Commons Sitting of 9 March 1819

BARNSTAPLE ELECTION.
Lord Cliveinformed the House, that the Committee appointed to try the merits of the Barn-staple Election, had determined, "That sir Manasseh Masseh Lopes, bart., is not duly elected a burgess to serve in this present parliament for the said borough: that Francis Molineux Ommanney, esq. is duly elected a burgess to serve in this present parliament for the said borough: that the last election for the said borough, so far as relates to the said sir Manasseh Masseh Lopes is void: that the said petition did not appear to the committee to be frivolous or vexatious: that the opposition to the said petition did not appear to the committee to be frivolous or vexatious."
Lord Clivealso informed the House, that the Committee had come to the following Resolutions:
1. "That it appears to this committee, that sir Manasseh Masseh Lopes, bart. was, by his agents, guilty of bribery and treating at the last election for the borough of Barnstaple, and is thereby incapacitated to serve in parliament at such election. 2. That it appears, by evidence before this committee, that such a general system of corruption was practised at the last election for the said borough of Barn-staple, as to render it incumbent on the committee to submit the same to the most serious consideration of the House, in order that such proceedings may be instituted thereon as the House in its wisdom may think proper to adopt."
The said report, and the minutes of the proceedings of the Committee were ordered to lie on the table; and, on the motion of the noble lord, it was agreed "That Mr. Speaker do not issue his warrant to the clerk of the Crown to make out a new writ for the electing of a burgess to serve in the present parliament for the borough of Barnstaple, in the room of sir Manasseh Masseh Lopes, bart. whose election has been determined to be void, till Tuesday, 16th March."

INSOLVENT DEBTORS ACTS.
Sir James Grahampresented a petition, signed by 1,500 of the principal shop-
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keepers of Mary-le-bone, praying that the Insolvent Debtors act might not be renewed; or that if it was the intention of the legislature to prolong a measure of this kind, care should be taken to protect the honest creditor from the frauds of the dishonest debtor. The hon. baronet said, that there was not one of these petitioners who had not been defrauded by the effect of this act.
Mr. Broughampresented a petition from certain inhabitants of Westminster against the renewal of the Insolvent Debtors act. This petition was, he said, signed by a number of respectable tradesmen, and entitled to attention. He did not, however, at all agree with the petitioners as to the propriety of repealing the act alluded to, while he fully concurred with them in thinking that that act required revision and amendment. He was decidedly of opinion that the principle of this law should be preserved; yet as the execution of that principle required that the court appointed to carry it into effect, should be generally sitting, it was desirable to provide, by every possible means, for the improvement of the machinery of that court, and especially to guard against any facility for the release or encouragement of fraudulent debtors. To these points the committee about to be proposed by his learned friend, the attorney-general, would, no doubt, direct its most diligent inquiry.
The Solicitor Generalsaid, it was the intention of the attorney-general to move for the appointment of a committee to consider this subject with all the petitions concerning it which had been received by the House: and that it never was his object to propose the renewal of the law alluded to in its present state. The attorney-general, he was enabled to say, concurred fully in the opinion just expressed by his learned friend as to the justice and necessity of preserving the principle of the Insolvent act. This, indeed, he found to be the impression of all men of good feeling and sound intellect. All that appeared to be looked for by reflecting men on all sides was, the correction of the deficiencies which were understood to belong to the law in its present shape. Upon an investigation of these deficiencies before a committee, and upon the introduction of any amendments required, he had no doubt that the law would be found to operate with due regard to the fair claims

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of both the honest creditor and the unfortunate debtor.
Mr. Waithmanwished, if a committee should be appointed, that there might be selected, for that purpose, some practical mercantile men, who were acquainted with the subject in all its details. He feared that if some such were not chosen, those who might constitute the committee would not have that sympathy for the situation of unfortunate creditors which the frauds they had experienced called for.
Mr. Brougham, adverting to what had been said by the hon. member for Carlisle, namely, that every one of the petitioners from Mary-le-bone parish, comprising between 14 and 1500 persons, had suffered from the operation of the act, observed, that the hon. baronet must be under a mistake, as a vast number of the signatures to that petition were from persons who were not at all in trade.
Sir James Grahamsaid, that the petition alluded to was signed by many shopkeepers and tradesmen, and that every one of a deputation which had called upon him on the subject, had assured him that he had suffered some fraud through the insolvent acts. But he could go farther, and say that he had never conversed with a man of property upon the subject, who had not complained of being defrauded by these acts. Debtors had indeed become so cavalier in consequence of these acts, that when pressed by any creditor for payment, nothing was so common as to say, "I'll give you a bill at three months on lord Redesdale." But the execution of this law was almost as exceptionable as its provisions. What would the House think of the clerk of the court for carrying this law into effect, being appointed the universal assignee, or treasurer of the debtors released, and of no dividend, as he understood, having ever been paid to any creditors.
The Attorney Generalobserved, that the hon. baronet was completely misinformed with regard to the clerk of the court, who, so far from being the universal, was only the provisional assignee, of the debtors, to which place he was appointed by the learned serjeant who presided in that court, with a view to take care of any property which might be surrendered by, or found in the possession of, any debtors at the time of their release. But the moment the creditors of any debtor appointed an assignee, such property was given up to them by this provi-
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sional assignee, who had, within the last twelve months, received property of that description to the amount of 15,000 l. all of which would, of course, have been expended in prison, if it were not for the Insolvent acts. The learned gentleman concluded with expressing his hope, that the merits of this case would be fully inquired into by the committee, for the appointment of which it was his intention to move.
Mr. George Lambobserved, that undoubtedly great abuses had taken place under the Insolvent acts, but yet he believed that those abuses were not so considerable as some gentlemen appeared to think. He was of opinion, that the law required amendment, while he was satisfied that its principle ought to be preserved. He agreed as to the propriety of postponing all discussion upon this subject until the proposed committee should have made its report, and he hoped and trusted that the consequence of that report would be the adoption of a measure equally calculated to secure the interest of the honest creditor, and to save the honest but unfortunate debtor from un-merited suffering.
Ordered to lie on the table.

PENRYN ELECTION.
Sir C. Burrell Sir C. Burrell moved the order of the day, for resuming the adjourned debate on the motion "That a Select Committee be appointed to inquire further into the existence of certain corrupt and illegal practices which appear to have prevailed in the Borough of Penryn, previous to and during the late election, and to report their opinion, together with their observations thereupon, to the House." The hon. baronet observed, that the minutes of the committee having been entered as read, the House was in possession of the grand features of the case, and it was his intention, if he succeeded in carrying two prefatory resolutions, to move for leave to bring in a bill for the better regulation of this borough. His resolutions would be, "1. That it appears to this House, that there was the most notorious bribery and corruption in the last election of members to serve in parliament for the borough of Penryn; and further, that such practices are not new nor casual in the said borough, having been before brought under the notice of the House, in the year 1807, by a special report from the committee which tried the merits of the petition of John Trevannion

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and others. 2. That it is the opinion of this House, that the said bribery and corruption require the most serious consideration of parliament."
The motion for a select committee was withdrawn; after which the two resolutions were agreed to, and sir Charles obtained leave to bring in a bill "for the preventing of Bribery and Corruption in the Election of Members to serve in Parliament for the Borough of Penryn." The Minutes of the Proceedings of the Penryn Election Committee in 1807 was, on the motion of Mr. Wynn, ordered to be reprinted.

