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point that Mr. Bearcroft made, very properly, sary, now, to deliver the account, which we at the trial, that is, take the fact as I have did from that which had been sent to us in now stated it, whether it is an indictable penciled figures: and then that account is crime, or not. The two first questions were produced in court, taken from the penciled left to the jury; as to the last, whether it is figures; after the transmission to the treaan indictable crime, I believe I intimated a sury of this account with the penciled babias of opinion, but I told the jury that ap- lance, the books of accounts were returned peared upon the record, and that neither I from the auditor's-office to the pay-office to nor they had any thing to do with it; but a have the two items, which had been carried motion in arrest of judgment would avail the into the balance, of 1,3681. inserted in the acdefendant, if it should be the opinion of the count-for no other purpose. I thought the Court that it was not an indictable offence. book remained in the pay-office too long, and Having premised this, I will now state, as I desired my colleague to inquire why it was accurately as I am able, what passed at the not returned; upon this inquíry, we found it trial. I have looked over the several papers had been returned to one of our clerks; I that were produced, since, to refresh my me- looked into the book to see if the two items, mory; but it will not be necessary to state to amounting to 1,3681. were inserteil ; I found the Court a great many things that were pro- they were; but between these two items, and duced, that nothing turned upon.

the last entered sum, I found various entries The first witness they called, was a Mr, made of sums, amounting to above 48,0001., Hughes, who produced the books of lord Hol- which alarmed us; we drew out a fresh state land's accounts, which had been delivered of the account, and delivered it to the trea. at the auditor's office for a great many years sury; in this account, to which the 48,000l. back, and they ended the 24th of June 1765; was added, the penciled balance was crased, that shows how long the accounts had been and it had no official marks, they were alí depending; then Hughes said, I had often' new items : and that account was produced conversation with the defendant about these in court, which answered the account that accounts, since I bave been the deputy- : the witness gave of it. Upon the 13th of auditor; he had been second clerk in the February, 1783, a fresh state was delivered auditor's office, and in the month of July, into the treasury; upon this delivery and the 1782, he was made deputy-auditor; says he, new items of surcharge, upon his cross-exapur method at the auditors office is, to trans- mination, he says, I have been thirty years in mit our objections upon the account to the ' the office; the balance was penciled, because, accountant, to have them cleared; between I believe, that Mr. Powell expected some al September and November last, I often at- lowance to be made him, with respect to Paris tended the defendant; in the month of Oc- Taylor's accounts; but an account is not tober last, I called upon him peremptorily to closed till attested; but the pencil was, to all settle and close the account; upon pressing intents and purposes, an agreement to the him very close to have the matter seitled, he balance, but till attestation, the account is referred us to Mr. Powell, saying he could do not closed; I recollect no instance of adding po more in it; we applied to Mr. Powell; ' an item after the balance is agreed; but till the accounts were sent from the auditor's to the account is attested, I think it may be cor. the pay-office to insert two items, which were rected: the defendant said he had done all he surcharges, one of 9001., and the other 4001. could, and referred us to Mr. Powell; we and odd, both amounting to 1,3681. ; the never applied to the cashier, the accountant books were returned to the auditor's office is the officer to whom we applied. Mr. Winwith a stated balance in penciled figures, of nington's accounts were made up without the 68,0001., odd money; the two items of sur intervention of any officer of the pay-office; charges were not actually inserted in the ac- there is no instance since, that I know of, count, but they were carried into the balance; where they have been made up otherwise the auditor, upon this, drew out a state of the than by the accountant. account, considering it as almost closed, and Theo Wigglesworth was called: he says, delivered it to Nr. Rose, the secretary of the that so long ago as the year 1772, lord Hol. treasury, to be laid before the lords of the Jand's final accounts were delivered in. Upon treasury. Mr. Colborne, who was an acting the 27th of October last, we transmitted to clerk, under the defendant, brought the book the defendant our observations as on the with the balance struck; we informed Mr. final account; in the middle of November I Powell to whom the defendant referred us, of called on the defendant, and requested that all our proceedings, and, particularly, that we he would answer our observations; he rewere to transmit a state of the account to the ferred us, in future, to Mr. Powell; he said, treasury'; we pressed Mr. Powell to attest and he acted under the direction of Mr. Powell, to swear to his accounts, which he neglecting, and, of himself, could do nothing in it; we we wrote to him; no objection was made, then applied to Mr. Powell, and begged him by any person, to transmitting to the trea- to close the account, we wanted to draw out a sury this account; it is never usual to trans- state of it to send to the treasury; he said, mit the account till the account is closed and by way of excuse, that the accounts with the balance struck, but we thought it neces- Paris Taylor were unsettled; we transmitted

