552. ROBERT ASLETT was indicted for that he, on the 26th of February , being an officer and servant of the Governor and Company of the Bank of England , as such officer and servant was entrusted by the said Governor and Company of the Bank of England with a certain bill, commonly called an Exchequer bill, numbered 14l, which said Exchequer bill was of the value of 1000l. belonging to the Governor and Company of the Bank of England; and also with another bill, commonly called an Exchequer bill, numbered 2694, which last-mentioned bill was of the value of 1000l. belonging to the said Governor and Company of the Bank of England; and also with another bill, commonly called an Exchequer bill, numbered 1060, which last-mentioned bill was of the value of 1000l. belonging to the said Governor and Company of the Bank of England; and that he being such servant and so entrusted, did feloniously secrete, embezzle, and run away with the said bills, against the form of the Statute, and against the King's peace .
Second Count. Charging the bills to be certain effects.
Third Count. Charging them to be certain securities.
And several other Counts, varying the manner of laying the charge.
The names of the Jury were called over as follows:
Joseph Harvey challenged,
James Hall challenged,
Mr. Garrow. May it please your Lordship. Gentlemen of the Jury, I have the honour to attend you by the instructions of the Governor and Company of the Bank of England, to state to you the case against the prisoner at the bar.
Gentlemen, this cause had been appointed for trial at a former Session; it was then postponed, and it will become my duty presently to offer to you the reason which induced the Governor and Company of the Bank, in the discharge of their duty, to postpone the trial of the cause at that time; it would be out of order to do it now, because it would interrupt more important narrative; and when I have stated it, I apprehend the conduct of those who requested that postponement, will not only be satisfactory, but will meet with the approbation of their Lordships.
Gentlemen. the case before you is of the last importance; it is of importance inasmuch as it affects the life of the prisoner; for the offence with which he is charged has for the security of this most important Corporation, and for the interests of us all, been made, by a statute of the last reign, a capital offence: It is a capital offence for any officer or servant in the Bank of England to embezzle or secrete any of the securities with which he is intrusted, and of which the Governor and Company of the Bank of England are, in many instances, trustees for the public. It will become my duty, and I think it will not occupy any great portion of your time, to state to you the manner in which the business of the Bank is carried on, as it respects this particular department.
Gentlemen, the prisoner, Robert Aslett , came into the employment of the Bank about twenty-five years ago; twenty-three years of that time he has passed in the office of Mr. Abraham Newlan , the Chief Cashier; and it is not unfit I should say thus early, that down to the period which brings him to this bar as a criminal, he had conducted himself very faithfully, and with very meritorious services. Some unfortunate speculations in the public Funds, in which he probably sustained some losses, appear to have drawn him aside from that fidelity, and in an unhappy moment to subtract from those securities under his immediate care immense portions of that property for which he is today to answer before you. In the year 1799, having thus passed through the gradations of office, Mr. Aslett was appointed a Cashier in the Bank You know it is part of the business of the Bank, and a very large part, to purchase Government securities of various sorts, particular Exchequer-bills, which are issued in vast amounts, and which that Company purchase to supply the exigencies of the State. The manner in which these purchases are made is this: When a quantity of Exchequer-bills are in the money-market, the purchase is left entirely to the management of the Cashier, and for a considerable time past, in consequence of the great age and growing infirmities of Mr. Newland, the principal Cashier, this business was under the entire controul of the prisoner at the bar. All the purchases made immediately from the Government, are made through the respectable house of Messrs. Goldsmid; those purchased in the money-market are made by Mr. Templeman, the broker to the Bank; a bill of parcels is made out; I will suppose Messrs. Goldsmid to make out an enumeration of the various Exchequer-bills, describing them by their numbers, so that every person sees immediately what the one has bought, and what the other has sold. This bill of parcels has been delivered, in all the instances to which I shall have