GAME LAWS.
Mr. Brand, in rising, pursuant to his notice, to bring forward his motion for the amendment of the game laws, observed, that the subject was one of the highest importance, inasmuch as it was intimately connected with the interest, the happiness, and moral conduct of the lower orders of society. For the benefit of those members of the present parliament who were not members of the last, he would inform them, that in the year 1816, a report on this subject was made by a very numerous, intelligent, and industrious committee of that House, to the concluding passage of which he requested particular attention. The committee observed, that they would not, at a late period of the session, introduce to the House any measure, on a subject which had so great a variety of bearings; but they cherished sanguine expectations, that a bill, founded on the principles recognised by the common law of the land, that principle being, that the property of game was in the individual possessing the land where it was discovered, might be advantageously resorted to, by which the present system of the game laws might be improved, and the fore they came to the following resolution:— "That all game should be considered the property of the person on whose land such game should be found." He approved entirely of this principle; and he had long wished to bring forward a measure founded on the view of which the committee had professed their approbation. In order to show the efficacy of the plan which he should submit to their notice, it would be necessary for him to enter into some minute details on the subject, which he would however endeavour to make as concise as possible. He was afraid, nevertheless, that in spite of all his endeavours, he should not be
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able to command the attention of the House during all the remarks which he should make to them, because the subject was so extensive, and spread over so large a space of history as totally to defy any summary abridgment. He would, however, as briefly and as perspicuously as possible, call the notice of the House to a subject, which, in the minds of thinking men, yielded scarcely to any that could be brought before them as a question of domestic policy, and of moral interest. It was curious to follow the history of the game laws —to mark their origin, in feudal barbarism, and to trace their growth through various periods, when a false policy was mistaken for wisdom. So early as the 13th of Richard 2nd, there was a statute, establishing a sort of qualification, as necessary to enable a man to destroy game. That qualification was 20 marks a year. But still the statute seemed to proceed on the principle of ratione soli—on the principle, that the property in game belonged to the person on whose land the game was found. This continued to be the law of England for some time; but was in a certain degree abrogated by the operation of the statute of uses, of fines and recoveries, and other legal technicalities, into which he should then decline to enter, inasmuch as the original proprietors found that they had not only parted with their lands, in these fictitious conveyances, but also with the rights which they enjoyed from those lands. They had not only, they perceived, given up their lands, but they found also that they had parted with that indulgence, the indulgence of taking game all over their estates, which their predecessors had enjoyed. The consequence was, that all those statutes had grown up, which encroached on the privileges once enjoyed by the possessors of the land— statutes that were in fact perpetually increasing. The main law of this kind was the 23rd of Charles 2nd, by which the existing qualification was rendered necessary. By the system tolerated by this law, all the personal, all the leasehold property of the country, was excluded from the possession of the game. It seemed that the immediate proprietors, and those who had manors, were not contradistinguished by this law—and the latter finding, by the species of qualification it required, that they were themselves, in many instances, precluded from procuring game, hit upon the system of

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appointing game-keepers, with deputations. Those deputations protected game-keepers from the operation of the game laws, and enabled them to kill game where their masters could not. This system of appointing game-keepers, under deputations, was only applicable to lords of manors, whose servants it effectually screened from the penalty of the law. As constables, appointed to preserve game, he looked upon the situation of game-keeper as a very ancient office. But they were now created under the statute of the 5th of Anne, which altered, in a very considerable degree, the intent and meaning of the 23rd of Charles 2nd. This privilege of appointing game-keepers, with liberty, under these deputations, to kill game where they pleased, was the only manorial right that he desired to attack or to affect. From that period to the present numerous acts of parliament were passed for the purpose of preserving the game belonging to lords of manors; and of enabling the great landed proprietors to resist the accumulating personal property of the country. Such measures were evidently necessary, if it were thought a just principle to resist the demand for a participation in the game of the country, which, in proportion as personal property increased, must become every day stronger. But parliament ought to consider that they were legislating on the law of property and of nature —they ought to reflect whether it was right, when the income of the monied class of the community was equal to that of the whole estated property of the country, that the landed proprietors should deprive the other classes of that enjoyment which their fortunes entitled them to. He would not, at this enlightened period, descant on the ridiculous situation in which the property of the country was placed by the existing game laws, or point out minutely the curious distinctions that were attached to it. It might be enough to say, that, at this time, a man possessed of 100,000 l. a-year personal property, if he had no land could not shoot, or, he believed, possess game. He did not think, if he deposed before a magistrate, that he suspected the first merchant in the city of London of having game in his house, and demanded a search-warrant, in order to examine his premises, the individual being unqualified, that the warrant could legally be refused. What was of still more importance, was, that all the small landed proprietors in the country,
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on whose grounds the game existed, and whose property was damaged by those animals, were precluded from killing game. The consequence of this must be, that those persons, though not directly encouraging poachers in their neighbourhood, were by no means active in putting them down. They were neutralized—they felt like disinterested persons, since the destruction of game by poachers could not harm them. There was a natural feeling in the minds of youth, particularly in this country, to pursue those wild animals which nature had scattered over the face of the earth. Every thing around encouraged them to this amusement —and how did the system of legislation oppose the growth of this feeling? A few words would explain it. They had a system of legislation, by which the personal property of the country was undervalued; they had a system of legislation by which individuals amongst the higher orders of society were excited to encourage a breach of the law; they had a system of legislation which was intended to put down a pursuit to which the best and most useful part of their population was naturally prone; they had a system of legislation, instigating the very men who ought to be most eager to discover the violators of the law, to screen and conceal them. If any mode could be devised for removing such a system, and introducing a more wholesome one, such a plan ought to be favourably received by the House. The practical result of the law was very well known. The returns for the last year proved that a vast mass of the criminals who had been tried by the different tribunals of the country, had been first introduced into prison for offences of one kind or other against the game laws. As to the relative proportion he could not speak accurately, because there had been great delay in making out the returns, which were not even yet in the hands of every member, and because these returns, long as they had been in making, were not, to his knowledge, altogether correct. The cases which he himself knew were, however, sufficient for his purpose; and he would assert, that, if he were called upon to fix what data he would have given to determine the problem, which is the best and the shortest way to demoralize a whole people, he would answer, "take an offence which has nothing in it of disgusting crime, or of moral turpitude; let the habits of the country be favourable, and the