Then they called Mr. Gibbs, who is a clerk to the auditor; he says, upon the 4th of Jan., Mr. Colborne, the defendant's clerk, brought that book of account to the auditors office.

a state of it to the treasury, apprizing him The next witness they call is Mr. Rose, before-hand. We always understood that secretary to the treasury: he says, that upon we had agreed in the balance, the only objec- the 15th of February, 1783, the defendant tion that was ever made, was the accounts owned before the lords of the treasury (I depending with Paris Taylor. At the end of shall state this particularly), that he was November, we sent the account to the pay-perfectly apprized of these additional articles, office; the 11th of January, we sent to the which were brought into the account, long pay-office for the book, but it had been re- previous to the penciled balance being drawn turned, and on the last of January, we disco- out. I then asked him how he came not to vered the additional articles. get them inserted in that account; he said, he left it to Mr. Powell, who had been ac countant before him, to make up the account. I asked him if he was not aware that it was his duty, as accountant, to see that all the articles to charge, were included; he admitted, he knew it was his duty; I then asked, if it did not occur to him, to be peculiarly improper to devolve upon the person acting that check which the constitution of the office had vested in him; he answered, it did not occur to him: he said, in the course of his examination, that he did not consider the account as final; being asked why, he mentioned the accounts still subsisting between Paris Taylor and the executors of lord Holland, but which, he admitted, had no relation to these articles; I asked him, whether he had a doubt about any of the additional articles; he said, no, he had none.

Then they call William Plasted, who is a clerk in the auditor's office; he says, he discovered a mistake in the account, owing to a wrong computation; that he sent it back to the pay-office to be rectified; that when it was returned again to the auditors office, he saw that there were additional entries, to the amount of 48,000l., which were in the handwriting of Mr. Colborne, the defendant's acting clerk.

Mr. Chamberlayne is called; and he says, all the additional items are entered in the payoffice books, except about 20,000l., consisting of small items which he did not examine.

Then they produce a warrant of an allowance to the defendant for passing the account; they produce a memorial of John Powell, acting executor to lord Holland, praying an allowance to the officers of the payoffice, for making up the account of lord Holland, from the 15th of June, 1757, to the 12th of June, 1765; and heclaimed allowances to these several officers, which are allowed in his account, and among the rest, there is to the deputy paymaster a large sum; the cashier had a sum; and then the accountantgeneral, Charles Bembridge, 2,650.; the accountant-general's clerk had a sum of 500l. allowed him; and then there are sums to the other officers; and this is an allowance that is made by the public to the accountantgeneral, for the passing of my lord Holland's account. Then, which I need not trouble the Court with, they produced a receipt from the defendant, for this money. Mr. Molleson, the secretary to the commissioners of the public accounts, produced a signed examination of the defendant, before the commissioners of accounts, dated the 22nd of March, 1781; so far as it is material to the present question, the defendant tells the commissioners, that he, as accountant in the payoffice, carries on and makes up the accounts of the pay-masters after they are out of office, as well as those of the pay-masters in office; he likewise tells them, that the only obstacle to the final adjustment of lord Holland's accounts, is a dispute relative to the balance in the hands of Paris Taylor, who was one of his deputies; this was on the 22nd of March, 1781. Upon another examination of his, he says, that he has been in the pay-office twenty years.

