accompanied with symptoms the most serious and alarming. And this deponent saith that during the last month the said Valentine Jones has been suffering severely from one of his usual gouty attacks, for which he has been several times visited by sir Walter Farquhar, and attended by this deponent. And that from his knowledge of the said Valentine Jones's constitution, he is fully convinced that if the said Valentine Jones were to be exposed to cold and damp air, that imminent risk and danger to his life would be thereby incurred.

Mr. Dallas. My lords, I am now to address a very few words to your lordships on the part of the defendant. I have always thought, and have often felt, the situation in which I now stand to be precisely the most painful to one's self and the least satisfactory to others that can occur in the discharge of our professional duty. From the nature of the proceeding, the party himself must unfortunately be present, and as, notwithstanding the verdict of a jury, it does not always happen that parties are disposed to admit their guilt, and as the observations of their counsel can proceed upon that footing alone, it often appears to them that a surrender of their innocence is made from that quarter from which they least expected it. On the other hand, if any observation were to be made inconsistent with the verdict, it would be immediately and properly checked by the Court, who must look to the preservation of their own rules. The effect is, to produce a state of embarrassment and difficulty which all of us have felt in our turn, as well those who continue where I now am, as those, who, fortunately for the justice of the country, have been raised to a higher, though in many respects a not less anxious and painful situation.

Looking then, my lords, at this case in the only light in which I am permitted to consider it, that is, through the verdict, I of course can have but very few observations to offer. The fact itself is unfortunately established beyond the possibility of doubt, and with respect to its nature, I fear it cannot become the subject of any opposition in argument. I can therefore only generally lament that this is one other to be added to the long list of innumerable instances in which a person of the most amiable and unblemished character, of the most tried and approved worth and integrity as this gentleman appears to have been, not only from the affidavits that have been read, but upon the testimony given in support of the prosecution, should, at an evil hour, in a moment of self-abandonment have been betrayed into conduct inconsistent with the whole of his former life-that he should have given way, unfortunately, to a temptation which he found too strong to resist.

When I say this, I hope it will not be supposed that while speaking in a court of justice,

or indeed if I were speaking elsewhere, I mean for a moment to insinuate that any temptation can be of sufficient strength to overpower a right and proper sense of duty-most undoubtedly (and I beg to be so understood), I do not mean to extend the observation to any such limits but what we are not permitted to defend we may be allowed to deplore; and I am sure it must be matter of deep regret to every person who has heard the evidence in this court that a gentleman of the defendant's character in life should have reduced himself to the situation in which he now appears before your lordships.

I may at the same time state to the Court, without any concealment, that this is a case in which a despair of doing service and a dread of doing mischief make me advance with fear and trembling; and therefore in the very moment in which I am making these observations, I cannot but perceive the probability that they may be retorted upon me and that I may be told that this is a case in which above all others, the consideration of past character and of past conduct ought to be of the least avail; for the appointments bestowed upon this gentleman, the duties of which he is charged with having violated, brought their remuneration and reward; he was trusted because he had been tried; and there may possibly be pointed out to the Court (and if it were not, I feel it is not possible that it should escape its observation after the report which has been read) the circumstances of the conversation with Mr. Rose after the appointment, and of the increase of salary for the purpose (as that gentleman stated) of securing a faithful performance of the duty. It is quite impossible for me to deny that these are circumstances which may be fairly pressed upon the part of the prosecution; but at the same time I will do the attorney-general the justice to believe that they will not be urged beyond their proper extent.

