a amounting to 48,7001. inserted as a charge several counts which vary from each other upon lord Holland. To fix this as voluntary as they stand upon the face of the informaupon the defendant, they use several facts tion, for I think one may perceive, that the and observations; the first is, that every one very learned and judicious person who drew of the items appeared in the public books, this information, charged it to the full pos excepting twenty thousand odd hundred | sible extent that he could conceive of the pounds, all in small items; the long depen- crime in the first count; he had some doubts dency of the account gave the defendant an about very material parts of that charge in opportunity to examine every thing; but the the second, and therefore he dropped it; and strength of the charge here is, that the de- in the third, he goes still lower; the verdict, fendant being examined before the lords of however, is a general verdict-Guilty.-Of treasury, owned, that for a long time before course, in order to maintain that verdict, it the account of the penciled balance was sent must be necessary that there should have back, which account did not contain any of been evidence to maintain every one of the those items, that he knew of all them. Now, counts; I conceive so, with great submission with whatever view, whether in ease of Mr. to the Court, for the Court is to pronounce Powell, or for any other improper purpose, if judgment upon the record ;-upon the record you are satisfied it was a fraudulent conceal- it stands that the jury have found him guilty ment, and, to be sure, many purposes might of each of the three charges; if the first be answered by the concealment—it lessens charge, in the first count, be a charge of a the balance demanded by the public.—it could crime upon the face of it, whoever looks upon turn, in a variety of ways, for the benefit of this record, and perceives the judgment given the accountant;-but to convict the defendant by the Court, must suppose that that discreof a crime, it is necessary that you should be tionary judgment is given for that offence satisfied that it is wilfully and fraudulently described in the first count;-it is necessary, done ;-in short, that he does not do that therefore, that that finding should be wasa which it was his duty to do, in disclosing this. ranted by the evidence. If, upon these two facts you are satisfied that My lord, the first count charges that Mr. the charge is made out, with regard to the Fox was paymaster for a considerable portion law of the case, I have very little difficulty of time, which I need not encumber your in saying what my opinion is ; I have not a lordships with; that the place of accountant, particle of doubt, that where a man has an in the office, to the receiver and paymasteroffice, created by the king's letters patent, general, is of great public trust and confiimmediately or derivatively, which is of im. dence, touching the making up the accounts portant trust and consequence to the public of the receiver and paymaster-general, and ihat for the violation of that office, he is as the adjusting and settling the same with the much indictable as any magistrate or officer auditor of the imprest. That seems to be an that has been alluded to; it is an office, the essential charge in this count, clearly so conduty of which the public are interested in, sidered by the drawer of the information, for aod I have no manner of doubt, but upon that part of the charge is omitted by him in principles, there is no want of any precedent the second count. That charge, it will be reof the same kind as this; I have no doubt a membered, is, that the place of accountant in wilful violation of the duty of that office is this office of paymaster, is a place of great indictable, but if it is not indictable, the objec- public trust and confidence, touching the tion appears upon the record, and judgment making up the accounts of the paymasterwill be arrested. Therefore, if you are satisfied general, and the adjusting and settling the in both of the points, you will find the defen- same with the auditor of the imprest; it then dant guilty; if you are not satisfied in either goes on to state, that the accounts of my lord of them, then you ought to acquit him. Holland, when he went out of office, were not The jury withdrew for a short time, and closed; that a Mr. John Powell had settled then returned into court, with a verdict, find part of them; that others were brought in, which are called the final account, which ing the defendant, Guilty. being explained, was perfectly understood, on all sides, to be the last paper of account that The proceedings in the Court of King's-bench, the office of lord Sondes to be adjusted, and was produced in the office; that it was left in on motion for a new trial, Nov. 10, 1783. passed according to the course of the excheMr. Bearcroft. In the case of the king quer; and that there were many sums of and Bembridge, I am to move your lordship money, amounting to the sum of 48,0001., for a rule to show cause, why there should not that ought to have been inserted in that last be a new trial. This information was filed, book of account, the final account, as it is by the attorney-general, against the de- called here, and that it was omitted; and the fendant, for a breach of his duty as accountant same count then goes on to make this matein the office of paymaster-general, by an rial allegation, that it was the duty of the deomission of what is supposed to be a part of fendant, as accountant, to disclose to lord that duty. Sondes any charges on Mr. Fox, as paymaster, It would be right that I should state the which had been omitted in such accounts, within the knowledge of the defendant, in prest. Upon that allegation of the nature of