Then they produced a letter from the defendant to Mr. Rose, in which he states the balance due from the defendant; and then they produced another letter, dated March 3, 1783, to show that that balance has since been paid in.

On the part of the defendant, Mr. Bearcroft called Mr. Bangham, who had been a clerk at the pay-office for 33 years, and he says it is the duty of the accountant to make up the accounts of all deputy-paymasters abroad; the pay and clearings of all the garrisons; to settle and correspond with all deputy paymasters; to examine all their accounts; to check all the receipts that are made out for the general and staff-officers of Great Britain and North America; to examine and state the account of extraordinary service every year; that, in short, the accountant had the inspection of the whole business; it lies entirely upon him; I believe it is entirely at his own option whether he will, or not, make up the accounts of the paymasters out of office: Mr. Winnington's were passed by another person; Mr. Nicholl, the accountant died, and Mr. Sawyer, the cashier, was employed to make up the accounts of lord Chatham.

Then they called Mr. Crawford: he says, he has been in the pay-office ever since the year 1761, and he states the duty of the accountant in many articles.

Then they called John Lamb: he says, he was employed to pass lord Chatham's ac counts, by his lordship, at the recommendation of Mr. Sawyer, the cashier, and the accountant did not pass his account. This is the substance of the evidence given on both sides.

Mr. Scott. It becomes my duty, somewhat

earlier than I expected, to submit, likewise, to accounts of the paymasters out of office; it your lordship some reasons for the hope charges him with a breach of that duty: and, which we entertain, that the Court, in this my lord, I beg leave to submit to the Court, cause, will be pleased to grant a new trial to utrat there is not evidence to support the conthe present defendant; and, my lord, inclusion that he did violate that duty; and not stating what I conceive to be the grounds only to submit to the Court, that there is not upon which the motion is to be supported, I evidence to support that proposition, but shall very anxiously avoid troubling the I beg to contend farther, that evidence, Court, in any sort, with respect to the degree very important has been received, and of guilt which may be imputed to Mr. Bem- heard in this cause by the jury, which bridge. My lord, I have no doubt that your ! ought not to have been received, and which lordships will draw no inference which bears they ought not to have heard, because its hard upon that gentleman's character, from tendency, if it is to prove any thing, is 18 the turn which any argument now to be sub- prove a different species of guilt from that mitted to you may take : when the proper stated in the information, with a view to occasion offers, it will be fit enough to submit induce the jury to believe that that guilt, to your lordship, that a more respectable which is stated in the information, exists in character was never proved in a court of Mr. Bembridge's case. I would explain my. justice by more respectable witnesses; that self, by saying this, that if it eppears upon this this is the first and the single error of a life evidence, or if your lordship’s recollection spent in places of great trust, discharged with shall justify me in saying, that it was pressed much and very honourable fidelity; and that to the jury, that if Mr. Bembridge had this in your lordship’s sentence, at least, the public duty imposed upon him, not as accountant opinion will stand very much corrected, and in the pay-office, but as having received money 'the world will, at last, know that this gentle for the discharge of the duty, as being someman has been treated with severity much thing extraordinary, and besides and beyond beyond what the nature of his crime required. the duty of the accountant, that evidence of Having laid in my claim to apply to your his having been paid for such an assumed lordship in mitigation hereafter, I shall now duty, which does not belong to the office of proceed to state to the Court what I con- accountant will not support the charge in this ceive to be the grounds upon which this information : that is, I contend, that if Mr. motion is to be supported.