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property of the country not opposed to it, punish it in all its different shades, with the utmost degree of severity, and you will have, with all speed, the very demoralization which you are wishful to effect." The offence of poaching was one that exactly corresponded with the case which he had put; and when it was recollected that young men of active habits and vigorous minds were the parties most generally engaged in it, it was no wonder that, when they were placed by the arm of the law in a situation where contamination was most likely to reach them, they became the desperate and profligate wretches which they were well known so frequently to become.
He could not possibly imagine a system more perfectly calculated to produce such an effect. —If he conceived that the measure he meant to propose would prevent country gentlemen from residing on their estates, and prevent them from pursuing that course of humanization and civilization for which they were so remarkable, he would not, mischievous as the existing system appeared to be, recommend its repeal. But what he had in view, would, at the same time, remove the evil of which he complained, and answer every purpose of the resident country gentlemen. By the common law the game was ratione soli, in the owners soil; and he could not but hope, that, by recurring to the ancient law of the land, the legislature might find means to get rid of the mischiefs which the existing system produced. To prove that the ancient law was as he stated it, the hon. gentleman quoted a passage from the 4th Institute, and also read the preamble to the statute of Henry 7th. Taking the ancient law of the country as the ground-work of the bill which he meant to introduce to the House, he contended that the occupier of the land, on whose property the game was fed and maintained, ought to possess it, unless it was specially reserved to the original owner of the soil, or leased by such owner to some other person for his use and enjoyment. In either case, the lessor received an equivalent for the injury done, and the lessee, in his bargain, was allowed a compensation for the right thus reserved or sold. The lessor would, in that case, feel himself interested in the preservation of game, since he could dispose of it at a greater value, and the lessee would not shut his eyes to the practice of poaching, as he did at present,
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since the landlord who let the premises would make his bargain with reference to the extent of game preserved on the lessee's property. Game would thus become personal property, and the supply would be as regular as that of any other article of consumption. Thus, it would be unnecessary for those who enjoyed the personal income of the country, to encourage the poacher, as they were now excited to do. Why should not a lessee send a hare or a pheasant to market as well as a sheep or a calf? He could not perceive any good argument against his doing so. The only objection that could be offered was this, that game was moveable, and the property in it not so secure as other species of property were. His position was, that game should always be considered the property of those on whose land it was found. By proceeding in this way they would remove from the mind of the lessee the angry feeling, which now made him look on poaching with apathy; and they would also do away the temptation, on the part of men possessed of personal income, to have their wants, as far as game was concerned, supplied by the agency of poachers. He conceived, too, that his system would introduce a certain sense of moral feeling amongst poachers. At present, they were not checked in their course, by any idea that poaching was a crime. But, when they heard individuals, from day to day, speaking of game as their property—property which they might legally dispose of to the highest bidder— they would at length be checked by that natural feeling which deterred men from committing what was termed a robbery. Besides, the reduced price of game would lessen the temptation. Game would still bear its fair value, as fowls, geese, &c. did, but it would not acquire that accumulative value which circumstances now gave to it. Perhaps it would be said, that, under the proposed alteration in the law, game would be procured by theft, whilst less means were in existence for the conviction of the offender. But against this probability, he would oppose the increased moral feeling, and the decreased price, which would operate more powerfully than the right of search which this law now armed them with. A fiscal regulation, that of granting licences, did exist at present. He had no objection to extend it, and to grant a right of searching where unlicensed persons were suspected of
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having game in their possession. He would grant every protection to game, consistent with the law of nature, the property of the country, and the general circumstances of the age in which we lived. He would protect it against black-poachers, those who went armed and disguised —he would protect it against snares and nets —he would protect it against the use of air-guns, which, he understood, were very destructive; in short, he would support every mode of protecting game, consistently with the rights of the rich and the poor, of the landed and the personal property of the country. It might be said, that a small proprietor having a field near a large preserve, would decoy the game into his premises, and, having got it there, would destroy it. In the first place, a preserve ought not to be in such a position; for it was clear, that, if the small proprietor did not destroy the game, the game would materially injure his land. But, when nets, snares, and air-guns, were prohibited, how could the proprietor of a small field destroy his neighbour's game surreptitiously? His efforts could only have the effect of frightening them back to their sacred shelter, where they could procure food in abundance. There were some rights which he admitted that he felt it difficult to interfere with. With respect to royal rights and free warrens, he knew not what to recommend. The last was a right of a curious and complicated nature, the origin of which it was historically difficult to ascertain, granted by the crown to the owner of the soil, and accompanying the soil. Both those privileges he intended to except from the operation of his measure, for he should take especial care not to interfere with any acknowledged real right. He did not touch the real rights of lords of manors; he left him the power of appointing as many preservers and protectors of his game as he chose; he only prevented him from killing game upon the land of his tenants or other men: at present he could not legally do so, nor could any body else delegated by him; and his gamekeeper was punishable, though by a different process. He had forgotten to state earlier, that in considering game as property, it was important to ascertain in what light, as property, it should be viewed, and how an invasion of it should be punished. He would not make the offence larceny; that he thought would be too severe, but he considered that an en-
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actment similar to the 31st of the king, for the preservation of turnips, potatoes, &c. in the ground, might be extended to it. Those articles being, as he considered game to be, the growth of the soil. The penalty of a breach of the act to which he had adverted, was a fine of 20 s., and, in default of payment, imprisonment for a certain period. The penalty which he contemplated was 5l. per head, summarily recoverable before two justices of the peace, and where the penalties amounted to more than 20 l. they might be recoverable by action at law. The details of his measure, as far as related to this part of the subject, had been furnished by a gentleman of the profession in all respects most competent. In the case where an occupier, the game on whose land was not preserved for the proprietor by the terms of the lease, had part of it destroyed by such proprietor, he should propose that the penalty of five pounds per head should be enforced against the trespasser—since, as lessor, he had let the right to the game, as much as any other part of his property, to the occupier or lessee. Where sporting leases were already granted, he would provide, that wherever the lessor had given the right of shooting, every such lease should be considered as imparting to the person to whom it was granted, the right to enter on the premises to which it referred, for the purpose of pursuing, killing, or preserving the game on that particular land, although the land itself was afterwards let to another. It would be for the lessee to make the best bargain in his power. He hoped that the House would allow him permission to bring in his bill, and further details could be stated on a future occasion. He had not been induced to come forward by any inordinate love of legislation, but by a sincere desire to remedy existing abuses: he had not proceeded incautiously, but had consulted the most able, discreet, and good men, upon the subject, and had formed his own opinions and this measure upon their judgment. The hon. gentleman then moved, "That leave be given to bring in a bill to amend the Laws for the Preservation of Game."
Sir John Shelleyargued, that the hon. member would be deceived, if he supposed that his bill would have the effect of rendering the country more moral and less disposed to crime; on the contrary, he was well convinced that poaching, and all kinds of artifices to procure game,

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would be encouraged, inasmuch as new temptations would be held out to offenders, and the danger of detection would be considerably lessened. The consequence of an abandonment of the existing system would be to drive country gentlemen to London, by which the now almost insupportable poor-rates would be augmented, and the agriculturists ruined.
Mr. Bankesadmitted that the present system was liable to many objections; but maintained, that the demoralization (to adopt a word from the hon. mover) would be ten times as great after this bill passed as before it. It was said, that moral feeling and reduced price were to diminish the commission of offences against the game laws; but was it to be supposed that the feelings of the higher orders, and their disgust at crime, would have any operation upon the lower ranks of society? and as to the question of price, it was not possible that the breeder of game could bring it to market at so cheap a rate as the stealer. The thief would always be able to undersell the honest man; so that this part of the project was both wild and absurd. On a former occasion he had stated that he neither agreed with the premises nor in the conclusion of the hon. member for Hertfordshire; and it was a gross contradiction to give a man a right to sell game without communicating to him the right to kill. What common sense was there in such a proposal? There were two or three modes of dealing with the game laws that were quite intelligible, and the first and simplest was, no doubt, repealing them altogether; but what would be the consequence of such a proceeding? It would, as had been said, drive the country-gentlemen to London— it would prevent them from residing on their property, and the injury would be incalculable. The residence of gentlemen on their estates bad, more than any thing else, contributed to the prosperity of the nation, and had enabled her to hold her head higher among the kingdoms of Europe; and if that were checked, if any disgust were excited by the abolition of laudable country amusements, the most dreadful results might ensue. The country would be impoverished, and that indeed would end in the total demoralization of the inhabitants of the provinces. Undoubtedly it was an effectual way to put an end to theft, to put an end to property; and if the game laws were totally abolished, poaching would of course be
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abolished also; but was such a system to be recommended in the present day, and in the present state of feeling? Coming to the enacting parts of the proposed plan, it was obvious that, in order to make it effectual, the penalties must be augmented, and the enforcement of them rendered more strict; yet at the same moment the hon. gentleman multiplied the number of offences, by increasing the facilities, and adding to the temptations. It seemed, however, that the design was, to restore a state of nature as applied to game; what was meant by this he did not exactly know; but he put it to the House how it was possible now to return to any thing approaching a state of nature: if fishing and hunting for a livelihood were to be resorted to, he could inform the hon. gentleman that all the game in Europe would not be found sufficient to supply the wants of one-tenth of the poor population of this kingdom. It might seem paradoxical, but it was quite true, that those laws which confined the pursuit of game to the higher orders, formed one great source of the regularity and industry of the lower orders: if those checks were not put upon the ardour of youth and the prevailing love of the chase, the utmost mischief would arise, and certain demoralization must ensue. Blackstone, though at first censuring little Nimrods, had at last admitted, in another part of his Commentaries, that the game laws were necessary as measures of police to preserve habits of order and industry among the poor. Did the hon. member ever hear of a poacher who was honest and hard working, a good father, husband, or son? Never: yet his measure was intended far the encouragement of that infecting class. The labouring poor would in no way be benefited; the hon. member did not pretend that they would; and by calling game property he would not diminish the desire of taking it. Did the hon. gentleman mean to say, that because of the odium of the existing system among the lower classes of society, the game laws should be repealed altogether? That would, of necessity, be the next step to that now proposed; and the consequence would be, that the poor would resort to the pursuit of game as a means of subsistence; in which event he had no doubt that in two months, all the game in the country would be destroyed. It was well known that such had been the case in France, where, after the revolution, the

