a he surcharges the paymaster with them, and knew, at the time, that the articles were they are returned to the pay-oyce. Who omitted and ought to have been inserted, and had the charge? why, who was to have the that it was his duty to have inserted them. charge? Mr. Bembridge, as accountant, and i Upon the second part of the case, I think such articles of discharge as were not before that there could be no doubt, that the geninserted in it, are then sent to the auditor's- tlcman would not make a doubt, if he is an office for examination, after which, the pay officer; and, I submit, after these assertions office again adds the totals and strikes the of his, that it is impossible for him to say he balance. is not the officer, or for those who speak for Now, let us examine the evidence to sup. him, to say, that he is not the officer who port this prosecution with this account, upon has thus said; he is before the public comoath of himself and his office.—The account missioners appointed to see that the public was sent to the office of the auditor of the were not defrauded and cheated; the object imprest; it was examined by the auditor and of this on ission being to defraud and cheat i his deputy ; doubts did arise; queries were the public, and the items are produced and sent; they were not answered to satisfaction; brought in, upon a circumstance that hapthere was a surcharge of 1,5001. odd, consist pened, which would have led to a detection, jng of two items, a 6001. and a 7001.; it is --it was impossible any longer to keep back sent again to the auditors-office for exami- the omission, which circunstance was the nation; when returned to the pay-office, they resolution of the lords of the treasury, to call add the discharge, and such articles of dis- all the sub-accountants with their vouchers charge, not before inserted, which is sent to and their payments. The moment these subthe auditor's-office for examination, the pay- accountants had come with the items that office adds totals, and strikes the balance; composed the 48,000l., the moment those then it is returned again; by whom? by Mr. items had been delivered in, this account Bembridge; for I call Mr. Colborne, his must have been discovered ; the moment he clerk and deputy, I call him Mr. Bembridge, knew, which, is not only from his admission and to be sure he is so. Then here is a man, to the treasury to a gentleman whose testiwho being no officer at all has an efficient mony I should conceive could not be doubt. deputy to do all the business; that is a curious ed upon that, head Mr. Rose; but it was imsort of deputy to a man who is no officer; but possible to be otherwise than known to him ; that Mr. Colborne does add the total, he does he had the books in his hand; be could not strike the balance; then all the parts of his do his duty, as an accountant, without seeing duty are described by him, as things to be these articles; it is not possible that he could, done; he states that he has done those things; having the books in his hand, have done bis the question will be, how he has done them? duty without seeing these articles, it could Then that he is a public officer; that upon not be an oversight, it is proved to have been oath, he so states himself to those autho- within his knowledge. rized, by act of parliament, to examine him My lord, I am very free to own, that if this as such; he submits to the examination as had been an omission, though he had passed such; he afterwards sends all those different the account, by blunder merely, and that the accounts, in the manner that I have before articles had never come to his knowledge, stated them, with the penciled balance, which God forbid, that that should be the subject of is sworn to have been brought to the office a criminal prosecution against him; what it by Mr. Colborne, his own deputy, who in- might have been for a neglect, and how far serted articles in Mr. Colborne's, that deputy's that neglect might have been culpable , is own hand-writing; now, how came the insert- quite another question; but this is no neg. ed articles, how came they inserted totally out lect, it is a wiltul withholding and keeping of their place? that is most certain, for they back that information which he was bound, by come between the first and the second item act of parliament, to give upon oath, to the of the 1,3001. odd: they are forced to have a commissioners of the public accounts. It is not great quantity of new paper for the purpose, merely a neglect in not doing it, though for my. in order to separate those two items by a self, I should be very loth to give up that idea. space large enough to admit the insertion of that any neglect of a public accountant, or to the articles comprising the 48,0001.; why, say, that I was negligent merely, or forgot it, my lord, these were not one, two, three, four I should, for one, contend that that would be items, not relating to any one particular ac- indictable, and the subject of an information; count itself, but several items, some large, the degree of neglect, the manner of it, how some small, but a variety of items and arti- it arose, are all matters of exculpation or of cles, arising in no less than six different years. I aggravation; but here it is not neglect, and Then, my lord, these officers, for I now lay whatever the motives are, to which it is at out of the case at present, only in describing tributed, friendship or gratitude, or whatever him the officer, before the secretary to the it is, it was said, Mr. Bembridge has, and, treasury, because that comes upon the second believe, no man had a better character, os part of it, whether this was contrary to his was more highly intrusted ; just so much the duty, whether