The conversation with Mr. Rose does not appear to me deserving of much weight; for, admitting, as I do most distinctly, that the hire of duty in this case was perfectly clear, and such as no man could mistake, if no such conversation had happened, the want of Mr. Rose's verbal communication could not have been urged as a circumstance in favour of the defendant, and, therefore I trust that its having taken place will not be pressed to his disadvantage: in truth, in the correct consideration of the subject it has no operation on either side. But the increase of salary stands on very different ground, and I hardly know what observation I dare make upon this part of the case; it seems however to me that if the complaint is to be confined to a mere breach of duty, whether the allowance given was more or less, becomes perfectly immaterial; for I must admit that the performance of duty cannot depend upon the extent of compensation: but if the question is to be shifted from the point of duty and put upon the extent of allowance, then to obviate its effect in point of aggravation

I submit that the salary of fifteen or eighteen hundred a-year to be paid to a man for most laborious duties cast upon him in a country in which the expense of living is necessarily great, in which life is pre-eminently uncertain, in which the middle season of life-that in which provision for the future must be mademight be of short duration. Eighteen hundred a-year under these circumstances ought not, I think, to be pressed as matter of aggravation to make this a case of a worse description than any which have gone before it.

There is another circumstance upon which I would wish to trouble the Court with a very few words, not only as it is of consequence to the defendant, but as it relates to my own conduct in the management of his case. It is perfectly well known, that, on the very eve of this trial taking place, a report of the military commissioners appeared for the first time not merely upon the table of the House of Commons, but it found its way into all the public prints, containing charges of the most odious description against this unfortunate gentleman, and accompanied by comments of the most injurious and inflammatory kind. In stating the case on the part of the prosecution the attorney-general (as it was likely he would do) properly and humanely adverted to this circumstance, and cautioned the jury to forget whatever they might have read or heard, and to confine their attention to the simple charge before them. On the part of the defendant I complained of the circumstance perhaps a little too urgently. In summing up, his lordship stated to the jury that if any such publications had appeared, and had produced any prejudice against the defendant, an application ought to have been made to the Court to postpone the trial-an observation to which I perfectly assented at the time, and of which I do not mean now in the slightest degree to complain. I will merely state to the Court, with their permission, why no such application was made. It was submitted to me by the defendant himself, but when I considered the nature and extent of these charges-the quarter from which they proceeded-that they had found their way into the hands of every man perhaps from the highest to the lowest in this country-that years must elapse before any refutation could take place, so that it was impossible any change could happen in the pub. lic feeling in the interval between one sittings and another-feeling as I then did and now do, that, from the nature of these charges, if the unfortunate gentleman being at liberty, were to walk the streets of this town, his life would be in danger-I did not think it my duty to defer the trial to a more distant day (when I foresaw that the public feeling would be precisely the same) at the expense of a continuation of the misery which the defendant must endure.

There is only one other circumstance to which I would draw your lordships' attention, and that is, the dreadful state of this gentle

man's health. Though I do not mean to say that the degree of guilt can be varied by his state of health, yet in fixing the sort of punishment to be applied, I am sure the Court will attend to it, and will not make that, which would be merely imprisonment in one case, the means of destruction and death in another.

Mr. Attorney General.-My lords, the painful duty is imposed upon me of drawing your attention to those circumstances of this case which, in my view of it, require you not to pass a light sentence upon the defendant. But let me at the same time do him that justice which I should wish to do every man, particularly one against whom it was my duty to bring forward so heavy a charge as that which I have on this occasion proved by incontrovertible evidence. My learned friend has truly stated that the defendant has, in his path through life, in all the relations of civil society, performed his duties correctly and without blame. I think he deserves that character; and to whatever reflection he may justly be exposed, he will find that the recollection of his virtuous acts will be his best consolation: but I must not leave him to hope that they can be of any avail to him on the present occasion, otherwise than as an internal consolation.

Your lordships, I know, feel (as I do) upon this occasion, that you have a painful duty to perform. You feel that it is peculiarly painful to pass a severe sentence upon a man the general tenor of whose life, if you were to except the particular transactions presented to your view, would incline you to mercy; but whom, notwithstanding that, it is your duty to punish as the crime he has committed deserves, and that you must not be led aside by the considerations which have been urged by my learned friend.