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people declared that there should be no game-law, or restriction whatever; and now that country was, in a manner, entirely stript of game. It presented a widely different aspect from what it did within his remembrance, when game of all descriptions were straying in every direction, and crossing even the public roads. The hon. gentleman had admitted, with himself, that the preservation of this species of property was of the highest consequence and importance to those country gentlemen who were attached to its pursuits. The country itself, and the surrounding tenantry, were always more indebted to the ardour with which gentlemen resident on their estates entered into that amusement, for the good name they sustained, the hospitality they practised, the liberality they evinced, and the thousand virtues that emanated from them among their own circles, than to any other cause whatever; and these noble qualities would all be involved in one common ruin by the adoption of that project which the hon. gentleman had been speaking of. That project he should most decidedly oppose. It could only create in the lower orders a disposition to become poachers; amongst the higher orders it would destroy rational amusement; and he was sure it would tend to bring about a subversion of that order, and an abatement of that kindness and attachment, which had so long existed between the higher and the humbler ranks of the people. The existing system, though not perfect, was much better than any project he had ever known recommended as a substitute for it; and the House should recollect, that when once a system was disturbed it was sometimes impossible to restore it.
Mr. Curwenreminded the House, that on a former occasion, when this question was agitated, it Was the opinion of a committee of that House, that it would be much more advantageous to the country in general as well as to sportsmen, that the existing game laws should be done away with altogether. The hon. gentleman who had just down had said, that the bill he was considering was complained of only by poachers; but he must be singularly ignorant of the general feeling prevailing throughout the country, of the marked dislike entertained for those laws collectively and individually, by all classes, if he supposed that that dislike and disgust were confined to one set of men only.
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The hon. gentleman must know very little indeed of public sentiment on this question, if he did not know that the most respectable classes of society held the game laws in the greatest detestation, as opposed to every principle of fairness and of justice. The hon. gentleman had said that those laws were made for the higher orders of society, and not for the lower—he admitted the fact, and that was precisely the reason that he objected to them; he objected to them because they were not just, because they were not equal; he objected to them also because they tended to destroy the very object they were meant to promote. As the laws stood at present, few felt any interest in the preservation of game—none felt any shame or compunction for destroying it; but if fair, equal, and equitable laws were enacted, the public would feel a distinct interest in the preservation of game; it would be then considered disgraceful to destroy it unjustly. Since the law passed against stealing turnips and potatoes in the field, that species of offence was much diminished. The same consequence would follow, he had no doubt, from the proposed change in the game laws; because, from that moment poaching would be considered a disgrace. The hon. gentleman had talked of poachers; he (Mr. Curwen) was willing to admit that many of them were very improper persons, but at the same time he would say that many others who committed that crime were persons of a very different character. So odious were the game laws now held, that to violate them was no longer held disgraceful, and many respectable persons violated the law. The hon. gentleman had referred to the authority of judge Blackstone—a great man —a great authority upon many subjects, but not the best authority on this subject. The statute of Charles 1st, which Blackstone calls an enacting statute, was a restraining statute—it restrained individuals from that which they formerly enjoyed. He hoped the House would put an end to the system which these laws upheld. He was sure if they were repealed, there would be abundance of game, because every man would feel himself bound to preserve it: it would become as sacred as any species of private property, and he was sure the lower orders would feel as little inclined to destroy it, as they at present did to destroy or to take away any article belonging to the farmers in their neighbourhood.

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The game laws were, in truth, unjust and odious laws; they were laws which inflicted much misery and oppression. He hoped the House would adopt some remedy. Equally tyrannical and unjust, they were alike opposed to the true spirit of the British constitution as they were to the true feelings of Englishmen, and they should not be permitted to remain whilst any means existed to accomplish their repeal.
Mr. F. Lewissaid, he was as desirous as the hon. member for Corfe Castle, that the gentry of England should not be induced to leave their country residences, but it appeared to him that his hon. friend's bill was calculated to avert such an evil, since it gave to all owners of land, full, absolute, and undisturbed possession and enjoyment of it. How could this deter any gentleman from residing in the country? What was it that in reality preserved game? Not the game laws, but the liability to action for trespass. In place of this indirect mode of legislation, he wished to see a substantive measure that would go more directly to the object, by making the killing of game, without the permission of the proprietor, a substantive offence. It had been asked triumphantly, whether he who stole turnips or potatoes in a field, did not get them more cheaply than the person who grew and sold them? But he would ask, whether it was the person who stole, or the person who grew that supplied the market. The fair supposition was, that with respect to game, if the proposed measuse were adopted, it would be supplied by the proprietor of the ground, and not as now by the poacher. Did the hon. gentleman forget the great advantage which the man who procured an article by open, fair and honest means, had over him who procured it by means that were dishonest and illegal? or could he suppose that the latter would be able to stand up against the efforts of that industry which the public would encourage, and the law would protect? It had been asked whether they could get rid of a crime, by saying it was a crime? No doubt they could not; but was It not a most improper course of legislation to call those actions crimes which were not so in their own nature? There was no greater crime in selling a pheasant than in selling a chicken, and the laws which punished the one act while they permitted the other, ought not to continue, unless they were necessary to
[950
the enjoyment of property. Feeling that the adoption of his hon. friend's proposed measure would tend to diminish the sum of public misery, and augment the sum of public good, he should certainly give his vote for it.
Leave was then given to bring in the bill.

EXCISE INFORMATIONS FILED IN THE COURT OF EXCHEQUER.
Mr. D. W. Harveyrose to move for certain returns relative to Excise Informations filed in the Court of Exchequer. Since he had been in the House, he had understood that an hon. and learned gentleman on the other side meant to oppose his motion. Had he known of this intention before, he should certainly have felt disinclined to proceed; but the suggestions of very many of his constituents, and his own sense of duty, urged him to pursue the course he had taken. He would entreat the attention of the House, while he offered a few remarks, which, after what he had just stated, he should submit with the utmost deference and reluctance. The notice which he gave of his motion was "for a return of the total number of informations filed in the Court of Exchequer, under the Customs and Excise laws, between the 1st January, 1812, and the 1st January, 1819, distinguishing each year [The hon. member here observed, that in consequence of its having been suggested from the opposite side, that such returns would occupy very considerable time, employ a great number of clerks, and be attended with much expense, he would limit his inquiry to one year only, that being sufficient for the principle of his observations; he then continued]; as also for a return of the results of such informations, distinguishing those settled by verdicts from those settled by compositions; and also of the expenses attendant on such informations." His most material object was, to show, that very large and unwarrantable expenses were incurred, and charged upon the revenue, by the constant recourse had to informations of the kind alluded to; his next object, to show that the solicitors of the customs and excise, by constantly resorting to this species of information, entailed the most heavy and enormous expenses on those who were brought into court; and his third object was, to prove that the general system of proceeding in these cases was the cause

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of a large and unnecessary expense to that great body of the defendants who were pronounced by the verdict of a jury innocent of the offence imputed to them. He would not attempt to illustrate his object by any reasonings of his own, but should proceed to call the attention of the House to one or two cases which had actually occured, and which formed the grounds of his present motion, premising, that they were not of a peculiar character, as calling in question the practice of these courts, but afforded a fair sample of the many hundreds of cases which occurred in the year. The first case was that of a very respectable and benevolent merchant of London who, some time since was induced, from motives of pure benevolence, to advance to a decayed tradesman, formerly in better circumstances, 1,000 l., in order to enable him to open a shop as a retail dealer in coffee. For this friendly and liberal loan, the merchant neither required nor received any other compensation than that which sprung from the consciousness of having performed a good action, and had no other security but his confidence in the tradesman's honour. His name, at that person's request, he suffered to be inscribed over the door; and it was also registered in the excise office, where the licences were granted. Shortly after, the very active and laudable inquiry was adopted into a system of the most nefarious fraud, practised by certain tea-dealers, in regard to an article of such general consumption, that it greatly prejudiced the healths even of the lower orders. Last year, in the course of that inquiry, an information was filed against the merchant, for the first time in his life, for a breach of the revenue laws; and the first communication that he had on the subject was an official letter from the solicitor of the excise. That information, which was laid at 100 l., was not against any deleterious article, but against a powder known by the name of the vegetable powder; which all dealers in coffee were prohibited from selling, and wisely prohibited, because that powder was used for the adulteration of coffee; and if persons engaged in the trade were allowed to have that powder in their possession, they might the more easily mix it with coffee, a fraud which, he understood, it was difficult to detect. A quantity of that article was found in the shop, but it had been long in the possession of the occupier, who had not been aware that it
[952
was illegal to expose it for sale, and it had been always open to the inspection of excise officers. The merchant, on finding that an information had been laid against him, memorialized the board of excise, informing them that he had no connexion with the business, so far from being a principal in it; acquainting them with the reason of his name's being affixed to the door of the shop, confessing the fact of such a quantity of vegetable powder being on the premises; but pleading entire ignorance of any illegality attached to the selling of it by a dealer in coffee, and finally praying that all parties might be summoned before the commissioners of excise, and that if the charges should be made out, such punishment might be meted as they should think the case deserved. In answer to this he received a private circular —a proof that no circumstances, such as his confessing to the fact, or his ignorance of the illegality of his selling vegetable powder, were ever taken into consideration: that circular stated that in no case were informations filed that were not supported by respectable testimony; and among other things, contained this passage: "the petition makes no offer, and as the board has already ordered proceedings, it cannot now stay them, there being no offer to pay fine, or costs, or both." The merchant reiterated his memorial, offering 10 l., which was refused, but in lieu of which no other sum was suggested; he was merely told, that it could not be accepted. He then made an offer of 20 l., which was also negatived, but with an intimation that 30 l., with an agreement to pay costs, would probably be successful. He mentioned this, to show that these informations were very numerously filed, every year for no other purpose than to get heavy costs out of the pockets of parties. The gentleman, on this intimation, was induced to inquire of the solicitor of the excise what would be the probable amount of costs? He was told that they were at that moment from 55 l. to 60 l.; so that, although there was no wilful violation of the law, he found he must pay the full penalty of 100 l., which is the heaviest, even in cases of determined and premeditated infringements of the statute, or pay these costs; which, with the composition of 30 l., amounted to nearly the same thing. The solicitor not condescending to give any details of the costs, the party proceeded to try the case; and that being almost an