order that the same might be inserted; that ihe office, and of the duty of the office, it proit was his duty, therefore, in this office, to ceeds to assign the crime, and says, that, condisclose any that he knew that had been trary to that duty of the ottice, he did not disomitted; and it goes on to state that, whilst close it. It aggravates it, indeed, in the he was accountant, application was made on charge, by saying he did not disclose it upon the part of lord Sondes to him to make a particular request, which would be evidence discovery, that knowing it, he wilfully and of the wilfully doing it; but I submit to your corruptly refused to do it. lordships the foundation and support of all This is the way in which the offence is the subsequent criminal charge, either in that charged in the first count. In the second, it count, or to be found in any part upon the omits the first part, which states it to be the face of the information, resis, and must be duty of the accountant to make up the ac- supported there by the evidence, or it falls to counts, and settle the same with the auditor the ground; that is to say, that it was the of the imprest, and it only charges that he clear indispensable duty of the officer, whowilfully refused to disclose this. ever accepted that office, that it was clearly The last count contents itself with barely and indispensably his duty to pass the acstating the case thus : that a final account counts of the paymaster in the way in which was delivered into the office of the auditor, it is said he did, and in the way in which it lord Sondes; that it was the defendant's duty is said he did not make the proper disclosure. as accountant, to discover any omissions Now, 1 say, it is a verdict against evidence in within his knowledge; it is not stated in this that respect, as to which I must refer myself count as it is in the first and in the second to your lordship’s report; I am aware, that it that any special application was made to him, was attempted to be proved, and was proved, requesting bim so to do, but it goes on to that very frequently the accounts of ex-paystate the bare fact, that he knew the omis- masters (as they were called in the course of sions by Mr. Powell in the account, and, in the cause, that is, paymasters out of office), tending to conceal them, did not discover it, had most frequently been settled by the acand therefore wilfully withheld the informa- | countant general in the office of the paytion, contrary to his duty as accountant. master; I agree the fact was proved, that it These are the several ways in which the had been frequently so; but i persuade mycase is stated; and I beg, for the present, to self it will appear by your lordship’s report of suppose, that I am right in contending, that the evidence, that it came out from the crosswherever upon the face of an information, or examination of every witness, who spoke to upon the face of an indictment, such as con- that point on the part of the prosecution, that tains a legal description upon the record of an there had been instances of accountants, and indictable offence, and there is a general ver- their representatives themselves doing it, redict and a judgment pronounced by the Court, fusing to let any body in the office have any it must, of necessity, be taken that the Court thing at all to do with it, and the same withas pronounced sentence, and that they have nesses acknowledge, that it was perfectly ungiven a punishment for that offence so de- derstood in the oflice, that the books of these scribed; and it will not be an answer to say, accounts, and all the papers relative to them, perhaps the Court did not do so, because they were the property of the ex-paymaster, thai looked into the evidence, and they saw that he had a right to take them away from the the evidence would not support the particular office, and that, in fact, he did take then count, and, therefore that they did not do it; away from the office; that the succeeding they must be taken (since the record of the paymaster had no right to call for them, nor first count does not contain a good legal to have them, and, i think, I might venture charge and indictable crime) to have pro- to say, that the last session of parliament has nounced their sentence in proportion to that. produced a legislative opinion upon the sub Your lordship sees the reason why I labour ject; for an act regulating the pay-office that a little, because as the first count is more among other things has an express extensive and more free of its allegations than make that law which was not law before the others are, it gives me an ample scope to that is to say,' that all the books of account lay my finger upon any defect of evidence as of paymasters going out of office shall be lei to these allegations; and I do conceive that I at that office, and shall be, for the future have a right to move for a new trial, not only considered as the property of that office, wit upon every count in this information, but a licence for the persons concerned to hav more peculiarly and emphatically upon the recourse to them whenever there was prope first count, that it is a verdict against evi-occasion ;' if that be so, I submit that is dence; for that count, as I have stated, verdict against evidence; for, I conceive, it i charges (I won't repeat the words of it impossible for any man, rationally speaking again,) but twice over, it makes it, in an cm. to coutend, still less is it fit that a man shoul phatical way, the duty of the office of ac- be found guilty of a criminal charge upo countant to adjust and settle the accounts of such a ground, and upon such kind of reason the paymaster with the auditor of the im-ing, that it is the duty of a man to do tha clause tc which it is not in his power to