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you will find the defendant guilty; if you are not satisfied in either of them, then you ought to acquit him.

The jury withdrew for a short time, and then returned into court, with a verdict, finding the defendant guilty.



The motion for a new trial, in the case of the King vs. BEMBRIDGE, came on to be argued, November 10th, 1783, and was opened by Mr. Bearcroft and Mr. Scott, afterward Lord Eldon. These gentlemen were succeeded by Mr. Erskine in the following speech:




My duty at present, according to the common practice of the court, I conceive to be, to offer grounds to your lordships for having a review of this verdict; and I shall not enter at all into the punishment, which your lordships, in your discretion

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

Mr. Erskine. Then I shall first take the liberty, notwithstanding how much has been said already, to remind your lordship of the charge which this information contains against the defendant, because your lordship is certainly not inquiring now whether the conduct of Mr. Bembridge has been, upon the whole, that of a good subject, - under the particular circumstance in which he stood, and in which he acted as accountant of the pay-office,

but whether he be guilty or not guilty of the particular criminal charge made against him by this information.

My lord, the information makes this positive averment, “that the place and employment of accountant, in the office of the paymaster, is a place of great public trust and confidence, touching the making up the accounts of the paymastergeneral, and the adjusting and settling of the same with the auditor of the imprest.” Your lordship, at the trial, told the jury, in the most precise and unequivocal terms, that, unless that averment were substantiated by the evidence, the information, of course, fell to the ground, for that all the other propositions, and averments contained in it were merely corollary to that first proposition, and that if the foundation were removed, they, of course, were taken away ; for, undoubtedly, no man could be guilty of any misprision, unless the thing which the other person had done, and which he ought to have discovered, were part of his own duty. Now, I conceive, that the meaning of this averment in the information (if it has any meaning at all), is this: that the place and office of accountant to the paymaster is an official check, provided by the wisdom and discretion of the government, upon paymasters both in and out of office, against those frauds which might be committed by persons having such immense sums of the public money in their hands, and for such long periods. It is not enough to entitle the Crown to a verdict in this cause, that it has been the custom of the accountants to make up these accounts, but that it is their official duty; and if it be their official duty, so as to make the breach of it an indictable offence, it must be, as I said before, an official check, constituted by the public for that express purpose; that the public intrust him with the duty, and that the paymaster is not himself intrusted and responsible for the rectitude of his accounts, but that another man is intrusted with that check; that the public looks to him, and him alone, for a check upon

the duty of the paymasters. If, then, that averment be as I have taken the liberty, in point of law, to suppose it, it would follow, as a necessary consequence, that if it had turned out in point of fact, that Mr. Powell, without any knowledge in Mr. Bembridge, had been guilty of a fraud upon the public, Mr. Bembridge would have been equally subject to an information, at the suit of the Crown, for suffering that public loss, arising from the fraud of another's doing that duty which the public imposed upon him; and I contend, that it is impossible to say, that Mr. Bembridge is guilty of any misprision in point of law, although he knew, in point of fact, of those items being held back, unless it would have been criminal in Mr. Bembridge to have suffered Mr. Powell to act at all, and, unless he would have been liable to an information, for the wilful omission in Mr. Powell, although he had not known of any such omission; for if the public look upon Mr. Bembridge's office as a check upon the office of the paymaster, it would have been a crime in Mr. Bembridge to have suffered Mr. Powell to do it at all; and if it had been a crime, then all paymasters, and all accountants have been in the habit of committing it; for it is in evidence, that Lord Chatham and Mr. Winnington made up their accounts by particular persons, employed by themselves, and not by the accountants.

Then, if the averment be as I have stated it, that this is the official duty of the accountant, and that the information charges it to be his official duty, and so much his duty, as to render it criminal,—as Mr. Rose thought, for he went so far in his evidence,-as to make it criminal in Mr. Bembridge, to intrust Mr. Powell to do it, then to establish such an averment, the evidence must go the whole length, as your lordship laid down the law to the jury, it must go the whole length unequivocally, to establish this proposition, that Mr. Bembridge was bound, at all events, to do that duty to the public himself, which, in point of fact, was done by Mr. Powell, and, therefore, was responsible, at all events, whether he had been guilty of this wilful misprision or not.

The next material consideration, therefore, is, to see how the evidence does support that averment. Your lordship has had nothing of an original nature and institution of this office laid before you,


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