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admitted one, it might naturally be presumed that one counsel and one witness would be sufficient for all purposes. But would the House believe, that in order to conduct this most important cause, five of the most grave and learned counsel at the bar were retained? These five counsel were an expense of 50 l. at least. There were the other expenses attending the examination of witnesses, &c.; but all this was not enough, for this momentous cause, they must needs summon a special jury; a common jury might have done, but then only three counsel would have been requisite; a special jury rendered five necessary; no bad method of putting fees into the pockets of legal advisers, at any rate. The special jury, on this trivial case, cost a sum of 17 guineas. Thus, with the 60 l. costs demanded, 50 l. fees to counsel, and the costs of the jury, the expenses amounted to 130 l., and other expenses made it at least 150 l. He would venture to state, that the result of an investigation would show, that in every cause, however easy of proof, or simple in its circumstances, it might be, the costs did not amount to less than 150 l. How the revenue itself was affected by this mode of proceeding was a question that deserved the consideration of the House. If the exertions of five learned counsel were necessary for the crown, the interests of the defendant might require the same number, but that number lie might not have the means of retaining. Had the commissioners of excise rejected the petition at once, they would have acted in a manner more consonant to the principles of justice, and as the commissioners of stamps acted in similar circumstances. Even where the penalty was mitigated to the sum of 30 l., an enormous bill of costs still remained, and the whole expense did not fall far short of 100 l. The mitigation was therefore a nullity in those cases in which the original penalty was of no higher amount. The solicitor of the board of excise had a power equal to that of judge and jury. It would not be difficult to falsify the statement contained in the printed circular, in which it was asserted, that no information was filed, till the evidence that was to support it had been thoroughly sifted and examined. He believed, on the contrary, that the mass of prosecutions arose out of malicious motives and base conspiracies against particular individuals. An instance of this kind had recently come to
[954
his knowledge. A man of despicable character took a range of obscure and dilapidated buildings, in London, for the pretended purpose of becoming a brewer of table beer, and immediately set to work to draw honest tradesmen in life neighbourhood into his snares. He knew that by an act of parliament a penalty was imposed on those who sold treacle or molasses to brewers, and the manner in which this unprincipled miscreant acted was, to call at a tradesman's shop, in the absence of the master, to purchase this article —to make inquiries as to the place the family bought their table beer—to say he would send them a small cask home —and finally, to order the shop-boy to follow him for payment, in order to establish evidence against the tradesman: first, that he sold the article; secondly, that he must have known that he had sold it to a licensed brewer, because his boy had been at his house, and had seen his apparatus there. In this way many respectable tradesmen of London bad been betrayed into an offence against the excise laws. Such a practice was peculiarly reprehensible, because a suit in the court of Exchequer was not the only, or the least oppressive mode of proceeding. The commissioners had a concurrent jurisdiction, and a discretionary authority of mitigating the penalty, which did not belong to the higher court; but the power of the solicitor to the commissioners was of princely extent, and the authority which he exercised without control.
In the case which he had just described, an individual of the worst character had brought within his vortex a number of most reputable citizens. When a man happened to be in this predicament, his doors were generally beset by a number of officers of excise, who never failed to advise him to compromise the matter—to do any thing rather than go to a trial. This was done nine times out of ten for the sole purpose of aggrandizing themselves at the expense of these poor persons. One of the men informed against by this table beer brewer was, in consequence of this advice, induced to present a petition to the commissioners —he was induced to offer as much as 150 l., but this was rejected. At last he took the advice of his friends, screwed up his courage, went into court, when his cause was defended by two able counsel. When the wretch who was the informer came into

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court, the whole system was exposed, and the jury found a verdict for the defendant. There were in society many characters of this description, and yet they had been told that the evidence in these cases was always derived from the purest channels. The result of this case went, he thought, pretty strongly to falsify the position laid down in the letter he had alluded to, namely, that no prosecution was commenced by the commissioners of excise but what was founded and sustained on the most respectable testimony. That was not a case of a peculiar or solitary nature. A meeting was held of persons placed in the same situation with the defendant, and they filled an entire room. And for what purpose were those prosecutions commenced? For the purpose, he would say, of accumulating costs. He begged pardon for trespassing so long on the attention of the House, but he was desirous of mentioning one other instance that had been communicated to him by a most honourable and respectable gentle-man, an attorney in Colchester, who was an alderman of that town. A mariner, residing near Colchester, of the name of Underwood, was the master of a smack called the Good Intent, at times engaged indredging for oysters, but a part of whose employment was the conducting of vessels which had got out of their course along that dangerous coast. A man who was a notorious smuggler by confession and profession, conceived a deadly hatred against this mariner, and openly declared that one day or other he would be the destruction of him. It so happened that this smuggler being out at sea in a boat, which was in a perilous condition, he fell in with the Good Intent, and appealing to the humanity of Underwood, asked from him a boat and some men to take him to the coast. Underwood sent one or two of his men to assist him with a boat to the coast, and unknown to Underwood the villain put some smuggled goods into the boat. No sooner did Underwood reach a port, than in consequence of information given by the smuggler, the boat was seized. This, proceeding ought to have been brought before the local magistrates, who knew all the parties. No such examination however took place, but two informations were filed against this poor man; the first for the purpose of procuring the condemnation of the vessel thus seized, and the next to obtain the penalty of the bond which every master of
[956
a ship must give, that he will not engage in contraband. Now the forfeiture of the penalty in the bond could only follow the condemnation of the boat. Yet two informations were filed against him.—these two informations were made concurrent, and the trial came on in the court of Exchequer. Then it was that this smuggler declared in court, that all this was a preconcerted plan—confessed himself a smuggler—and stated, that he put the smuggled articles into the boat of Underwood with a predetermination to ruin him. The jury, as he trusted a British jury always would under such circumstances, gave a verdict for the defendant. Thus one trial was disposed of; but then came on the other, and the proceedings in it would serve to show the nature of the machinery of the system. There was not a shadow of reason for this second trial. The prosecution on the bond ought only to have followed the condemnation of the vessel.—The defendant was told that he had better discharge the costs, for that was the purpose of the other party in going on with the second trial. However, he resolved on going to trial, and then on going to trial, the counsel for the crown immediately withdrew the case. But unfortunately for the defendant, the crown was never subject to costs. The consequence of this was, that there was saddled on this poor man 327 l. of expenses, and the only consolation given to him, in his ruined state was, to be told that he might prosecute the informer for perjury. He thought he had stated enough to the House to enable them to judge of the extent to which the system was carried. The sum obtained in this way from the people, amounted to many thousands a year—to a sum of which, he should not venture to conjecture the amount. He hoped he had stated enough to the House to justify an inquiry into these transactions—the facts were of such a nature that they challenged investigation. He had to express his regret that the subject had not fallen to some gentleman, whose powers of mind could have done ample justice to it. But some of the greatest blessings conferred on mankind had been obtained through instruments as weak and humble as himself. The hon. gentleman concluded with moving, "That there be laid before this House, an account of the number of Informations filed in the court of Exchequer, under the Customs and Excise laws, between the