it was wilful, and whether he worse, that character gives him a greater op indicted for it, and no doubt he was con portunity; what, would they trust a man in such a way of business as this is, with a pub-victed for it. What had the public to do lic loaded as this is, that this gentleman should be permitted to say a consideration, no matter how far affecting his gratitude, or how deep it went in his humanity to Mr. Powell, what answer is that in a public officer to the public, who ought to be more dear to him, who pay him to be honest, to tell them the truth? and he sends them in a false account; so much for the wilfulness of the transaction. Then it is said, it is not an indictable of fence. I do own that though I was infinitely astonished at the idea of his being no officer, after what we have seen and heard proved and sworn, but that if he was, it was not contrary to his duty; but, I am still more surprised to hear that if it be his duty, and this was contrary to his duty, that it is not an indictable crime, a crime known to the law, cognizable by the law, or by this mode of information. Why, is there a public principle better known here than, that this court has a controlling, superintending jurisdiction over all the nation, all the subjects of his majesty, in matters that concern the public weal? I know that doctrine has never been denied, and has been established over and over, and over again; and that the aspect, as the attorney general calls it, to the public weal,-but it has a great deal more than aspect, it has a real concern in the public weal, one way or the other, whether taxes are to be laid, to the amount of an omission of 48,000l. Is another million to be raised upon the public, and this money that would pay the interest of it to be embezzled, and is that no public offence? I cannot conceive upon what the argument is founded; I have no idea upon what the argument is founded; why it concludes, as all these things must do, to evil example; do not we know many, many cases in this Court, where even an individual is the mere sufferer, and yet where the public example, and the evil example is most certainly matter that would mix with the transaction itself, and would, most certainly, make it indictable? I need only quote the common case of a note, a bill, a bond, snatched out of the hands of the party, torn, or obliterated, and returned defaced, what, is not that indictable; and yet nobody actually suffers or loses by it but the party who is the owner of the note, the bill, or the bond? but it is not indictable to deprive a particular man of that which would be his benefit, but to deprive him in a way that is criminal: that cannot be permitted for public good, and for public example cannot be permitted. Why, what was the case of the six clerk, Wilkinson I think is the name, who, with the other five clerks, had entered into an agreement to divide their profits amongst themselves, and Mr. Wilkinson, pretending to look at this agreement, takes hold of it, and tears his name off, leaving the other five, and obliterates that part of it?. He was VOL. XXII. with the agreement of the six clerks? It was private amongst themselves; but is the great criminal jurisdiction of this country, that exists and resides in this court, to sit still and see such a fraud as that committed? The gentlemen seem to me totally to have forgotten all that relates to fraud; a private mischief is done, a private loss is sustained, but the fraud is the crime, and if that fraud is of a size and of a nature that goes to the bad example of the subjects in general, the circumstances I have mentioned of tearing and snatching away the bill, the note, and the bond, this example of the six clerks (it is in Vidian's Entries, 215); these all go to show, and to make up the principle. Then I come to another thing, which is certainly very curious; indeed I have no understanding at all to comprehend upon what the idea is founded. It was supposed that the receipt of 2,6501. created the duty; so that till he had received the money, the duty was not created; why, there is nothing to do after he had received the money; the duty was all before, for the performance of which duty he is paid, and for the neglect or wilful omission of which, he is to be punished. To say that that creates a duty, and that that makes a different species of offence,-which the gentlemen seemed to admit would be a species of offence, and, perhaps, indictable;-but it is a new species of offence, not upon this charge, or upon the face of this information; that was not at all the aspect that the evidence bore; it was part of the evidence to make up the charge: not only the giving it in, as an accountant, carrying it in penciled balance, authorized the auditor, and led him into a trap, to send it to the treasury as closed; you have not only done this, but you have taken your reward, and a pretty large one too, for this supposed duty of yours, what you supposed your duty; give me leave to take it up upon that ground only,—that he thought it was his duty, it concerns the public, every body admits; then, if he had never had the appointment as an officer, but had been merely permitted to do it, and had thought it was his duty, and omitted to do it, in a matter that concerns the public so highly as this does, is that no crime indictable? in short, if it is criminal, it follows that it is indictable. Upon these considerations, as it strikes me, it seems to me there can be no doubt upon any one of the three heads, whether he is an officer, whether it is contrary to his duty, and if it be, if he is indictable. The next consideration is, the punishment, which, as my learned friend the attorneygeneral has stated, is better in