HC Deb 22 June 1819 vol 40 cc1285-90
Mr. D. W. Harvey

presented a petition from captain Samuel Bryan, of the ship Margaret, who complained that he had been subjected to a vexatious prosecution by the solicitor of excise. By the 26th of the king, commonly called the Manifest act, the captains of British ships, clearing out from foreign ports for this country, were obliged to procure a manifest, that is a detailed statement of the contents of their cargo. Captain Bryan arrived in this country with his ship from Surinam, in August, 1814. According to the terms of the act, the captain was bound to transmit to the commissioners of customs a correct copy of this manifest, which was termed the Ship's Report. Captain Bryan did this, and in the report he stated, among the other articles of the cargo, 145 bags of coffee. It was the practice for the commissioners of the customs to send to those of the excise a copy of so much of the report as related to excisable articles, of which coffee was one. When the transcript of the report was sent to the excise, the commissioners sent their searchers to compare the cargo with the manifest; and, instead of 145, only 140 bags of coffee were found. In the act, there was a clause which stated, that if any package whatever was wanting of those contained in the report, a penalty of 200l. was incurred by the captain, but with this proviso, that if the report did not agree with the manifest, or if it could be made out to the satisfaction of the commissioners of customs, that the manifest was incorrect by mistake, then the penalty should not be incurred. Captain Bryan being ignorant of the cause of this mistake, applied to his mate, who informed him, that when the ship sailed, the 145 bags of coffee had been emptied into 140 bags, to save stowage. He transmitted this statement to the commissioners of customs, praying them to rectify the mistake in the report. They, satisfied with his explanation, complied with his request, and transmitted it to the commissioners of excise, who also appeared satisfied with the explanation. After this, captain Bryan had a right to conclude, that the consequences of his mistake were at an end, and for two years he had no idea of any further proceedings;—yet, at that time, when, all the evidence which explained the mistake, might have ceased to exist, he received the first intimation from the solicitor of the excise, of a proceeding against him, not by letter, but by a process in the court of exchequer. This summary proceeding was a course which any solicitor in London would be ashamed to take without a previous letter, informing the individual of the nature of the claim, and no other excuse was to be pleaded but that the practice was general in that department. In cases of this nature, it was often replied to any complaints, that the individual complaining was a person of bad character, who lived by violating the revenue Jaws; but in this case, no such answer could be made. The petitioner as he had every reason to believe, was a man of unexceptionable character. The precipitate manner in which prosecutions of this nature were commenced, might be inferred from the fact, that in one year there were 761 prosecutions at the suit of the attorney-general in the court of exchequer. So that near 150,000l. were paid for legal expenses, either by the public or by the unfortunate persons who were the objects of these prosecutions. Captain Bryan preferred a petition to the board of excise, accompanied by the affidavit of his mate, and his own, with which the customs had previously been satisfied, and praying for an interview. He received for answer only a verbal communication, in which his request was refused, on the ground that the commissioners were never wrong in any of the 761 prosecutions which they instituted. He then offered modified terms of compromise, to which they would not accede. It was easy to imagine why all these propositions were rejected. The commissioners referred to their solicitor to report on each case as it occurred, and by his report they were guided. It was not in the nature of man that the solicitor should report with impartiality, whether he should quash in the bud these 761 prosecutions, on which perhaps only 3 or 4l. costs had been incurred, while they might swell in the end to 160l. The cause was brought before the exchequer, which, with all respect to those who administered the law, he must say, had assumed too much of the odious character of the star chamber and in which the solicitor of the excise assumed much of the power formerly exercised by the master of the crown office till the abuse of it was corrected by the statute of William and Mary. When the cause was brought before that court the judge said, that the commissioners of customs had no power to rectify the error, and he directed the jury to find a verdict for the crown. The petitioner stated that he was advised by his counsel that a bill of exceptions might be tendered, and he should have prosecuted it, but that he had not funds. He was better advised to apply to the lords of the treasury. He sent to that board the same statement verbatim, which he had sent to the commissioners of excise, precisely the same affidavits with not one new fact. The lords of the treasury having no solicitor behind them, came to that honourable conclusion, which was to be expected from them. They remitted the penalty; but they made a stipulation, that the individual should pay the costs of the action. He had the receipt in his hand of the solicitor of excise from the defendant, for the Crown costs in this prosecution, which in the judgment of the lords of the treasury should never have been instituted. They amounted to 160l. 5s.; in addition to this, the defendant, who had not money to follow up his bill of exceptions, had his own solicitor's bill to pay, amounting to 89l. 8s. 5d. From an examination of this individual case, and a knowledge of the fact, that 761 prosecutions were instituted in the course of the year, he must infer, that proceedings of this kind were instituted not so much for the protection of the revenue as for the sake of the costs, for the advantage of those at whose advice they were instituted. Neither was it to be supposed that the higher crown lawyers could view these prosecutions with altogether unprejudiced eyes., In every prosecution nearly 50 guineas were paid in fees to counsel for the Crown, though comparatively few were brought to trial, for after the last 6s. 8d. was stuck to the bill, the solicitors who before were so averse to compromise, were anxious to agree to it, that was, to have no more trouble in the business. The House should hear some of the items of the bill in the present case. After a charge for five fair copies of the brief, were these items:—the attorney-general, ten guineas; the solicitor-general, ten guineas; Mr. Dauncey, eight guineas; Mr. Clarke, eight guineas; Mr. Walton, four guineas; and finally, to keep up the splendor of a crown prosecution, 7l. 13s. to the marshal and crier of the court. It was thus that the expenses of the Crown were swelled out, for the respectable solicitor for the defendant had carried the cause op for half the sum. This was on all defendants a severe, but on innocent defendants, a cruel and wicked impost. In the next session he should move for a committee to inquire into the mode of instituting and conducting these prosecutions.