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1st of January, 1818 and the 1st of January 1819; also, a return of the result of each Information, distinguishing those settled by verdict from those upon a compromise, with the terms thereof; and farther, the Costs received by the solicitor for the prosecution upon each Information, particularizing the amount paid by the crown and by the defendant."
The Attorney Generalsaid, the hon. gentleman had certainly brought forward charges of* a most serious nature against some men, who had hitherto stood as high in character, as any man in the country. The hon. gentleman attacked by his statement the solicitor of the excise—and he also attacked by that statement the humble individual who had then the honour to address the House—and not only them, but he had attacked the boards of excise and customs—accusing all of them with bringing on prosecutions for the purpose of obtaining costs, and not for the purpose of protecting the revenue. In the court of exchequer he had himself been for the last 5 years, and it had been his fortune to conduct almost all the prosecutions which had been commenced there. He would say to the hon. gentleman,—if he meant to insinuate against him either that he had advised the board out of court, or in that court, to bring any action for the sake of costs, or that he ever considered any thing in the shape of costs, either to himself or to any other person, or was governed by any other view than to suppress the abominable system of smuggling to protect the revenue and the fair trader he took leave to state, in the face of his country and his God, whom he called to witness, that he (the hon. gentleman) stated that which was not true—These were not charges which ought to be lightly brought forward, especially when it was considered that they were not confined to the place where they were brought for-ward, but went out, as they ought, to the whole country. They ought not to be lightly made by a gentleman, because he happened to have been himself legally employed in some of the cases. In some parts of his speech the hon. gentleman had certainly astonished him. He was a professional man—and yet he had stated, that proceedings in a court of justice to recover what was due to the crown ought not to be carried on in a court of record, and before a British jury, but before magistrates in private [no, no! from Mr. D. Harvey.] He had understood the hon.
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gentleman to say, that one of the cases he had brought forward ought to have been tried by local magistrates. Now would the hon. gentleman point out by what law a proceeding on a seizure ought to be decided by local magistrates? The hon. gentleman had talked of informations in the way in which some persons talked of informations ex-officio. Now informations on the part of the Crown were the same as actions at the suit of private individuals. In proceeding against a subject, the king did not complain (it not being consonant to his dignity to do so) but inform against him: the term was changed. "If, said the hon. and learned gentleman, the hon. gentleman trespasses on my lands, I, Samuel Shepherd complain against him. If he trespasses on the king's lands, the king, by Samuel Shepherd, his attorney informs against him." If the hon. gentleman could tell him, how the king could recover any thing from a subject except by information, he would be obliged to him. Mistakes might certainly be made in commencing prosecutions on insufficient evidence, and sometimes the verdict was against the crown. But this he would say, that in the last five years, in which he had practised in the court of exchequer, he was satisfied that the verdicts against the Crown did not amount to one in a hundred. Actions were never instituted on vague suspicions—the informations were never filed, but after affidavits of the fact. In the court of exchequer, the baron's fiat never went out, except the judge read the affidavit; and he had known many instances in which affidavits had been sworn before the learned judge, which he thought not sufficient. He never had had an idea of the extent of human ingenuity in evading the revenue law, till he went into the revenue law. With respect to one of the cases instanced by the hon. gentleman, of a person who merely gave his name to another in a tea concern, and became liable in a penalty in consequence of the fault of that person, what, he would ask, would be said of the law, if the principal in such a case were not to be responsible? It was the duty of the master tradesman, to see that the persons in his employ did not offend against the revenue laws. If, however, a person in such a case came to the board of excise and they said to him, as you have not been intentionally guilty, you should pay only 30 l. ought the crown in such a case to pay all the costs? If a man was inno-

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cent, he ought to pay nothing, but if he had offended against the laws, the officers of the crown only did their duty when they saw that the crown was reimbursed. The hon. gentleman had mentioned another case of a brewer—all he could say was, that he had never heard of the particular case mentioned by the hon. gentleman. But he knew of a number of cases of little brewers being convicted of manufacturing a beverage for the lower orders, of molasses, treacle, paradise seeds, coriander seed, Coculus Indicus, and similar materials. He never, however, had known of one great and respectable house having been engaged in that practice. But though the great traders supplied the beverage as it should be drunk by the labourers, the publicans and others who retailed it, got it mixed with deleterious ingredients by fraudulent brewers; and if these fraudulent brewers were not supplied by chemists and druggists with these ingredients, the thing could not be done. There were no cases into which he was more desirous of going, than those in which those abuses took place. The hon. gentleman had mentioned a case in which the informer was not believed on his oath. He knew not if the exact case was in his recollection, but if he recollected right, it was this:—A person laid an information against two or three tea-dealers, that they dealt in vegetable powder. In this case the whole packages consisting of Dutch pink, sloe leaves, &c. were fortunately put on the table. Three tea-brokers, whom he acquitted of any intention to deceive, said the composition in question was common tea. Being on the table, any juryman could take what he pleased of it. He had called as a witness a very young man, who had been engaged about a year in the manufacture of spurious tea. This young man having an excellent eye, took every one of the samples on the table to the light, and picked out what was spurious. When the tea-brokers smelt it, they all said they never saw any thing like that come from China. When an article was seized and laid on the table he never knew the crown to be worsted; but when otherwise, the crown was often outsworn. In this case from the tea being on the table the witness was believed, but in the case of some coffee which was seized, and for which there was only the evidence of the same witness, the jury gave a verdict against the crown. With respect to what was said as to the employ-
[960
ment of five counsel for the crown—there were undoubtedly five counsel employed —the attorney and solicitor general, two king's counsel; and one junior counsel. It was true that causes sometimes did not take up much time; but there were many which were of a very different description. When the defendant craved mercy, there was often the greatest difficulty in deciding how to act, in order that when the penalty was heavy, the person on whom it fell might be made to feel it, yet not be totally ruined. Many men of the lower orders were engaged in smuggling transactions for the benefit of others, for whom his heart ached. His object in such cases was to get behind the curtain, and to endeavour to feel how, in fixing the sum, he might punish without inducing the merciless master to leave the man to his fate. Frequently seven, eight; and nine hours were consumed in a cause in the court of exchequer. It was impossible that he and his honourable and learned friend, the solicitor-general, could constantly be there. Sometimes his learned friend was in one place, and he himself in another, neither of them in the court of exchequer; and it was necessary that their place should be supplied by able counsel, experienced in revenue proceedings. Of this he was certain, that more counsel were not employed now than had usually been employed. As to the necessity of special juries, in such cases, it was to be observed, that there was a latitude in the minds of men upon these subjects, which rendered many persons, otherwise honest, perfectly disposed to cheat the king, as it was called. The consequence of doing away with special juries would be this, that if men occupied in fair traffic were impanelled, the defendant would be more than half condemned in their opinion, and those who indulged in such practices themselves, ought not to be permitted to judge at all. He denied that it was or ever had been the practice of the court of exchequer, or of any other court in the country, to pay the special jurors more when they found a verdict for the crown, than when they found one for the defendant. Whether he met with the approbation of the hon. gentleman or not, he could state positively, on his own knowledge, to the House, that no prosecutions were undertaken in the court of exchequer, with any other view than that of recovering the penalties annexed by law to the offence of smuggling. As
§

961
to the suggestion of conducting such proceedings before magistrates, it might be advisable in cases of small importance, but the court of exchequer alone was capable of meeting the greater and more difficult, and those in which actual seizures were made.
Mr. Alderman Waithmansaid, he had never in his life risen to offer his sentiments with greater diffidence and reluctance than on the present occasion. He had known the hon. and learned gentleman many years, and he believed his character was composed of the qualities of kindness and humanity, and that he had individually every disposition to soften the rigours of the system his duty required of him to preside over. Most sorry therefore should he be if any thing which might fall from him could be construed into a reflection upon the conduct of the hon. and learned gentleman. Nothing could be further from his mind, and he thought that the intention of the mover of the present motion was also much mistaken when it was so interpreted. The hon. and learned gentleman had vindicated himself unnecessarily, without answering one of the arguments, or noticing one of the cases brought forward against the system as it now existed. If he understood the complaint at all, it was against the system, yet the only answer given was, that the system was such as he had found it. The attention of the House was now turned to the state of the penal laws and the relief of insolvent debtors, the present question embraced a part of the same system, and was equally deserving of consideration. The hon. and learned gentleman himself had given notice of a motion for the relief of insolvent debtors; he would ask, had the Crown any mercy upon its insolvents? Then why not soften the rigour of the law with respect to them also? So convinced had he been of the necessity of inquiry and revision, that he had himself prepared a motion of the same kind, without any knowledge of the intention of the mover of that before the House, to which he thought, without ten minutes speaking, the House would agree. The hon. and learned gentleman maintained that the subject suffered nothing, because such was the state of the law; but he could himself state another' case to show, that the law, or the practice required amendment. He would add, that a person might be dragged into the court of exchequer
[962
without knowing why he was dragged there. He had suffered himself from the arbitrary proceedings of that court, having been charged by a base conspiracy with the sale of an India handkerchief, which one of his men brought out of a ship, and which was seized in his house. The horn and learned gentleman talked of robbing the king, but he would ask him to go into the courts, where probably he would see, as he (Mr. Waithman) did in the course of the last fortnight, one of the judges pull an India silk handkerchief out of his pocket. But to return to the case; he was fined in a penalty of 200 l. for this alleged offence. Afterwards, however, it was compromised for 100 l. on his innocence being proved by collecting the evidence of 20 or 30 clerks, who were dispersed about the country; but the costs had already amounted to 150 l. so that it would have been better for him to have submitted to the fine in the first instance. At least it would have cost him less by 50/. In another instance it was rumoured generally for six months before it reached his ears, that he was exchequered to the amount of 20,000 l. He discovered about that time, that informations to the amount of 2 or 3,000 l. were obtained against him. Yet from that day to this, he could not find out for what cause or by whom the information was given, though it must have been given upon oath. He wa3 visited by some of the law agents for the crown, and solicited to submit and compromise; but he refused, because conscious of his innocence, and determined to meet and refute those charges. The attorney-general, however, whose kindness he acknowledged, was so much. ashamed of the first information that he declined to act upon this. [The attorney-general intimated that it was considered the hon. gentleman's partner had been guilty of the charge alleged, but that he had no part in the transaction.] Mr. Alderman Waithman said, he could trace every inch of the goods, and that not one of them had been contraband. He knew nothing of the cases that had been brought forward by the hon. mover, but he did know that the proceedings of the court of exchequer were attended with enormous expense. If abuses did exist, no gentleman could say that those accounts were not necessary; if the did not exist, then should the government itself come forward and produce the proof. The hon. and learned gentleman,