to call your attention to-day, to Mr. Aslett; in all the instances it was his duty to compare the bundle of Exchequer-bills with the enumeration of them in the bill of parcels, and by his own order, with his own hand, to direct the payment from the Cashiers of the Bank for the bills so purchased. They are then entered by the prisoner in what is called the bought-book; a corresponding entry to the bill of parcels is made in the bought-book. The Exchequer-bills themselves are deposited in a strong chest kept in the Cashier's office, and from time to time, as they increase to a bulk, to be placed under the more immediate eye of the Directors themselves; they are selected by the prisoner for that purpose, and carried into the parlour, where the Directors transact the business of the Bank. The manner in which this is done, I shall proceed to describe: You will suppose a bundle of Exchequer-bills, containing one thousand each, amounting to 100, or 200,000l. in value, or perhaps it may be better to put it amounting to 227,000l. The course that is taken is to count off a certain number of those, and then another clerk counts off the remainder, in order to ascertain the number carried into the parlour by the prisoner; they are carried into the parlour, accompained by the book I have in my hand, in which it was his duty to enter the parcels he carried in. I shall state the entry presently. In the parlour they are received by the Directors in waiting; they are by them counted and examined, each by itself, to see if it corresponds with the entry in this, which I shall, for distinction sake, call the parlour-book, distinguishing it from the bought book. When this entry is made and compared with the bundles, two of the Directors sign the entry
Gentlemen, as it was not given to Mr. Bish as a payment, but to remain a dormant security in his hands to wait the opening of the Consols, his attention was not called to this circumstance till the day of the opening, when he discovered they had been sold, which led to the communication and the conversation I have stated. Mr. Aflett, upon being asked the question whether any bought bill could by any possibility get into the hands of any person without the walls of the Bank, answered, as Mr. Newland had done, that the thing was impossible; it became necessary now, to make him acquainted that the Bank were in possession of the fact, - that some bills thus truly described, as not passing by any possibility but by fraud and embezzlement, had found their way into the money-market, and that three of them had passed to the hands of Mr. Bish, the prisoner was asked if he had not had some concern in that transaction; his answer was, that he had indeed directed Mr. Bish to make a purchase of stock, - that he had indeed made a deposit of Exchequer-bills with Mr. Bish, but he had done this for a friend; he was asked the name of that friend, and he wished to be excused from disclosing it; upon being pressed, he mentioned Mr. Hosier, a gen
Gentlemen, the manner in which I shall account for them will be this: in the same manner in which he deposited Exchequer-bills with Mr. Bish, he deposited other Exchequer-bills with Mr. Ellet, Mr. Chambers, a banker, Mr. Van Summer , Mr. Oughton, and without satiguing you with names, with a number of other persons he had made deposits of Exchequer-bills, which will be found to correspond precifely with those drawn from the Bank. Three of them were traced into the possession of Mr. Bish, one is stated in this indictment, another in this indictment is pledged with a person of the name of Oughton, and of the rest I will give you this account: After Mr. Aslett had been taken into custody, his desk in the Cashier's office was examined, and in that desk was an envelope which had contained 200,000l. and there were found in it, under his own lock any key, bills to the amount of 16000l. which ought to have been in the strong closet in the Bank, and which, with those issued to Mr. Bish and others, will account for the whole 200,000l. and, with the exception of these, all the Exchequer-bills that were in the custody of the Bank on the 26th of February; all that are not paid by Government, are found in their proper places. My case against him, therefore, is this - that he is entrusted with these for the especial purpose of making them up into bundles, and carrying them into the parlour - that, in doing so, he withdraws a portion of them; I evidence that, by shewing his depositing them for his own benefit; I prove the bought book the correspondence of those in the closet; with the bought book I shall shew you that these are withdrawn, and all the rest are there. Is it possible then to hesitate, in coming to that conclusion which affects the case of the prisoner, that in an unlucky moment he forgot his duty and embezzled this property.
