and it is surprising to me, that when the gist of this information was the particular official duty of a man in a public office, and one of the most important public offices in this country, that the officers of the crown, coming into a court of justice with a criminal charge, were not able to show to your lordship any one document, any one instrument of appointment, any one record, anything, in short, written to establish his duty, but are obliged to trust to the loose opinions of witnesses, who are called to support their cause. There is nothing before the court from which your lordship can see what is the official duty of the accountant; there is nothing before the court to lead your lordships to think that he is placed there as a check upon the ex-paymaster by the discretion of the government; but the whole proof arises upon the testimony of witnesses. I agree with Mr. Scott, that that evidence, so far from substantiating that proposition, proves the direct contrary, and the very first and most material witness called on the part of the prosecution, entirely overturned the first averment in the information. Mr. Hughes stated, that he was sent to Mr. Bembridge by the auditor of the imprest, after having written a letter without any effect; that, in the very first instance of his application to Mr. Bembridge, he was referred, by him, to Mr. Powell. What would have been the answer of the auditor of the imprest, or of his

deputy; if the observations I have made to the court be well founded? for, if I am right in saying, that if Mr. Bembridge be criminal in this wilful misprision, taking that wilful misprision to be proved, he must likewise, if the first averment be true, have been criminal for Mr. Powell's guilt, even if he had not known it; because he would have been criminal by intrusting to another person that which it was his own duty to fulfill. If that be so, how was it possible for Mr. Hughes to say to him what he did? He would have said to him as Mr. Rose did, are you aware that we are entitled to call upon you for these accounts? But no; in the very first instance, and at least two or three times afterwards, they went to Mr. Powell; they corresponded with Mr. Powell, Mr. Powell considered it as his own duty, he never referred them back again to Mr. Bembridge; the auditor of the imprest never went back again to Mr. Bembridge, but the whole was conducted between them and Mr. Powell; this clearly shows out of the mouth of that witness, that he himself, at that time, whatever new lights he might have had upon the subject before he came into court, that he did, at that time, believe it to be the duty of Mr. Powell, and not of Mr. Bembridge. He said that Mr. Powell, as executor to Lord Holland, was making up the accounts; he referred him to Mr. Powell, as a person responsible for them, and there was no

answer made, either by Mr. Hughes, at that time, or by Lord Sounds, telling Mr. Bridge, that he was the man responsible, and not Mr. Powell, to whom he had referred them; the evidence of Mr. Hughes seems to me to go a great deal farther, for he states a case that is absolutely incompatible with the averment in the information; he says, Mr. Ingram was the executor of Mr. Winnington, who was paymaster, that as such he had the books delivered to him from the pay-office to make up his accounts, and the witness added: I made them up, and they were delivered to the auditor; and, upon his cross-examination, he said: Ingram had leave from Bangham, the deputy-auditor, to take the book, and that he had a power over it as executor.

Will your lordship, then, permit me only to call the attention of the court to this? If these be the books which contain the paymasters' accounts, and for which the accountant is answerable, how came the auditor of the imprest to deliver them to Mr. Ingram, without any order from the accountant? It seems a strange proposition, that if an accountant in the pay-office, and it is a strange sort of presumption that neither that officer, nor any of his predecessors, ever knew anything of their duties; if the accountant, I say, had conceived himself bound to make up these accounts, and was answerable for their rectitude, how should it have been in the power of the auditor to put them into

any other hands? The information charges, that it is the duty of the accountant to make up these accounts with the auditor of the imprest; and it would therefore have been a high breach of trust in that auditor, knowing it to be the duty of the accountant to make up these books, and, knowing that he was criminally responsible, either for willful misprisions, or even for mistakes in them, whoever made them up; it would, I say, have been criminal in him to have delivered them up to any person but the accountant.

The witness swore that the deputy-auditor delivered the books to him, and that he made up the accounts and delivered the books back again. Now, how can the accountant be responsible for an act, which it was not in his power to prevent, unless the paymaster gave him leave to do it? If Ingram had a right to those books, as the executor of Winnington, demanded them as executor, and received from the auditor as executor; if he, the witness, made up those accounts, and delivered them to him, without any communication with the accountant, how can the accountant be criminal for not doing that which another man had a right to put out of his power to do? It is not at all immaterial what Mr. Bearcroft stated, respecting the late act of Parliament, which seems to show the sense of the legislature, that these books were not formerly considered as the property of the

pay-office, nor as public books, but as the property of the paymaster, whose accounts were contained in them; and therefore, seeing the inconvenience which arose from that, they made the law otherwise, for the future, and enacted that the books should be the property of the public, and should not be taken out of the pay-office.

Where, then, is the to confirm this first

Surely, then, the first proposition in the information is not maintained, even on the evidence for the crown; and your lordship will recollect, likewise, that we called a witness who confirmed Hughes in his testimony, with respect to the accounts of Lord Chatham; viz., that they were made up by a person appointed by himself, without any communication with the officers of the pay-office; and he said and he said it was in the power of the ex-paymaster to make up his accounts by any private hands he thought fit. evidence to be found that is proposition? Where is it to be found except, I shall presently remark, out of the mouth of the defendant, Mr. Bembridge himself which was the great pressure at the trial? Suppose the defendant had not been examined, either by the commissioners of accounts, or the lords of the treasury; supposing Mr. Bembridge not to have been examined at all; and that his confession had been entirely out of the case, it would have then been impossible, for a moment, to have said that the first proposition in