Bembridge received the 2,6001., which your Lord Mansfield. You had better take the lordship will recollect was mentioned in the whole together.

evidence, relied upon by the prosecutor, and Mr. Scott. Then I shall defer at present stated by your lordship to the jury, that he speaking in mitigation, till I have laid before received that sum as a consideration for his your lordship, what I conceive to be the doing this duty; I say, that if he had violated grounds upon which the motion must be sup. a duty, which duty he imposed upon himself, ported. If the evidence, in this cause, does by receiving the money, he could not be connot support a proposition, which your lordship victed upon this information, because paying was pleased to tell the jury they must be him that sum of 2,6001., is the circumstance satisfied of, before they could find the defen- which creates the duty which he violared, dant guilty, namely, that it was the duty of and it follows, necessarily, and of course, Mr. Bembridge, as the accountant of the pay- that the duty which he violated, in that case, office, to settle and make up the accounts, I was not a duty belonging to his office, but a apprehend this conviction cannot stand. If new acquired duty which he assumed to himthe nature of Mr. Bembridge's guilt, if the self; and of that species of duty, and of that species of it is not that which is charged in species of violation of duty there is not one the information, a conviction, upon such an word charged in this information. I think I information, ought not to lead to his punish- shall be able, by examining this evidence, to ment; if it should appear, even in Mr. Bem- show your lordship, that that sum of 2,6001. bridge's case, that his guilt hath been of a though paid into his hands, ought not to be different species; if I were even to admit considered, in a court of justice, as paid to that there were any guilt in his case, that him; that it is, in fact, a ayment, out of an there were some guilt in it, yet, if it is not of allowance by, government to the ex-paythe species stated in the information, it is master, who gives it to Mr. Bembridge, as a impossible that this conviction can stand. proportion of a larger sum allowed by goveritMy lord, I shall, therefore, proceed to exa- ment to him for a duty, which in point of mine what, at most, can be said to be the law, he, the ex-paymaster, must be taken to nature of his guilt, with a view to show your do by the hands of his mere clerks, and his lordship that it is not of the nature stated in mere servants; and in that way of viewing this information,

the case, I shall contend, in aid of what Mr. My lord, the proposition which the prose- Bearcroft has said, that this cannot be an cutor undertakes to make out, is this; that, indictable offence in Mr. Bembridge. to Mr. Bembridge's office of accountant, in If I were to allow to the solicitor-general, the pay-office, there is annexed this duty, the principles he laid down, that every man namely, that he shall settle and adjust the who contracts with the public for pay, in

