employed abroad, and God knows what; however, my friends did not ask any one of those gentlemen, whether it was not part of the defendant's duty to carry in, and settle the accounts, for it is somewhat an unusual thing to call four or five witnesses flatly to contradict their own client himself, in a matter about which he cannot be ignorant, but has the most perfect knowledge; hear Mr. Bembridge himself, speaking upon oath on the subject, after he had been in his office for so many years, employed daily in the duties of it, in the way in which he has performed them. The first description he gives of himself to the com missioners of the public accounts, is, that he

* Mr. Alderman Kennett. See the case of lord George Gordon, carries in and makes up the accounts of the ante, vol. 21, p. 485.

paymasters after they are out of office, as

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well as of the paymasters who are in office. I is any thing in the nature of the articles that Now, gentlemen, will you believe the de- made it at all doubtful, whether they should fendant himsef, or will you believe no more be brought forwards at an earlier perioda than what these people have said (I dare say, Not the least doubt in the world.-In my apthat which is truth), that it is his duty to prehension, it was their bounden duty to do look after all these guards, and garrisons, and it, and so far am I from blaming them, that the like but none of them will say that it I cannot but commend them for it, knowing is not his duty to make up these accounts; no more than what I see. I say, not only nay, the last witness confirms Mr. Bembridge that there is no harm in it, but, I believe you and all our witnesses in saying that in every will agree with me in thinking that they instance within their knowledge, this duty would exceedingly ill have performed,-nay, has actually been done, in the time of Mr. that they would absolutely have betrayed, Rigby, in the time of lord Sydney, of lord the duty of their stations, if, upon such a face North, and every other paymaster, by the being revealed to them, by lord Sondes, they accountants in the very office that Mr. Bem- had sleeped over it, and made no inquiries bridge filled.

about it; my learned friend admits that ; Now, gentlemen, this being stated as part then who brings Mr. Rose here to testify this of his employment, for which he is retained, not the late ministry, they are of the years and has a regular salary-not out of the pay- | beyond the flood, they have nothing to do master's pocket, but out of the public purse, with it (a loud laugh]. If there is any, the it is the most amazing thing to me, to hear fault belongs to us; I should be sorry that it contended (and I have not yet heard the those gentlemen should have any more than principle upon which it is contended), that their own imperfections upon their heads; I this man is not as really, though not as do not say whether they are enough to press elevatedly in office as the noble carl before them at all, but it is my duty to take care, whom I am speaking.

that they should not have that offence, if it Gentlemen, you will give me leave to make be one, to answer for, which is mine, and not an observation or two upon the manner in theirs. We have the conduct of this prosecuwhich this charge is supported, and the impu- tion, and if there be any thing reprehensible, tations which have been thrown upon certain cruel, or unjust in the management of it, then, persons, where they shall not rest, because to be sure, we are to blame for it. Mr. Rosé they ought not; if the reflections are just, testifies that which clearly is evidence, which they belong to other persons, and should ňavé is the best evidence, the account the party been directed to another quarter. My learned voluntarily gave of the matter at the time; I friend says, that the production of Mr. Rose's know, very well, that that may be the very evidence was neither necessary nor becoming; worst sort of evidence, but then it must be he represented it, as if the manner of coming made so by the means of certain circumat this evidence was exceedingly insidious, stances, concerning which, my friend did not reprehensible, perfectly inquisitorial. Now, institute an inquiry; had Nir, Bembridge heen gentlemen, I will just say a word or two upon cajoled into giving this account, had he been that; I do not mean to make panegyrics, as I terrified into it, had any improper arts been said before, but it were a very strange con- used to obtain it, that would have made the duct, I should think, in the officers of that production of it scandalous; but the gentleday, if finding from lord Sondes, or any other men never asked any thing about that, then person that just at the time when they are in- where was the inquisition the artifice? and stituting an inquiry into the state of the sub- what were the base means employed to bring accountants, there is a return made of 48,0001., this matter to the bar of the public? It is the that had been concealed for ten or twelve voluntary declaration of the party himself, years--for, you observe, all these accounts upon this fact being objected to him, and it are from the year 1757, to 1765, so that it is amounts to this; I did it with my eyes open eighteen years ago from the very last of them, I knew it long, and many a day, even before -finding, that without notice to any person, the penciled figures, which stated this balance, but under pretence of rectifying the account, 48,0001. less than it really was. by putting in two articles of 1,3001., there is tlemen, what would you, and what would the added to them after all this connivance and public have said of me, or of my learned col. secrecy, an additional balance of 48,0001.; | league, in whose absence this duty is very imupon lord Sondes's stating this fact to the perfectly conducted by me,--what would the treasury, did it not become them to inquire public have said, if, possessed of this fact how it came about? Whom should they inter- taken from the mouth of the party I had put rogate ? Could they interrogate any but those it into my pocket and not produced it! My who knew the fact,—those who were parties learned friend says—it is the language of the in it? Should they not ask for an explanation advocate who is feed for it), 'I should have of it?-Why, Mr. Bembridge, how came you commended you much. Every body must to do this? Pray is this a new discovery? Are have said, I betrayed my duty, to suppress they sums of money of which you have only material, weighty evidence, admissible in had recent intelligence? Nothing like it, I point of law, and in a manner absolutely conknow of them long ago. Then tell us if there clusive as to the fact. If a man, conducting a