Gentlemen, I took the liberty of stating in the outset, that this case stood for trial at the former Session, and as it has occasioned much anxious speculation upon what ground it was not proceeded in, I will state what that ground was. I have however most distinctly to complain, and I hope their Lordships will not only forgive me in making that complaint, but perhaps they will join their high authority in the reprobation of that of which I now complain - I mean the gross and scandalous misrepresentations that have been made in various publications of the supposed causes of the trial being put off, and I hope to live to see the day in which the justice of the country will exert itself in the case of some poor unprotected man in rags, to punish those who dare, between the commitment of a person and his being arraigned before the trying Jury, to publish that by which he may run the risk of being prejudiced by exaggerated statements of his supposed guilt, by insinuations calculated to no possible good, but fraught with the utmost danger. Publications of this sort I have had the misfortune to see, respecting the gentleman at the bar; but I persuade myself confidently, that if any such have found their way into the hands of those to whom I am now addressing myself, you will discharge them from your minds altogether. It is our happy privilege, in the country in which we have the good fortune to live, to have the justice of the country administered by unprejudiced and impartial Juries, and I do hope that, if this practice of exciting prejudice in the public mind is not discontinued, the authors of it will meet with that condign punishment which they deserve.
Gentlemen, I will now state what was the real cause of the postponement of this trial, and as it is of the last importance that those whom I here unworthily represent, should not misconduct themselves in respect of the high duty they have to perform on behalf of the public, I know their Lordships will forgive the small portion of time that I shall consume in that statement.
Gentlemen, you observe the particular securities, respecting which you are at present called upon to enquire, are described as Exchequer-bills, which you know are issued in consequence of loans made for the public service, and that they are issued under the regulation of particular Acts of Parliament. By the Loan Act of 1799, a clause was introduced from the increase of the business in the office, in consequence of the vast demands which the public services required, by which a provision was made, that Exchequer-bills shall be signed by the auditor of the Exchequer, or some person duly authorized by him, with the approbation of the Lords Commissioners of the Treasury, in writing, under their hands, or under the hands of any three or more of them. It occurred to us to know upon the investigation, which it became the duty of the Bank to make, in order to lay the regular evidence before the trying Jury, - it
Gentlemen, I am not to conceal from you, that this fact of the invalidity of these Exchequer-bills does create a considerable difficulty in carring on this prosecution - it is not perhaps the proper season for me to say much more upon that subject - it is impossible, that at any time that question can be in better hands to be decided than it is by the Judges upon the present occasion; all the learning, and all the intelligence necessary to such a decision certainly presents itself in Court at present. If the Court, upon considering the current of cases upon the subject, should be of opinion that these are not Exchequer-bills, so as to punish the person entrusted with them, as embezzling them; if their Lordships should consider it a clear case against the validity of the prosecution, I shall be satisfied with that notification; if on the other hand they should think it a question of such magnitude to be considered by all the Judges of England, or whatever course they may think fit to take, we shall he perfectly satisfied. Your province, as you know, is merely to decide upon the important question of fact; if we prove the facts as I have stated them, you will discharge your duty with the firmness of men, and find him guilty; if you have any possible doubt, if the excellent character I have already attributed to him, and which I have no doubt may be manifested to you by the most respectable members of society, if all this can induce you to entertain a rational doubt, you will give him all the benefit of that doubt, and with greater pleasure pronounce that he is not guilty.
Mr. Erskine. My Lord, in order to save the time of the Court without entering at all this moment into the evidence, I wish, as Counsel for the prisoner, to address a few words to your Lordship's consideration. - My Lord, the indictment charges in every Count of it, either a larceny, or an embezzling of Exchequer Bills, which brings the question to this narrow point, whether under the circumstances which have been so honourably stated by my Learned Friend these are Exchequer Bills - Your Lordships have the Act of Parliament before you, and I believe also the late Act passed in consequence of this discovery being made of the informality in these Exchequer Bills. - Your Lordships see, in order to constitute these Exchequer-bills, the Act of Parliament, which alone can create these securities, must be observed, and there is no power given to the Lords of the Treasury to issue these bills, except in the form prescribed by the Act; they are either Exchequer Bills in the form prescribed by the Act, or they are nothing. The words are these, Provided always, that every such Exchequer-bill shall and may be signed by the auditor of the receipt of his Majesty's Exchequer, or in his name, by a person duly authorised by him, with the approbation of the Lords Commissioners of the Treasury in writing, under their hand, or by any three or more of