and which I should hope to have enforced more largely, if I had had an opportunity of looking into the cases upon the subject, before I was called upon to state my poor sentiments upon it. We hope this is not an indictable offence. In the first place, it is not proved that Mr. Bembridge holds this office by any patent, or creation whatever, unless it is because Mr. Powell nominates him to it pro hac vice.

Lord Mansfield. Who nominated Mr. Powell?

Mr. Scott. Mr. Powell, for this purpose, nominated Mr. Bembridge; but suppose he was nominated by the paymaster, how is it proved that the paymaster's office itself, is a patent office? How is it proved in this cause, what is the nature of his office? How is it proved that his office is such as implies a contract, on his part, with the public, the breach of which contract is criminal?

ful criminality with which the information charges him. Take the whole of the evidence together, can your lordship say, that there is any proof here of the corrupt motive which the information insinuates? Has it been attempted to be proved in evidence, that he either had, or was to have any thing in respect of his complying with this omission of Mr. Powell? Is it possible for your lordship to say, that the degree of his guilt was greater than this, that he reposed a confidence in Mr. Powell, which he thought Mr. Powell would not abuse, and which it has turned out eventually that Mr. Powell did not abuse?

There is no pretence to say, that Mr. Powell held out to him any motives of interest; there is no pretence to say, that he acted upon any motives of interest; and the utmost criminality he can be charged with, if he can be charged with any, is this, that he trusted Mr. Powell, in whom he had all the reason in the world to repose a confidence.

I shall not trouble your lordship with adverting to what the witnesses said, with respect to the character of Mr. Bembridge; it will be in your lordship's memory, that a more respectable character never was given to a man in a court of justice, and if your lordships see in the cause no direct proof, or no proof that goes to establish any positive corruption; your lordships will, at least, incline to think, from the character that was given him, that the utmost guilt which Mr. Bembridge can have, was allowing Mr. Powell to be guilty in a case where he could not possibly suppose he would be so.

In cases where there are indictments for breaches of enacting clauses in acts of parliament, the indictment arises from an implied contract, which every man, who lives under government, is supposed to have made with the public; namely, that whatever the public has ordained, and considers as his duty, shall be so considered; such as the case of Leheup, who was supposed to enter into an express contract with the public, it could not be doubted; and in the case of Kennett, it cannot be doubted that he was answerable criminally, because he was an officer in whom the public repose a duty,-he takes upon him the office to which the duty is annexed, and if he is guilty of a violation of that duty, he breaks his contract with the public. It might be said, if Mr. Bembridge was the servant of the paymaster, and the paymaster has himself entered into such a contract with the public, that the paymaster might be guilty of a great offence in employing persons who negligently or fraudulently made up those accounts; but if the paymaster is the person, who entered into contract with the public, are the consequences of his contract with the public, to be affixed and attached to every contract which he makes, with every clerk who is to serve him as his clerk, and not as an officer with the public? I might admit, to the solicitor general, that where there is a contract with the public for pay for doing a duty,-a public office, that in such case, if that contract is violated an officer is punishable by indictment; but I deny that in the case of Mr. Bembridge there is any such contract, for if he makes a contract at all, it is with the ex-paymaster, to do the business of the ex-paymaster, for the non-discretionfeazance, the non-performance of which, the ex-paymaster is answerable to the public, and his clerks never can be.

The next ground upon which we trouble your lordship is, that in this case there is not evidence to prove, on the part of Mr. Bembridge, that fraudulent intent, that wilVOL. XXII.

Lord Mansfield. In the account, he states a variety of things as the duty of the ac countant, but he does not state the passing the accounts of the ex-paymasters; as to the defect of the evidence of the payment of the money, there was no separate ground, neither was it urged so at the trial, that supposing it not the duty of his office, yet, in respect of the money that was paid him, it should be charged; it was only offered in evidence, to show it was the duty of his office, to which the several answers Mr. Scott has now made, were given, that he would have had that whether he had taken the trouble, or not; that other accountants had it; it was only offered in evidence, as being the duty of his office.

The hon. Thomas Erskine.* My duty at present, according to the common practice of the Court, I conceive to be, to offer grounds to your lordship for having a review of this verdict; and I shall not enter at all into the punishment, which your lordships, in your

Lord Mansfield. You had better take the whole, as I told Mr. Scott.

In the original report of this Argument, there were a few errors; in correcting them I have had the assistance of the very learned and eloquent person who delivered it.