Now, gen

public prosecution, has a sense of his duty to the public, in my idea, that sense of duty calls for him to produce all the evidence he has. My learned friend says a strange thing, considering what he knows about it, and that it is so recent,--speaking with great pathos upon a subject (of which I said nothing, for reasons which I think might be very obvious), that is, the unfortunate death of the late Mr. Powell, he says, if Mr. Powell, who was a victim to what shall I call it? public clamour-had not died, Mr. Bembridge never would have been prosecuted. This is the most extraordinary thing that I ever heard in my life, because my learned friend surely was apprized that the prosecutions against both Mr. Powell and Mr. Bembridge went hand-inhand together; that the name of one was never mentioned without the name of the other, and I am perfectly sure (though my friend ought not to be called upon to say it), that my learned friend, if not retained as counsel for both at the same minute, was certainly retained for Mr. Bembridge, before the death of Mr. Powell. It has been the subject of conversation every where; but I happen to know, that the prosecutions,-though they were instituted not by us, but our predecessors in office - were against both; that is decisive, that the living or dying of Mr. Powell, had nothing to do with the prosecution of Mr. Bembridge; and in the life-time of Mr. Powell, it was a matter of such perfect notoriety, that you must have heard the names of Powell and Bembridge always connected together in the story. There is no foundation or colour for this assertion; for whether Mr. Powell was guilty at all, much less if guilty of a greater offence than Mr. Bembridge, we are not inquiring into. The only matter for you to decide (for the degree of guilt, and the quantum of the punishment, is not in your hands at all), you are to pronounce only, whether the defendant is guilty or innocent of the fact imputed to him, that fact being an omission in the duty, which it was incumbent on him to fulfil, which he states that he was appointed to do, in the very terms objected to him in this record, that is, to settle and adjust the accounts of the paymaster; he acknowledges that it was his duty, and it is clearly and irrefragably proved that he did not do this.

Then my learned friend says, Aye, but 'you must do more, it is not enough to prove that he has omitted these sums, he must do it wilfully; I wonder my learned friend should waste a minute upon that, for if there is any part of the case that is incontrovertibly proved, it is the wilfulness of it; for he says, I knew it well, I knew it long ago, I was 'perfectly aware of it; he uses an infinite variety of phrase, all expressive of the same idea; there was nothing doubtful in any one of those articles, yet they were not brought forward; then that is a wilful omission, and a wilful omission, give me leave to tell you, in

a matter of no small moment-if for eighteen or nineteen years together, the sum of 48,000l. is not brought to the account of the public, your imaginations can better conceive, than Í can express to you, what immense abuses there must be in every office in the kingdom, if the business of it is conducted in this sort of manner.

Gentlemen, I will trouble you with no farther observations. There are a great many witnesses to a matter concerning which I should be very sorry to say a word, about testimony to character. The gentleman's character is attested by persons of high rank and undoubted honour; I dare say, he always bore a very good character, and, therefore, if his character will do him any good, let it; I shall not make a single observation upon it; he is not prosecuted for the want of character; for any offence in any former part of his life. These noble lords, and the learned gentlemen have said, that they did not know that he had done evil; you are to judge whether you will not believe him, when he says himself, that he has done evil. You will decide according to the weight of the evidence, and will give that verdict which is right.

SUMMING UP.

Lord Mansfield. Gentlemen of the Jury.This is an information against the defendant, which states, that the office of accountant, in the paymaster's office, is a place of important public trust and confidence, and is relative particularly to the passing the accounts of paymasters out of office, as well as paymasters in office: That the defendant was appointed accountant in the year 1776: That the accounts of my lord Holland, then paymaster, had been finally brought in, in the year 1772, before the time he was appointed accountant: That from the year 1776, when he was accountant, down to October or November, 1782, he concealed, wilfully, corruptly, and fraudulently, from the auditor of the imprest, a variety of items, which were a charge upon my lord Holland, amounting, in the total, to the sum of 48,799l. 10s. 11d. From this charge, you see, there are two propositions for you to be satisfied of. The first is, that this place of accountant in the paymaster's office, is a place of public trust and confidence, relative to the passing the accounts of the paymasters out of office, that is, that it is a check upon those who pass the account of a paymaster out of office, that they should be examined, controlled, and surcharged before the auditor, by the accountant; that is the first proposition of fact necessary for you to be satisfied of. The next proposition in point of fact necessary for you to be satisfied of, is, that these concealments were made by the defendant, Bembridge, corruptly and fraudulently. If you are satisfied of these two facts, you are then warranted to find the defendant guilty of the indictment, in point of fact. With regard to the law of the case, when I

come to state that to you, I will tell you all to pass his account, that the rest of them I think necessary for you to consider upon were passed by Mr. Lamb and not by the the subject.