do. How is it possible that it can have been the duty of the office of the accountant-general in the pay office to do it, to pass the accounts of the expaymaster, when it was perfectly at the option of the ex-paymaster, or dead paymaster's representative, whether he should do it or not? I took the liberty, at the trial, to state to the jury, and, with submission, to call for his bordship's direction and opinion upon that head, that, upon the evidence, it appeared so clearly that the person acting, or his representative acting, had a right to take all the papers and all the books away, which I ventured to state, and which I do again, for the consideration of the Court;-that, upon that evidence, it will appear, that if the expaymaster or his executors had got the books and papers in his hands and was going out of the door of the pay-office, and the new paymaster ran after him and snatched them from him, the ex-paymaster or his representative might bring an action of trover for them; and I hope it will appear that I did not overstate the case when I stated it so. It cannot be the duty of an officer to do that which it is not in the power of any officer to do, nor is it in the power of any mortal to transfer the power to him of so doing. When we talk of its being the duty of an officer, we suppose that if it is not done, it must be merely his fault; now, in every instance where a paymaster is out of office or dies, if I am right upon that evidence, they have a right to take the books, then he has not wherewithal to do it, he cannot do it; it is impossible; and it appears in evidence, upon the part of the prosecution, that this had been the practice, and cases were stated;-In the case of Mr. Winnington's representative, Mr. Ingram;-In the case of lord Chatham himself, who appointed a Mr. Lamb to do it, who had nothing to do with the pay-office.-In these recent instances, it was stated they did it, and it was understood that they had a right to do it; I do not mean to sink that, undoubtedly, it will appear, by your lordship's report, that the accountant-general had certain fees, which in the ultimate making up that account were allowed him for assisting in making up the account; it was so stated and so understood at the trial; when that evidence comes to be looked into, it will amount only to this, that he had certain fees given him for something relative to these accounts, but for particularly making up the accounts of the arrears that were due, for that they charge here the arrears that are due from the ex-paymaster, there is no gratuity for that: Mr. Bembridge never instructed us to deny that after a paymaster is out of office a great deal of business is done by him; a great many things were stated with regard to the staff officers, and other things (I cannot state very correctly now); VOL. XXII. * See ante, p. 54, 1 that had nothing to do with the making out the accounts of his arrears. When the accounts are ultimately settled, something is allowed to the accountant, which has been given to the accountant in the pay-office, but surely that does not import duty; for your lordship will recollect, that upon a division of a large sum, some thousand pounds, that is allowed,-though it is true the accountant in the pay-office has a large share of it, upon passing the ultimate accounts of the ex-paymaster, there is a division of very large shares to every officer in the pay-office, down to the door-keeper, and, I believe, the sweeper of the passage; such officers and such situations, that it is utterly impossible, upon the face of it, for any man to tell me that it is their duty to have any thing to do with passing the accounts. The circumstance, therefore, of receiving money does not, by any means, import that he received money for passing the accounts. Touching the arrears, that were to be paid by the paymaster: I distinguish that from other parts of his business. I submit to your lordship that sufficient evidence did not appear to prove that it was the duty of his office; if it was not the duty of his office, the charge necessarily falls to the ground; for the charge is this,-It was your duty, as that officer, and you omitted to do it; the first premises must be made out in evidence, or there is no ground for the charge. I will suppose, for argument's sake, and for argument's sake only, for I cannot convince my poor judgment that it was made out,-I will suppose, for a moment, it was made out to be the duty of his office; the next question, and a most important one in this and every criminal charge, especially such a charge as this, that one knows no precedent of, one does not find any principles or any precedent in our law books that goes at all to the case, the essence of the crime is the wilfully doing it, by which I do not mean knowing the law, and wilfully breaking the law, but wilfully doing the fact; the present case is short of that, because it is not a wilfully doing it, it is an omission of that duty which is stated to be his, but that omission must be wilful which is the essence of every one of the charges; now, how is that made out? The sum of forty-eight thousand pounds, which ought to have been seven or eight years before in Mr. Powell's accounts, was not there when this last paper of account, called the final account, was delivered in; it is said to Mr. Bembridge, it was your duty to see that in, for you knew it, and have wilfully omitted it; why wilfully omitted it? why, because they have called two witnesses (I state their case as strong, I am sure, as it will appear upon the face of the report), Mr. Hughes and Mr. Wigglesworth of the auditor's-office, who said they went to Mr. Bembridge, at the pay-office, about these accounts, a sort of language which seems to be taken from the G information, touching these