H

Mr. Erskine. Then I shall first take the li- | arising from the fraud of another's doing that berty, notwithstanding how much has been said duty which the public imposed upon him; already, to remind your lordship of the charge and I contend, that it is impossible to say that which this information contains against the Mr. Bembridge is guilty of any misprision in defendant, because your lordship is certainly point of law, although he knew, in point of not inquiring now whether the conduct of fact, of these items being held back, unless Mr. Bembridge has been, upon the whole, it would have been criminal in Mr. Bemthat of a good subject,—under the particular bridge to have suffered Mr. Powell to act at circumstances in which he stood, and in which all, and unless he would have been liable to he acted as accountant of the pay-office-but an information, for the wilful omission in whether he be guilty or not guilty of the Mr. Powell, although he had not known of particular criminal charge made against him any such omission; for if the public look by this information.

upon Mr. Bembridge's office as a check upon My lord, the information makes this posi- the office of the paymaster, it would have tive averment, “that the place and employ- been a crime in Mr. Bembridge to have suf«ment of accountant, in the office of the pay- fered Mr. Powell to do it at all; and if it had 'master, is a place of great public trust and been a crime, then all paymasters, and all . confidence, touching the making up the accountants have been in the habit of com

accounts of the paymaster-general, and the mitting it; for it is in evidence, that lord adjusting and settling of the same with the Chatham and Mr. Winnington made up their • Auditor of the Imprest.' Your lordship, at accounts by particular persons, employed by the trial, told the jury, in the most precise and theinselves, and not by the accountants. unequivocal terms, that, unless that averment Then, if the averment be as I have stated were substantiated by the evidence, the in, it, that this is the official duty of the acforination, of course, fell to the ground, for countant, and that the information charges that all the other propositions and averments, it to be his official duty, and so much his contained in it were merely corollary to that duty, as to render it criminal, as Mr. Rose first proposition, and that if the foundation thought, for he went so far in his evidence,were removed, they of course were taken as to make it criminal in Mr. Bembridge, to away; for, undoubtedly, no man could be intrust Mr. Powell to do it, then to establish guilty of any misprision, unless the thing such an averment, the evidence must go the which the other person had done, and which whole length, as your lordship laid down the he ought to have discovered, were part of his law to the jury, it must go the whole length, own duty. Now I conceive that the mean- unequivocally; to establish this proposition, ing of this averment in the intormation (if it that Mr. Bembridge was bound, at all events, has any meaning at all), is this; that the to do that duty to the public himself, which, place and office of accountant to the pay- in point of fact, was done by Mr. Powell, and master, is an official check, provided by the therefore was responsible, at all events, whewisdom and discretion of the governinent, ther he had been guilty of this wilful misupon paymasters both in and out of office, prision, or not. against those frauds which might be com- . The next material consideration, therefore, mitted by persons having such immense sums / is, to see how the evidence does support that of the public money in their hands, and for averment. Your lordship, has had nothing such long periods; it is not enough to entitle of the original nature and institution of this the crown to a verdict in this cause, that it office laid before you, and it is surprising to has been the custom of the accountants to me, that when the gist of this information make up these accounts, but that it is their was the particular official duty of a man in a officiol duty ;-and if it be their official duty, public office, and one of the most important so as to make the breach of it an indictable public offices of this country, that the officers offence, it must be, as I said before, an official of the crown, coming into a court of justice check, constituted by the public for that ex- with a criminal charge were not able to show press pursose;—that the public intrust him to your lordship any one document, any one with the duty, and that the paymaster is not instrument of appointment, any one record, himself intrusted and responsible for the any thing, in short, written, to establish what rectitude of his accounts, but that another is his duty, but are obliged to trust to the man is intrusted with that check; that the loose opinions of witnesses who are called to public looks to him, and him alone, for a support their cause. There is nothing before check upon the duty of the paymaster. If, the Court from which your lordships can see then, that averment be as I have taken the what is the official duty of the accountant liberty, in point of law, to suppose it, it would there is nothing before the Court to lead follow as a necessary consequence, that if it your lordships to think that he is placed had turned out in point of fact, that Mr. there as a check upon the ex-paymaster by Powell, without any knowledge in Mr. Bem- the discretion of the government; but th bridge, had been guilty of a fraud upon the whole proof arises upon the testimony a public, Mr. Bembridge would have been witnesses. I agree with Mr. Scott, that tha equally subject to an information, at the suit evidence, so far from substantiating th of the crown, for suffering that public loss proposition, proves the direct contrary, an