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instead of adopting such a course, had declined to meet the arguments of the hon. mover, instead of answering the cases that were produced, he had contented himself with the production of others; and had sat down after all without informing the House whether it was his intention, to support or to oppose the motion.
Mr. Tierneysaid, that the angry tone in which his hon. and learned friend had met the clear and perspicuous statement of the hon. gentleman behind him, he supposed was meant as a warning to all who had any complaint to make of public grievances or abuses in that House, to be measured in their language, and to beware of any expression that might by any ingenuity or sophistry, be tortured into a personal aspersion on gentlemen opposite. He could not see that any aspersion had been uttered on this occasion, except it might be on persons connected with the board of excise. On the contrary, the hon. gentleman behind him had said, that the hon. and learned gentleman had always discharged his duty in a manner which was highly creditable to him. For his own part, there was no difficulty in his saying, that there was no man at the bar for whom he had more respect than for his hon. and learned friend opposite. He had listened with great jealousy to the statement of the hon. gentleman, and he conceived that every one ought to listen to such statements with jealousy, because they were exparte; and he had waited patiently to hear what answer would be made. He knew, burthened as the country was with taxes, that the revenue could not be supported without rigorous measures; and therefore he should not have listened to the attack made on the system, unless he had been convinced that it could be carried on without those severities which were complained of. The hon. gentleman who brought forward the motion had stated instances of great unnecessary expense and hardship to individuals, and not one of those cases had been contradicted or explained by his hon. and learned friend. The first case mentioned by the hon. gentleman was one of great hardship. A man pleads guilty, and offers first 10 l., then 20 l.and receives a hint that he may get off for 30 l., and paying the costs; but the costs amount by that time to 56 l. He would ask, whether any man in the House, who heard that the expenses had amounted to 56 l. before
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the trial would say that this did not require investigation. The full penalty was only 100 l.; and since he was to pay a mitigated fine of 30 l. and 56 l. of costs, the individual charged thought, and very naturally, that he might as well stand his trial. As to special juries, he differed in opinion from the hon. gentleman behind him, and thought that in such cases they were necessary; but what he wished to know was, why a man who pleaded guilty should be compelled to go into court, and why five counsel should then be necessary. The next case was one of a different description. The poor youth is entrapped, and the man of the shop inquires into the case and cannot understand how he is liable. He goes, however, to trial, and it is proved that the informer is so injured in character, that the jury find a verdict for the defendant. When such a case was stated, he was at a loss to conceive how any one could deny that the system was bad. The third case was that in which a smuggler had plotted the destruction of another man. The hon. gentleman thought that this case might have been tried in another court; but the attorney-general said it could not; and he therefore took it for granted that it was right to bring it into the court of Exchequer. The man is acquitted of any intention of smuggling, but then there is another information to recover the penalty on the bond. Thus two informations had been tiled, although it followed logically, that if the first was disproved, the other could not be maintained? Was it not strange, that before the issue was known, there should have been two informations filed?—[The attorney-general here made a remark across the table.]—It was very odd if he was wrong, for he only mentioned the circumstances of the case as stated by the hon. gentleman behind him, and which the hon. and learned gentleman had forgot to answer in his speech. It was the duty of the House to see that the severe system which it was perhaps necessary to support should be carried into effect with as little abuse as possible. With this impression, he did not anticipate any objection to the motion. He supposed that it would be granted. [No! from the attorney-general.] Then it was to be understood that the opposition of the hon. and learned gentleman, to the motion increased in proportion as the speeches in its favour multiplied. There had been three speeches for it, and only

965
only one against it; and yet the resistance of the hon. and learned gentleman seemed to be more decided than at first. He could not conceive that it could do harm to a human being. It was merely intended to procure information, and not to fix blame on any one; yet the gentlemen opposite had come down to resist it, provided with every thing but reasons for their resistance. They had all the machinery and apparatus of debate, excepting only the arguments. It was to be hoped, however, that they would condescend in time to show what inconvenience would attend the passing of the motion; for, on the other side, cases of hardship were made out which had received no contradiction. In the minds of reasonable men there could be no possible objection to grant complete information in a case where such hardships occurred, as might lay grounds for the interference of parliament.
The Solicitor Generalcontended, that there were no grounds laid before the House to induce it to assent to the motion of the hon. gentleman. He maintained that the hon. gentleman who made the motion had cast an imputation on the manner in which prosecutions were conducted by his hon. and learned friend. He had distinctly stated, that even when cases got into the court of Exchequer, they were conducted there not with a view to the penalties, but to the accumulation of costs. With respect, therefore, to the warmth displayed by his hon. and learned friend in repelling the accusation with which the mover had charged him, he could not but consider it as justifiable and highly proper, particularly as the solicitors of the excise were branded with an imputation disparaging to their character. The offers of composition never came from the Jaw officers of the Crown, but were always made by the defendants. The right hon. gentleman certainly mistook the tendency of the arguments of his hon. and learned friend, whose entire speech was against the motion. He had come unprepared on this question to the House, and did not, therefore, expect to have the honour of addressing it this night; but he would, however, endeavour to follow the right hon. gentleman in relation to the three cases which he had enumerated. The first was, that of an individual who lent 1,000 l. and his name to a person who was detected selling vegetable power. If the prosecution against him, who ap-
[966
peared the ostensible person, was to be quashed on the ground stated, to what situation would the excise be reduced? No more would then be requisite towards deceiving it, and rendering all its proceedings nugatory, than to have the name of another as proprietor to use when any information was about to be filed.—The next was the case of a brewer, who was said to have entrapped persons by purchasing molasses from them. The defendant in this case, did not prove any illegal combination among the witnesses, but as it appeared that the person who was stated to be the brewer, was not known as such, a verdict was therefore found for the defendant. Would the hon. member contend from one acquittal in a hundred cases, that the commissioners were to blame for proceeding in the other ninety-nine? If this argument was valid, no system could stand. It was utterly impossible for any man who went into a court of justice to predicate, with certainty, how the case would terminate; and if no prosecutions were to take place unless where there was a certainty of conviction, it would be utterly impossible to carry on any prosecution. With respect to the case of the smuggler, which was said by the hon. gentleman to be a great hardship, because two informations had been filed against him, instead of being a hardship, it would in fact turn out to be much in his favour; for as the same evidence would be requisite towards proving in the case of the bond as in that of the information, it followed in case of an acquittal, or of an opposite verdict, that the costs would be much less than if the witnesses were all obliged to attend at two separate trials. He defied the hon. member to prove that offers of composition ever came from the officers of the Crown. On the contrary, defendants finding that the cases were clearly against them, after the best advice, applied frequently that the costs might not be exacted, and that part of the penalty might be remitted. He regretted much that the worthy alderman should have introduced a personal case to the notice of the House. Proceedings, it appeared, had been instituted against the worthy alderman for having illicit goods in his shop, and he asserted that those proceedings had been founded in the grossest perjury. If such were the case, why did not the worthy alderman proceed against those perjured conspirators against his property and character, at law? It was