accountant. The first fact is with regard to the nature The next witness is Mr. Crawford, who and duty of this office. On the part of the speaks to the same effect, and enumerates all prosecution, they prove, by Mr. Hughes and the other articles of the duty of the accounby Mr. Wigglesworth,' two of the deputy tant; but as to the making up the ex-payauditors, that the business of the office in master's account, he denies that it belongs to passing accounts before them is, to send every him, and that there was an instance, in the observation they make, to the accountant; time of lord Chatham, where it had been and from the accountant they expect a solu- otherwise. tion, an explanation, and assistance; that in Thus stands the evidence, on both sides, this particular case, from 1976, the time that with regard to this first proposition, the nature the defendant was accountant, they made and importance of this office, relative to passobjections to him, they talked to him, they ing the ex-paymaster's accounts: if he has applied to him, and they considered him as nothing to do with passing the accounts of the person who was to answer those objections, the paymasters out of office, then, to be sure, &c. Besides that, they have read the exami- this information falls, because the basis of nation of the defendant, upon oath, before the the information is, that it is the duty of his commissioners of accounts, in which he ex- office. Supposing you to be of opinion it is pressly says, ' that he, as accountant, carries the duty of his office, then, the next consiion and makes up, the accounts of the pay- deration is, whether this is a wilful, fraudu. • masters after they are out of office, as well lent, and corrupt concealment. Lord Holland (as those of the paymasters in office.' --They was appointed paymaster in the year 1757, farther call Mr. Rose, as to his examination and went out of office in the year 1765, but before the treasury, and there, upon a ques- his accounts come down to the Midsummer tion being put to him, he says," he knew that following: in 1972, the last, the final accounts

it was his duty to have discovered those were to be filed; what was given in then as items.' Farther, they have produced a war- a final account, he says, does not mean that rant for a deduction to be made by the exe- no items might not be added to it; at this cutor of my lord Holland, of the sum of time, there are in the books of the pay-office, 14,0001. for expenses and fees attending the some charges to Paris Taylor, which are passing of those accounts of lord Holland's, not brought in: observations are sent from in which, the fees belonging to the defendant the auditor's office to the defendant; he is relative to those accounts, is 2,6001. and to called upon, repeatedly, to give his answers his clerk 5001.

and explanations upon those observations ; In contradiction to this, and to show that he sees them, and he does not say a word it is not the duty of the office, they have first with regard to any of those items. At last cross-examined Mr. Hughes, who says, that they send to close the account; it is sent to in the case of Mr. Winnington, Mr. Ingram, the pay-office; in October or November he is who was his executor, passed the account and called upon again, and then it is proved, by was permitted by Mr. Bangham, who did ask Mr. Wigglesworth and by Mr. Hughes, that information from the accountant but that Mr. he tells them he has nothing more to say; Ingram, himself, and nobody else, passed the the books go to the office to have two items, account of Mr. Winnington; but, afterwards, making up thirteen hundred odd pounds, inthe accountant had the fees allowed upon serted; the defendant tells them he has nopassing those accounts. This comes out from thing more to do, but refers them to Mr. the cross-examination of Mr. Hughes, for Mr. Powell; Mr. Powell was the accountant, and, Hughes says, he personally knows of no such to be sure, referring them to Mr. Powell was instance since that time; but they have called saying—I have nothing to charge them with, Mr. Bangham, who has been a clerk in the I have no farther observations to make: they pay-office thirty-three years, and he gives an are referred to Mr. Powell, and then comes account of the duty of the office, that makes the account with a penciled balance struck, it a very important office indeed, for you to about sixty odd thousand pounds, and the observe the long list and roll that he and Mr. two items that the books were sent to have Crawford gave of the duties of the accountant- inserted in them, are not inserted, but they general, and at last he concluded with saying, are taken into the balance. After this pen. that the whole business almost entirely lay ciled balance is made out, notice is given that upon him, for he keeps all the accounts, extra- the treasury were to have the accounts sent ordinaries and ordinaries, abroad and at home; to them, and this is at the end of Jamrary, or but as to this particular point, the duty of the beginning of February; the book being passing the ex-paymaster's account, he swears sent back for the sake of inserting those items expressly, that in his opinion, it is his own into it, it is returned to the auditor's-office, option, whether he will or will not make up and it had been in the office, unobserved, for the accounts of the paymasters out of office; nine or ten days; at last, upon looking into and he says, in my lord Chatham's case, after it, they find, between the two items inserted the death of the accountant, who had begun and the last passed item, a number of items,

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