accounts, that poses a crime in the criminal law of this Nir. Bembridge told them he could do nothing country? Such a conduct in the case of highmore about it, that they must go to Mr. treason, would be a misprision of treason, but Powell; upon which, immediately, they have under these circumstances, I conceive it canrecourse to Mr. Powell From the first instant not compose a crime. I submit, that upon that they applied to Mr. Bembridge, it ap- the whole complexion of the evidence, it will pears in evidence, he referred them to Mr. come out that it was not the indispensable Powell, and from that moment they never duty of his office ; your lordship sees that Mr. afterwards went to Mr. Bembridge; that will, Bembridge had not it in his power to do it; I submit, appear clearly upon the evidence and what is this mighty ill behaviour even when it comes to be reported; but why was that he is guilty of? Mr. Powell had been it wilful? the gentlemen will say, undoubt- in the office of accountant-general for many, edly, as they did at the trial, there is evi- many years; besides that, he was the exedence of wilfulness, because Mr. Bembridge cutor of my lord Holland; he was perfectly himself admitted, in an examination before conversant with these accounts, and could the commissioners of the treasury, which is himself, if he had been so disposed, out of all deposed to by Mr. Rose, that he himself doubt, have made thein up as soon, as readily knew of those omissions, and that he was of as clearly, and as masterly, perhaps more so opinion and aware that they ought to have than any other man that can be named; then been inserted; this, together with the evi- the utmost extent of the criminality of Mr. dence of the application of Hughes and Wig. Bembridge was, that he suffered the person glesworth is the evidence, I conceive, and the who had formerly been in his office, who was full extent of it, that will he found upon the equal to it, who was the person acting as report, of his wilfully withholding it. Mr. executor to lord Holland, which was thrown, Rose says nothing about time; he does not I remember at Mr. Bembridge's head, when put into the mouth of Mr. Bembridge any examining at the board of treasury, that he thing that relates to the time when he first ought not to have done it; I trust, it will apknew it; on the contrary, I remember per- pear upon the evidence, Mr Powell'had a right fectly well, either Mr. Solicitor General, or to have taken them to his own home; he did some other of the gentlemen for the prosecu- not, because he had another office, for he tion, put a question to Mr. Rose, seeing the was cashier there; he did all his private budifficulty and the want of it; they asked Mr. siness, as well as his public business of caRose, whether Mr. Bembridge gave him any shier therc;—therefore, when Mr. Bembridge idea, by any expression of his (the inquiry says, go to Mr. Powell, they go to him, and was of that sort I will venture to say), as to have nothing more to do with Mr. Bein: the time when he knew it? Mr. Rose's an bridge. swer was a very fair and candid one,-No, Besides this, the defendant wishes that the I know nothing about that; I believe, he opinion of the Court should be taken, wheadded either years, days, weeks, or something ther upon the evidence of his case, taking it of the sort; he fairly acknowledged that Mr. in the strongest way that can be collected Bembridge's expression gave him no idea of from that evidence, it contains the proof of the time when he knew it: then what is the any offence at all? for if it does not prove any intent of this evidence? it is, to make it sup- offence, it cannot prove this fact. Now, the posed that he knew all this at the time of the way in which it stood was this: Mr. Bemapplication of Mr. Hughes and Mr. Wiggles- bridge's office is, that he is the clerk of the worth, but unless the time is ascertained when paymaster, a modern office; who appointed he knew that, no such consequence can be the paymaster did not appear; how Mr. Bemdrawn, and it is extremely harsh to suppose bridge was appointed, that appears; it is too such a consequence could be drawn in a case notorious, for every body knows, perfectly where it is the very gist and essence of the well, it has happened to this unfortunate gencriminality in the business. But it was said, tleman within the course of a few months that the items appeared in the books of the that he is put out to day, restored to-morrow, pay-office, and Mr. Bembridge must have and turned out again the next day; this, then, known it, for they were inserted in books in is the mighty office of trust and importance the office, to which he had daily and hourly as it stands upon the face of the charge. In access; that he must have known, from the truth it came out, and I aver it to be so, the circumstance of these articles appearing there, only formality of putting him into bis office that they ought to have been inserted; that is, that the paymaster takes any man that he they were clearly to be seen by any one who thinks proper by the hand; he carries him looked in the books, and that they were open into the office, says, hang up your hat upon to every body in the office; that is a different that peg, and sit down at that desk, you are story from its being his duty as accountant. accountant to the paymaster. I have a seYou may say, in this way, it becomes every rious observation to make upon this; that man who eats the king's bread, receives his this is not that known, important, ancient, wages, as perhaps it does, not to see the public common law, consequencial, magisterial, or suffer-I agree to that, but where is the ministerial office that the law takes notice of lawyer who will stand up and say that com- and says a breach of it shall be indictable My