Suppose the defendant had not been ex- Lord Mansfield. What was the question amined, either by the commissioners of ac- upon the examination ? counts or the lords of the treasury; supposing Mr. Chamberlayne. He gives in his exaMr. Bembridge not to have been examined mination upon oath; it is a narrative; there at all; and that his confession had been en- are no questions. tirely out of the case, it would have then been Mr. Erskine. The words ate,_" That he impossible, for a moment, to have said that carries on and makes up the accounts of the the first proposition in the information, upon paymasters, after they are out of office, as which all the others depend, had been sub- well as those of the paymasters in office."-stantiated, because it entirely depends upon He does not say, that he does this as acthe evidence of Hughes and Wigglesworth, countant; he says in the outset, undoubtedboth agreeing in that proposition, namely, ly, that he is accountant: he is called before that though in point of fact the accountant the commissioners of accounts, as accountant hath often made up these accounts, yet, that of the pay-office, and he describes himself to it was in the power of the ex-paymaster to be accountant; but when he gives in this put his own accounts into private hands, a narrative, he says, he carries on and makes proposition utterly inconsistent with its being up the accounts of paymasters in, as well as the duty of the accountant.

out of office; that is, that in point of fact, he The matter then to be considered is, how does it; not that it is his official duty to do the defendant, Mr. Bembridge's testimony so; not that he could be indicted if he did weighs against himself; whether it be so un- not do it; for this averment goes so far as equivocal, so clear, and precise an admission to maintain, that if Mr. Bembridge had reof his duty, as shall be taken to be decisive fused to make up these accounts, he would against him, notwithstanding the witnesses, have been subject to an information for that even on the part of the prosecution, carry the refusal. Now, all that he says is, that he testimony the other way: now before the carries on and makes up these accounts. He commissioners of accounts, Mr. Bembridge, says true; for he had carried on and made ap admitted nothing like that.

the accounts of other paymasters out of office; Mr. Justice Willes. Was his examination but as it is in the power of any paymaster out before the commissioners of accounts upon of office, to intrust the making up thuse acoath, or not?

counts to any other person out of the office, Mr. Sol. Gen. Upon oath.

or to have left it to be done by his executor at Mr. Erskine. I hope that the few obser- his death, then it is not the duty of the acvations I have made, go the length of esta-countant; because that never can be the duty blishing this proposition; that if Mr. Bem- of the accountant which another man can bridge's evidence were out of the question; if prevent him from doing; and the whole evithere were nothing to be taken against him- dence goes to establish the proposition, that self from his own admission, there is not in point of fact, other paymasters have made sufficient matter to convict him of the crime up their accounts by other hands; and that, charged by this information; because the first the auditor has had the books, without any averment falling to the ground, all the other interference with the accountant. propositions, which are merely corollary, must Then if Mr. Bembridge's examination may fall to the ground likewise. Mr. Bembridge be taken consistent with his own innocence, was not asked by the commissioners of the your lordship will surely not wrest it to conpublic accounts, whether it was his duty to vict him; you will not take a voluntary conmake up the accounts of the paymasters out | fession of any man conceiving that he was of office, as well as the accounts of the pay- not drawing himself into a snare, in a sense masters in office; he was asked no such ques- to operate to his conviction, if it can postion, and it is impossible that a man's answer sibly be made consistent with his innocan be taken to extend beyond the limits of cence, if it can be taken in any possible the question put to him; and your lordship sense consistent with his innocence, though will never take an admission of that sort in not the most obvious one, most undoubtedly a case where, if a man had any criminality, your lordship will adopt that construction; he would have been earnest to conceal it, and and it seems to me, with great submission to where no man could have bound him to re- the Court, to be perfectly consistent with it, for veal it; and it is decisive that he did not Mr. Bembridge did make up the accounts of conceive himself in his own heart to be several paymasters, though not of lord Holguilty, otherwise he would have held his land. And why did he not make up the actongue. If he had thought any of these an- counts of lord Holland? Because lord Holland swers he gave, would have gone to have cri- had pul those accounts into other hands; and mipated him here or elsewhere, most unques- the information does not state that Mr. Bemtionably he would not have given them; his bridge ever made up those accounts, nor does admissions, therefore, prove the idea he had it state that it was his duty to have made up of the rectitude of his own conduct. The ac- those accoumts; it only states that it was hit count he gave was, that as accountant of the duty to adjust and make up those account pay-office, he carried on and made up the ac- with the auditor of the imprest; which may b counts of paymasters, not that it was his thus; it was his duty, if he was ordered to de duty to do so.

it; it was his duty, if be undertook it; it wa