them." Now it is admitted, that although Mr. Jennings had, in 1799, this special authority conferred upon him in strict conformity with this Act of Parliament, yet his authority did not extend beyond that which was given to him upon that occasion, namely, to legalize and create according to that Act of Parliament Exchequer-bills. By some oversight, without imputing blame to any body, that authority has not been renewed, these pieces of paper, therefore, are not Exchequer-bills, they are not Government Securities, they are nothing that your Lordship can recognize as a species of property. In this case, your Lordship observes, if I were to add any thing, I should be literally creating a difficulty where none exists; if we, on the part of the prisoner were to be entering into any analogies, into any legal considerations so as to assist your Lordship's judgement in deciding upon so plain a case as this, we should not be treating your Lordship with that respect we owe your Lordship, nor should we be serving the unfortunate gentleman with whose interests we are charged. My Lord, some cases are so extremely clear, that they will only be darkened by illustration; if there are securities which the Goverment have a right to create, it is for the Government to say under what forms it shall be created; the Government might direct that it should require no signature at all; they might direct that it should be signed by the Auditor of the Exchequer only; they might direct particular forms, they might create any form, or they might chuse to create no form, but unquestionably, if forms are prescribed, and those forms are not observed, the security is not created. Besides, I hold in my hand the legislative exposition of this; Parliament itself has declared it, and for us to labour from the bar what has been done by the Parliament of the kingdom, would be extremely preRobert Jennings , Esq. was duly authorised by the said Auditor, and approved by the said Lords Commissioners of the Treasury, so to sign the said Exchequer-bills to be issued by virtue of the said Act. And whereas several subsequent Acts, for raising money by Loans or Exchequer-bills, have provided, that the Exchequer-bills to be issued under such Acts respectively, might be signed by such person as might be so authorised and approved as aforesaid, under and by virtue of each and every such Act respectively. And whereas the authority of the said Robert Jennings has been omitted to be renewed under each of the last-mentioned Acts, but notwithstanding such omission, the said Robert Jennings has continued to sign such Exchequer-bills, as if the authority given to him by virtue of the said first mentioned Act of Parliament, had extended to all Exchequer bills, subsequently to be issued, and had not been confined to such Exchequer-bills as were issued under the said first mentioned Act of Parliament; and whereas the public have had the benefit of the money raised by virtue of such Exchequer-bills, respecting the validity of which doubts may arise; be it therefore enacted, that all such Exchequer-bills as have been issued by virtue of any Act or Acts of Parliament passed previous to the passing of the present Act, and which have been signed by the said Robert Jennings, in the name of the Auditor of the Receipt of his Majesty's Exchequer as aforesaid, shall be, and be deemed to be, and to have been for all civil purposes, contracts, and engagements, as valid, and in as full force to all intents and purposes from the first issuing of the same, as if the same had been issued by the said Auditor." Then there is that humane proviso, which does so much honour to the framers of the Law, and is so consistent with the true principles of the British Constitution, not to alter this just regulation, so as to affect the unfortunate gentleman at the bar, or any other person."Provided always, that nothing herein contained shall extend or be construed to extend to prejudice, or affect in any manner whatsoever, any prosecution now depending, or which may be hereafter commenced for, or relating to any Act done previous to the passing of this Act, touching, or concerning, or relating to the said Exchequer-bills, or any or them, so as aforesaid, signed by the said Robert Jennings of his Majesty's Exchequer." This Bill could not possibly have been brought into the House, it could not possibly have passed, but from the consideration of Parliament, that these papers, which would otherwise have been Exchequerbills, are void and invalid, not being issued according to the provisions of the Act. I really should feel, that I was not only wasting your Lordships' time, but that I was not paying that respect and reverence which it is always my duty to observe towards your Lordships, if I were to argue this point any farther. One word more, however, I must add, I cordially concur with my honourable and learned Friend in the concluding part of his address, adding this also, that after the painful attention I have been obliged to give to the whole of this case, I see nothing that human precaution, foresight, or diligence, on the part of those excellent servants of the public who compose the Bank of England, that could possibly have altered or affected any one circumstance that can this day come before the Court for their consideration. It would be unworthy in me to insinuate whether any guilt belongs to this prisoner, because the time is not yet come, but this I must say, that the Bank, from the beginning to the end, has conducted itself with that ability, that diligence, and that attention to the great duties that belong to it, and the great interests of the public connected with those duties, as to render such attacks as have been alluded to, more infamous, because they are false and unfounded.(Mr. Serjeant Best, on the same side, called their Lordships' attention to the words of the Act, which he read.)