the hands of the Court, for the public, for the criminal, for every body; all that I can say is, that it is not an error, it is a predetermined act to screen somebody. I should be glad to ask the question, who is punishable if Mr. K Bembridge is not? Mr. Powell was not cer- were made,--that it was impossible for any tainly, for he did not send in the penciled body to go through the books, which were balance, though he enabled Mr. Bembridge in his hands; and the power of an executor to do it; is the paymaster criminal? no or any body else, to take them out of his doubt,,he must make up his account the hand, is beside this question totally; for they moment the error is discovered ; then here is are left in his hands, he is to form the aca crime committed and nobody punishable. count out of the books, they are in the books, Lord Mansfield. What do you say to the but he suffers the last account to go as the attesting the former account? former had, and to go as far as in him lay, Sir T. Davenport. I apprehend, if it had to the attestation; though the attestation ever got to the length of attestation, I might not fall upon himself; he permits submit , that the account, quoad Bembridge, them to go to the length of attestation, bewas closed, that it was in evidence particu- cause though the account will not be passed, larly the moment it is allowed at the treasury, Lord Mansfield. What I mentioned is this: there is an end of altering that account : and -This final account was not attested ; if it though it might never have been attested, I had been altested, it would have been attested conceive this crime would be complete in in the very same words—“ A just and true him to go as far as his office, his duty, or the account, to the best of my knowledge and duty of any man in the place in which he belief;"— In case the attester knew of these stood can go. He has done that too wilfully, charges omitted, how can the account be withheld from the public items in all those just and true when there are great sums left books, in the former accounts, though not out in the deed he signs? attested, and though not brought forward in Sir T. Davenport. I have stated that this this; and the parties attesting, were guilty of information charges Mr. Bembridge to have false attestation, from the inoment of the done, in the prosecution of this fraud, as first attested account; none of these were much as in him lay; now his duty goes no true; it would beget a prosecution of anfarther, nor his office. other nature, against those who signed such Lord Mansfield. I want to know if there is attestation; but if it be true that somebody any salvo that justifies such an attestation? else has warranted the attestation of the the use is to be made of it afterwards; but in former accounts, if it be true that somebody the course of your argument, whether there else has warranted that attestation, it may is any salvo (it will bear a great many ways), be said, that nobody else is to disclose or to to justify such an attestation? discover; I conceive, that to the end of the Sir T. Davenport. I was going to state, accountant's final account, that before the first, the facts as I understand them. I unders very last item of it is completed, at some part stand that the accountant in the office, goes or other, those items should come in: if they no farther than the close of that account,-if had thought Mr. Paris Taylor's accounts I may be permitted to use the expression, the were to come in, they should have stated it close of the account, to authorize the auditor a true account, as far as they could go; but of the imprest to send it to the treasury; that these accounts, in these attestations, were is the fact; when it comes to be attested, known by Mr. Bembridge not to be inserted, before one of the barons of the exchequer, and here was a final close of lord Holland's the paymaster, if living, or his executor, if account, whether it ever went the length of dead, and he has taken any part of that attestation ; now, it never can have it, from execution or burthen upon him, of inspecting the death both of the executor and the the account, somebody must attest; appre principal, it never can go to attestation ; that hend, the accountant does not attest; I con- crime can never be less, which, as far as it ceive, that the account is closed, as far as goes, in the man committing it, is complete, this office, and the duty of it goes; I see and complete without farther act done. most clearly that in the attestation of the I conceive that it was equally the duty, in former accounts of 1770, 1772, 1773, 1774, this account, to disclose errors, if I may calt 1775, and in short, all of them that were them by their milder name, but wilful omis attested, except the last account of 1764 to sions in the former accounts, that it was his Midsummer 1765, that in the attestation of duty to bring this forward, as much as it was all of these accounts, no doubt of it, the to take the year's account from 1764 to 1765; omissions were made at the time that these that that was as much a part of his duty to attestations were made, and wilfully, by bring forth the errors apparent upon the somebody, and I suppose that might be one book, and which he knew; for, though he is reason why Mr. Bearcroft laid considerable not to attest within his knowledge, and those stress upon Mr. Rose's ignorance of the who have falsely attested that it is a true time when Mr. Bembridge got at the know- account, as to every thing within their knowledge of these omitted articles. ledge, yet, this gentleman, when he delivers In a former part of my observations, I in this, as all that came to his knowledge, in stated that it was impossible for him, as