I did endeavour, as far as I could, to guard the jury against any impressions that might have been made upon their minds by what they had heard out of doors. I did not advert to the report of the commissioners to which my friend has in terms adverted; but I did advert to reports which every body must have heard, and which certainly had prevailed much to the prejudice of the person against whom these charges were preferred. I cannot, however, think it was matter of blame in the commissioners that they published their report at the time when they did so; they ought not to be biassed by any consideration of circumstances of this sort as to the time when that duty to the public which they were bound to discharge should be performed. It was not their fault that the trial of this cause had been so long delayed; it certainly was their bounden duty, as soon as they were prepared for the execution of that trust which was reposed in them, to execute it, and I hardly think (although it struck those interested for the defendant as a hardship upon him) that the commissioners would have been satisfied in delaying the performance of their duty of publishing

had misconducted himself by sending in a false account of goods as furnished by other persons, when in fact he had supplied them himself. It was evident, therefore, that he had withdrawn that check from the public. He had, notwithstanding, received a considerable commission upon that account. There was no civil claim upon him to recover back that commission; but justice required that he should not be remunerated for services he had not performed; and yielding to that, which I believe the civilians call an imperfect obligation, he did restore the pay he had not earned, and the Court considered that in the judgment they pronounced against him. The case would have been different, if the Crown, who had paid that sum to Mr. Davison, had had the means of recovering it by civil process; for it would have been unjust first to visit him in the shape of a fine, because he had received that sum of money, and then to put the law in motion against him for the purpose of recovering back that money. I think it right, therefore, to state to your lordships how, in my view of the case, Mr. Jones stands with respect to this money. As commissary-general, Mr. Jones was bound by his duty to purchase from others, that which was wanted for the supply of the troops the prices at which he purchased those goods from others he charged to the government. Supposing, therefore, Mr. Higgins to have charged the commissary one million, for what he furnished, the commissary would receive from government one million. But when Mr. Jones comes to make up his accounts with Mr. Higgins, he, instead of paying Mr. Higgins the one million, as he ought to do, and which he represented to government that he had done, keeps back one half of what Mr. Higgins states to be his profits, amounting to 87,000l. sterling. He charges that money to government as if he had paid it, but in fact he had never paid and never intends to pay it. This is for your lordships' consideration. It appears to me that that money, if it has been received by Mr. Jones from government, is money had and received by him to the use of government; or that, if it has not been received but remains a supposed debt from government to him, it never can be allowed to him: in other words, his charge against government upon the whole is for money disbursed upon their account; this money he never did disburse, and therefore, if he has received it from government he has received it wrongfully; if he has not received it, he never can recover it; and in my present view of the case it remains either a civil debt from him to government if he has received it, or if he has not received it, any claim which he may suppose himself to have against government, he assuredly has not. I trust your lordship will excuse me for entering somewhat at large into this consideration, because it appears to me that it might weigh with your lordships in considering what sentence you should pass upon Mr. Jones.

I have only now shortly to submit to the

His lordship put a very material question to the witness, Nathaniel Winter. That which you purchased for Matthew Higgins, upon which you charged a commission of five per cent, would you not have purchased for government upon the same terms, and would you not, having purchased these things of the merchants, at the same terms have supplied them to government, contenting yourself with your five per cent? Mr. Winter hesitated a little in answering; but having the question pressed upon him, he was obliged at last to say (and in truth it was not necessary he should say it) that certainly he would have done it. Then, my lords, the case stands thus; that, for no other purpose whatever than adding this thirty per cent profit, Mr. Higgins stands between government and those from whom the provisions might have been procured at a lower rate. He adds to the price, at which they might have been rendered to government, that thirty per cent for no benefit whatever to be derived to government; for the witness admitted that the merchants who supplied Mr. Higgins would have supplied government at the same price at which he supplied Mr. Higgins, that mercantile house taking to itself a fair remuneration. Mr. Higgins, however, chooses to take that to himself which might have passed to government at the same price; and having taken it from the merchants at that price, he adds to it a profit of thirty per cent. And why? not merely to gratify himself, my lords, but in order that he might be enabled to carry into execution the corrupt contract which the defendant had made with him; that the profit he derived from the adventure might be divided between them; that he might be able to render a moiety in the first instance to Mr. Jones, and a moiety of what remained to Mr. Rose.

My lords, I cannot conceive any fraud bearing more directly or more largely upon the interests of the public than such a transaction

* Vol. x. p. 291.