Mr. Garrow. My Lord, it becomes my duty to answer the argument of my learned friend; I admit, that for the purpose of proving the embezzlement, I must shew that this is an Exchequer-bill, and if it is not an Exchequer-bill for this purpose, to make it the subject of a charge upon an indictment, it is nothing. It appears to me the answer to my Learned Friend's argument is this, not that this is for all purposes a good Exchequer-bill, because to a certain extent my Learned Friend has a right to pray in aid a part of the late Act of Parliament, but otherwise they have taken care to leave this case precisely as it was before the passing of that Act."Provided always, that nothing herein contained shall extend or be construed to extend to prejudice, or affect in any manner whatsoever, any prosecution now depending, or which may be hereafter commenced for, or relating to any Act done previous to the passing of this Act" But with respect to that legislative exposition, even if we were in a civil action, your Lordships observe the expression in the Act, "whereas the public have had the benefit of the money raised by virtue of such Exchequer-bills, respecting the validity of which doubts may arise," and then it enacts that they shall have the same effect as if they were duly signed by the said Robert Jennings. My Lords, I am not attempting to say, that this is not a case of difficulty, but I am to submit to your Lordships such reasons as occur to me in answer to the objection. I say that, as against the Exchequer which issued that Bill, it was always a good Exchequer-bill, as against those who issue it; it should be taken to be an Exchequer-bill, with respect to the Bank of England, who buy it from the Exchequer, it must be taken to be an Exchequer-bill, but more abundantly as against the man who is entrusted with it as an Exchequer
My Lords, the current of cases upon Bills of Exchange, and the stamp laws say this, that unless a Bill of Exchange shall bear upon it a stamp according to its denomination and value, it shall not be received as evidence in a Court of Law or Equity, and shall not be good or available. A case occurs to me of a man who signed his name to a paper, importing to be a Bill of Exchange; he was indicted for forging the Bill of Exchange of A. B. and it was proved clearly not to be the hand-writing of A. B. but the hand-writing of the prisoner. An objection was taken that it was not a Bill of Exchange. Why was it not a Bill of Exchange? It had a drawer, it had a payee, it had an acceptor, it had a sum, it had a date at which it was demandable, but it had not a stamp; and the law has said, that such a paper not having a stamp according to its denomination and value, shall not be received in evidence in any Court of Law or Equity, and shall not be good or available. Notwithstanding that, it has been decided by the wisdom of all the Judges, that for criminal purposes, that is, for the purpose of punishing the man who issues it as a Bill of Exchange, who obtains money upon it as a Bill of Exchange, that it shall not be open to him to call in aid a mere Revenue statute, to protect himself against the consequences of his own fraud, he having obtained money's worth upon it as a Bill of Exchange, and having no credit of his own, it shall not be permitted to him to say, it is not a Bill of Exchange. That is the case of Colin Reculist . My Lords, it does not occur to me to add any thing more. I am free to confess it is not a case without difficulty; but I submit to your Lordships this ought as well to be considered an Exchequer Bill, as the instrument in that case was held to be a Bill of Exchange.