ac- lord Holland's account,-I contend, that it countant,--for he was accountant during was as much his duty to bring them forward some of those years when the attestations in the very last close of the account, up to the last minute in which lord Holland went but whether these allegations are, in point of out. In the course of the account, I see fact, made out. they carry on the account, in the form of it, My lord, whether it is an office, place, and a month or six weeks, or more, after the employment of great public trust and confiparty had gone out of office; but they take it dence, will depend upon the question, What up at the end, and if there is the same space is the nature of the business of that office? of time in the next paymaster, it is carried on Of that business, Mr. Bembridge himself has to the next ex-paymaster, and so till the given an account; and he gave it at a time successor comes in. I submit, that it was as when there was no inquisition sitting to exmuch a part of his duty, in the penciled tort from him answers that might be turned balance of the account, to have brought for- to his prejudice ;-the observation was made ward all that he knew of error or omission by Mr. Scott, and made with less moderation in former books, and former accounts, re- than generally distinguishes the observations specting that ex-paymaster; that it was his that fall from that very learned and very duty to disclose to the public, the conceal- worthy gentleman ;-it was made at a time ment; and not revealing that, makes as when there was not a conception of charging much a part of the crime, as if those items Mr. Bembridge with any criminality what had happened in the very last year in which ever; it was his own voluntary declaration ; that account, so given in, comprehends the and though he does not say it is his duty, and items of the particular space of time; I it seems to me an abuse of words to argue take it, that all that went before, as much from the want of the introduction of these goes into the final close and balance, and words, his not saying it is the duty of his that knowing that it was so much his duty, office, when he is giving an account of his and as wilful a transgression of it, as it would office ;---what is his duty? why, that which have been in omitting any one article or ac- he does ;-he is not in a conversation over a count in 1764 or 1765. bottle at a table, giving a person a history Mr. Couper. Recollecting the many hours of his life; he is giving an account to the that your lordship has already hitherto sat commissioners, who are judicially inquiring in this Court, during the course of this term, of his official character; and then he says, he and being apprized of the great load of busi- carties in and makes up the accounts; can ness which still remains for discussion be- any man of common sense, interpret these fore you, and decision by you, I am aware words in any other way than this, it is my that it becomes me, and every one else, to duty to make up these accounts ? 'Others, it trouble the Court upon each occasion as little has been said, might have done them; I as may be; I shall not, therefore, detain heard an observation, yesterday, by the Court, your lordships many minutes upon the pre- and which decided upon the business; where sent occasion. When the motion was made a man is charged upon penalties, if a man by Mr. Bearcroft, I own I did not under- does not know what his own description is, stand him as moving in arrest of judgment, who should know it? The printer from Manupon the idea that if there was one bad chester yesterday, had entered hiinself as a count in the information printer; your lordship said, I do not know Lord Mansfield. No, he moved for a new that there is evidence before the Court, that trial he is a printer; but I take it for granted he Mr. Cowper. So I understood; and that knew it himself, and I will not take upon me Mr. Bearcroft's objection is pointed in this to be wiser than he was. This is Mr. Bemway, but upon a motion for a new trial, bridge's own description of his office; and I where there is a general verdict upon an in-beg to take the liberty to ask, it it will beformation, there must be evidence laid become your lordship to say he did not know fore the jury to sustain every count, and, of what the duty of his office was? course, the most ample count in that decla- Another exception to the good sense with ration. I do not conceive that upon the which that gentleman always talks, as the question that is now before the court, there other was to his moderation, was this, but can arise any doubt whatever, in point of law, if he had said it had not been his duty, it would that the whole which your lordships will not huve been evidence for him. I take it, a have to consider and to determine upon, will man's saying he is not guilty, which he genebe, whether the information that is before rally does, when he pleads at the Old Bailey, the Court, has been well proved or not. is not evidence of his innocence; yet, when, When I find it charged in the information without any improper circumstances inducing that the place and employment of accountant, him to do it, he confesses himself to be guilty, in the said office, to the receiver and pay- it is taken as evidence against him. I see, master-general of the forces, guards, garri- added to the instances the attorney-general sons, &c. was a place and employment of produced, in 12 Modern, 434, an information great public trust and confidence; when the against a gaoler for permitting a person to esinformation charges Mr. Bembridge to be cape who was confined upon a writ of ercomin that office, charges Mr. Bembridge with municato capiendo ; there, the conviction goes a wilful omission of his duty in th office, against the gaoler, because the injury done is there can be no question before the Court, done to the public. Eithes an information a a 6 against the gaoler for a public offence, in the re-hearing of that business. As to the meacase of a man escaping for a crime, or an ac- sure of punishment, the Court I am sure will, tion at the suit of the party, if he was de in their wisdom, proportion the punishment tained for a civil suit, would unquestionably to the criminality, lie. Mr. Wilson. My lords, I am on the same Who appoints to this office ?