§ Mr. D. W. Harvey
rose 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 951 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, 1,000l., 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 100l., 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 10l., 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 20l., which was also negatived, but with an intimation that 30l., 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 55l. to 60l.; so that, although there was no wilful violation of the law, he found he must pay the full penalty of 100l., which is the heaviest, even in cases of determined and premeditated infringements of the statute, or pay these costs; which, with the composition of 30l., 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 953 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 50l. 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 60l. costs demanded, 50l. fees to counsel, and the costs of the jury, the expenses amounted to 130l., and other expenses made it at least 150l. 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 150l. 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 30l., an enormous bill of costs still remained, and the whole expense did not fall far short of 100l. 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 150l., 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 955 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 327l. 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 957 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 General
said, 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. 958 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 30l. ought the crown in such a case to pay all the costs? If a man was inno- 959 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 Waithman
said, 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 200l. for this alleged offence. Afterwards, however, it was compromised for 100l. 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 150l. 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 20,000l. He discovered about that time, that informations to the amount of 2 or 3,000l. 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, 963 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. Tierney
said, 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 10l., then 20l.and receives a hint that he may get off for 30l., and paying the costs; but the costs amount by that time to 56l. He would ask, whether any man in the House, who heard that the expenses had amounted to 56l. before 964 the trial would say that this did not require investigation. The full penalty was only 100l.; and since he was to pay a mitigated fine of 30l. and 56l. 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 General
contended, 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 1,000l. 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 967 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 100l.—[Mr. Waithman intimated that he had spoken of another transaction]—Then there were two cases.
§ Mr. Alderman Waithman
said, 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 100l. and the costs amounting to 150l. 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 General
alluded 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 Waithman
said, the facts, as stated by the hon. and learned gentleman were not correct.
The Solicitor General
maintained 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 100l. 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. Ridley
had 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. Smith
felt 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 1,500l. to 2,000l. 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 30l. which he having agreed to pay, was also obliged to pay costs, amounting to 90l. 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- 969 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 Exchequer
thought 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. Lushington
felt 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.
expressed 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. Harvey
replied. 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|