Mr. Erskine. My Lord, my Learned Friend had admitted, that in order to obtain your Lordship's judgment against the objection we have taken the liberty to make, he must convince your Lordships that this is an Exchequer-bill, for it is so stated to be in every Count in this indictment; and my Learned Friend sets out with that which undoubtedly he was bound to set out with as the foundation of his argument, that as the Bank Act makes it a capital felony for any person to embezzle the securities of the Bank, of England, that person being a servant of the Bank, and being entrusted with them, my Learned Friend must shew, that the prisoner at the bar has embezzled an Exchequer-bill, the property of the Bank of England. My Learned Friend, after being bound to state that he must convince your Lordships of that, goes on to say, it need not be to all intents and purposes an Exchequer-bill. My Lord, if I were to address myself to my Learned Friend in any other place than this, I need not, I think, labour very much to shew that it is not an Exchequer-bill; and if it is an Exchequer-bill, it is to all intents and purposes an Exchequer-bill. In order to see that an Exchequer-bill is to all intents and purposes an Exchequer-bill, one has only to see what is the nature of it; it is the same as any other security to any private person, and it entitles the party, if it is not paid at the period when it becomes due, to tender it as a set-off against the taxes which Government have a right to demand against him; it is to be taken in payment as a security of Government, which Government must receive in payment of the taxes, which they have a right to call upon the public for; it is therefore a security entitling the person who possesses it to a specific demand against Government, provided always that it is an Exchequer-bill. Supposing this Act of Parliament had not been made, and this paper had been offered for taxes due to Government; supposing it had been refused, and an action brought, and the question was, whether Government were bound to receive that as an Exchequer-bill? Undoubtedly it would be unworthy the character of such a Government as that of this country to have refused it; but surely if it had been referred to the Judges, they would have said Government are not bound to consider this as an Exchequerbill, because it is not an Exchequer-bill, unless it is signed by the Auditor of the Exchequer, or some person duly authorised by him, with the approbation of the Lords Commissioners of the Treasury in writing under their hands, or of any three or more of them. These were the checks Parliament thought fit to interpose for the safety of the public; they had no authority from the Government to issue them in their own name without these checks and counter-checks. The Auditor of the Exchequer had no right to issue these bills of his own authority; he must do it by the authority of the Lords of the Treasury, and he had no right to appoint his Deputy, but with the approbation of the Lords Commissioners of the Treasury in writing under their hands, or any three or more of them; but your Lordships observe, unless he is so authorised as this Act requires him to be authorised, it is the same as if it had been signed by my Learned Friend or myself. Mr. Jennings, who formerly signed Exchequer-bills, signed them under an authority that was valid; but it extended no further than the Act which gave him that authority; he was functus officis; his signature has no more validity than if it had the signature of the officer of this Court.
Lord Chief Barm. Exactly the same as if it had not been signed at all.
Mr. Erskine. Just so, my Lord. I ought to take notice of the single case that was cired by my Learned Friend, and that is the case of Colin Reculist. That was a charge against the prisoner, Reculist, for forging a promissory note, and when Mr. Justice Grose came to deliver the opinions of the Twelve Judges, he said this:"The crime as charged against the prisoner by the words of the indictment, is clearly and satisfactorily proved. The proposition arising from the objection is, that the paper-writing stated in the indictment is not a promissory note, because it is not upon a stamp, and therefore cannot be given in evidence; but the question whether it is or is not a promissory note, depends upon the tenor of the instrument, and not upon the circumstance of its being stamped or not. Would it be possible to say if a man was charged upon the Revenue laws with issuing a promissory not unstamped, that that note shall not be offered in evidence, when the very charge is for having issued it without a stamp. Upon the whole I submit to your Lorships that the objection is good.
As to the argument that this bill was taken by the Bank as a genuine Exchequer bill, that bill will not bear upon the fact, whether it is an Exchequer-bill or not. In the case of the forgery, the party was charged with having uttered a forged instrument, purporting to be a true one; but here it is positively charged in the indictment that this is a genuine instrument; I am therefore of opinion the objection is good.
Mr. Justice Rooke. In this case I form my opinion upon the very words of the indictment. In all the Counts this instrument is called an Exchequer-bill, and the question turns upon, whether it is an Exchequer-bill or not; and as I construe this Act, it is impossible for me to say it is an Exchequer-bill.
Mr. Justice Lawrence. It is certain, that in all indictments you must prove the property as it is charged; as for instance in cases of larceny, you must prove the goods as they are charged in the indictment. Here the charge is, that the prisoner embezzled an Exchequerbill, and a bill commonly called an Exchequer-bill; it must be proved, therefore, to be an Exchequer-bill. In the case stated by Mr. Garrow, the essence of the charge was not that he made a Bill of Exchange, but that he made a false instrument, purporting to be a Bill of Exchange; but here the essence of the charge is, that this is a good and true Exchequer-bill; but I am of opinion my Lord Grenville's name ought to have been put to it to make it valid.
Lord Chief Baron. Gentlemen of the Jury, you will acquit the prisoner.
NOT GUILTY .
There were nine other indictments against the prisoner, but being of the same nature, no evidence was offered.
London Jury, before the Lord Chief Baron.