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true the worthy alderman might not be cognisant of the fact, but his partner, or Some person connected with him in his business, had introduced into his house illicit goods. He did not proceed against the conspirators, but, with the advice of his counsel, he compromised the matter, and actually paid 100 l.—[Mr. Waithman intimated that he had spoken of another transaction]—Then there were two cases.
Mr. Alderman Waithmansaid, he was sorry to interrupt the debate, but the hon. and learned gentleman was misstating the entire transaction. There were two different cases concerning him which the hon. and learned gentleman confounded. In the first a servant had brought into his house, at the request of a person from the Country, a piece of handkerchiefs, which was seized; and he, though he was in the commencement entirely ignorant of the introduction of that article into his premises, paid the penalty of 100 l. and the costs amounting to 150 l. In the second the articles which were laid to his charge would be proved by the affidavits of himself his partners, and servants, never to have Come into his custody. He had memorialized the board of excise to know the names of the informers, which he could never learn.
The Attorney Generalalluded to a second proceeding which had been instituted against a house in trade, of which he said the worthy alderman was a partner.
Mr. Alderman Waithmansaid, the facts, as stated by the hon. and learned gentleman were not correct.
The Solicitor Generalmaintained that in neither of the cases was there any ground for impugning the present system. One of them had been abandoned by the commissioners; because no proof could be adduced; and in the other the penalty of 100 l. was paid, because there were grounds for the information. The reasons therefore which had been urged in support of the motion only tended to show that the present system was not justly liable to the attack which had been made upon it. Feeling that there was thus no foundation for the hon. gentleman's proposition, which went to affix blame in a quarter in which it appeared that no blame whatever was imputable he should certainly dissent from it.
Sir M. W. Ridleyhad yet to learn why the papers moved for should be refused, ft was stated on the other side, and particularly by the hon. and learned attor-
[968
ney general, that the motion imputed blame to the commissioners and others. He had the pleasure of being intimately acquainted with the solicitor of excise; and, on the behalf of that gentleman, he was desirous to have the fullest and most public investigation of all that had taken place. It was impossible for any man to deny that the system of excise was extremely vexatious, and oppressive. He admitted that we could not get out of it at once; but inquiry and publicity would relieve and alleviate in the mean time, and facilitate a final and complete remedy. He would not detain the House longer at that late hour, than merely to state, that the motion should have his warmest support.
Mr. W. Smithfelt that the defence of the commissioners could not have fallen into better hands than those of the two hon. and learned gentlemen opposite; the one universally allowed to perform the arduous duties of his office with fidelity to the public, and kind attention to the defendants: and the other distinguished by his ingenuity and abilities. He was afraid, however, that the solicitor general was not long enough acquainted with the nature of the causes brought on in the court of exchequer to understand one half of the system he was defending. Of the three cases stated by the hon. mover, he knew nothing; but he would state other three within his own knowledge, and in doing this, he must say that he had always found in the treasury a strong disposition to grant every relief to sufferers. The first case was one in which the penalties were from 1,500 l. to 2,000 l. He was consulted in this instance, and strongly urged the defendant to proceed to trial, and to make no compromise. The late solicitor of the excise offered to drop all further proceedings, provided the costs were paid but he (Mr. S.) urged the defendant not to accede to it, and the case finally dropt. If the House had been that of an inferior or small dealer, it must have sunk under such a charge. The second case was brought to him by his late lamented friend sir Samuel Romilly, and was that of a small dealer in malt, in the West of England, who was prosecuted for a small penalty, amounting to 30 l. which he having agreed to pay, was also obliged to pay costs, amounting to 90 l. more. In the bill of costs which he himself had seen, there were charges for briefs to four or five counsel. These were abuses which re-

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quired to be rectified. If the unfortunate defendant was to pay these costs it was a dreadful grievance; if the public was to pay them, it was highly scandalous. The next which he would mention, was a case of the greatest hardship. An ingenious manufacturer had set up in Yorkshire a manufactory of smalts, which, by his ingenuity and labour was about to be brought to a degree of perfection, which would have prevented the necessity for importing that article into this country. The whole of his materials were seized by the excise officers, and notwithstanding his request, removed from his premises; and all were mixed together, and therefore spoiled. The treasury after two hearings were convinced of his innocence, and ordered a total restitution; but every thing was returned incalculably diminished in value. The unfortunate man died of a broken heart, having in vain solicited compensation for the loss of his property The officers were justified in law, but it was a cruel abuse; Summum jus, summa injuriœ. Now these were only a few instances of the many abuses which had crept into the system, and which it was the bounden duty of parliament to remedy. On these grounds he should feel it his duty to vote in favour of the motion.
The Chancellor of the Exchequerthought it would have been unnecessary in him to have addressed the House, considering the very satisfactory manner in which the case had been argued by his two hon. and learned friends, but he could not help saying a few words because the last case mentioned by the hon. gentleman had come under his cognizance as one of the lords of the treasury. That case had no connexion with the present question, as it had not been in the exchequer, but had only been an act of the excise officers, by order of the treasury, in consequence of an apprehension that the manufacturer defrauded the revenue. His ruin had been occasioned by his not having obtained a legal protection for his manufacture. The case was certainly one which he extremely lamented; but it had unfortunately happened that this individual did not previously apprize the excise of the nature of his manufacture, and in the process it was necessary that he should manufacture glass, which involved an infringement of the excise laws. The excise in the whole transaction had confined themselves strictly to the power with
[970
which they had been invested by law. The other two cases had been brought forward by the hon. gentleman in order to contradict the statement of his hon. and learned friend, that the crown never entered into compromise, but they were not in contradiction of that statement. In the one case, the Crown did not prosecute; in the other, it was a compromise on the part of the defendant. He saw no grounds for the motion. In an immense majority of cases, the commissioners had been fully justified in what they did, and he therefore, called upon the House to reject a proposition which tended solely to affix a stigma on the judges, the law officers of the Crown, and the excise laws of the country.
Mr. Lushingtonfelt himself bound to oppose the motion, from a conviction that it would be injurious to the individuals concerned to have their names disclosed, and equally injurious to the public by a great number of clerks being taken from their ordinary duties to draw up the returns. He was of opinion, that much more information would be derived if the hon. member would call for specific information on specific cases. It was quite impossible that the House should go into a formal examination of all the causes which the present motion called for.
Mr. Williamsexpressed his astonishment that the right hon. gentleman should think that there were no grounds for the motion, merely because the facts stated had been disputed. He had listened to all the arguments which had been brought forward, and thought that the only way of getting rid of suspicion on the part of the public would be to grant the motion. If the information sought for on the present occasion was not afforded, the public would suspect that there was some improper motive for withholding it. In order to obviate one difficulty which had been raised, he would suggest that the cases might be given without the names of the persons concerned in them. In the present times he considered every sixpence as of importance to the public, and if a cheaper way of conducting prosecutions could be shown than that which was now adopted, he conceived that consideration alone would be a sufficient ground for the motion.
Mr. D. W. Harveyreplied. He observed, that the attorney-general had said, that not one case in a hundred terminated favourably for the defendant. He would

971
not dispute this, but he was ready to produce twenty verdicts for defendants within the last year, and therefore there must have been the enormous number of 2,000 prosecutions. The attorney-general had said that magistrates had not the power of seizing ships. He would not have the presumption to contend with the hon. and learned gentleman on the subject of acts of parliament; but while an act of parliament existed, empowering magistrates to seize ships of a certain burthen, he must say that they had the power. The hon. and learned gentleman had said, that the cases were brought into the exchequer for publicity; yet they had since been told that such was their tender regard to the defrauders whom they had prosecuted, that their names must not be known. The expenses were enormous, and quite unnecessary, for one half of the cases were compromised. When the proof was clear and complete, why employ five counsel? Compromises, too, were generally entered into, solely in order to avoid the certain ruin to a man's credit that attended his prosecution in the Exchequer.
The House then divided: Ayes, 54; Noes, 72: Majority against the motion, 18.

List of the Minority.

Althorp, viscount

Maule, hon. W.

Brougham, Henry

Macleod, Rodk.

Barham, J. F.

Monck, sir C.

Barnett, James

Moore, Peter

Bernal, Ralph

Newport, sir J.

Calvert, N.

Newman, R. W.

Churchill, lord C.

Phillips, C. M.

Calcraft, John

Philips, George

Clifton, lord

Philips, G. jun.

Dickinson, W.

Power, Richard

Dundas, Thomas

Palmer, C. F.

Davies, col.

Pares, Thomas

Ellice, Edward

Price, Robert

Ebrington, lord

Ricardo, D.

Farrand, Robert

Ridley, sir M. W.

Griffiths, J. W.

Robarts, W. T.

Guise, sir W.

Smith, hon. R.

Grenfell, Pascoe

Sefton, earl of

Honeywood, W. P.

Smith, William

Hume, Joseph

Thorp, alderman

Hurst, Robert

Tierney, right hon. G.

Hutchinson, hon. C.

Wilkins, W.

King, sir John D.

Wilson, sir R.

Kennedy, T. F.

Williams, W.

Lambton, J. G.

TELLERS.

Latouche, John

Harvey, D.W.

Merest, W.

Waithman, alderman

Maxwell, John