-The pay- side. There must be some officer or other master of the forces; and the appointment is to superintend, settle, and adjust the ex-payverbal, therefore it is not a public office! The masters' accounts; it is a duty of the first highest officers in the kingdom are appointed importance to the public, and I conceive that by a word, and dismissed by a word; there man may be fairly taken to be the officer who are many offices to which the very word alone undertakes the duty, and is paid for the perappoints, where there is not a warrant, much forinance of it; and if he be the officer, it is less a patent, for instance, the secretary of his duty to do this matter truly; if he does the treasury. The delivery of the great seal, not, the public are the sufferers, and unless I believe, appoints the lord chancellor ; there he is punishable by indictment, he is not reis no appointment, or patent whatever of ap- sponsible in any way at all; for there is no pointment; the taking that instrument from person of whom I know, who can maintain him, is a discontinuance of his office. There an action against him for not doing this duty; are several others I could name, if I were to if he is not punishable by indictment if he think much of them, where the appointment neglects the duty, he is not responsible and is verbal, and the dismission may be instan- punishable at all; and I conceive that havtaneous. ing undertaken and been paid for it, it would With regard to the business of the attesta- be a solecism in our law, if he would not be tion, to which the Court alluded, I cannot punishable, in some way or other, if he does conceive it is any abatement of Mr. Bem- not do it. bridge's criminality, upon the present occa- I will trouble the Court with a word or sion, that the account was not, as they call two upon what has fallen respecting the it, closed; every degree of criminality that prior settling of the former accounts. This is Mr. Bembridge could incur was incurred at clear, that Mr. Bembridge, when he was exathe time when he returned this with the pen mined, does not say,' these articles ought to ciled balance; and the paymaster acting upon • have been in another account, which I had the faith of Mr. Bembridge's accuracy in his nothing to do with ;' but his answer is, :I office, would then have solemnly sworn to the thought this account was not yet final;' and best of his belief, because he so received it another thing, the accounts respecting Mr. from Mr. Bembridge, that that account was a Paris Taylor, and that dispute, were several perfect and a true onc. of them prior to several of the previous setThis is the situation in which Mr. Bem- tlements, and they were not put in, every bridge stands. As to character, a great deal body knew they were not, and of course I has been said upon it; á very excellent one conceive, that the prior settlements are to be was given Mr. Bembridge at the trial; I am understood, both they and the prior attestasure, no persons concerned for the Crown tions, thus; all the articles that are in this wish to deprive Mr. Bembridge of any degree account are true, not that the party who at of comfort which he derives from the good tests means to swear that every thing is inopinion which the very respectable persons, serted, because, in so large and monstrously who appeared for him, entertained and ex- complicated ooncerns it is impossible to insert pressed upon the trial, much less to deprive every thing; and yet accounts must be given him of the greater comfort of being conscious in, from time to time, that the paymaster that he deserved that good opinion. If a per- may show in what manner he has laid out son is never trusted, he can never be guilty of such and such sums of money; so that when a breach of trust, it is that character that he attests this acconnt, he attests that every enables him to commit the crime, and I have thing he has stated to have been paid, has heard it said, as a common protíigate obser- been paid, but till he comes finally to sertle vation of colonel Charteris, that he would and close it, it is not necessary to-give 20,0001. to be thought an honest man, Lord Mansfield. The last attestation is though he would not give twenty farthings to verbatim the same; the form of the office be one. Lord Mansfield. His money could not Mr. IVilson. I take it, from the nature of have been worse laid out, for he would have the subject, where it is the last it must inlost his good character in half an hour after- clude every thing. wards. Lord Niansfield. I take it, it is not; the Mr. Cowper. It went to the guilt or the stating is verbatim the same. innocence of Mr. Bembridge; the jury have Mr. Wilson. I take it so, but let it be so; judged upon that guilt or innocence; and I where it is the last, it must include every submit, the crime is well charged in the in- thing, or it will not be a full, true, and perfect formation, and that the evidence has sustain- account. ed every material part of that charge; and Lord Mansfield. The words are the same. that there is no ground, whatever, to have a Mr. Wilson. But the nature of the subject is so. |