poses upon himself a duty, the violation of pleasure of the ex-paymaster when they were which forms a subject to be prosecuted by allowed to him; what does the conduct of all indictment, or information; still, if the real the witnesses themselves prove, who were circumstances of this case show that the examined on the part of the prosecution? ex-paymaster is the person contracting with Let it be observed here, that if there is any the public, and not that accountant, who, for propriety in the maxim that Cuilibet in sun this purpose, is the mere servant of the ex-arte est credendum; et omnes prudentes illa paymaster, there is, then, no contract be-admittere solent quæ probantur iis qui in su tween Mr. Bembridge and the public; and arte bene versati sunt,' our witnesses ought having violated no engagement to the public, to receive much greater respect (for they are he cannot be criminally punished. men who have spent their whole lives in the The first proposition, the information un-office) than the witnesses for the prosecution, dertakes to make out, is this; that it is the who were engaged in another office: but take business of Mr. Bembridge, as accountant of their ideas of the duty of this office, from the the pay-office, to make out, settle, and adjust conduct they pursue? what must have been the accounts of ex-paymasters. Now, I sub- their knowledge of it? they go to Mr. Bemmit to your lordship, that the evidence, so far bridge, whom they knew to be Mr. Powell's from proving that, if it does not prove the di- clerk, and nothing else, in the execution of rect contrary, at least leaves it exceedingly this business; as soon as they go to him, he doubtful, whether it is his duty, or not; but I refers them to Mr. Powell, who was, at that submit that it proves the direct contrary. It moment too, not accountant in the office, cannot be so in point of law, and it has not though cashier in the office, in which charac been so in point of fact;-in point of law, it ter he could not do the duty; at that moment, never can be said to be so, for it is impossible he was executor of lord Holland, was making that the law should impose upon me a duty up the accounts of lord North, and some other which, in point of fact, I cannot execute; it paymaster; if it had been the duty of Mr. is impossible that it can be the duty of the Bembridge to make up those accounts, how accountant, in this office, to settle the ac- happened it that Mr. Powell, as executor. of counts of ex-paymasters, when the ex-pay- lord Holland, was, at that time, making up master, or his representative, may, the mo- lord Holland's; and how happened he to be ment he undertakes to do it, say he shall still continuing and adjusting those accounts, not do it, and which in many cases, they Mr. Bembridge having no power either over have said, he shall not do; it can- his accounts or the papers which were to not be the duty of the accountant to enable him to make up the accounts? settle and adjust those accounts officially, But great stress has been laid in this cause, because how can he compel the production of much has Mr. Bembridge been traduced, on those books, papers, and vouchers, the exami- account of his own declarations, which are nation of which is necessary to settle the ac- taken in this cause, to decide the matters be count? the law has furnished him with no tween us. Recollect the situation in which process to enable him to come at them, and Mr. Bembridge stood at that time; I will not the party may refuse to produce them when follow Mr. Bearcroft in saying he stood beever he requests them; if it were necessary fore an inquisition, at that time, but will vento establish what the notion of the law upon ture to say that he stood before something this subject is, by saying what the law at this more like an inquisition than any thing that day is, your lordship will look at the last act has been seen in this country since the years for regulating the duty of paymasters, and before the flood. Party zeal, which, like there, for the first time, the books of the ex- Cæsar's, in this case, will not be satiated paymasters are made the property of the pub- even with blood, was pursuing it; they hunt lic; but till that act, which is known by the him down; and a disposition to find the acname of Mr. Burke's act, passed, it was im-knowledgment of guilt in every thing he has possible that Mr. Bembridge, or any other said, has found it in every expression, capaaccountant, could compel the production of ble, in my opinion, of establishing even his them, and if he could not compel the production innocence. of the accounts and the vouchers which are to establish those accounts, it is impossible he could be bound to settle the accounts.

In point of fact, the representatives of the ex-paymasters, have constantly settled their accounts, if they thought fit; and not only in the instances spoken to by Hughes and Wig. glesworth have they settled their accounts, but even when they did themselves settle their accounts by themselves or persons in the pay-office, even then, those allowances were made to the servants in the pay-office, upon the memorials of the ex-paymasters, those sums being divided according to the §

My lord, if the examination before the commissioners is to be taken as the evidence of the confession of his guilt, it is nothing more than the evidence, not of his duty, not what he conceived to be his duty, but of the fact; he says he makes up the accounts; why, when a man makes an admission, you are not to imply that he makes the admission in a sense in which it is impossible he himself could understand it; for Mr. Bembridge, who had been in this office twenty-five years, who knew what was the fact in the case of Winnington's executors, who knew what was the fact with respect to lord Chatham, who

knew what was the fact with respect to Mr. | did not comped him to insert the articles Powell, who knew that, in point of fact, the before it was necessary he should. If this accountant never had made up the accounts is the nature of the evidence, that it was of the ex-paymasters, he cannot be supposed not the duty of the accountant; still, if the to be acknowledging what was bis duty, but result of it is that it was his duty, still