Mr. Ellice

said, that the system on which the customs and excise acted, of referring all causes to the solicitors who were interested in prosecutions, was bad. The country was obliged to the hon. gentleman for bringing the subject before the House.

The Solicitor General

said, that the hon. gentleman had made a direct attack on the administration of justice. He had compared the Court of Exchequer to the Star Chamber. Now, surely, if the conduct of the learned judges in that court was criminal, the manly way of proceeding against them would be by impeachment. As to the case before the House, it was necessary to state that there was no revenue law more important than the 26th of the king. It went not to attack fraud when discovered, but to cut up the roots of fraud. When it was discovered that the petitioner's cargo did not correspond with his report, it was the duty of the excise to prosecute; and he had no doubt the delay had been occasioned by the circumstance of the petitioner having left the country, so that he could not be proceeded against. The irregularity in the report had been attributed to the coffee being brought in casks, and shifted into bags. If this was the fact, the board of excise observed that it would be mentioned in the log book, and called on him to produce it, but with this demand captain Bryan had not complied. The act gave the customs no authority to remit the penalty, except in the case of an accidental difference between the manifest and the cargo; but this had not been attempted to be made out. The Treasury consented to remit the penalty, in consideration of the circumstances of the case, and the expense the defendant had incurred. With respect to the number of prosecutions instituted within the last year, 760 were not to be deemed very numerous, considering the extent of the revenue to be collected, with the quantity of fraud and smuggling likely to be committed. Then, as to the number of counsel usually employed in exchequer prosecutions, it should be remembered, that the attorney and solicitor-general were sometimes unable to attend such prosecutions, and it was necessary to retain competent professional gentlemen to conduct them.

Mr. N. Calvert

said, that when the character and construction of the excise laws were duly examined, when it was considered that the whole system was in consistent with the principle of our free constitution, the House was bound to inquire into any abuse in a system which was obviously so very liable to abuse. He was an advocate for inquiry, thinking that the statements of the hon. mover had by no means been answered by the learned gentleman.

Mr. Denman

maintained that the hon. mover had not cast any reflections upon the character of the chief baron of the exchequer. For the character of the judge alluded to, he felt the most profound respect, but he must say, that according to his conviction, the opinion of that very learned judge in the case under consideration, was not conformable to law, and had the bill of exceptions been pressed, he had little doubt that the opinion would have been set aside by the superior tribunal of a full court. Into the merits of the revenue code he would not now enter; but he must say that there was something so overwhelming in the weight and influence which the Crown possessed through the revenue laws in the court of exchequer, that the administration of justice there, was quite different from that which prevailed in the other courts. The whole system of the laws of excise and customs, was, in fact, of an odious character; and seeing from a bill passed yesterday, that the just right of a British subject to leave the country if he pleased, was to be subjected to all the restrictions imposed upon fraudulent trading or smuggled goods, he was the more anxious for the revision and amendment of that system. Upon this subject, then, he hoped and trusted that a rigid inquiry would be instituted next session.

Ordered to lie on the table.