lord, if there has been such a precedent and such a conviction, again I take the liberty, as I did upon the trial, to call upon my learned friend to produce it; I do not believe yet he has found one; at that time, most undoubtedly, he was not in possession of it; if he has now, we shall hear of it when he comes to show cause, if it is in point; at that time there was no one in point; the only case that was talked of, was the case of Mr. Leheup. I was aware of that, I sent for the information, and in every one of these counts (there is a multiplicity of them) it concluded, against the form of the statute; it averred, again and again that it is against the statute; and the very crime was in the teeth of that act of parliament that made him a trustee for receiving subscriptions for the tickets; and I take it to be clear law, and every body knows it, that if a thing is commanded to be done, or is prohibited from being done, the principle upon which that— Mr. Just. Buller. Is that case in print? Mr. Bearcroft. I believe not; -the principle upon which that stood is the clearest in the world, and no man can doubt it; if any thing is commanded to be done, or prohibited from being done, by a statute, and there is no other mode of punishment, a man who does that, is most undoubtedly liable to be punished by indictment; and it was upon that principle that every one of these counts concluded that it was against the statute. Then it is said, there is a recent case of Mr. Kennett, lord mayor of the city, who was guilty of an offence of omission; that is like the case; for who ever disputed that the office of a justice of peace, which he held, and it was in that way that he was charged, and upon that ground merely, in that situation who ever disputed, that if he breaks the duty of his office, he is liable to an indictment? Why? Because he is an ancient magisterial officer; we see precedents of doing it every day, every rule to show cause that you grant for an information against a justice of peace, shows that may be done; but I take it, the description of persons is very different;-in a word, what I mean to say about the point of law is this: if Mr. Bembridge, the clerk of the payoffice,-for the paymaster himself is no more, he is not a common law officer, not as an ancient officer accounting with the exchequer; but as a man who has money, and, therefore, must account with the exchequer,-for every man who has public money in his hand must account with the exchequer,-he is a person of a very different description; a constable is indictable for not obeying a warrant;-Why? Because he is a common law officer, very well known, and there is no other way to coerce him; but if Mr. Bembridge, in the situation I have described him to be, is liable to an indictment, for a breach of his duty, there is not a man in the service of government, even an exciseman, that is not indictable for every breach of his duty. These are the grounds upon which I beg leave to doubt whether the case, taking it as strong as any reasonable man can, upon the evidence given for the prosecution, does support the information. Upon these grounds, I trust, at least, the Court will go so far as to think that it is fit to consider this, and that a rule to show cause should be granted. I would apprize the Court of the situation in which my client stands. Upon the intimation of your lordship, on Saturday, that we might not be surprised, he came immediately to appear in Court to take the judgment of the Court; he never was upon any bail, not the least; it so happens, that in the course of the Court upon informations, he is not upon any bail at all, it is otherwise upon indictments, they take some small bail, so that he comes here voluntarily, as your lordship will find upon enquiry. Your lordship sees why I mention that, whatever may have been the practice, whatever may be the propriety of its being so for the future, is not to my purpose; the only use I make of it is, it is a clear mark to your lordship, that this gentleman means to be forthcoming to abide the judgment of the Court; upon that, I would say, I trust, I have laid a ground that will entitle us, I should hope, for a rule to show cause why this motion should not be granted, and mean to add to my prayer, that the Court will not commit the defendant, but will take any bail, which he is ready to give, that the Court think proper. I should hope that the prosecutor will not think it necessary to press for an immediate commitment while the question is under consideration, but will be content with such bail as the Court shall direct. Mr. Sol. Gen. I am in the discretion of your lordship, whether to take it up now or grant a rule as the Court shall think proper. Lord Mansfield. I will state the evidence. The defendant, at the trial, had a most excellent character given him. It certainly very much imports the public that the crime should be defined, and that it should appear, for a certainty, whether it is, or is not an indictable crime; the two questions left to the jury, and upon which the trial turned, were, first, whether it was the duty of his office, as accountant, to make up expaymasters' accounts; if it was his duty, as accountant, to make up the paymasters' accounts, then whether the concealment for so many years, and till after the whole account was seemingly closed,-not really closed, be cause it had not been attested, but so far closed as to have the balance put down in pencil, and so done, barely with a view to some alterations that might arise from an allowance, in the case of Paris Taylor;-whether, under these circumstances, he, as ac countant, concealing, for so many years, items which he was perfectly apprized of, to the amount of 48,000l., was contrary to the duty of that office, or not. There was another |