, there the fact. But supposing that an acknowledg: is, I submit to your lordship, a satisfactory ment of his duty; if Mr. Bernbridge had said, ground for a new trial, and that is this; it is not my duty, and the facts in evidence that evidence was received to prove that Mr. had proved it was his duty, he could not have Bembridge received a sum of 2,6001. as a conavailed himself of that acknowledgment in a sideration for doing this duty; that in concriminal prosecution; if he has said it was sequence of his receiving that consideration, his duty, and the facts, proved in evidence, the duty was imposed upon him; if the duty show it was founded in mistake, is he to be arises from the receipt of the consideration, bound by that, and that too in a case where as that is not allowed to Mr. Bembridge, as the whole context of his admission proves he accountant, as it is no part of his regular salary had no idea that he was infected with guilt at as accountant, it is a duty which does not the time? Mr. Rose asks him very gravely, arise out of that character, which the infordid you not consider it as extremely improper, mation states it to arise out of, but it is a duty as Mr. Powell was the person who was him- of a different nature from that charged in the self to charge himself in favour of the public, information; and a violation of that different that he should settle them ?-No; I did not.-duty, cannot warrant a conviction upon this How could he ? Mr. Powell had been trusted information. That it was paid him in a dif. by persons of great honour in private life; he ferent character, and, in truth, that it was had executed his duty towards the public, till not paid him upon this account, appears the moment, without default; he has executed extremely clear, because your lordship will his duty at least with not half so much in- recollect that this was not a demand which jury to the public, as the public perhaps has he made upon the public, for doing the duty; done him, for it has suffered no injury even that it was not a demand which any person, tually. Mr. Bembridge had received great being an officer of the public at the time, obligations from Mr. Powell, he knew the made upon the public for the performance of habits of his private life to be founded in the duty; but that Mr. Powell, being then great integrity ;-and though I do not mean to the representative of an ex-paymaster, Mr. excuse Mr. Bembridge, on the score of grati- Powell having then no patent-ofice, as such, tude, for in circumstances where the public in that character of the representative of an are concerned, I admit, with the solicitor-ge- ex-paymaster, he prefers a memorial to the neral, it is a fault; but if it is, it is like ano- lords of the treasury, praying an allowance ther fault, it approximates very nearly to a for his servants; they give an allowance virtue in this case;– he trusts Mr. Powell to to his servants, a large sum of money which do,—what? not to send in the final account, he distributes in such proportions as he thinks for in his notion of the final account, it never proper, and in the objects of that distribution is final till it is attested upon oath; and the are comprehended the lowest menial servants whole confidence he reposed in Mr. Powell, of the office: it might as well be contended and which he asserts to Mr. Rose, he did not that it was the public duty of the housethink himself wrong in reposing in him, is keeper to settle those accounts : but if it was this, namely, I had not the least doubt that, received on account of his settling and adbefore Mr. Powell attested this account, he justing those accounts, still, if the duty arises would do, what, in point of fact, he has done, from that circumstance, it is not the duty he would insert those omitted articles; what which he is charged with the breach of, in was Mr. Bembridge to do in that case? Was this information, but a different duty, the be to go and charge Mr.Powell with an inten- breach of which he was not concerned to tion to commit a crime, which intention he defend here. Lord Chatham's accounts were had no reason to think he had, unless he did seitled by persons not in the pay-office, and suppose he, in that instance of his life, was the same allowance was made to the person acting on principles directly contrary to those in the pay.office, which shows the allowano which had regulated his conduct in the whole was not made in respect of this duty done prior part of his life? He acknowledges, to but other duty done, which can be done on Mr. Rose, that he knew it was his duty to by other persons remaining in the office. Th have had those articles inserted, and so it was 2,6001., was not paid him on account then every man's, when the account was finally settling lord Holland's accounts; but if it ha settled.

been, it is not the species of duty, with tt The whole of his admission is this: I did violation of which he is charged in this i trust Mr. Powell would do his duty; I had formation, and there is no count upon such : no reason to think otherwise; in that I am assumed duty. But, suppose now that he not eventually mistaken, but had abundant guilty of the charge stated in the informatiu season to think the account would not be as it is laid in the information, still we wi finally closed before the articles were in- to avail ourselves of the arguments whi serted. The nature of my guilt is, that I have been already submitted to the Cou